Rajasthan High Court - Jaipur
Galaxy Prime Private Limited vs Rajasthan State Road Development And ... on 26 August, 2025
Author: Sameer Jain
Bench: Sameer Jain
[2025:RJ-JP:33426]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 7522/2025
Kshitiz Kumar Choudhary S/o Shurya Pal Choudhary, Sole
Proprietor Of M/s Kshitij Kumar Choudhary, Aged About 40 Years
Resident Of A-33-34, Sundar Van, Opposite To Khichar Hospital,
Nawalgarh Road, Sikar (Rajasthan).
----Petitioner
Versus
1. Rajasthan State Road Development And Construction
Corporation Ltd., Through Managing Director, Having Its
Regd. Office- Setu Bhawan, Opposite Jhalana Doongari,
Jaipur-Agra Byepass, Jaipur-302004.
2. Deputy General Manager-Ii, Rajasthan State Road
Development And Construction Corporation Ltd., Having
Its Regd. Office- Setu Bhawan, Opposite Jhalana
Doongari, Jaipur-Agra Byepass, Jaipur-302004.
3. Project Director-Unit Jhunjhunu, Rajasthan State Road
Development And Construction Corporation Ltd., Unit-
Jhunjhunu, Having Its Registered Office At 2/55, Housing
Board, Near Central School, Jhunjhunu, (Rajasthan).
4. M/s Galaxy Mining And Royalties Pvt. Ltd., Through The
Director, Having Its Registered Office At 701, Ganga
Heights, Bapu Nagar, Tonk Road, Jaipur (Rajasthan).
5. Mandeepa Enterprises (A proprietorship firm) through
General Manager, Bhairav Patel, G-1, Tulip Garden,
Dashadrone, Rajarhat Main Road, opposite SBI Bank,
Kolkatta - 700136
6. M/S Green Star Minerals, through its authorized
signatory, situated at plot no. 4, 1st floor, opposite Nidhi
Kamal Bajaj Showroom, near Pink Sq. Mall,Govind Marg,
Janta Colony, Raja Park, Jaipur (Raj.-302004)
----Respondents
Connected With S.B. Civil Writ Petition No. 7531/2025 Galaxy Prime Private Limited, Through Its Authorised Signatory Sh. Sandeep S/o Sh. Ramavtar, Having Its Registered Office At P. No. 8, Vaishali Nagar Enclave Yojna, Vaishali Nagar, Jaipur (Rajasthan).
----Petitioner Versus
1. Rajasthan State Road Development And Construction Corporation Ltd., Through Managing Director, Having Its Regd. Office- Setu Bhawan, Opposite Jhalana Doongari, Jaipur-Agra Byepass, Jaipur-302004.
2. Deputy General Manager-Ii, Rajasthan State Road Development And Construction Corporation Ltd., Having Its Regd. Office- Setu Bhawan, Opposite Jhalana (D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (2 of 20) [CW-7522/2025] Doongari, Jaipur-Agra Byepass, Jaipur-302004.
3. Project Director-Unit Iv Jaipur, Rajasthan State Road Development And Construction Corporation Ltd., Unit- Iv Jaipur, Having Its Registered Office At Setu Bhawan, Opposite Jhalana Doongari, Jaipur-Agra Byepass, Jaipur- 302004 (Rajasthan).
4. Ridhi Sidhi Housing Pvt. Ltd. Through Its Director, Haing Its Registered Office At 312, Ganpati Plaza, M. I. Road, Jaipur (Rajasthan).
