Gauhati High Court
Page No.# 1/17 vs The Indian Oil Corporation And 16 Ors on 18 November, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/17
GAHC010230662022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C)/4678/2022
PINTU KUNDU AND 7 ORS.
S/O ARUN KUMAR KUNDU
R/O SASTRI ROAD
NEAR ISKCON TEMPLE NORTH BANGAIGAON
DIST. BONGAIGAON
ASSAM
2: KAMALESWAR SUTRADHAR
S/O TULSHIRAM SUTRADHAR
R/O 42 DHALIGAON
P.S BANGAIGAON
DIST. BONGAIGAON
ASSAM
3: MOTISON CHOUDHAN
S/O GANESH CHOUDHAN
R/S NO. 1 KALAIGAON
NEAR MAHABIR LACHIT SCHOOL
UDALGURI-784525
ASSAM
4: JALAL ALI
S/O AYNAL ALI R/O CHATIBARGAON
CHIRANG-783385
ASSAM
5: ARJUN CHANDRA BARMAN
S/O SACHINDRA CHANDRA BARMAN
R/O SIMPAGURI
CHIRANG 783381 ASSAM
6: ISHTIAQUE AHMED KHAN
Page No.# 2/17
S/O SRI JAMIL AHMED KHAN
170 PUB SARANIA
M.D. ROAD POLICE STATION CHANDMARI
GUWAHATI-781003 ASSAM
7: MAHENDRA SINGH
S/O KRISHNA SINGH
R/O 577 RAMJEET SINGH ROLA DUDHI
KUSHINAGAR-274302 UTTAR PRADESH
8: BHASKAR J GOGOI
S/O BOLU RAM GOGOI
R/O CHINAKI
PATH ZOO NARENGI ROAD
GUWAHATI-781024 ASSAM
VERSUS
THE INDIAN OIL CORPORATION AND 16 ORS.
REP. BY ITS MANAGING DIRECTOR INDIAN OIL BHAVAN G9 ALI YAVAR
JUNG MARG
BANDRA EAST MUMBAI 400051 MAHARASHTRA
2:THE CHIEF GENERAL MANAGER
INDIAN OIL CORPORATION LTD. MARKETING DIVISION REGIONAL
CONTRACT CELL
EASTERN REGION OFFICE 2 GARIAHAT ROAD SOUTH KOLKATA 700068
WEST BENGAL
3:THE INDEPENDENT EXTERNAL MONITORS
IP SECRETARIAT INDIAN OIL CORPORATION LTD. ROOM NO. 542 5TH
FLOOR CORE 6
SCOPE COMPLEX
LODHI ROAD
NEW DELHI 110003
4:THE CHIEF GENERAL MANAGER OPERATION
INDIAN OIL
AOD NOONMATI GUWAHATI-781020
5:ED AND SH IOAOD SO INDIAN OIL CORPORATION LTD.
GUWAHATI
6:SATISH CHANDRA BASUMATARY
S/O LT. MANSING BASUMATARY
R/O DHALIGAON MAIN GATE
P.O- KAJALGAON
CHIRANG
ASSAM
PIN- 783385.
7:RAHUL KUMAR JAIN
S/O RAJESH KUMAR JAIN
R/O B.O.C GATE
Page No.# 3/17
P.O AND DISTRICT- BONGAIGAON
ASSAM
PIN-783380.
8:SANTOSH PRASAD
S/O LAXMAN PRASAD
R/O CHAPAGURI ROAD
P.O AND DISTRICT- BONGAIGAON
ASSAM
PIN-783380.
9:AZIZUL HOQUE
S/O LATE TMAN ALI
R/O VILL.- CHATIPUR
P.O- DHALIGAON
CHIRANG
ASSAM
PIN- 783385.
10:KAMAL BASUMATARY
S/O KHAGENDRA BASUMATARY
R/O VILL. DANGAGAON
P.O- KAJALGAON
CHIRANG
ASSAM- 783385.
