Uttarakhand High Court
M/S Kunwar Construction vs State Of Uttarakhand And Others on 26 November, 2019
Equivalent citations: AIRONLINE 2019 UTR 630
Author: Alok Kumar Verma
Bench: Ramesh Ranganathan, Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 1001 of 2019
M/s Kunwar Construction ...Appellant
Vs.
State of Uttarakhand and others ...Respondents
Mr. D.S. Patni, learned Senior Counsel assisted by Mr. Dharmendra Barthwal,
learned counsel for the appellant.
Ms. Sangeeta Bhardwaj, learned Brief Holder for the State of Uttarakhand-first
respondent.
Mr. S.S. Chauhan, learned counsel for respondents 2 to 4.
Dated: 26th November, 2019
Chronological list of cases referred:
1. (2007) 14 SCC 517
2. AIR 1996 SC 51
3. AIR 1996 SC 11
4. (1999) 1 SCC 492
5. (2000) 1 SCR 505
6. AIR 2005 SC 469
7. (2006) 11 SCC 548
8. (2018) 5 SCC 462
9. (2016) 15 SCC 272
10. (2006) 10 SCC 236
11. 1990 4 JT 601
12. (1985) 8 SCR 909
13. (2016) 8 SCC 622
14. (2005) 1 CTLJ 353 (Delhi)
15. (2003) 4 SCC 579
16. AIR 2012 SC 2915
17. (2005) 6 SCC 138
18. (2010) 14 SCC 253
19. (2012) 6 SCC 464)
20. (1990) 3 SCC 280
21. AIR 2005 Delhi 247
22. (1990) 3 SCC 287
23. (2004) Suppl. 1 JT 502
24. (1997) 7 SCC 592
25. (1981) 1 SCC 568
26. (1997) 1 SCC 738
27. Order of the Division Bench of the Bombay High Court in Writ
Petition No. 3992 of 2010 dated 11.10.2010
28. (1995) 1 SCC 478
2
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Ramesh Ranganathan, C.J. (Oral) This Special Appeal is preferred against the order passed by the learned Single Judge in Writ Petition (M/S) No. 3572 of 2019 dated 22.11.2019. The appellant-writ petitioner herein invoked the jurisdiction of this Court questioning rejection of their technical bid.
2. Facts, to the limited extent necessary, are that the appellant-writ petitioner submitted their technical bid as a sole proprietary concern pursuant to the bids invited by the National Project Construction Corporation Ltd., a State owned Corporation, which undertakes civil construction works. The two stage bidding process consisted of evaluation of both the technical bid and the financial bid. Among the conditions of the technical bid was that the bidder must have undertaken works of atleast 50% of the cost of the present project i.e. for Rs. 427.78 lakhs. The appellant-writ petitioner (a sole proprietary concern) was hitherto a constituent of a Joint Venture called M/s Kunwar Constructions and M/s Balvinder Singh and Co, and had contributed 25% of the investment of the Joint Venture. They submitted their experience certificate including therein the works, executed by the Joint Venture, as their experience.
3. The respondents, however, added 25% of the experience in the Joint Venture, to the experience of the appellant-writ petitioner as a sole proprietary concern, and declared them unsuccessful at the technical bid evaluation stage on the ground that they did not execute works above Rs. 427.78 lakhs. The appellant-writ petitioner, however, contended that, notwithstanding their investment in the Joint Venture being limited to 25%, the entire experience of the Joint Venture should be reckoned in computing the minimum required experience to be successful at the technical evaluation stage; and if the experience of the Joint Venture is taken into consideration in its 3 entirety, then they would fulfill the prescribed minimum experience of having executed works of more than Rs. 427.78 lakhs.
4. The case of the respondents, on the other hand, was that, since the appellant-writ petitioner had submitted their technical bid only as a sole proprietary concern, and not as a Joint Venture, the experience of the Joint Venture cannot be reckoned in computing the experience of the sole proprietary concern; and, in any event, since the appellant-writ petitioner merely held 25% share in the Joint Venture, at best, 25 % of the experience of the Joint Venture can alone be claimed by the appellant-writ petitioner as their experience, and not beyond.