----Respondents For Petitioner(s) : Mr. R. B. Mathur, Sr. Adv. assisted by Mr. David Mehla Mr. Chandra Vikram Singh Mr. Sandeep Singh Shekhawat For Respondent(s) : Mr. Vigyan Shah, AAG with Mr. Yash Joshi Mr. Sankalp Vijay Mr. Priyam Agarwal Ms. Tanisha Pant Mr. Ritika Naruka with Ms. Manisha Agarwal Mr. Deepak Mishra Mr. H. V. Nandwana Mr. Sanjeev Sogarwal Mr. Lakshay Pareek HON'BLE MR. JUSTICE SAMEER JAIN Judgment REPORTABLE Reserved on: 07/08/2025 Pronounced on: 26/08/2025
1. In the present batch of writ petitions, the scope of the controversy involved, albeit not limited to but is broadly and predominantly defined by the challenge made against the impugned order dated 09.05.2025 passed in the second appeal(s) so preferred by the petitioners hereby, whereby the learned appellate court dismissed the appeal of the appellants therein, vis- à-vis the controversy regarding E-NIT dated 24.03.2025 bearing (D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (3 of 20) [CW-7522/2025] no. 536/2024-25 for selection of bidder for collection of user fee on the basis of competitive bidding through e-procurement basis on Sikar-Jhunjhunu-Loharu and Jaipur-Kuchaman-Nagpur BOT road for a period of one year. Consequently, considering the fact that the writ petitions warrant adjudication on common questions of law and fact; with the consent of learned counsel appearing on behalf of all the parties, S.B. Civil Writ Petition No. 7522/2025 titled as Kshitij Kumar Choudhary vs. RSRDC and Ors., is being taken up as the lead case. It is cautiously clarified that any discrepancies in the present batch of writ petitions, pertain purely to the factual narratives contained therein and not vis-à-vis the questions of law to be determined by this Court; the instant judgment shall be applicable on both the petitions connected herein/henceforth on mutatis mutandis basis. SUBMISSIONS BY PETITIONERS:-
2. At the outset, learned counsel appearing for the petitioners submitted that the petitioner was a sole proprietor engaged in the field of toll collection, royalty collection, and other allied contractual activities. The present petition is filed assailing the arbitrary action of the respondents, who are instrumentalities of the State within the meaning of Article 12 of the Constitution of India and were, therefore, amenable to the writ jurisdiction of this Court.
3. It was further submitted that the controversy in question related to a tender process initiated by the respondents through issuance of an information notice along with the terms and conditions, namely E-NIT No. 536/2024/25 dated 24.03.2025, (D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (4 of 20) [CW-7522/2025] inviting applications for selection of a contractor for user fee collection at certain BOT roads. A pre-bid meeting in pursuance thereof was scheduled on 07.04.2025, the bids were to be submitted by 16.04.2025, and the same were to be opened on 17.04.2025.
4. Learned counsel contended that the respondents subsequently issued modifications and additions to the original terms and conditions of the impugned E-NIT by way of corrigendum. Vide corrigendum No. 1 dated 04.04.2025, the qualification criteria for eligible bidders was amended to provide that a bidder must have a minimum net worth of 10% of the Annual Potential Collection (APC) amounting to Rs. 3.3552 Crores; and vide corrigendum No. 2, the submission of hard copies of the documents was extended till 17.04.2025 at 16.00 hours. It was further submitted that the petitioner submitted its bid in respect of the aforesaid E-NIT along with the requisite documents and mandatory fee, strictly in the prescribed manner, as contemplated under the Request for Qualification-cum-Request for Proposal issued by the respondents.
5. In this backdrop, it was contended that, to the shock and surprise of the petitioners, the respondents, in sheer derogation of the terms of the tender document, proceeded to declare the bid of another bidders as 'responsive', despite having categorically recorded that the said bidder had not submitted the hard copy of the requisite documents. Consecutively, a tender summary report was issued. It was urged, that the said action of respondents, was not only arbitrary and contrary to the provisions (D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (5 of 20) [CW-7522/2025] of the Rajasthan Transparency in Public Procurement Act, 2012 (hereinafter referred to as 'RTPP Act') but was also in violation of Clause 2.8 of the Invitation for RFQ-cum-RFP. Learned counsel further placed reliance upon Clause 3 (more specifically Clause 3.2) of the Invitation for RFQ-cum-RFP, which prescribed the requisites for the test of responsiveness, and submitted that the respondents had failed to adhere to the same.
6. It was then submitted that as per Clause 3.2.1(d) of the bid document, the requisite documents were mandatorily required to be submitted in hard copy before the stipulated deadline and the same had to correspond with the documents submitted online. Learned counsel contended that this essential mandate was completely bypassed by the respondents while declaring the bid of the private respondent as responsive.