11:MANOJ KR JAIN
S/O BIMAL KR JAIN
R/O B.O.C GATE
P.O AND DISTRICT- BONGAIGAON
ASSAM
PIN-783380.
12:RAJESH KR JAIN
C/O RAHUL KR JAIN
R/O B.O.C GATE
P.O AND DISTRICT- BONGAIGAON
ASSAM- 783380.
13:AKBAR ALI SARKAR
S/O USUF ALI SARKAR
R/O 31 NO NATIONAL HIGHWAY
NEAR GAON PANCHAYAT OFFICE
GORAIMARI
CHIRANG
ASSAM- 783390.
14:KAMAL SHARMA
S/O LATYE SURAJMAL SHARMA
R/O NEAR ICE FACTORY
CHAPAGURI ROAD
NORTH BONGAIGAN
ASSAM-783380.
15:SANI DAYAL BASFORE
S/O GHUTUNG BASFORE
Page No.# 4/17
R/O VILL. CHUNGAPOTA
NEAR L P SCHOOL
NEW BONGAIGAON
BONGAIGAON
ASSAM- 783381.
16:DILWARA SINGH
S/O LT K SINGH
R/O CHAPAGURI ROAD
GURUNANAK NAGAR
DISTRICT- BONGAIGAON
ASSAM- 783380.
17:SHAIDUL ISLAM
S/O KORIFUDDIN SK
R/O VILL ROWMARI
P.O- CHAPAR
DISTRICT- DHUBRI
ASSAM- 783371.
------------
Advocate for the Petitioner : Mr. N.N.B. Choudhury
Advocate for the Respondents : Mr. A. Borkotoky
: Mr. U.K. Nair
: Mr. N.R. Surana
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
Date of hearing : 18.11.2022
Date of Judgment : 18.11.2022
Page No.# 5/17
JUDGEMENT AND ORDER (ORAL)
1. Heard Mr. N.N.B. Chouhdhury, the learned counsel appearing on behalf of the petitioners. Also heard Mr. A. Borkotoki, the learned counsel appearing on behalf of the respondent nos. 1 to 5 and Mr. U.K. Nair, the learned Senior Counsel assisted by Mr. N.R. Surana, learned counsel appearing on behalf of the respondent nos. 6 to 17.
2. The instant matter was listed on account of a Stay Vacating application filed by the respondent nos. 6 to 17 for vacation/modification and alteration of the order dated 22.07.2022 passed by this Court in the instant writ petition.
3. Taking into account that any decision in the said application would also entail touching upon the merits of the writ petition, this Court has taken up the writ petition for consideration and for final disposal at this stage.
4. The issue involved in the instant writ petition relates to a challenge to the terms and conditions of a tender for road transportation of Bulk Petroleum Product - ATF - By Top Loading Tank Trucks under IOAOD State Office. The period of the contract was with effect from 01.06.2022 or a date to be decided at the discretion of the Company for a period of 3 years with an option for extension upto a further two years at the sole discretion of the Company.
5. It is the case of the petitioners that they are the existing Tank Truck operators for the purpose of transportation of the Bulk Petroleum Products of the Indian Oil Corporation from 2017 onwards after being awarded the work through a public tender process. The case of the petitioners is that the some of Page No.# 6/17 the terms and conditions of the tender dated 25.06.2022 are onerous and violates the mandate of Article 14 and 19(1)(g) of the Constitution.
6. As submitted by the learned counsel for the petitioners, Clause XI (3) affects the rights of the petitioners taking into account that when two or more parties have quoted the same rate, seniority shall be decided on the basis of the conditions mentioned therein. Clause-XI(3) be relevant is quoted hereinbelow:
"3. In case more than one party has quoted same rate, seniority shall be decided in following sequence:
(i) Average age of the fleet
(ii) Total volume of all individual TTs.
(iii) The maximum number of TTs shall be 10% (including ready build
TT and Purchase Invoice of total requirement of TTs in this tender, i.e. 16 TTs.
(iv) First allocation will be done to ready built TTs till 100 % requirement is met. In case 100 % requirement is not met with ready built TTs, then only allocation will be done for Purchase / Sale invoice of chassis Offers with Purchase / Sale Invoice of Chassis."
