Telangana High Court
M/S. Loesche Energy Systems India ... vs Ntpc Limited on 22 April, 2026
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF
TELANGANA
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 13166 OF 2024
22.04.2026
Between:
M/s Loesche Energy Systems India Private Limited
..... Petitioner
And
NTPC Limited & another
..... Respondents
O R D E R:
Respondent - NTPC rejected Petitioner's bid by way of e-mail dated 02.05.2024 which was questioned in this Writ Petition filed seeking Certiorari on the ground that the same is illegal, arbitrary, untenable, violative of principles of natural justice and fundamental rights of Petitioner.
2. The facts of the case are: Respondent - NTPC invited bids from eligible bidders for the 'Contract for Design, Engg, Manufacturing. Supply of New better/efficient Coal Pulv by replacement of existing 8.5E10 Coal Pulverizers at st-1 boiler of NRPC RDM' vide its Invitation of Bids bearing NIT No. 9900258610 ("IFB") with respect to the Tender bearing no. NTPC/USSC-CPG1/9900258610 dated 21.11.2023. In terms of 2 the IFB, the scope of work shall include but not be limited to the supply, erection, testing and inspection of equipment and materials manufacturer's works, packing, supply, transportation, transit insurance, delivery to site, unloading, storage and equipment erection including associated civil and structural works if any. Pertinently, the site of works is situated in Ramagundam, Telangana. The IFB mentions the term 'NRPC RDM in which NRPC is inadvertently misspelt instead of 'NTPC' and 'RDM' is short for 'Ramagundam'.
2.1. As per the IFB, to be eligible for participation in the bidding process, bidders had to meet certain Qualification Requirements (QR) which include both Technical and Financial Criteria which were made a mention in the writ affidavit, in detail. Hence, the same are not reiterated.
2.2. Pursuant to the Tender, Petitioner submitted bid on 27.02.2024, enclosing all the documents, as per the IFB. Thereafter, Respondent addressed e mail dated 03.04.2024 and sought various documents in furtherance of Petitioner's technical bid. Petitioner responded vide its e mail dated 06.04.2024 and provided all necessary documents including but not limited to the audited balance sheet of Loesche UK., proposed coal mill GA drawing, proof that the QCMM had erected/supervised the erection and commissioned/supervised 3 the commissioning against the contract of M/s. Doosan Heavy Industries & Construction Co. Ltd.
2.3. In response thereto, vide e mail dated 10.04.2024, Respondent inter alia sought further clarifications from Petitioner more particularly, as to how the Petitioner fulfilled the Additional Financial Criteria under Clause 6.2.2 of the IFB and also sought documents in support thereof. Vide its e mail dated 13.04.2024, Petitioner issued a detailed response to Respondent, clarifying the queries apprising that it qualifies under Clause 6.3.1 as a "licensor" of QCMM and accordingly licensing agreement dated 31.03.2015 was submitted. Since Clause 6.2.2.1 only refers to "collaborator" or "associate" and does not prescribe any additional financial criteria for a "licensor", the additional financial criteria are not required to be fulfilled by Petitioner. It was also informed that Petitioner by itself qualifies the financial criteria under the tender with an average annual turnover of INR 74.51 crores and a net worth of 452.19% in the preceding financial year.
2.4. Despite these clarifications, Respondent issued another e mail dated 16.04.2024 on similar lines and once again sought supporting documents from Petitioner regarding the fulfilment of additional financial criteria by the OCMM of the Petitioner. It is pertinent to mention here that whenever 4 Petitioner asked for clarifications from Respondent, its response was also mechanical thereby not providing necessary inputs regarding the bid. Petitioner immediately responded to the Respondent's e mail dated 16.04.2024 vide its e mail dated 19.04.2024 and once again, clarified the position that Clause 6.2.2 specifies the additional qualifications only for a collaborator and associate and not for a licensor. In any case, any associate or collaborator is actively involved in the project bid whereas a licensor under a licensing agreement merely provides a license to the licensee for consideration and is not involved in the project actively when compared to an associate or collaborator. Thus, vide the said e mail, this was also brought to the attention of the Respondent.