7. To assail the said irregularity, the petitioner preferred first appeal under Section 38 of the RTPP Act, which, however, came to be dismissed vide order dated 01.05.2025 in a summary manner. Thereafter, the petitioners preferred second appeal, placing reliance upon the judgment passed in SBCWP No. 8396/2025 titled as M/s Devdashratha Associates vs. RSRDC and Ors., wherein the Principal Seat at Jodhpur had restrained the respondents therein from finalizing the financial bids during the pendency of the proceedings. Despite such reliance, the second appeal of the petitioner was also dismissed vide order dated 09.05.2025.
8. Learned counsel consecutively submitted that during the pendency of the litigation, the respondents issued the Letter of (D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (6 of 20) [CW-7522/2025] Acceptance in favour of respondent No. 4 on 11.05.2025, thereby awarding the contract in question. It was urged that the said action was manifestly arbitrary, violative of the provisions of the RTPP Act as well as the tender conditions, and suffered from non- application of mind. On these grounds, learned counsel contended that the present petition deserved to be allowed. In support of the aforesaid submissions, reliance was placed on judicial precedents wherein courts had intervened in cases of arbitrary and unfair exercise of power by tendering authorities inter alia others, Jamshed Hormusji Wadia Vs. Board of Trustees, Port of Mumbai: AIR 2004 SUPREME COURT 1815, Bharat Petroleum Corporation Ltd. Vs. Mddrula Ratanavalli and ors.: 2007 (6) SCC 81, Banshidhar Construction Pvt. Ltd. Vs. Bharat Coking Coal Ltd. and Ors.: 2024 INSC 757, Vidarbha Irrigation Development Corporation and ors. Vs. Anoj Kumar Agarwal and ors.: 2020 (17) SCC 577, Monarch Infrastructure Pvt. Ltd. Vs. Commissioner Ulhasnagar and Ors.: (2000) SCC OnLine SC 923, Glodyne Technoserve Ltd. Vs. State of MP and ors.: 2011 (5) SCC 103 and Sorath Builders vs. Shreekrupa Buildcon Ltd.: 2009 (11) SCC 9. SUBMISSIONS BY THE RESPONDENTS:
9. Per contra, learned counsel appearing for the respondents vehemently opposed the submissions advanced on behalf of the petitioners. It was contended that as per Clause 7 of the E-NIT dated 24.03.2025, it was made explicitly clear that the tender forms were to be submitted online only and that the entire process would be conducted through online mode. Learned (D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (7 of 20) [CW-7522/2025] counsel submitted that Corrigendum No. 1 dated 04.04.2025 merely amended the qualifying criteria for eligible bidders, whereas Corrigendum No. 2 extended the time for submission of hard copies of the documents, 'if applicable', from 11.00 hours to 16.00 hours on 17.04.2025, and correspondingly extended the time for opening of bids from 11.00 hours to 17.00 hours on the same day.
10. With regard to the reliance placed by the petitioners upon Clause 2.8 of the bid document, learned counsel submitted that no such stipulation existed which made the submission of hard copies of documents a mandatory requirement, non- compliance of which would render a bidder non-responsive. It was contended that the petitioners had misconstrued the said provision, inasmuch as the essence of the clause was to ensure submission of requisite documents in conformity with the prescribed format, and not to mandate submission in hard copy as a condition precedent for responsiveness.
11. Learned counsel further submitted that upon receipt of the bids from six bidders, the competent committee undertook a detailed scrutiny and assiduous evaluation of the technical bids in accordance with the prescribed criteria. On such assessment, five bidders, including the present petitioner (ranked as L3 and L4), were found to be technically responsive, while one bidder, namely M/s Jai Singh and Company, was declared non-responsive. It was urged that this demonstrated that the evaluation process was carried out strictly in accordance with the tender conditions, and (D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (8 of 20) [CW-7522/2025] no arbitrariness or favoritism could be imputed to the respondents.
12. Learned counsel further submitted that upon receipt of the bids, the competent committee examined the same and prepared a Technical Bid Evaluation Report, which was duly signed by the members of the committee on 21.04.2025, and thereafter resolved to open the financial bids on 22.04.2025. With regard to the contention of the petitioners that submission of hard copies was mandatory, it was submitted that no such absolute or compulsory condition was prescribed under the relevant terms and conditions of the tender document. On the contrary, as per Clause 7 of the E-NIT, it stood clearly provided that the tender form was to be submitted online only. Thus, non-submission of hard copies by a bidder could not be construed as rendering such bid technically non-responsive, so long as the requisite documents were already uploaded online in conformity with the prescribed procedure. Learned counsel also invited attention to Clause 7(B) of the E-NIT, which categorically provided that the bid was required to be submitted online and that, after such submission, the subsequent process would be carried out entirely through online mode.