5. Before examining the rival submissions on merits, it is useful to consider the scope of judicial review in evaluation of tenders. 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. The limited scope of judicial review by the High Court envisages examination of the question whether there is any material irregularity in the decision making process or whether the decision to reject the tender is irrational, unreasonable or arbitrary. If the decision relating to the award of contract is bonafide and in public interest, Courts will not 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 invoked to protect private interest at the cost of public interest or to decide contractual disputes. The tenderer or a contractor with a grievance can always seek damages in a civil court. (Jagdish Mandal v. State of Orissa and Ors.[1]; Sterling Computers Ltd v. M&N Publications Ltd[2]; Tata Cellular v. Union of India[3]; Raunaq International Ltd. v. I.V.R. Construction Ltd.[4]; Air India Ltd. v. Cochin International Airport Ltd.[5]; Association of Registration 4 Plates v. Union of India[6]; and B.S.N. Joshi v. Nair Coal Services Ltd.[7]).
6. Commercial transactions, of a complex nature, involve balancing and weighing all relevant factors, and a final decision is taken on an overall view of the transaction. (Air India Ltd.[5]). It is common knowledge, in the competitive commercial field, that technical bids, pursuant to the notice inviting tenders, are scrutinised by technical experts. This ensures objectivity. Bidder's expertise and technical capability and capacity must be left to be assessed by experts. (Municipal Corporation, Ujjain and another v. BVG India Limited and others[8]; and Montecarlo Ltd. v. NTPC Ltd.[9]).
7. The High Court should, normally, exercise judicial restraint unless illegality or arbitrariness, on the part of the employer, is apparent on the face of the record. (B.S.N. Joshi[7]; Jagdish Mandal[1]). The award of contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are paramount are commercial considerations. (Air India Ltd.[5]). But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down, and cannot depart from them arbitrarily. The Court can examine the decision making process, and interfere if it is found vitiated by malafides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. (Air India Ltd.[5]). While contractual matters are not beyond the realm of judicial review, its application is limited (Noble Resources Ltd. v. State of Orissa[10]; Indian Oil Corpn. Ltd. v. Amritsar Gas Service[11]; and LIC of India v. Escorts Ltd.[12]) primarily to the infirmity in the decision making process, and whether it is reasonable and rational or arbitrary and in violation of Article 14 of the Constitution of India. (Sterling Computers Ltd.[2]).
58. The lawfulness of the decision of the Tender issuing authorities can be questioned on very limited grounds, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot. (Central Coalfields Ltd. v. SLL-SML[13]; Municipal Corporation, Ujjain[8]). Exercise of the power of judicial review would be called for, if the approach is arbitrary or malafide, or the procedure adopted is meant to favour someone. The decision- making process should ensure that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document, or subserves the purpose for which the tender is floated, Courts should exercise restraint. Technical evaluation or comparison by the Court is impermissible. The owner should be allowed to carry out the purpose, and should be allowed some free play in the joints. (Montecarlo Ltd.[9]; Municipal Corporation, Ujjain[8]).
9. Courts are generally slow to interfere in such matters, unless it is shown that the decision is tainted by lack of fairness in procedure, illegality and irrationality. Judicial review is concerned with reviewing not the merits of the decision taken by the executive authority, but the decision making process itself. (Gharda Chemicals Limited v. Central Warehousing Corporation[14]; Indian Railway Construction. Ltd. v. Ajay Kumar[15]). The action of the State or its instrumentalities are amenable to judicial review only to the extent that they must act validly for a discernible reason, and not whimsically for any ulterior purpose. If the State or its instrumentalities act reasonably, fairly and in public interest in awarding the contract, interference by the Court is limited. (M/s. Michigan Rubber (I) Ltd. v. The State of Karnataka[16]). A discretion should be conceded to the authorities, entering into contracts, giving them liberty to assess the overall situation for the purpose of taking a decision as to whom the contract should be awarded, and on what terms. If the decisions have been taken in a 6 bona fide manner, although not strictly following the norms laid down by Courts, such decisions are upheld on the principle that Courts, while judging the validity of executive decisions, must grant certain measure of freedom of "play in the joints" to the executive. Judicial interference, in such cases, would amount to encroachment on the exclusive right of the executive to take a decision. (Sterling Computers Ltd.[2]; Municipal Corporation, Ujjain[8]).