2.5. However, without even considering the same, vide e mail dated 02.05.2024, impugned in the Writ Petition, Respondent has arbitrarily and unreasonably rejected the Petitioner's bid by merely stating the reason of "Not meeting QR". Due to paucity of time, considering the financial bids were due to be opened on 03.05.2024, the Petitioner attempted to reach out to the Respondent but there was no response. Hence, the Writ Petition.
2.6. It is finally, stated that this Court has jurisdiction to entertain the present Writ Petition as the cause of action in 5 respect of the IFB (Invitation for Bids) arises within the territorial jurisdiction of this Court more so, in view of the fact that the site of works in terms of the IFB is Ramagundam, Telangana as indicated in the IFB as 'NPPC RDM' wherein RDM stands for Ramagundam and therefore the part cause of action is arising with in territorial jurisdiction of this Hon'ble Court.
3. In the counter filed on behalf of NTPC, it is stated, NTPC Limited being the Central Public Sector Undertaking, the entire bid processing is being made through the transparent "Government e Procurement System managed by National Informatics Centre" (hereinafter referred as "GePNIC" portal- online system of Government E-tendering website). The tender has been processed strictly as per the "Procurement and Work Policy of NTPC Ltd.". The various allegations raised by the Petitioner is therefore, misconceived and are an afterthought and therefore denied.
3.1. It is stated further, NTPC had floated the subject tender and the same was called on "OPEN TENDER" by the Central Procurement Group (CPG) of the answering Respondent Corporation and the bidding was done "ONLINE", at GePNIC portal through the well detailed and established procedures which the petitioner is well aware of it. It is submitted that since it was an Open Tender, any agency who possess /meets 6 required Qualifying Requirements (QR) was eligible to participate in the Bidding Process.
3.2. It is stated, petitioner's collaborator M/s Loesche Energy Systems Limited, United Kingdom having Negative financial Networth, does not fulfil the individual tender financial Networth criteria. Accordingly, Petitioner Bidder was declared to be not meeting the Financial Qualifying requirements. During clarification stage before tender opening, bidder's queries with respect to the tender requirements were replied. Accordingly, bidder had submitted the bid. Hence it is evident that full opportunity was afforded to the Petitioner to represent his Case. As per Clause 4.2 of the Invitation to Bid (ITB), submission of a bid not substantially responsive to the bidding documents in every respect will be at the Bidder's risk and may result in rejection of its bid. Further as per Clause 22.3 of ITB, "An affirmative determination of meeting the qualifying requirements will be a prerequisite for further evaluation of Techno- Commercial bid and holding clarification meeting, if any, with the Bidder. A negative determination will result in rejection of the Bidder's Techno-Commercial Bid in which event EMPLOYER will not open the Price Bid of the concerned bidder and his bid security shall be returned." Further as per clause 28.0 of ITB, specifies the "Employer's Right to Accept Any Bid and to Reject 7 Any or All Bids", as Employer reserves the right to accept or reject any bid, and to annul the bidding process and reject all bids at any time prior to award of contract, without thereby incurring any liability to the affected Bidder or bidders or any obligation to inform the affected Bidder or bidders of the grounds for Employer's action. There is no gainsaying that Petitioner has unequivocally accepted the terms and condition of ITB. From the above clauses of ITB, it is clear that, it is not obligatory on the part of the Answering Respondent to provide any ground of rejection of the Bid. However, as petitioner failed to meet the QR an auto-generated communication regarding his non-qualifying for Tender was received by the petitioner. However, the petitioner, who (also by virtue of his Deed of Joint Undertaking), is fully aware that his Collaborator fails to meet Financial Capability related Qualifying Criteria cannot take a different stand in the matter.
3.3. It is stated, petitioner has not approached this Court with clean hands. In similar circumstances, when Writ Petition No. 16442 of 2023 was filed against the NTPC, this Court dismissed the same vide order dated 03.10.2023 and the said order applies to this case. At para 18 and 19, it has been observed thus:
8
" The Apex Court in Jagdish Mandal v State of Orissa and others reported in 2007 (14) SCC page 517 at para 22 observed as under:
" 22.... Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone.
OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: 'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached.;
ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226".
19. Taking into consideration, the aforesaid facts and circumstances and duly considering the averments made by the respondent Nos. 1 to 3 in their counter affidavit in particular, paras 13, 14 15 and 16 and taking into consideration the law laid down by the Apex Court in the judgments relied upon by the learned counsel for the respondents (referred to above) and duly taking into consideration, the law laid down by the Apex Court reported in 2020 (10) SCC page 766 in Shanthi Devi alias Shanthi Mishra v Union of India and others (referred to above) and the view taken by the Apex Court in the judgment dated 12.04.1996 in State of U.P. and others v Harish Chandra and others reported in 1996(9) SCC 309 (referred to and extracted above) and applying the view taken by the Apex Court in Jagdish Mandal v State of Orissa and others reported in 2007 (14) SCC page 517 (referred to and extracted above) and posing the said questions, as indicated in the said judgment to this Court itself, this Court opines that the answers are in 9 the negative, therefore, the present writ petition is dismissed since the same is devoid of merits".
The Hon'ble Apex Court in number of cases upheld the said legal proposition and it has now become a well- established law governing Judicial interference in Tendering process that the Court should not ordinarily interfere in matters relating to tender or contract. Hence, the Writ Petition be dismissed on the basis of the above.
3.4. It is also stated, since the entire tendering process is being done at Raipur, Chhattisgarh, on line mode, no cause of action has arisen within the territorial Jurisdiction of this Court. Further as per Deed of Joint Undertaking executed by Petitioner, the Courts of Raipur shall have exclusive jurisdiction. As per Clause 2.2 of the Special Condition of Contract also Court of Competent Jurisdiction at Raipur is having exclusive jurisdiction.
3.5. This Court vide order dated 03.05.2024 issued directions as extracted under:
"The issue, whether the petitioner has fulfilled all the conditions of the tender notification dated 21.11.2023 issued by the respondent and is eligible for financial bid, is required to be adjudicated after filing of the counter affidavit by the respondent. In the meanwhile, any further action taken by the respondent in pursuance of the tender notification dated 21.11.2023 shall be subject to further orders of this Court."10
It is stated, in compliance with the said order, PO No. 5500044674 dated 29.05.2024 was placed upon L1 Bidder M/s. Schenck Process Solutions India Pvt Ltd, Bangalore, with the stipulation that the Award of PO shall be subjected to the further/final Order (s) of this Court. Accordingly, no claim on account of any reason / ground whatsoever shall be admissible against NTPC for any rescinding/modification of the Contract /PO, made in compliance to the Final Judgment in this regard and any decision of EIC in this regard shall be final and binding on the parties. It is also stated, bidding conditions has the pre- requisite of entering DJU with the Collaborator. Further, Collaborator should invariably be a Holding Company of the bidder as well as should simultaneously comply with the requirement of being a 'Qualified Coal Mill Manufacturer' which has been specified under tender technical Qualifying Requirement at Clause 6.1.1. Thus, the bidder's contention to set aside the applicability of additional financial Qualification Requirements for licensor, in spite of submitting the DJU on non-judicial stamp paper so as to fulfill the Technical Qualification Requirements is devoid of merit. 3.6. It is stated, bid of Petitioner was not rejected unreasonably. Rather the compliance of tender technical Qualifying Requirements, submission of DJU to fulfil technical 11 Qualification Requirements based on the Collaborator, compliance of financial requirements for bidder and the compliance of additional financial Requirements for Collaborator with whom bidder/petitioner has executed the DJU as the Executant Partner was evaluated in the tender. Accordingly, bid of petitioner was rejected and a system generated e mail dated 02.05.2024 was sent to petitioner for rejection of bid.
4. In the counter filed on behalf of Respondent No.2, it is stated, on 03.06.2024, they received information from the on line portal of Respondent No. 1 that it was the L1 bidder for the subject Tender and it was awarded the Tender vide Purchase Order dated 29.05.2024, after having met all the specifications under the QR as per the instructions under the Tender. They met the QR under Invitation for Bid ("IFB"), also qualified the financial criteria under Clause 6.2, furnished performance securities for ten per cent (10%) of the total contract price in compliance with Clause 31 of the Instructions to Bidders ("ITB").