13. Learned counsel further submitted that in no case, as per the direction enumerated in the Circular dated 16.12.2022 issued by the Finance Department, Government of Rajasthan, wherein specific emphasis were laid upon the necessity of maintaining confidentiality of the identity of bidders with a view to preventing cartel formation and pooling in procurement processes, (D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (9 of 20) [CW-7522/2025] the contentions of the petitioner can be termed tenable. It was urged that the said circular was binding on all tendering authorities in the State and was incorporated in the tender procedure with the object of ensuring transparency and fairness. It was thus contended that the interpretation sought to be advanced by the petitioners, insisting on compulsory submission of hard copies, is contrary to the plain tenor of the tender conditions as well as the governing circular of the Finance Department.
14. Learned counsel further contended that the petitioners, having participated in the tender process with full knowledge of the terms and conditions as contained in the E-NIT and subsequent corrigenda, were now estopped from assailing the same after being unsuccessful. It was urged that it is a settled principle of law that a bidder cannot approbate and reprobate simultaneously, and once having submitted a bid in response to the tender, the petitioners could not turn around and challenge the very conditions of the tender or the manner in which the same had been evaluated.
15. In support of the contentions made insofar, learned counsel had placed reliance upon a catena of judgments inter alia others, Kanhaiya Lal Agarwal Vs. Union of India: 2002 (6) SCC 315, G.L. Fernandez vs. the State of Karnataka: 1990 (2) SCC 488, Yamuna Expressway Industrial Development Authority vs. Shakuntla Education and Welfare Society:2022 (20) SCC 698, Tata Cellular Vs. Union of India: 1994 (6) SCC 651. On these premises, learned counsel (D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (10 of 20) [CW-7522/2025] submitted that the tender process had been conducted strictly in accordance with law, that the conditions were uniformly applied to all bidders, and that no arbitrariness or illegality could be attributed to the respondents. It was, therefore, urged that the present petition was misconceived and liable to be dismissed. DISCUSSION AND FINDINGS:-
16. Having heard the rival arguments advanced by the learned counsel for all the parties, undertaking a scrupulous examination of the record pertaining to the case, and juxtaposing the contentions noted herein above, this Court is of a view that prior to a substantive adjudication of the matter on its merits, it is appropriate to delineate and formally note down certain facts that remain undisputed between the parties, thereby providing a clear foundation upon which the subsequent legal analysis shall be constructed:
16.1 That the petitioner is a sole proprietor engaged in the field of toll collection, royalty collection, and allied contractual activities.
16.2 That the present writ petition(s) are filed assailing the tender process initiated by the respondents pursuant to E-NIT No. 536/2024/25 dated 24.03.2025 for the purpose of selection of a contractor for user fee collection at designated BOT roads.
16.3 That the petitioner preferred an appeal before the First Appellate authority Rajasthan State Road Development and Construction Corporation Ltd. contending that the non-appellants therein had declared the bid of other bidders responsive despite non-adherence to the mandatory conditions of the bid document.
