Andhra Pradesh High Court - Amravati
Kuku Automotives vs State Of Andhra Pradesh And 7 Others on 8 August, 2019
Author: M. Satyanarayana Murthy
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE THE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.112 OF 2019
ORDER:(Per Hon'ble Sri Justice M. Satyanarayana Murthy) This writ petition is filed under Article 226 of the Constitution of India, by Kuku Automotives, represented by its authorized representative K.P. Rao, against the State Government, its officials and M/s New and Renewable Energy Development Corporation of Andhra Pradesh, M/s. Kinetic Green Energy and Power Solutions Limited and Commissioner, Transport Department, who are arrayed as Respondent Nos. 5 to 7 respectively, claiming relief of Writ of Mandamus declaring the action of the respondents particularly, the 2nd respondent in awarding tender No E01/656/NAKFDC/APSCCFC/2017 dated 15.11.2018 to the 6th respondent as illegal, arbitrary, and in violation of the principles of natural justice und consequently direct the 2nd Respondent to award tender No. E01/656/NAKFDC/APSCCFC/2017 to the Petitioner.
The petitioner questioned the arbitrariness on the part of the respondents in respect of 'Expression of interest issued by all the respondents for supply of the battery operated e-Autos (e-vehicle) to the Safai Karamacharies under NSKFDC and for maintenance for 3 years and establishing the service centres in all districts form agencies, manufacturing companies as a matter of objective of APSCCFC Ltd (Andhra Pradesh Schedule Caste Co-operative Finance Corporation Limited) by providing financial assistance for creating income generating assets to the poor schedule caste, households for social and economic development.
2 HACJ &MSM,J WP_112_2019 The petitioner is a manufacturer of two and three wheeler electric vehicles. When the 2nd respondent/APSCCFC has issued tender No. E01/656/NAKFDC/APSCCFC/2017 dated 15-11-2018 'for the Expression of Interest', inviting Request for Proposals from reputed manufacturers for supply of power autos 7500 vehicles, the petitioner and 6th respondent along with others participated in the tender. It is contended that tender was issued in favour of the 6th respondent rather than the petitioner, even though the petitioner was meeting with the specifications of the "Expression of interest', equally competent and eligible as per the norms of MSME (micro, small, medium Entrepreneurs). It is also submitted that the petitioner also quoted lowest bid amount, whereas, the 6th respondent/M/s. Kinetic Green Energy and Power Solutions Ltd has quoted the highest bid amount when compared to the other petitioner.
It is the case that, on earlier two occasions, the respondents invited the petitioner for Request for proposal (RFP) as per the of Norms of and CMVR (Central Motor Vehicle Rules) & MSME (Micro small Medium Entrepreneurs), but the said request for proposal was not proceeded further, since the petitioner has protested against the respondents about the opening of technical BID, with merits and demerits and the purchase order was processed by the respondents. In result the above said two tenders were cancelled dishonestly and the lack of confidence on the part of the respondents 1 to 7 about the technical proposals and the financial proposals.
It is submitted that the petitioner participated in the tender process and submitted the request for proposal without furnishing the required document of tender i.e. "Homologation Certificate", which is the process of 3 HACJ &MSM,J WP_112_2019 certifying the vehicles for roadworthiness as per specified criteria laid by Government for all vehicles made or imported in the country. The tests ensure that the vehicle matches the requirements in terms of emission and safety and road-worthiness standards as notified under the Central Motor Vehicle Rule - 1988. The petitioner promised that the same Homologation Certificate shall be submitted at the time of agreement i.e., after opening of technical and financial BID. But the 6th respondent was awarded purchase order and declared as a Bidder from ARAI (Automotive Research Association of India) with respect to the specifications of the tender notified by the 2nd respondent. The main financial proposal is that the bidder with lowest quote should be declared as L1. It is submitted that the petitioner has quoted Rs.2,42,000/- per E-Auto, and the 6th respondent quoted @ Rs.2,44,000/- per e-Auto and in fact 6th respondent has quoted Rs.2,000/- higher than the petitioner. But the 2nd respondent declared the 6th respondent as the selected bidder with purchase order violating the Basic and primary technical and financial proposals of the tender.