4.1. It is also stated that the present matter pertains to the award of tender by a Public Sector Undertaking. It is a settled position of law upheld by the Hon'ble Apex Court in a catena of judgments that there are inherent limitations in exercise of the power of judicial review in matters pertaining to 12 tenders and contractual powers of Government bodies. It is stated, the right to choose cannot be considered to be an arbitrary power. In the present case, Petitioner did not meet the qualification requirements under the IFB, as such, Respondent No. 1 rightly rejected the bid of Petitioner. This respondent draws attention to Clause 28 of the ITB stipulates as follows:
" Employer's Right to Accept Any Bid and to Reject Any or All Bids:
Employer reserves the right to accept or reject any bid, and to and the bidding process and reject all bids at any time prior to award of contract, without thereby incurring any liability to the affected Bidder or bidders or any obligation to inform the affected Bidder or bidders of the grounds for Employer's action".Clause 28 clearly states that Respondent No. 1
reserves the right to accept or reject any bid, and to annul the bidding process and reject all bids at any time prior to the award of the contract, without incurring any liability to the affected bidder or bidders or any obligation to inform the affected bidder or bidders of the grounds for employer's action. 4.2. It is stated, petitioner alleges to have qualified under the technical criteria via Route 3 under Clause 6.1.3 of the IFB viz. Subsidiary of a Qualified Coal Mill Manufacturer. Petitioner also alleges to have filed a Deed of Joint Undertaking with the Qualified Coal Mill Manufacturer. Here, it is to be seen, 13 as per Clause 6.2 of the IFB, there were Additional Financial Requirements to be met by the Collaborator of Petitioner. As is clear from the counter filed by Respondent No.1, Petitioner did not meet the Additional Financial Requirements stipulated under Clause 6.2 of the IFB. In fact, as per the counter of Respondent No. 1, the net worth of the Collaborator of Petitioner is on the negative side. Since Petitioner did not meet the QR laid down under the IFB, Respondent No.1 rightly rejected the bid of Petitioner. Petitioner cannot, at this point of time, take a stand that it could change its Collaborator and enter into a fresh Deed of Joint Undertaking to meet the aforementioned financial requirements.
4.3. It is stated, the Hon'ble Supreme Court had unequivocally held in a catena of decisions that it is not for the Court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. The Court is only concerned with the manner in which those decisions have been taken. The Court does not sit as a court of Appeal but merely reviews the manner in which the decision was made. The action of Respondent No.1 cannot be regarded as arbitrary action as there was proper reasonable criteria by which petitioner's qualification was rejected. The terms of the 14 invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. 4.4. It is further stated, this Court under Article 226 of the Constitution would not be justified in interfering with commercial transactions in which the State is one of the parties except where there is substantial public interest involved and in cases where the transaction is mala fide. The scope of judicial review in matters pertaining to tenders and contracts by Public Sector Undertakings is limited to cases where it is clearly established that there was a mala fide action on the part of the Respondent or there is substantial public interest involved. It is respectfully submitted by the Answering Respondent that the present case does not qualify both the parameters and s such, the present Petition is liable to be dismissed.
5. Petitioner filed rejoinder denying the averments of the counter and reiterating the averments of the writ petition. It is well-settled that constitutional courts can interfere in the decision making process of the tender authority when the decision is arbitrary and irrational. Reliance is placed on the judgments in Jagdish Mandal v. State of Orissa 1, Monarch Infrastructure (P) Ltd. v. Ulhasnagar Municipal Corpn. 2. It is 1 (2007) 14 SCC 517 2 (2000) 5 SCC 287 15 also stated, the order dated 03.10.2023 in Writ Petition No. 16442 of 2023 relied on by Respondent No.1 is in fact, in favour of Petitioner. Although the facts in the said case are different to the facts in the present case, the Court in the said case did interpret the bid conditions and came to the conclusion that petitioner therein did not fulfil the qualification requirements. However, in the present case, Petitioner fulfilled all the Qualifying Requirements stipulated in the IFB.