(D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (11 of 20) [CW-7522/2025] However, the said appeal got dismissed vide order dated 01.05.2025. The relevant extract from which is reiterated herein below:
"यह है दिनां क 13.04.2025 हो जारी Corrigendum मे ऐसा उल्लेख नही था कि निविदा एवं प्रपत्र की हार्ड कॉपी जमा करना आवश्यक होगा। जबकि मूल निविदा दिं नाक 24.03.2025 के बिन्दू संख्या 7(अ) में इलेक्ट्रोनिकल प्रपत्र में प्राप्त निविदा के आधार पर निविदा खोलने के लिये परियोजना निदे शक (प्रतिपक्ष) को निर्देशित किया गया था। इसी निर्देश की पालना पर तकनीकी मूल्यां कन समिति के स्तर पर प्राप्त सभी राजकीय पोर्टल से प्राप्त निविदाओं एवं प्रपत्र का परिक्षण किया जाकर प्रतिपक्ष निविदाकर्ताओ की निविदा का अपीलान्ट के साथ रे स्पोसिं व माना जाकर लिये गये निर्णय को राजकीय चे वात्तईड पर अपलोड किया गया"
16.4 Consecutively, a second appeal was preferred by the petitioner-appellant before the Managing Director Rajasthan State Road Development and Construction Corporation Ltd. under Section 38 of the RTPP Act, which also got to be dismissed vide order dated 09.05.2025. The relevant extract from which is reiterated herein below:
"यह है कि दिं नाक 24.03.2025 के प्रावधान 7 (अ) एवं 7 (ब) के अवलोकन से स्पष्ट है कि सम्बन्धित परियोजना निदे शक को निविदा प्रक्रिया ऑनलाईन के अनुरूप कार्यवाही करने एवं अन्तिम तिथि तक प्राप्त अपलोड की गई विदा एवं संलग्न प्रपत्र के मूल्याकन हे तु निर्देशित किया गया है जबकि मूल निविदा में जारी कॉरिजेन्डम-दितीय दिनां क 13.04.2025 से हार्ड कापी कार्यालय में दिं नाक 17.04.2025 सायं काल 4.00 तक प्रस्तु त करने के निर्देश निविदाकर्ताओं को दिये गये है । वित्त विभाग द्वारा जारी परिपत्र दिनाका काल 2022 व उपायन संस्था को दिये गये निर्देश प्रदत्त करते हुये भी यदि सम्बन्धित परियोजना निदे शक द्वारा निविदा एवं प्रपत्र की हार्डकापी उनके कार्यालय में प्रस्तु त नही होने एवं उनके आधार पर मूल्यां कन नही ं करने से आर.टी.पी.पी. एक्ट की धारा 4 एवं धारा 11 के अनुरूप निविदा प्रक्रिया में पू र्ण रूप से पारदर्शिता रखने का अभाव प्रतीत होता है । सम्बन्धित निविदा के साथ संलग्न एस.बी.डी. के क्लॉज 2.1 एवं 3.2.1.2 क्रमशः हार्डकापी प्रस्तु त एवं मूल्यां कन की प्रक्रिया से सम्बन्धित है , उसमें भी यह प्रावधान है कि हार्डकापी का उद्दे श्य ऑनलाईन प्राप्त निविदा एं व प्रपत्र की मै चिंग की जावे यदि (D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (12 of 20) [CW-7522/2025] विरोधाभास हो तो ऑनलाईन प्राप्त निविदा एवं प्रपत्र को ही प्राथमिकता दी जाये। उपरोक्तानुसार प्रथम दृष्टिया में प्रतिपक्ष परियोजना निदे शक / तकनीकी मूल्यां कन समिति ने प्राप्त अपलोड निविदा एवं प्रपत्र के आधार पर तकनीकी बिड का मूल्यां कन करने में ऐसी कोई त्रु टि एवं भूल नही ं की गई हैं , जिससे मूल निविदा दिं नाक 24.03.2025 का मूल उद्दे श्य प्रभावित हो रहा हो, ऐसी स्थिति में तकनीकी मूल्यां कन समिति द्वारा अपीलान्ट के साथ- साथ प्रतिपक्ष निविदाकर्ताओं की बिड को तुलनात्मक दृष्टि से रखते हुये निगम के हित में सदभावना से कार्यवाही की गई हैं . इसलियें अपीलान्ट के कथन के आधार पर इससे पुनः अपलोकन करने एवं निरस्त करने का नि यि लिया जाना आज की स्थिति में न्यायोचित नही ं होने के कारण अपीलान्ट द्वारा वां छित राहत निरस्त की जाती हैं । प्रथम अपीलीय प्राधिकारी द्वारा पारित निर्णय दिं नाक 01.05.2025 भी मूल निविदा की शर्त संख्या 7 (अ) एवं 7 (ब) के विवेचन के आधार पर एवं आर.डी.पी.पी. एक्ट 2012 एख नियम 2013 में प्रदत्त मूल उद्दे श्य की निविदा प्रक्रिया पू र्ण रूम से पारदर्शिता रखी जाये के आधार पर पारित किया गया है ,, निर्णय सही है उसमें किसी भी प्रकार का परिवर्तन किया जाना प्यायोचित नही ं है । "
16.5 The issue raised by the petitioner hinges upon whether non-submission of hard copies of the requisite documents, in addition to online submission, was a mandatory requirement under the terms of the impugned E-NIT so as to render the declaration of another bidder as responsive illegal and arbitrary. 16.6 That during the course of litigation of the present petition(s) the petitioner(s) approached the Division Bench of this Court, assailing the interim order dated 26.05.2025; whereby the Division Bench vide order dated 05.06.2025 directed that the instant petitions be decided expeditiously.