The 6th respondent has also participated in a tender called by the respondents 1 to 5 in East Godavari, Kakinada and supplied e-Autos 50, which were not in accordance with the technical specifications of the tender notified, as a result, all the vehicles were kept idle, un-operated in the yards as they are not fit and competent for pickup Garbage from house to house. The object and aim of the Andhra Pradesh Scheduled Caste Cooperative Finance Corporation is not at all served to the relevant society of Scheduled Cast people. Thus, the concept of procurement of power autos by the government for the Economic development of "SafaiKaramacharies' is totally failed due to the opportunity provided to the 6th respondent as a Bidder, knowingly about the failure, incompetent 4 HACJ &MSM,J WP_112_2019 and disqualified back ground of the 6th respondent, not only being or the present tender and in the past two cancelled tenders. Thus, the respondents 1 to 5 and 7 have acted illegally, arbitrarily and in contravention of the conditions of the tender, ignoring the petitioner and allotted the work to the 6th respondent.
It is specifically contended that, it is apparent, obvious and conclusive that the respondents 1 to 5 and 7 are preplanned to select the 6th respondent to be declared as a Bidder in the tender and accordingly they have set the specifications of the tender which are nothing but the exclusive specifications of' 6th respondent. Hence the circumstances abruptly show that the respondents 1 to 6 and 7 are bias minded, intended to help the 6th respondent considering him as a declared Bidder.
Respondents 1 to 5 and 7 also have placed the purchase order to the 6th respondent for supply of 7500 e-Autos i.e., though the same is not eligible for supply power autos ignoring the equally competent petitioner violating the specifications of the tender. The 6th respondent permitted to supply the above said number of e-vehicles, the object and the policy of the government to promote the economic development in the community of the scheduled caste by providing a power Auto with a Lithium Battery to every person is not served. On the other hand, it also causes huge loss to the Government. Thus, the act of the respondents 1 to 5 and 7 is illegal and arbitrary.
It is also contended that, Homologation Certificate produced by the 6th respondent does not fit for the required vehicles with reference to specifications of the tender. Despite the evaluation committee has recommended that the certificate is valid and the same was disclosed to 5 HACJ &MSM,J WP_112_2019 the Bidders by the Principal Secretary of 1st respondent. The Petitioner further state that as per the rules and regulations of MSME, 20% of the tender need to be given to the Participants under MSME. But the petitioners though they are covered by norms of the MSME, they are disqualified and left with no priority for the benefit of the above said reference of 20% and thus, the respondents have committed an illegality in accepting the tender of the 6th respondent, who is not qualified to participate in the bid, more particularly, for supply of e-Autos and requested to grant the relief stated supra.
Respondent No.6 filed counter affidavit denying material allegations, inter alia, contending that respondent No.6 is M/s. Kinetic Green Energy and Power Solutions Limited, engaged in manufacturing of e-Autos. Respondent No.6 denied the contention that this petitioner and Respondent No.6 are maintaining the same standard to comply the "expression of interest", but it is partly true and partly untrue. It is contended that the petitioner is not having technical qualification, as such their bid has been rejected on the said ground and in such circumstances, the petitioner cannot state now that he has completely met with the standards and complied with the specifications of the tender. The Kinetic Group and its promoters Firodia family were the first to start automotive business in independent India in partnership with Bajaj family and are in the business for the last 70 years and sold more than 5 crore vehicles including famous brands like kinetic luna and kinetic Honda and they are on the road till date. The petitioner did not meet any specifications as required by the Government in terms of tender notifications, since the petitioner was declared disqualified and his bid was thrown out at the 6 HACJ &MSM,J WP_112_2019 stage of technical bid and thereby, petitioner is not entitled to claim tender.
It is also contended that, respondent has participated and submitted request for proposal along with Homologation Certificate issued by Automotive Research Association of India as per requirement of the request for proposal and accordingly, 6th respondent was found successful bidder, considered and awarded purchase order. It is also contended that the petitioner's bid was disqualified on the ground that it has not qualified in terms of the tender notification and the question of opening financial bid does not arise. The petitioner made several unnecessary allegations against the 6th respondent having lost its tender in the bid at the first technical stage itself. As the petitioner has lost its bid, it is creating unnecessary and speculative litigation only to cause inconvenience to the government and also to the 6th respondent. The tender was called by Kakinada Smart City Corporation Limited and the tender was to provide total mobility solutions for the city of Kakinada. The respondents have created charging stations where land was allocated to them and also supplied vehicles as and when requested by Kakinada Smart City. The vehicles are also registered and used regularly for their intended use and the respondents also have their authorized dealer and service staff to support the entire operation and thus complied strictly with the requirements of tender.