10. Before interfering in tenders or contractual matters, in the exercise of its power of judicial review, the Court should pose to itself the following questions : (i) Whether the process adopted or decision made by the authority is malafide or is intended to favour someone or the process adopted or the 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 the relevant law could have reached'; and (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference in proceedings under Article 226 of the Constitution of India. (Jagdish Mandal[1]; M/s. Michigan Rubber (I) Ltd.[16]; Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd.[17]; Himachal Pradesh Housing and Urban Development Authority v. Universal Estate[18]; and Tejas Constructions & Infrastructure (P) Ltd. v. Municipal Council, Sendhwa[19]). In the absence of allegations of malafides in their conduct, the Court must proceed on the footing that the State or its instrumentalities have acted bonafide. (Star Enterprises v. City and Industrial Development Corpn. of Maharashtra Ltd.[20]).
11. Courts can interfere when the terms of invitation to tender or the award of contract is arbitrary, discriminatory or malafide, or if it has no nexus with the object it seeks to achieve. The power of judicial review should be exercised with great care and circumspection, and not merely because it feels the measure to be incorrect. Judicial intervention would be warranted only when 7 overwhelming public interest so requires it. (Dhingra Construction Co. v. Municipal Corporation of Delhi[21]; Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corpn[22]; Directorate of Education v. Educomp Datamatics Ltd.[23]; MP Oil Extraction v. State of MP[24]; and Air India Ltd.[5]).
12. The Court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the Government has acted fairly, even if it has faltered in its wisdom, the Court cannot, as a super auditor, take them to task. The function of judicial review is limited to testing whether the action has been fair and free from the taint of unreasonableness, and has substantially complied with the norms. (Fertiliser Corporation Kamgar Union (Regd.), Sindri v. Union of India[25]; Raunaq International Ltd.[4]). There are inherent limitations in the exercise of the power of judicial review. The right to choose cannot be considered as an arbitrary power. Judicial quest has been to find the right balance between discretion to decide matters and the need to remedy any unfairness. (Tata Cellular[3]; Raunaq International Ltd.[4]). Judicial review of contractual transactions by Governmental bodies is permissible only to prevent arbitrariness, favouritism or use of power for collateral purposes. (Asia Foundation & Construction Ltd v. Trafalgar House Construction (I) Ltd.[26]).
13. It is not open to the Court to independently evaluate the technical bids and financial bids of the parties as an appellate authority in coming to its conclusion. The Court should, ordinarily, exercise judicial restraint unless the threshold of malafides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met. (Municipal Corporation, Ujjain[8]).Evaluating tenders and awarding contracts are essentially commercial transactions/contracts. If the decision relating to the award of contract is in public interest, the Courts will not, in the exercise of the power of judicial review, 8 interfere even if a procedural aberration or error in awarding the contract is made out. Attempts by unsuccessful bidders with an artificial grievance, and to get the purpose defeated by approaching the Court on some technical and procedural lapses, should be handled by Courts with firmness. Exercise of the power of judicial review should be avoided if there is no irrationality or arbitrariness. (Municipal Corporation, Ujjain[8]).
14. Bearing the aforesaid principles in mind, let us now examine whether the learned Single Judge was justified in refusing to interdict the action of the respondents in rejecting the appellant-writ petitioner's bids at the technical evaluation stage.
15. As noted hereinabove, the appellant-writ petitioner questioned the action of the respondents, in rejecting their technical bid, by way of Writ Petition (M/S) No. 3572 of 2019. Reliance was placed by the appellant-writ petitioner on a Division Bench judgment of the Bombay High Court in Atasha Ashirwad Builders (J.V.) Nagpur v. State of Maharashtra and others[27]). The learned Single Judge opined that the aforesaid judgment of the Bombay High Court was inapplicable as the bidder therein had submitted their bid as a Joint Venture and, while they had claimed the experience of the Joint Venture as the sum total of the experience of all its constituent members, their bid was rejected excluding the experience of each of the constituents of the Joint Venture and reckoning the experience of the Joint Venture alone.
16. The Division Bench of the Bombay High Court, in Atasha Ashirwad Builders[27], held that the experience of each of the constituents of the Joint Venture was required to be added when a bid is submitted by a Joint Venture. In the order under appeal, the learned Single Judge observed that, unlike in the case before the Bombay High Court, in the present case, the appellant-writ petitioner had not applied as a Joint Venture, but in his capacity as a sole proprietary concern; and, therefore, the benefit of the experience of 9 the Joint Venture cannot be claimed by the appellant-writ petitioner which had submitted its bid as a sole proprietary concern. Aggrieved thereby, the present Special Appeal.