17. A bare perusal of Clause 7 of the E-NIT dated 24.03.2025 leaves no manner of doubt that the tender forms were required to be submitted online only and that the process of evaluation was also to be carried out through the online portal.
(D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (13 of 20) [CW-7522/2025] Corrigendum No. 2 dated 04.04.2025 extended the timeline for submission of hard copies "if applicable", but the expression "if applicable" itself indicates that the submission of hard copies was not a sine qua non for responsiveness. The core requirement was online submission, which all bidders, including the petitioner and the private respondent, duly complied with.
18. The reliance placed by the petitioners on Clause 2.8 and Clause 3.2.1(d) of the bid document is misconceived. Clause 2.8 merely outlines the test of responsiveness, but does not stipulate hard copy submission as a mandatory condition. Likewise, Clause 3.2.1(d), read harmoniously with Clause 7, demonstrates that online submission was the substantive requirement, while hard copy submission, if undertaken, was ancillary in nature. Moreso, in case of any discrepancies between the documents submitted online and documents submitted offline, the documents submitted shall prevail, thus the submission of documents in physical form is merely a formality and not a binding requirement and non-submission of physical documents cannot be termed as a material deviation. The interpretation suggested by the petitioners would amount to rewriting the tender terms, which is impermissible in judicial review.
19. As per the clause 30 of the RFQ cum RFP, the present E-NIT and bidding process are governed by the RTPP Act and Rules. The disclaimer clause therein, makes it undisputed that the clause 3.2.1 regarding the bid responsiveness is squarely covered by Rules 59(5) and 61 of the RTPP Rules, which allows minor deviations that do not materially alter the bid. The provisions of (D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (14 of 20) [CW-7522/2025] the RTPP Act, 2012 also support the respondents' stand as, Section 6 recognizes the right of the procuring entity to determine the eligibility of bidders in accordance with the terms of the bid document, Section 7 confers discretion on the procuring entity to reject any bid for reasons to be recorded and Section 4 mandates transparency, fairness, competition, and non-discrimination, all of which appear to be observed in the present case.
20. Further, consideration can be granted to clause 6.2 which deals with "Miscellaneous Clauses" and provides as under:
"6.2 The Authority, in its sole discretion and without incurring any obligation or liability, reserves the right, at any time, to;
(a) suspend and/or cancel the Bidding Process and/ or amend and/ or supplement the Bidding Process or modify the dates or other terms and conditions relating thereto;
(b) consult with any Bidder in order to receive clarification or further information;
(c) retain any information and/or evidence submitted to the Authority by, on behalf of, and/or in relation to any Bidder, and/or
(d) independently verify, disqualify, reject and/or accept any and all submissions or other information and/ or evidence submitted by or on behalf of any Bidder."
21. It is further borne out from the record that six bids were received, duly evaluated, and on careful scrutiny by the technical committee, five bidders including the petitioner were declared responsive, while one bidder was declared non- responsive. The process was, therefore, demonstrably fair and competitive. No material is placed on record to show that the respondents acted with malafides, bias, or ulterior motive.
(D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (15 of 20) [CW-7522/2025] Nevertheless, the disclaimer clause in RFP clearly states that the RFQ cum RFP is not an agreement and is neither an offer nor invitation by the authority to the prospective bidders or any other person but is rather a set of information for the interested parties that may be useful to them in making their financial bids.
22. The petitioner's appeal under Section 38 of the RTPP Act was considered at both stages and dismissed. Having availed and exhausted the statutory remedies, the petitioners cannot now invoke Article 226 as an appellate forum in disguise. The maxim ex turpi causa non oritur actio (no cause of action arises from one's own wrong) squarely applies, as the petitioners, after voluntarily participating in the process, seek to challenge its terms only upon being unsuccessful. The doctrine of approbate and reprobate also comes into play, since the petitioners, having participated in the tender without protest, cannot subsequently question the validity of its conditions. The Hon'ble Supreme Court in Meerut Development Authority v. Assn. of Management Studies: (2009) 6 SCC 171 reaffirmed that bidders cannot challenge tender conditions after participation.