The Homologation Certificate issued by Automotive Research Association of India confirms with request for proposal conditions as well as Central Motor Vehicles Act, 2018. In fact, MSME 20% quota is to be given to the participants who are technically qualified and deposited tender 7 HACJ &MSM,J WP_112_2019 processing fee and further kenetic is MSME. It is specifically contended that, when the petitioner was technically disqualified, there was no obligation to inform about bid processing and even otherwise the results were declared online about technical qualification and disqualification on Andhra Pradesh e-procurement portal. The 6th respondent is successful bidder and having all the qualifications that are required as per the tender notification, the petitioner is not entitled to claim any right in accepting his tender, being a disqualified tenderer and prayed for dismissal of the petition.
Since the question involved in W.P (PIL) No.29 of 2019 and the present petition are identical with regard to cancellation of tender No E01/656/NAKFDC/APSCCFC/2017 dated 15.11.2018; the second respondent filed counter in W.P (PIL) No.29 of 2019 and orally admitted the same in the present petition, the petitioner also filed a reply to the counter in this petition. Therefore, the allegations made in the counter filed by the second respondent are extracted hereunder:
The petitioner filed reply to the counter filed by respondent No.2, denying material allegations, while contending that vide G.O. Ms. No. 34 dated 20-04-2018, Government has decided to replicate West Godavari Model in all other 12 districts in engaging power autos (e-vehicles Semi Hydraulic) duly adding the following conditions;
1. Battery warranty is for 3 years instead of 6 months;
2. Vehicle/Maintenance is for 3 years instead of 6 months. That as per the DPC 4 agencies were finalised i.e. 1. Entron Automobiles, Chinn Tadepalli, Andhra Pradesh; 2. Goodwill High Precession Works, New Delhi, 3.
Saidatta Enterprises, Nalljarla, 4. TSM Engineering Pvt. Ltd., Dhar, MP
8 HACJ &MSM,J WP_112_2019 through a tender for supply of power autos through different corporation with a rate of Rs 1,16,750/- (Vehicle rate Rs. 1,99,000+attached speaker pen drive Rs.1750/-) with three years battery warranty. The choice of the agency is by the beneficiary. That vide G.O.RT. No. 629 dated 25-05-2018 some modifications were made to G.O.Ms. No. 34 dated 20-04-2018, indicating that other corporation can also be allowed to supply rest of 2500 power autos. While the matter stood thus 2nd respondent wrote a letter to the Secretary to the Government, Rural Water Supply and Sanitation, PR&RD, Department asking for issuing of necessary clarification on the expression of willingness to supply Kinetics' E-Autos. That on 27-07-2018, Secretary to the Government, Rural Water Supply and Sanitation, PR&RD, Department, in turn wrote a letter to the 2nd Respondent, stating that it can get the power autos supplied from the manufacturers who are having prior automotive experience with ARAI/ICAT duly following the same conditions, specification and rate as it is being implemented in West Godavari as per the guidelines issued in G.O. RT. No. 629 dated 25-05-2018.
On 03-08-2018, 2nd Respondent has called for tender for supply of e- Autos. That on 08-08-2018, specifications in the tender were changed and the last date for submission of the bid was on 16-08-2018. A total of 26 bids were submitted, which included the Petitioner as well as the 6th Respondent. That on 06-09-2018 a letter was addressed by the 2nd Respondent to the all the bidders cancelling the tender for the following reason "... In addition to that, during the physical inspection of e-Autos displayed by the Bidders. It is found that the specifications mentioned in RFP are not matching with the physical display of e-Autos vehicles. Upon opening of Financial Bids, the price is varying between 9 HACJ &MSM,J WP_112_2019 Rs. 2.12 Lakhs to Rs.2.82 Lakhs which is on very high side. The beneficiaries under this programme are coming from poor background and the higher loan amount required for e-Autos scheme will make the programme un viable."
On 05-09-2018, Government vide G.O.RT No. 1060 dated 05-09-2018 revised guidelines were issued including that power autos should have lithium battery. That 07-09-2018 another tender was floated, but the same was cancelled considering G.O.RT. No. 346 dated 02-11-2018, has moved from district wide tendering process to state wide tendering process. It is contended that, the tender process was designed to favour the 6th Respondent and Petitioner had homologation certificate on 12-08-2016 and have previously supplied e-cart vehicles. In fact, petitioner had better specifications than that of the 6th Respondent. Petitioner has eco clean E-cart certification and the Rechargeable batteries used in electric vehicles include lead-acid ("flooded", deep-cycle, and VRLA), NiCd, nickel-metal hydride, lithium-ion, Li-ion polymer, and, less commonly, zinc-air and molten-salt batteries. All the bidders during the tender process have earlier participated in the tender process and 2nd Respondent is aware of the specifications they possess, that inclusion only one type i.e. Lithium ion is arbitrary, illegal and only to favour 6th Respondent. Even otherwise 6th Respondent homologation certification is not in accordance with the tender document and prayed to grant the relief stated supra.