6. Sri P. Venugopal, learned Senior Counsel assisted by Sri M. Abhinay Reddy, learned counsel for petitioner contends that the action of Respondent No.1 in rejecting petitioner' bid for non-compliance with clause 6.2.2. is arbitrary, irrational and contrary to the tender conditions. He further argues that the entire tendering process is being done at Raipur, Chattisgarh, on line mode, however, relying on the judgment in Shanti Devi v. UOI 3, contends that irrespective of the fact that seat of the authority concerned is outside the territorial jurisdiction of the High Court, even if a small fraction of cause of action arises within its jurisdiction, it has jurisdiction. In that regard, reliance is also placed on the 3 (2020) 10 SCC 766 16 judgment in Gupta Freight Carrier v. Executive Director 4 and MRT Signals Ltd. V. UOI 5.
6.1. Another argument put forward by learned counsel is that reserving rights clause in tender does not absolve the authority from furnishing valid reasons. Based on the judgment of the Hon'ble Delhi High Court in PKF Sridhar and Santhanam v. Airports Economic Regulatory Authority of India 6, learned counsel submits that such clauses do not mean that the authority should not have valid reasons to justify its conduct.
7. On the other hand, learned counsel for Respondent No.1 Sri Ch. Sidharth Sharma primarily takes objection on the maintainability of the Writ Petition as the writ of certiorari is not maintainable against the NTPC order. He places reliance on the judgment of the Hon'ble Apex Court in Central Council for Research in Ayurvedic Studies v. Bikartan Das 7, Radhey Shyam v. Chhabi Nath 8. Secondly, it is argued, this Court does not possess the territorial jurisdiction to adjudicate the present dispute. Reliance is placed on the judgment of the Hon'ble Supreme Court in State of Rajasthan v. M/s Swaika 4 2022 SCC On line Bom 706 5 2024 SCC On line Cal 5593 6 2022 SC On line Del 122 7 2023 SCC On line SC 996 8 (2015) 5 SCC 423 17 Properties 9. Thirdly, learned counsel, on the scope of judicial review in matters pertaining to tender, argued that the scope is limited and the terms of the invitation for bids cannot be open to judicial scrutiny and interpretation and understanding of the tender conditions given by the Employer should be second- guessed by courts under judicial review. Learned counsel tries to take cue from the judgments of the Hon'ble Apex Court in Silppi Constructions Contractors v. Union of India10, Jagdish Mandal's case (supra), JSW Infrastructure Ltd. v. Kakinada Sea Port 11, and Galaxy Transport Agency v. New J.K. Roadways 12.
8. Heard M/s King Stubb & Kasiva, learned counsel for Respondent No.2.
9. Upon consideration of the pleadings, material on record and the submissions, this Court finds that the primary relief sought is issuance of a Writ of Certiorari to quash the rejection email dated 02.05.2024 issued by Respondent No.1 in the course of a tender process. Whereas the contention of respondent No.1 is writ of certiorari is not maintainable. 9 (1985) 3 SCC 217 10 (2020) 16 SCC 489 11 (2017) 4 SCC 170 12 (2021) 16 SCC 808 18
10. It is settled position of law that a writ of certiorari is issued to quash decisions of judicial or quasi-judicial authorities where such authorities act without jurisdiction, exceed jurisdiction, commit an error apparent on the face of the record, or violate principles of natural justice. The scope of certiorari does not ordinarily extend to purely administrative or contractual decisions unless such decisions are shown to be vitiated by arbitrariness, mala fides, or violation of statutory provisions.
11. In Central Council for Research in Ayurvedic Studies v. Bikartan Das (supra), the Hon'ble Supreme Court held as under:
" 53. This Court explained that a court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy if a superior court were to rehear the case on the evidence and substitute its own finding in certiorari.