23. In support of the said contention, reliance was placed on the ratio encapsulated in Jagadish Mandal v. State of Orissa: (2007) 14 SCC 517, wherein it was held that judicial review in contractual matters is confined to examining the decision-making process and not the merits of the decision itself. It was further held that unless the decision of the tendering authority was vitiated by mala fides, arbitrariness, or was in violation of statutory provisions, the Courts ought not to interfere.
(D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (16 of 20) [CW-7522/2025] "19. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. 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.
Cases involving black-listing or imposition of penal consequences on a tendered/contractor or distribution of (D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (17 of 20) [CW-7522/2025] state largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."
(Emphasis supplied)
24. Learned counsel also placed reliance on Tata Cellular v. Union of India: (1994) 6 SCC 651, wherein the Hon'ble Supreme Court held that the Courts do not sit as appellate authorities over administrative decisions in the realm of contractual matters, and the scope of interference under writ jurisdiction was limited to cases of illegality, irrationality, or procedural impropriety.
"111. In Union of India v. Hindustan Development Corporation: AIR 1994 SC 988 this Court held thus:
...the Government had the right to either accept or reject the lowest offer but that of course, if done on a policy, should be on some rational and reasonable grounds. In Erusian Equipment and Chemicals Ltd. v. State of W.B. this Court observed as under:
When the Government is trading with the public, 'the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions'. The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone but if it does so, it must do so fairly without discrimination and without unfair procedure. The principles deducible from the above are: (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.
(D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (18 of 20) [CW-7522/2025] (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 fairplay 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) hut 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."
(Emphasis supplied)
25. Further reliance was placed on Michigan Rubber (India) Ltd. v. State of Karnataka (2012) 8 SCC 216, wherein the Hon'ble Supreme Court reiterated that the State and its instrumentalities must have a free hand in setting the terms of the tender, subject only to the requirement that such terms are not discriminatory, arbitrary, or malafide.
CONCLUSION:-
26. In summation of the aforementioned, and upon a comprehensive appraisal of the tender conditions, the RTPP Act and Rules, as well as the rival submissions, this Court finds no infirmity in the process adopted by the respondents. The submission of hard copies was not a sine qua non for bid responsiveness, the core requirement being online submission, which stood duly complied with by all bidders; the interpretation (D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (19 of 20) [CW-7522/2025] canvassed by the petitioners, if accepted, would amount to rewriting the tender terms, which is impermissible; that as the work orders vis-a-vis the appropriate eligible bidder is already issued and the successful bidders financial bid generates significantly higher revenue than the petitioners', there is no onus upon the respondents to elucidate their bonafides and modus to the petitioners, as the same is already substantiated by the material evidence. Moreover, the process of evaluation was carried out in a transparent and competitive manner, duly scrutinized by the technical committee, moreover, no element of malafides or arbitrariness is established and the provisions of Clause nos. 2.7, 2.8, 3.2.1, 3.2.2, 6.2 and 7 of the sacrosanct document for the instant bid substantiates the stance of the respondents. Nonetheless, having voluntarily participated in the process, the petitioners are estopped from assailing the tender conditions after being declared unsuccessful, in view of the principles laid down in Meerut Development (Supra) and Jagadish Mandal (Supra) and taking cautious note of the ratio encapsulated in Tata Cellular (Supra), withal noting that the judgments relied upon by the petitioners are distinguishable from the present matter, this Court is not inclined to interfere in the instant matter.
27. Consequently, for the reasons recorded hereinabove, this Court finds no merit in the writ petition. The action of the respondents does not suffer from illegality, irrationality, malafides, or procedural impropriety, and the petitioners have failed to demonstrate violation of any statutory mandate or prejudice caused to them.
(D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders) (Downloaded on 27/08/2025 at 04:44:29 PM) [2025:RJ-JP:33426] (20 of 20) [CW-7522/2025]
28. In view of the foregoing discussion, the present petitions stand dismissed. Any interim orders passed earlier shall stand vacated. There shall be no order as to costs. Pending applications, if any, are accordingly disposed of.
29. A copy of this judgment be placed in the connected petition.
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