During hearing, learned counsel for the petitioner and respondents reiterated their contentions urged in their respective affidavits.
Considering rival contentions, perusing the material available on record, the point that arises for consideration is:
10 HACJ &MSM,J WP_112_2019 "whether a direction be issued to Andhra Pradesh Scheduled Caste Cooperative Finance Corporation/2nd respondent to cancel the work order placed with the 6th respondent in awarding tender No. E0I/656/NAKFDC/APSCCFC/2017 dated 15.11.2018 and allot the same to this petitioner?"
P O I N T:
It is an admitted fact that the 2nd respondent called for "Expression of Interest" for supply of the battery operated e-Autos (e-vehicle) to the Safai Karamacharies under NSKFDC and for maintenance for 3 years and establishing the service centres in all districts form agencies, manufacturing companies as a matter of objective of APSCCFC Ltd (Andhra Pradesh Schedule Cast co-operative Finance Corporation Limited) by way of providing financial assistance for creating of income generating assets to the poor schedule caste, households for social and economic development. The 2nd respondent issued tender E0I/656/NAKFDC/APSCCFC/2017 dated 15.11.2018 for "expression of interest" from reputed manufacturers for supply of power autos i.e. 7500 vehicles in number.
In pursuance of the tender referred above for the expression of interest issued by 2nd respondent, the petitioner along with the 6th respondent participated in the process and the petitioner quoted Rs.2,42,000/- per e-Auto, whereas, the 6th respondent quoted Rs.2,44,000/- per e-Auto. Thus, the quotation of this petitioner is Rs.2,000/- less than the amount quoted by the 6th respondent per each e-Auto. The tender was finalized in favour of the 6th respondent, while rejecting the tender of this petitioner.
11 HACJ &MSM,J WP_112_2019 One of the terms and conditions of the tender is that the bidder must produce Homologation Certificate, confirming the technical specifications mentioned in the document, as per Subclause (2) of Clause 5 of Pre-qualification tender. Subclause (2) of Clause 5 of Pre-qualification tender reads as follows:
"Participating bidders must have Homologation Certificate conforming to all the technical specifications mentioned in this document (Proof of certificate) should be attached in e- procurement tender portal."
A bare allegation is made in Paragraph No.6 of the affidavit filed along with this petition that the petitioner participated in the bidding process without furnishing the required document i.e. Homologation Certificate, but promised that the same will be filed at the time of agreement i.e. after opening of technical and financial bid, whereas, the 6th respondent submitted its Homologation Certificate, as admitted in paragraph No.11.1 of the affidavit, but the petitioner contended that Homologation Certificate produced by the 6th respondent does not fit for the required vehicles with reference to specifications of the tender. Despite such disqualification by the Evaluation Committee, the tender of the 6th respondent was accepted.
In view of the admitted facts stated above with reference to Paragraph No.6 of the affidavit, the petitioner did not comply with the tender conditions i.e. furnishing Homologation Certificate as per Sub- clause (2) of Clause 5 of Prequalification Conditions to participate in the tender. When the petitioner did not comply with the requirements of pre- qualification in the tender, rejection of his tender for non-compliance of requirements cannot be said to be arbitrary, illegal and violative of 12 HACJ &MSM,J WP_112_2019 fundamental rights. On this score itself, the claim of this petitioner is liable to be rejected without discussing anything further.
Though the petitioner contended that Homologation Certificate submitted by the 6th respondent is not in compliance with the requirements, it is not substantiated by making any specific allegation as to how the Homologation Certificate furnished by 6th respondent is not in compliance with the requirements. Even a copy of Homologation Certificate by 6th respondent is not placed on record. In the absence of any material, it is difficult for this Court to accept the contention of this petitioner that Homologation Certificate furnished by the 6th respondent is not in compliance with the requirements of the tender specification, thereby, the tender awarded in favour of the 6th respondent cannot be cancelled on this sole ground and the work order cannot be given to this petitioner, as he admittedly did not file Homologation Certificate during bidding process, but promised to file it at the time of agreement i.e. after opening technical and financial bids.