7. The learned Counsel for the petitioners thereafter, referred to Clause 21 of the Tender Terms and Conditions which mandate that the Court of Jurisdiction till the placement of LOA (Letter of Acceptance) is the High Court of Kolkata and thereafter the High Court of Guwahati during the contract period. It is the submission of the petitioners that the said Clause violates the mandate of Section 27 of the Indian Contract Act, 1872. The learned counsel submitted that the respondent authorities could not have conferred a jurisdiction upon a Court which have no jurisdiction inasmuch as the contract was to be executed within the jurisdiction of this Court. The conferring of jurisdiction upon the Calcutta High Court till the placement of the Letter of Acceptance is violative of Section Page No.# 7/17 27 of the Indian Contract Act, 1872.
8. The learned counsel for the petitioners further drew the attention of this Court to another Clause i.e., Clause-6(c) of the Proforma Bulk Petroleum Products Road Transport Agreement and submitted that the said clause mandates that a transport charges payable under the agreement is based on the shortest route approved by the Company on the round trip basis and submits that if this particular clause is accepted, the transporter in question would only be entitled to the transport charges as given by the Company irrespective of the road condition. Clause 6(c) of the Proforma Bulk Petroleum Products Road Transport Agreement being relevant is quoted hereinbelow:
"6(c)The transport charges payable under this Agreement are based on shortest route approved by the Company on the round trip basis (called RTKM). A list of current RTKMs applicable to storage points where subject Tank Trucks are based, are available with concerned storage point.
In the event the distance for a particular RTKM gets redueced / increased, it shall be the responsibility of the carrier to bring the same to the notice of the Company, in writing, forthwith. On receipt of this information the company shall re- verity the RTKM and communicate the new approved route to the carrier. The date of such first written intimation to the Company by any of the Carrier shall be the basis for reduction / increase in RTKM.
In case of failure of the carrier to give such intimation to the Company, the date mentioned in the written communication issued by the concerned local Govt. Authorities / the Company shall be binding on the Carrier and the Company for the purpose of revision of RTKM payable / recoverable on account of such revision. The date of intimation by the Carrier of the effective date mentioned in the written communication of the Government / Company, whichever is earlier, shall be the date from which the increase / decrease in RTKM to be made effective. No recovery / payment shall be made, if variation in RTKMs is within the limit of +/- 10 RTKM upto a distance of 750 RTKMs and +/- 20 RTKMs for distance beyond 750 RTKMs, however, company at its sole discretion may revise these limits from time to time which shall be binding on the carrier."
9. It is the further submission of the petitioners that the transportation rates Page No.# 8/17 given as per the Departmental estimates in Clause-IX is a lower rate than the earlier rates as was settled by the respondent authorities in favour of the petitioners. He submitted that on account of the Reverse Auction Process adopted in evaluating the Price Bids, the Petitioners would suddenly affected.
10. The learned counsel for the petitioners therefore submitted that impugned terms and conditions which have been referred to hereinabove are onerous and tailor-made conditions in order to favour big contractors at the expense of small local contractors. The learned counsel further submitted that in terms with the interim order so passed by this Court, the petitioners have duly participated in the tender process and have also qualified in the technical bid.
11. I have also heard Mr. A. Borkotoki, the learned counsel appearing on behalf of the respondent nos. 1 to 5 who submits that the instant writ petition has been solely for the purpose of delaying the tender process and thereby to continue to reap benefits under the earlier contract which was allotted to the petitioners inasmuch as in view of the stay order passed by this Court, the Respondent Authorities have been compelled to continue with the existing Contracts. He submitted that the terms and conditions of a tender are within a realm of the tendering authority and as such the exercise of jurisdiction under Article 226 of the Constitution ought not to be made unless from a perusal thereof the terms and conditions of the tender are in violation to the mandate of Article 14. He further submitted that the abuse of the process of the Court by the petitioners by filing the instant writ petition is writ large from the fact that it is on the same terms and conditions, the petitioners have participated in the tender issued in the year 2017 and now have challenged the same terms and Page No.# 9/17 conditions in order to delay the settlement of the said contract in favour of the deserving bidders. The learned counsel for the respondent nos. 1 to 5 referring to Annexure C to the writ petition which the tender for Road Transportation of the Bulk Petroleum Products - ATF of the year 2017 have drawn the attention of this Court to Clause III. 5 which is paramateria to Clause XI.3.