54. In Yakoob v. K.S. Radhakrishnan [Yakoob v. K.S. Radhakrishnan, 1963 SCC OnLine SC 24 : AIR 1964 SC 477] , P.B. Gajendragadkar, C.J., speaking for the Constitution Bench, placed the matter beyond any position of doubt by holding that a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals. The observations of this Court in para 7 are worth taking note of : (SCC OnLine SC para 7) "7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors 19 of jurisdiction committed by inferior courts or tribunals :
these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised...."
12. From the above, it is to be understood, while exercising extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari, the High Court does not exercise the powers of Appellate Tribunal and it does not review or reweigh the evidence upon which the determination of the inferior tribunal 20 purports to be based and the writ of Certiorari can be issued if an error of law is apparent on the face of the record and it being a high prerogative writ, should not be issued on mere asking. Further, the Writ of Certiorari is issued for correcting errors of jurisdiction, as and when an inferior court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it.
13. Further, the Hon'ble Supreme Court in Silppi Constructions Contractors v. Union of India laid down the law that calling for a tender is purely an administrative decision and it need not contain any reasons and that it is neither a judicial nor a quasi-judicial order. Learned counsel for petitioner in his Note, relied on the aforementioned judgment in Silppi Constructions Contractors' case (supra) wherein the Hon'ble Supreme Court held at Para 19 that the Court being the guardian of fundamental rights is duty bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, the Counsel for the Petitioner is only relying on the judgment in part and the entire para 19 wherein the Hon'ble Apex Court clearly held that Government Contracts must not be easily interfered with is extracted herein below:
"This Court being the guardian of fundamental rights is duty bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint 21 while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clearcut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The Courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the government and public sector undertakings."
14. In the present case, the impugned action arises out of a tender process initiated by Respondent No.1 - NTPC Limited, a Public Sector Undertaking, under NIT No. NTPC/USSC- CGP1/9900258610 dated 21.11.2023. The process of evaluation of bids, determination of technical and financial eligibility, and rejection of non-responsive bids is essentially a contractual and administrative function carried out in terms of the Invitation for Bids and Instructions to Bidders. The rejection e mail dated 02.05.2024, which is sought to be quashed, is not an adjudicatory order passed by a judicial or quasi-judicial 22 authority after hearing parties, but is an outcome of evaluation of bids in a commercial tender process governed by contractual terms such as Clause 6.1, Clause 6.2.2, Clause 28 of the ITB and other provisions of the bidding documents. The said action does not involve determination of rights in a lis between parties in a judicial manner, but is a decision taken by the tendering authority in exercise of its contractual discretion. In the light of the same, as rightly contended by learned Counsel for Respondent No.1, writ of certiorari cannot be entertained against the impugned order.
15. Secondly, the question is whether the High Court possesses territorial jurisdiction to adjudicate the present dispute. Admittedly, The Tender was floated at Raipur in the State of Chattisgarh; petitioner is a resident of Chennai, Tamil Nadu; they submitted Tender, in respect of a work at Ramagundam in the State of Telangana, hence, they cannot file this Writ before Telangana High Court in as much as, no "fact" has yet arisen in Telangana to give rise to cause of action in Telangana. The Hon'ble Supreme Court in M/s Swaika Properties (supra) has categorically held that once the Hon'ble High Court lacks territorial jurisdiction, the High Court cannot entertain the Writ Petition. In the said Judgment, the property 23 which was the subject matter of litigation was situated in Rajasthan. Merely because a Notice of acquisition of the said property was served at Kolkata, it was held, that per se does not enable the Kolkata High Court to assume jurisdiction and entertain the Writ Petition. In this case also, no fact per-se has arisen in the State of Telangana so that Petitioner can seek the indulgence of this Court to entertain the Writ Petition.