17. Mr. D.S. Patni, learned Senior Counsel appearing on behalf of the appellant-writ petitioner, besides relying on the judgment of the Bombay High Court in Atasha Ashirwad Builders[27], would also rely on the judgment of the Supreme Court in New Horizons Limited and another v. Union of India and others[28].
18. In New Horizons Limited[28], the advertisement stipulated that the tenderer should have experience in compiling, printing and supplying telephone directories to large telephones systems with a capacity of more than 50,000 lines. M/s New Horizons Ltd. was a joint venture company established by Thomson Press (India) Limited (TPI), Living Media (India) Limited (LMI), World Media Limited (WML) and Integrated Information Pvt. Ltd, (IIPL), a wholly-owned subsidiary of Singapore Telecom, wherein 60% of the shares were held by Mr. Aroon Purie, TPI, LMI, WML and other companies in the same group and 40% of the shares were held by IIPL. The Delhi High Court held that the company was a separate legal entity distinct from its members; and the experience of its share-holders could not be reckoned in computing the experience of the company. It is in this context that the Supreme Court observed thus :
".....Even if it be assumed that the requirement regarding experience as set out in the advertisement dated 22-4-1993 inviting tenders is a condition about eligibility for consideration of the tender, though we find no basis for the same, the said requirement regarding experience cannot be construed to mean that the said experience should be of the tenderer in his name only. It is possible to visualise a situation where a person having past experience has entered into a partnership and the tender has been submitted in the name of the partnership firm which may not have any past experience in its own name. That does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration. Similarly, a 10 company incorporated under the Companies Act having past experience may undergo reorganisation as a result of merger or amalgamation with another company which may have no such past experience and the tender is submitted in the name of the reorganised company. It could not be the purport of the requirement about experience that the experience of the company which has merged into the reorganised company cannot be taken into consideration because the tender has not been submitted in its name and has been submitted in the name of the reorganised company which does not have experience in its name. Conversely there may be a split in a company and persons looking after a particular field of the business of the company form a new company after leaving it. The new company, though having persons with experience in the field, has no experience in its name while the original company having experience in its name lacks persons with experience. The requirement regarding experience does not mean that the offer of the original company must be considered because it has experience in its name though it does not have experienced persons with it and ignore the offer of the new company because it does not have experience in its name though it has persons having experience in the field. While considering the requirement regarding experience it has to be borne in mind that the said requirement is contained in a document inviting offers for a commercial transaction. The terms and conditions of such a document have to be construed from the standpoint of a prudent businessman. When a businessman enters into a contract whereunder some work is to be performed he seeks to assure himself about the credentials of the person who is to be entrusted with the performance of the work. Such credentials are to be examined from a commercial point of view which means that if the contract is to be entered with a company he will look into the background of the company and the persons who are in control of the same and their capacity to execute the work. He would go not by the name of the company but by the persons behind the company. While keeping in view the past experience he would also take note of the present state of affairs and the equipment and resources at the disposal of the company. The same has to be the approach of the authorities while considering a tender received in response to the advertisement issued on 22-4-1993. This would require that first the terms of the offer must be examined and if they are found satisfactory the next step 11 would be to consider the credentials of the tenderer and his ability to perform the work to be entrusted. For judging the credentials past experience will have to be considered along with the present state of equipment and resources available with the tenderer. Past experience may not be of much help if the machinery and equipment is outdated. Conversely lack of experience may be made good by improved technology and better equipment. The advertisement dated 22-4-1993 when read with the notice for inviting tenders dated 26-4-1993 does not preclude adoption of this course of action. If the Tender Evaluation Committee had adopted this approach and had examined the tender of NHL in this perspective it would have found that NHL, being a joint venture, has access to the benefit of the resources and strength of its parent/owning companies as well as to the experience in database management, sales and publishing of its parent group companies because after reorganisation of the Company in 1992 60% of the share capital of NHL is owned by Indian group of companies namely, TPI, LMI, WML, etc. and Mr Aroon Purie and 40% of the share capital is owned by IIPL a wholly-owned subsidiary of Singapore Telecom which was established in 1967 and is having long experience in publishing the Singapore telephone directory with yellow pages and other directories. Moreover in the tender it was specifically stated that IIPL will be providing its unique integrated directory management system along with the expertise of its managers and that the managers will be actively involved in the project both out of Singapore and resident in India.