12. The learned counsel further referring to clause III.3 and the price schedule attached thereto submits that it is paramateria with the terms with clause IX of the present terms and tender condition. The learned counsel for the respondent authorities further stated that a tender having been issued from the Company's regional office at Kolkata, the Courts at Kolkata definitely would have jurisdiction and under such circumstances, there is no violation to Section 27 of the Indian Contact Act, 1872 in respect to Clause 21 of the present terms and conditions. The learned counsel further submitted that in terms with the Clause- 6(c) of the proforma of the Bulk Petroleum Road Transportation Agreement which requires that the transport charges shall be payable under the agreement based on the shortest route approved by the Company on the round trip basis. He submitted that the tendering authority being the author of the terms knows the requirement and there being no mala fide or any perversity in the said aspect, the question of interference under Article 226 of the Constitution in respect to the said term does not arise. The learned counsel for the respondent authorities have referred to two judgments of the Supreme Court. The first judgment submitted is judgment in the case of Afcons Infrastructure Limited vs. Nagpur Metro Rail Corporation Limited reported in (2016) 16 SCC 818 and more particularly to paragraphs 11 to 15 of the said judgment. The other judgment referred to is in the case of Central Coalfields Limited & Anr. vs. Sll-Sml (Joint Venture Consortium) & Ors. reported in Page No.# 10/17 (2016) 8 SCC 622 and drew the attention of this court to paragraph nos. 47 to 49. 13. I have also heard Mr. U.K. Nair, the learned Senior Counsel appearing on behalf of the respondent nos. 6 to 17. He submitted that 155 tenderers have submitted tenders in pursuant to the tender notice dated 25.06.2022. He therefore submitted on the face of it, it cannot be said that the terms are onerous in view of the wide participation by various bidders. The learned Senior Counsel also submitted that the filing of the instant writ petition is a complete abuse of the process of the Court, taking into account that the petitioners had no problem in respect to similar terms and conditions which were there in the 2017 tender. The basic reason behind filing of the instant writ petition is to continue to enjoy and reap the benefits of the earlier contract by delaying the settlement of the contract in terms with the present tender notice dated 25.06.2022.
14. Referring to the paragraph 11 of the judgment of the Supreme Court in the case of Raunaq International Limited vs. I.V R. Construction Limited reported in (1999) 1 SCC 492, the learned Senior Counsel submitted that this is a fit case where the petitioners be imposed with exemplary costs in order to indemnify for all the profits that they have made during which the stay order has been operating. The learned Senior Counsel submitted that the petitioners could not continued with the Transportation Agreement of 2017 if the said stay was not obtained. Abuse of the process of the Court is therefore writ large.
15. The learned Senior Counsel further submitted that pursuant to the judgments of the Hon'ble Supreme Court in the case of Afcons Infrastructure Page No.# 11/17 (supra) and Central Coalfields (supra), the Hon'ble Supreme Court has reiterated the same principles in the judgments in the case of Uflex Limited vs. Government of Ors. reported in (2022) 1 SCC 163 as well as M/S Agmatel India Private Limited vs. M/S Resoursys Telecom reported in (2022) 5 SCC 362.
16. The learned Senior Counsel therefore submitted that in view of the well settled principles of law, the constitutional Courts ought not to interfere with the tender documents unless there is a mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. He also submitted that it may be possible that the interpretation given by the owner or the employer to the tender documents may not be acceptable to the Court but by that itself is not a reason for interfering with the interpretation so given. It is therefore the submission of the learned Senior Counsel that this is a fit case where the writ petition should be dismissed and if this Court dismisses the writ petition, he would not like to press the Interlocutory Application filed for vacation / modification / alteration of the order dated 22.07.2022.
