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2013 DIGILAW 1075 (PNJ)

Bikramjeet Singh v. Union of India

2013-08-16

Augustine George Masih, Sanjay Kishan Kaul

body2013
JUDGMENT Mr. Sanjay Kishan Kaul, C.J. (Oral):- The grievance of the petitioner is that in the tender for four tons parcel space in Train No.12904 Ex.ASR to BCT published vide advertisement dated 26.7.2012, the petitioner was the H-1. Despite this, the tender has not been awarded to the petitioner but, on the other hand, the tender has been re-floated on 15.7.2013 through a fresh advertisement without disclosing any reasons to the petitioner. 2. Learned counsel for the petitioner has invited our attention to RTI application made on 24.6.2013 specifically soliciting the answer to the query of no decision being taken for six months on the bid of the petitioner and enquiring whether the bid had been withdrawn (Annexure P-6). In answer to the same, vide a letter, it has been stated that the tender process is complete and as per Item No.15 of Instructions to Tenderers, the railway administration reserves the right to reject or accept any tender without assigning any reason. 3. Learned counsel for the petitioner submits that aforesaid clause cannot give a licence to the respondents to cancel the tender without recording the reasons for the same and, in this behalf, relies upon the judgment of the Supreme Court in Union of India v. Dinesh Engineering Corporation and another, 2001(8) SCC 491 , which states as under:- “15. Coming to the second question involved in these appeals, namely, the rejection of the tender of the writ petitioner, it was argued on behalf of the appellants that the Railways under Clause 16 of the Guidelines was entitled to reject any tender offer without assigning any reasons and it also has the power to accept or not to accept the lowest offer. We do not dispute this power provided the same is exercised within the realm of the object for which this clause is incorporated. This does not give an arbitrary power to the Railways to reject the bid offered by a party merely because it has that power. This is a power which can be exercised on the existence of certain conditions which in the opinion of the Railways are not in the interest of the Railways to accept the offer. No such ground has been taken when the writ petitioner’s tender was rejected. This is a power which can be exercised on the existence of certain conditions which in the opinion of the Railways are not in the interest of the Railways to accept the offer. No such ground has been taken when the writ petitioner’s tender was rejected. Therefore, we agree with the High Court that it is not open to the Railways to rely upon this clause in the Guidelines to reject any of every offer that may be made by the writ petitioner while responding to a tender that may be called for supply of spare parts by the Railways. Mr. Iyer, learned senior counsel appearing for the EDC, drew our attention to a judgment of this Court in Sterling Computers Ltd. v. M/s. M. and N. Publication Ltd., (1993) 1 SCC 445 which has held: “Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the Courts, such decisions are upheld on the principle laid down by Justice Holmes, that Courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of “play in the joints” to the executive.” 16. But then as has been held by this Court in the very same judgment that a public authority even in contractual matters should not have unfettered discretion and in contracts having commercial element even though some extra discretion is to be conceded in such authorities, they are bound to follow the norms recognised by Courts while dealing with public property. This requirement is necessary to avoid unreasonable and arbitrary decisions being taken by public authorities whose actions are amenable to judicial review. Therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in contracts, the same will have to be done within the four corners of the requirements of law especially Article 14 of the Constitution. Therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in contracts, the same will have to be done within the four corners of the requirements of law especially Article 14 of the Constitution. In the instant case, we have noticed that apart from rejecting the offer of the writ petitioner arbitrary, the writ petitioner has now been virtually debarred from competing with the EDC in the supply of spare parts to be used in the governors by the Railways, ever since the year 1992, and during all this while we are told the Railways are making purchases without any tender on a proprietary basis only from the EDC which, in our opinion, is in flagrant violation of the Constitutional mandate of Article 14. We are also of the opinion that the so-called policy of the Board creating monopoly of EDC suffers from the vice of non-application of mind, hence, it has to be quashed as has been done by the High Court.” 4. We must note with regret that the respondent-authorities have not cared to answer the queries of the petitioner with the result that the petitioner is in dark about the reasons for non-acceptance of his highest bid. The result is that there are two rounds of litigation – first one to find out as to what the reason is and the second one to assail the reasoning, if so advised. 5. We call upon the respondents to disclose to the petitioner the reasons for rejection of his H-1 bid, as aforesaid, within a period of 3 days of the receipt of this order. We further direct the respondents that in future whenever a bid process is complete and such a bid is rejected, they must mandatorily inform the parties about the reasons for the rejection of the bid even if there is a discretion as envisaged under Item No.15 of Instructions aforesaid. 6. Petition accordingly stands disposed of. 7. Copy dasti to learned counsel for the petitioner under the signatures of the Bench Secretary. ---------0.B.S.0------------