The expression "joint venture" is more frequently used in the United States. It connotes a legal entity in the nature of a partnership engaged in the joint undertaking of a particular transaction for mutual profit or an association of persons or companies jointly undertaking some commercial enterprise wherein all contribute assets and share risks. It requires a community of interest in the performance of the subject-matter, a right to direct and govern the policy in connection therewith, and duty, which may be altered by agreement, to share both in profit and losses. (Black's Law Dictionary, 6th Edn., p.
839) According to Words and Phrases, Permanent Edn., a joint venture is an association of two or more persons to carry out a single business enterprise for profit (p. 117, Vol. 23). A joint venture can take the form of a corporation wherein two or more persons or companies 12 may join together. A joint venture corporation has been defined as a corporation which has joined with other individuals or corporations within the corporate framework in some specific undertaking commonly found in oil, chemicals, electronic, atomic fields.
(Black's Law Dictionary, 6th Edn., p. 342) Joint venture companies are now being increasingly formed in relation to projects requiring inflow of foreign capital or technical expertise in the fast developing countries in East Asia, viz., Japan, South Korea, Taiwan, China, etc. [See Jacques Buhart : Joint Ventures in East Asia -- Legal Issues (1991).] There has been similar growth of joint ventures in our country wherein foreign companies join with Indian counterparts and contribute towards capital and technical know-how for the success of the venture. The High Court has taken note of this connotation of the expression "joint venture". But the High Court has held that NHL is not a joint venture and that there is only a certain amount of equity participation by a foreign company in it. We are unable to agree with the said view of the High Court.
As noticed earlier, in its tender NHL had stated that it is a joint venture company established by TPI, LMI and WML and IIPL wherein TPI, LMI and WML and other companies in the same group as well as Mr Aroon Purie own 60% shares and IIPL owns 40% shares. It was also stated that the joint venture has received approval of the Government of India and is currently in operation and that the promoter will increase their capital/contribution to commensurate with the project need and that the company has been established as an information and database management company with expertise in database processing, publishing, sales/marketing and the dissemination of related information. In the tender it is also stated that as a joint venture in the true sense of the phrase, the company will have access to expertise in database management, sales and publishing of its parent group companies. It would thus appear that the Indian group of companies (TPI, LMI and WML) and the Singapore-based company (IIPL) have pooled together their resources in the sense that TPI, LMI and WML have made available their equipment and organisation at various places in the country while IIPL has made available its wide experience in the field as well as the expertise of its managerial staff. All the constituents of NHL have thus contributed to the resources of the Company (NHL). This shows that NHL is an association of companies jointly undertaking a commercial enterprise wherein 13 they will all contribute assets and will share risks and have a community of interest. We are, therefore, of the view that NHL has been constituted as a joint venture by the group of Indian companies and IIPL, the Singapore-based company and it would not be correct to say that IIPL which has a substantial stake in the success of the venture, having 40% of shareholding, is a mere shareholder in NHL.
The conclusion would not be different even if the matter is approached purely from the legal standpoint. It cannot be disputed that, in law, a company is a legal entity distinct from its members. It was so laid down by the House of Lords in 1897 in the leading case of Salomon v. Salomon & Co. Ever since this decision has been followed by the courts in England as well as in this country. But there have been inroads in the doctrine of corporate personality propounded in the said decision by statutory provisions as well as by judicial pronouncements. By the process, commonly described as "lifting the veil", the law either goes behind the corporate personality to the individual members or ignores the separate personality of each company in favour of the economic entity constituted by a group of associated companies. This course is adopted when it is found that the principle of corporate personality is too flagrantly opposed to justice, convenience or the interest of the Revenue. (See : Gower's Principles of Modern Company Law, 4th Edn., p. 112.) This concept, which is described as "piercing the veil" in the United States, has been thus put by Sanborn, J. in US v.
Milwaukee Refrigerator Transit Co.:
"When the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association of persons......."
(emphasis supplied)
19. Just as in Atasha Ashirwad Builders[27], the bidder in New Horizons Limited[28] was also a Joint Venture, and had claimed the experience of all its constituents. Rejection of the bid, drawing a distinction between the Joint Venture itself and that of its constituent members, was set aside both by the Bombay High Court in Atasha Ashirwad Builders[27] and by the Supreme Court in New Horizons Limited[28].