17. I have heard the learned counsel for the parties and have also perused the materials on records. Before proceeding to deal with the terms and conditions which have been assailed by way of the instant writ petition, this Court would like to take into account the well settled principles as regards the exercise of jurisdiction under Article 226 of the Constitution in matters pertaining to challenge of the terms and conditions of a tender. The law is well settled inasmuch as the Supreme Court in the case of Central Coalfields (supra) observed that whether a term of the NIT is essential or not is a decision Page No.# 12/17 to be taken by the employer which should be respected. Paragraph nos. 47 to 49 of the said judgment being relevant is quoted herein below:-
"47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty the terms of the NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision making process can certainly be subject to judicial review. The 2016 (7) SCALE 425 (2012) 8 SCC 216 soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision "that no responsible authority acting reasonably and in accordance with relevant law could have reached" as held in Jagdish Mandal followed in Michigan Rubber.
48. Therefore, whether a term of the NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, 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.
49. Again, looked at from the point of view of the employer if the Courts take over the decision-making function of the employer and make a distinction between essential and non-essential terms contrary to the intention of the employer and thereby re-write the arrangement, it could lead to all sorts of problems including the one that we are grappling with. For example, the GTC that we are concerned with specifically states in Clause 15.2 that "Any Bid not accompanied by an acceptable Bid Security/EMD shall be rejected by the employer as non-responsive." Surely, CCL ex facie intended this term to be mandatory, yet the High Court held that the bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a non-essential term of the GTC. From the point of view of CCL the GTC has been impermissibly re-written by the High Court."
18. Subsequent thereto, in the case of Afcons Infrastructure (supra), it was observed that a disagreement with the decision making process or the Page No.# 13/17 decision of the Administrative Authority is no reason for the Constitutional Court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be made before the Constitutional Court before whom interference with a decision making process or the decision is sought. On the question as regards the terms and conditions of the tender documents, the Supreme Court in the said decision observed that the owner or the employer of the project is the best person to understand and appreciate its requirement and interpret its documents. The Constitutional Court must defer to this understanding and appreciation of the tender documents unless there is a mala fide or perversity in the understanding or the appreciation or in the application of the terms of the tender conditions. It was also observed that the owner of the employer of the project may give an interpretation to the tender documents that is not acceptable to the Constitutional Courts but that by itself is not a reason for interfering with the interpretation so given. Paragraph nos. 11 to 15 of the said judgment being relevant is quoted herein below:
"11. Recently, in Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium)[2] it was held by this Court, relying on a host of decisions that the decision making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision making process is mala fide or is intended to favour someone. Similarly, the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words, the decision making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYT-TPL JV in the High Court or before us.
12. In Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay[3] it was held that the constitutional Courts are concerned with the decision making process. Tata Cellular v. Union of India[4] went a step further and held that a decision if challenged (the decision having been arrived at through a valid process), the constitutional Courts can interfere if the decision is perverse. However, the Page No.# 14/17 constitutional Courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was confirmed in Jagdish Mandal v. State of Orissa[5] as mentioned in Central Coalfields.
13. In other words, a mere disagreement with the decision making process or the decision of the administrative authority is no reason for a constitutional Court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decision making process or the decision.
14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International Airport Authority of India[6] was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous - they must be given meaning and their necessary significance. In this context, the use of the word 'metro' in Clause 4.2
(a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked.
15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given."
19. Subsequent thereto, the Supreme Court have also in the judgment in M/S Agmatel India (supra) while dealing with question of interpretation to be given by the tendering authority to the terms and conditions of the tender in the scope of juridical review observed that the author of the tender document is taken to be the best person to understand and appreciate its requirements and if its interpretation is manifestly in consonance with the language of the tender document or sub serving the purchase of the tender, the Court would prefer to keep restraint. Paragraph 39 of the said judgment being relevant is quoted Page No.# 15/17 herein below:
"39. Similarly, the submission made on behalf of the writ petitioner, that it had been awarded another contract for supply of 3,00,000 tablets, carries no meaning at all. Such a supply contract had not been a matter of evaluation in the tender process in question, where the quantity in the last three financial years before the bid opening date was to be considered. Any subsequent event could neither invest the writ petitioner with any right in the present matter nor the impugned order could be sustained on that basis."