A tender is issued by the 2nd respondent, calling for "expression of interest" for supply of e-Autos, prescribing certain qualifications in the tender itself. The tender is only an offer made to the public, inviting quotations. When the petitioner is disqualified in the technical bid itself for its failure to produce Homologation Certificate, the petitioner is disentitled to claim any right for accepting the tender, being a disqualified tenderer. When the petitioner being a disqualified tenderer, has no right to claim any relief.
The jurisdiction of Court under Article 226 of Constitution of India is limited and such power can be exercised only certain circumstances which 13 HACJ &MSM,J WP_112_2019 are enumerated in "West Bengal Central School Service Commission v. Abdul Halim (Civil Appeal No.5824 of 2019 dated 24.07.2019)" wherein the Apex Court reiterated the following principles of judicial review.
"It is well settled that the High Court in exercise of jurisdiction Under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision and calls for intervention Under Article 226 of the Constitution of India.
In any case, the High Court exercises its extraordinary jurisdiction Under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. To pass orders in a writ petition, the High Court would necessarily have to address to itself the question of whether there has been breach of any fundamental or legal right of the Petitioner, or whether there has been lapse in performance by the Respondents of a legal duty.
The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities.
In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.
The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.
However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support
14 HACJ &MSM,J WP_112_2019 of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect."
Yet issuance of Writ of Mandamus is purely discretionary and the same cannot be issued as a matter of course.
The petitioner also claimed consequential relief of Writ of Mandamus, but such relief cannot be granted as a matter of course as held in "State of Kerala v. A.Lakshmi Kutty1", the Hon'ble Supreme Court held that a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus.
In "Raisa Begum v. State of U.P.2", the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature 1 1986 (4) SCC 632 2 1995 All.L.J. 534 15 HACJ &MSM,J WP_112_2019 created by the provisions of the Constitution or of a statute or some rule of common law.
Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions.
In "State of U.P. and Ors. v. Harish Chandra and Ors.3" the Apex Court held as follows:
"10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition."
In "Union of India v. S.B. Vohra4" the Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.
In "Oriental Bank of Commerce v. Sunder Lal Jain5" the Supreme Court held thus:
"The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing 3 (1996) 9 SCC 309 4 (2004) 2 SCC 150 5 (2008) 2 SCC 280
16 HACJ &MSM,J WP_112_2019 therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances."
When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows:
"Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or
17 HACJ &MSM,J WP_112_2019 fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective."
(emphasis supplied) In view of the law declared by the Apex Court in the judgments referred supra, one of the pre-condition is that the petitioner must have an interest or right to claim such relief. In the facts of the present case, the offer made by the petitioner in response to tender No E01/656/NAKFDC/APSCCFC/2017 dated 15.11.2018 calling for "expression of interest", the petitioner was disqualified for his failure to furnish Homologation Certificate, which is a pre-requisite condition to participate in the tender in terms of Subclause (2) of Clause 5 of tender condition. When the petitioner is disqualified, he has no right to claim any such direction, on this ground alone, the petitioner is disentitled to claim writ of mandamus declared by the Courts stated above.
Normally, the Court shall not interfere with the tender process and the Apex Court in Municipal Corporation, Ujjain & ANR. Vs. BVG India Ltd. and Ors6 and held that, only when a decision making process is so arbitrary or irrational that no responsible authority proceeding reasonably or lawfully could have arrived at such decisions, power of judicial review can be exercised. However, if it is bona fide and in public interest, the Court will not interfere in the exercise of power of judicial review even if there is a procedural lacuna. The principles of equity and natural justice do not operate in the field of commercial transactions. Wherever a decision 6 Civil Appeal No. 3330 of 2018 arising out of SLP (Civil) No. 11967 of 2016] dated 27.03.2018 18 HACJ &MSM,J WP_112_2019 has been taken appropriately in public interest, the Court ordinarily should exercise judicial restraint. When a decision is taken by the concerned authority upon due consideration of the tender document submitted by all tenderers on their own merits and it is ultimately found that the successful bidder had in fact substantially complied with the purpose and object for which the essential conditions were laid down, the same may not ordinarily be interfered with.
In The Silppi Constructions Contractors vs. The Union of India and Ors7, the Apex Court reiterated the same principles with regard to maintainability of writ petition in tender of contractual matters, relying on the catena of judgments of Supreme Court, more particularly, Tata Celluar v. Union of India8, wherein the Apex Court laid down six guidelines which are as follows:
(1) The modern trend points to judicial restraint in administrative action. (2) The Court does no sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.
Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. 7 Special Leave Petition (Civil) Nos.13802-13805 of 2019 dated 21.06.2019 8 (1994) 6 SCC 651 19 HACJ &MSM,J WP_112_2019 The Apex Court also referred to various earlier judgments in Raunaq International Ltd. V. I.V.R. Construction Ltd9, Air India Limited v. Cochin International Airport Ltd10, Karnataka SIIDC Ltd v. Cavalet India Ltd11, Master Marine Services (P) Ltd v. Metcalfe & Hodgkinson (P) Ltd12, B.S.N. Joshi & Sons Ltd v. Nair Coal Services Ltd13, Jagdish Mandal v. State of Orissa14 and Michigan Rubber (India) Ltd. V. State of Karnataka & Ors15 and finally concluded that the power of the Court to interfere with contractual matter of tender is limited.
Keeping in mind the principles laid down in Tata Celluar v. Union of India (referred supra) and reiterated in The Silppi Constructions Contractors vs. The Union of India and Ors (referred supra), we would like to advert to the facts of the present case once again.
Issue of tender No E01/656/NAKFDC/APSCCFC/2017 dated 15.11.2018 for supply of 7500 e-Autos is not in dispute and specifications were also prescribed in the notification itself. The said notification also prescribed certain pre-qualification and Subclause (2) of Clause 5 of Pre- qualification condition of tender which is extracted above is relevant for deciding the present controversy.
According to Subclause (2) of Clause 5 of Pre-qualification condition of tender, participating bidders must have Homologation Certificate conforming to all the technical specifications mentioned in the document as Proof of certificate and should be attached in e-procurement tender portal. Admittedly, the petitioner did not furnish Homologation Certificate 9 (1999) 1 SCC 492 10 (2000) 2 SCC 617 11 (2005) 4 SCC 456 12 (2005) 6 SCC 138 13 (2006) 11 SCC 548 14 (2007) 14 SCC 517 15 (2012) 8 SCC 216 20 HACJ &MSM,J WP_112_2019 along with the documents and made a promise to furnish the same at the time of agreement i.e. after opening the technical and financial bid (vide paragraph No.6 of the affidavit). Failure to possess pre-qualification condition of the tender i.e. Homologation Certificate, as required by the terms and conditions of the tender notification, itself disqualifies the petitioner to participate in the further technical and financial bid. When the petitioner was found ineligible in terms of Sub-clause (2) of Clause 5 of Pre-qualification tender condition, inviting proposals, debars the petitioner to claim any relief, as the petitioner failed to furnish Homologation Certificate, which is a pre-condition.
In the facts of the judgment in The Silppi Constructions Contractors vs. The Union of India and Ors (referred supra), an identical question arose regarding eligibility criteria which we extracted in the earlier paragraphs and ultimately, the contractors were found ineligible to file writ petition. The Apex Court concluded that, when the petitioner is not a MES enlisted contractor, he is ineligible and if such contention is accepted, it would be a travesty of justice if enlisted contractors could be a firm or individual, etc and further held that it is not the purpose of the criteria and dismissed the petition.
By applying the principle laid down in The Silppi Constructions Contractors vs. The Union of India and Ors (referred supra), we find that the petitioner has no right to claim any relief, for the reason that, he was not eligible to participate in the tender. Apart from that, the petitioner did not comply with the requirement of furnishing Homologation Certificate (vide Subclause (2) of Clause 5 of Pre-qualification tender condition) and the petitioner has no right to claim any relief, in view of the law declared by the Apex Court in catena of decisions referred supra, more particularly, 21 HACJ &MSM,J WP_112_2019 by applying the principles laid down in The Silppi Constructions Contractors vs. The Union of India and Ors (referred supra). On this ground alone, the writ petition is liable to be dismissed.
As discussed in the earlier paragraphs, we hold that the petitioner was ineligible to participate in the tender and rejection of his tender at the stage of technical bid for failure to furnish Homologation Certificate is sufficient to reject the contention of the petitioner. When, the petitioner is found ineligible and in the absence of establishing that 6th respondent as not eligible, on account of alleged failure to meet the requirements of furnishing Homologation Certificate is not a ground to cancel the contract awarded in favour of the 6th respondent and to accept the tender of this petitioner. Hence, we have no hesitation to hold that the petitioner is disentitled to claim any relief as sought and no direction need be issued to the 2nd respondent, consequently, the writ petition is liable to be dismissed.
In the result, writ petition is dismissed.
Consequently, miscellaneous applications pending if any, shall stand dismissed.
_______________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:08.08.2019 SP