1420. In the present case, while the appellant-writ petitioner was no doubt a member holding 25% share in a Joint Venture, the bid submitted by them was not as a Joint Venture, but as a sole proprietary concern. Unlike in cases where a bid is submitted by a Joint Venture, in which case the experience of all its constituent members may be required to be taken into consideration in computing the experience of the Joint Venture itself, the converse may not be true. The appellant-writ petitioner herein, having submitted their bid as a sole proprietary concern and not as a Joint Venture, cannot claim the experience of the Joint Venture, and all its constituents, to be reckoned as his individual experience as a sole proprietary concern.
21. While it was unnecessary for the respondents to have included even a part of the experience of the Joint Venture, in determining the experience of the appellant-writ petitioner as a sole proprietary concern, they took into account 25% of the experience of the Joint Venture, and treated it as the appellant-writ petitioner's experience. Since the Joint Venture did not participate in the bidding process, the appellant-writ petitioner can, at best, claim the experience of the Joint Venture only to the extent of his 25% share therein.
22. In Municipal Corporation, Ujjain[8], a three Judge Bench of the Supreme Court framed, among others, the question as to "whether a bidder, who submits a bid expressly declaring that it is submitting the same independently and without any partners, consortium or joint venture, can rely upon the technical qualifications of any third party for its qualification." The respondent before the Supreme Court, while submitting its bid, had included the experience of M/s BVG Kshitij Waste Management Services Private Limited, and had relied on a certificate issued by the Pimpri Chinchwad Municipal Corporation. It is in this context that the Supreme Court held that a bidder, who submits a bid expressly declaring that it is submitting the same independently and without any partners, consortium or joint 15 venture, cannot rely upon the technical qualifications of any third party, and claim that it should be treated as its qualification.
23. Mr. D.S. Patni, learned Senior Counsel appearing on behalf of the appellant-writ petitioner, would contend that, unlike in Municipal Corporation, Ujjain[8] where the experience of a third party was sought to be included, in the present case, the Joint Venture is not a third party, since the appellant-writ petitioner held 25% of shares therein. We must express our inability to agree.
24. Since the appellant-writ petitioner had submitted its bid as a sole proprietary concern, and not as a Joint Venture, it is only their experience, as a sole proprietary concern, which was required to be taken into consideration. In so far as the subject work is concerned, the Joint Venture was, undoubtedly, a third party and, in the light of the law declared by the Supreme Court in Municipal Corporation, Ujjain[8], the experience of the Joint Venture could not have been reckoned as the experience of the sole proprietary concern which had submitted the bid. Even if the corporate veil were to be lifted, as was permitted by the Supreme Court in New Horizons Limited[28], the respondents would have been required to reckon the experience of the appellant-writ petitioner, as a constituent member of the Joint Venture, which is 25%.
25. While Mr. S.S. Chauhan, learned counsel for respondents 2 to 4, would submit that the judgment of the three Judge Bench of the Supreme Court in Municipal Corporation, Ujjain[8] would prevail over the judgment of the two Judge Bench of the Supreme Court in New Horizons Limited[28], it is unnecessary for us to dwell on this issue since we are satisfied that the judgment of the Supreme Court, in Municipal Corporation, Ujjain[8], would apply to the facts of the present case, and not its earlier judgment in New Horizons Limited[28].
1626. Even otherwise the jurisdiction which this Court exercises, in an intra-court appeal, is extremely limited. The learned Single Judge is not a Court subordinate, since both he and the Division Bench exercise jurisdiction only under Article 226 of the Constitution of India. If two views are possible, and the Division Bench is satisfied that the view taken by the learned Single Judge is a possible view, it would refrain from interference even if it were to be satisfied that the other possible view, canvassed before it by the appellant-writ petitioner, is more attractive. It is only if we were to hold that the view taken by the learned Single Judge is not a view which could have been taken at all, would interference be warranted. We find it difficult to hold that the view taken by the learned Single Judge, in upholding the action of the respondents in rejecting the technical bid submitted by the appellant-writ petitioner, is not even a possible view.
27. The Special Appeal fails and is, accordingly, dismissed. No costs.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, C.J.) 26.11.2019 26.11.2019 Rahul