20. Thus it would be seen from the above that whether term of the NIT is essential or not is decision of the employer which should be respected and if the authority concerns deviates from it, the deviation should also be made applicable to bidder than the potential bidders. It would also appear that the authority that authors the tender document is the best person to understand and appreciate its requirement and thus its interpretation should not be second guessed by a Court in a judicial review. The interpretations so given by the author however can only be interfered with if the understanding is so perverse or mala fide that no responsible authority can reasonably arrive at such a conclusion.
21. In the backdrop of the above law laid down by the Supreme Court, let this Court take into consideration the terms and conditions which have been put to challenge by the petitioners. It would also be relevant at this stage to take note of that the petitioners admittedly were awarded the contract in the year 2017 for Bulk Transportation of ATF. The tender conditions of the 2017 tender have been enclosed as Annexure-C to the writ petition.
22. Upon a fair reading of the terms and conditions of the Notice Inviting Tender dated 25.06.2022, with the tender of the year 2017 in respect to which the petitioners were the beneficiaries, it would appear that the Clause XI.3 of Page No.# 16/17 the NIT dated 25.06.2022 is paramateria to Clause III.5 of the tender conditions of the year 2017. The petitioners tankers trucks having aged in the meantime pursuant to the earlier tender cannot be a ground to challenge the terms and conditions of the present Notice Inviting Tender dated 25.06.2022. Coming to the Clause-IX of the Notice Inviting Tender dated 25.06.2022 and reading conjointly with clause III. 3 and the schedule attached thereto would also show that both the terms and conditions are paramateria. Under such circumstances, the challenge made by the petitioners in respect to clause IX and XI on the face of it is misconceived taking into account that the petitioners have no problem as regards the said clauses when they participated in the year 2017.
23. Coming to the challenge made to Clause-21 of the Tender terms and conditions whereby jurisdiction has been vested upon the High Court of Kolkata till the placement of the Letter of Acceptance and thereupon this Court, during the contract period, in the opinion of this Court is also misconceived taking into account that the tendering authority incorporated the said clause by taking into consideration that as the tender was issued from the regional office of the Indian Oil Corporation Limited Marketing Division at Kolkata and as such till the LOA is issued, the jurisdiction has been vested upon the High Court of Calcutta. Thereupon, once the contract has been issued and as the working of the said contract has to be done within the jurisdiction of this Court, this Court has been conferred with the jurisdiction during the contract period. The said clause therefore in the opinion of this Court is not in any manner in conflict with Section 27 of the Indian Contract Act, 1872. Accordingly, the said challenge to Clause-21 of the tender terms and conditions also fails.
24. Lastly, the challenge has been made to Clause-6(a) of the Proforma Bulk Petroleum Products Road Transport agreement saying that the said clause is Page No.# 17/17 onerous as the tendering authority / Company have been empowered to carry out to pay the transportation charge on the basis of the shortest route approved by the Company on the round trip basis. The said term in the pro forma agreement is a term imposed by the tendering authority and the said term in the opinion of this court do not suffer from any mala fide or perversity taking into account that the Company who is to pay the transportation charges have based its decision on its policy to make payment of the transportation charges on the basis of a shortest route which is approved by the Company. It is the opinion of this Court that the Company being the employer is the best judge to decide the said terms and conditions and as such the question of the said term being onerous or in violation to Article 14 of the Constitution does not arise in the facts and circumstance of the instant case.
25. In view of the above observations, this Court does not find any merit in the instant writ petition for which the instant writ petition stands dismissed.
26. Interim order dated 22.07.2022 accordingly stands vacated and the respondents authorities are at liberty to proceed with the tender process in accordance with law.
JUDGE Comparing Assistant