16. Though learned counsel for petitioner sought to place reliance on the judgment of this Court in Writ Petition No. 16442 of 2023, the ratio laid down therein is inapplicable inasmuch as petitioner therein who participated in the tender floated by NTPC is an entity based in State of Telangana itself, whereas petitioner herein is a Chennai-based entity. Further, learned counsel for Respondent No.1 filed a memo enclosing thereto the Special Conditions of the Contract, Condition No. 2.2 of which stipulates that 'the contract shall be governed by and interpreted in accordance with the Laws in force in India. The Courts at Raipur shall have exclusive jurisdiction in all matters arising under the contract. Also, Clause 9 in Deed of Joint Undertaking says that any dispute that may arise in connection with the Deed of Joint Undertaking shall be settled as per arbitration procedure / rules mentioned in the contract documents. This Deed shall be construed and interpreted in 24 accordance with the Laws of India and the Courts of Raipur shall have exclusive jurisdiction. This clause again reiterates that the Courts at Raipur shall have exclusive jurisdiction in the mater. In that view of the matter, it is to be concluded that this Court lacks territorial jurisdiction to entertain the Writ Petition.
17. Thirdly, it is to be seen, the scope of judicial review in matters pertaining to tender is limited and the terms of the invitation for bids cannot be open to judicial scrutiny and interpretation and understanding of the tender documents given by the employer should be second-guessed by courts under judicial review. In Jagdish Mandal's case, the Hon'ble Apex Court held that a Court before interfering in tender or contractual maters in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or the decision taken by the authority is mala fide or intended to favour some one;
Or Whether the process adopted or decision made is so arbitrary and irrational that the Court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached".
(ii) Whether public interest is affected?
18. It has been held by the Hon'ble Supreme Court in JSW Infrastructure Ltd. and New J.K. Roadways (supra) that interest of the person who issued the tender has to be protected and nothing beyond. In matters of contract, the Courts must 25 also not interfere where such interference will cause unnecessary loss to the public exchequer. No doubt, the tender in question arises out of contractual domain involving commercial decision of a Public Sector Undertaking. The scope of judicial review in such matters is limited to examining the decision-making process and not the merits of the decision. The law laid down in Jagdish Mandal's case clearly holds that interference is warranted only when the decision is mala fide, arbitrary to the extent that no reasonable authority would have taken such decision, or where public interest is affected. Even in TATA Cellular v. Union of India 13, the Hon'ble Supreme Court have laid down the parameters of interpretation and the one stated by petitioner does not fit in those parameters.
19. In the present case, petitioner, admittedly, participated under Route-3 under Clause 6.1.3 and submitted Deed of Joint Undertaking dated 24.11.2023. The DJU, which forms part of the tender documents, specifically treats the associated entity as Collaborator and binds both the parties jointly and severally. Respondent No. 1 has evaluated the bid on the basis of the DJU submitted by petitioner. The contention of Petitioner that its QCMM is a 'licensor' and not a 'collaborator' 13 (1994) 6 SCC 651 26 cannot be accepted in view of the fact that Petitioner has itself executed DJU in prescribed format and relied upon such document for qualification. The attempt to re-characterize the relationship after submission of bid is clearly untenable and amounts to altering the basis of qualification after participation.
20. Further, Clauses 6.2.2.1 and 6.2.2.2 clearly stipulate Additional Financial Criteria for Collaborator/Associate for bidders under Clause 6.1.3. Once Petitioner has submitted DJU and projected its QCMM as Collaborator for the purpose of qualification, compliance with Clause 6.2.2 becomes mandatory. The material on record establishes that Collaborator's net worth is negative and does not meet the requirement of not less than 100% or even 75% of paid-up share capital. The plea of Petitioner that it independently satisfies financial criteria is also of no assistance, as the tender conditions specifically require compliance with criteria applicable to Route-3 including collaborator requirements. The terms of the tender cannot be rewritten by the Court.
21. It is also relevant to note that contract has already been awarded to Respondent No.2 vide Purchase Order dated 29.05.2024 and Contract Agreement dated 11.07.2024, and substantial steps have been taken including furnishing of bank 27 guarantees. Interference, at this stage, would cause prejudice, delay in execution of a project of national importance and adversely affect public interest. In view of the above, this Court is of the considered opinion that petitioner failed to establish any arbitrariness, mala fide or illegality in the decision-making process of Respondent No.1.
22. Accordingly, the Writ Petition is dismissed. No costs.
23. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 22nd April 2026 ksld