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2013 DIGILAW 354 (JK)

Rajat Flour Mills v. Union Of India

2013-06-03

Mansoor Ahmad Mir

body2013
1. The point in issue in both the writ petitions is same, were heard on a same day viz. 24th May, 2013, therefore, both are taken up for disposal together by virtue of a common judgment. 2. Petitioners, by the medium of writ petitions, challenge the legality of `Policy' adopted by the respondents for supply of Branded Wheat, Atta, Whole Meal, Suji, Flour and Dalia. The said Policy required the concerned suppliers to have certain specifications for the purpose and made those specifications public by issuing a Tender Notice dated 29th December, 2012. Petitioners plead to be aggrieved of such Tender Notice, therefore, seek its quashment. 3. Respondents have filed reply and resisted the petitions on variety of grounds. It is stated that the guidelines, policy, sought to be challenged by the petitioners is of the year 2009 as the same has been adopted by the respondents on 24th December, 2009. That, from that date till today nobody has challenged such guidelines, therefore, petitioner firms are estopped in law to challenge the impugned Tender Notice containing such guidelines. That, the writ petitions require to be dismissed for suppression of material facts, as petitioners did not disclose in its writ petitions about the dismissal of a similar writ petition filed at the Jammu wing of this court being OWP No. 601/2010 titled M/s New Jammu Flour Mills v. UOI & Ors. 4. Heard counsel for the parties and considered the matter. 5. At the very outset it needs to be brought on record that criteria has already been put to challenge at Jammu wing of this court and the said writ petition has been dismissed vide judgment dated 1st June, 2010, with the observations that the conditions incorporated in the NIT do not run contrary to Rules or are arbitrary in any way. It is apt to reproduce relevant portion of the judgment herein, thus: "Petitioner is aggrieved of this condition. He urges that the condition is totally illegal, arbitrary and apparently envisaged with the aim and intent of curtailing the condition and benefiting a couple of millers/ vendors whose Wheat Atta is commercially marketed. I do not find any merit in the contention. The condition contained in the notification for registration and tender notice have, as stated by the respondents, been issued in accordance with the policy of Government of India Ministry of Defence dated 24th December, 2009. I do not find any merit in the contention. The condition contained in the notification for registration and tender notice have, as stated by the respondents, been issued in accordance with the policy of Government of India Ministry of Defence dated 24th December, 2009. I could not find anything discriminatory or arbitrariness in it. The petitioner could not show how it infringes any of his rights." 6. This court in the judgment supra has already held that no right is infringed of the petitioners; therefore, the petitioners are precluded to question the same in the instant petitions. 7. Apex Court in case titled Directorate of Education and others v. Educomp Datamatics Ltd. and others, reported in AIR 2004 (2) SC 1962, has held that conditions contained in an NIT issued in a particular year for supply of certain items can be changed in the subsequent NITs for the same items and such change can be attributed to the passage of time. It was further observed by their Lordships that the Tendering Authority knows the best as to who is capable of competing in the process. It is apt to reproduce paragraph 12 of the said judgment herein, thus:- S. No. Issue Time frame 1 Submission of the applications by entrepreneurs for issuance of NO C or renewal of the Institutions to the administrative department & issuance of NOCs / renewals after getting inspection report from the authorized committee. 1st March to ending August every year. 2 Issuance of notification for admission by J&K BOSE 1st week of June every year 3 Receipt of applications for pursuing ETTC including Management Quota for existing ETTs and new ones by J&K BOSE. Ending August every year 4 Allotment of candidates by J&K BOSE to affiliated ETT Institutes. 1st Sept. to 15th Sept. every year 5 Classification of admitted / eligible candidates & commencement of academic session. By 20th Sept. every year 6 Examination, 1st year including teaching practice. By 20th Sept. every year 7 Examination 2nd year including teaching practice. By 3rd week of Sept. every year "12. It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny the same being in the realm of contract. That the government must have a free hand in setting the terms of the tender. By 3rd week of Sept. every year "12. It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny the same being in the realm of contract. That the government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The courts cannot strike down the terms of the tender prescribed by the government because it feels that some other terms in the tender would have been fair, wiser or logical. The courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide." 8. The Apex Court in another case titled M/s Electrical Manufacturing Co. Ltd. v. M/s. Power Grid Corporation of India Ltd. & Anr., reported as 2009 AIR SCW 4820, has held that Courts should not interfere with the decisions made by the Tendering Authorities, if the tenderer fails to satisfy the eligibility in full. 9. As discussed hereinabove, this court has already held that in the writ petition supra that the guidelines or policy adopted is not arbitrary, thus no review is possible on the ground of arbitrariness. My view is fortified by an Apex Court judgment delivered in case titled M/s Michigan Rubber (India) Ltd. v. State of Karnataka & Ors., reported as 2012 AIR SCW 4727. It is apt to reproduce paragraphs 19 and 31 of the said judgment, herein, thus: "19) From the above decisions, the following principles emerge: (a) the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim fundamental right to carry on business with the Government. 31) As observed earlier, the Court would not normally interfere with the policy decision and in matters challenging the award of contract by the State or public authorities. In view of the above, the appellant has failed to establish that the same was contrary to public interest and beyond the pale of discrimination or unreasonable. We are satisfied that to have the best of the equipment for the vehicles, which ply on road carrying passengers, the 2nd respondent thought it fit that the criteria for applying for tender for procuring tyres should be at a high standard and thought it fit that only those manufacturers who satisfy the eligibility criteria should be permitted to participate in the tender. As noted in various decisions, the Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the Courts would interfere. As noted in various decisions, the Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the Courts would interfere. The Courts cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. In the case on hand, we have already noted that taking into account various aspects including the safety of the passengers and public interest, the CMG consisting of experienced persons, revised the tender conditions. We are satisfied that the said Committee had discussed the subject in detail and for specifying these two conditions regarding pre-qualification criteria and the evaluation criteria. On perusal of all the materials, we are satisfied that the impugned conditions do not, in any way, could be classified as arbitrary, discriminatory or mala fide." 10. The Apex court has also in another case, titled The Rajasthan State Industrial Development and Investment Corporation & Anr. v. Diamond and Gem Development Corporation Ltd. & Anr., reported as 2013 AIR SCW 1244, latest in point of time on the subject, laid down the same principle. It is apt to reproduce paragraph 14 of the said judgment herein, thus: "14. It is evident from the above, that generally the court should not exercise its writ jurisdiction to enforce the contractual obligation. The primary purpose of a writ of mandamus is to protect and establish rights and to impose a corresponding imperative duty existing in law. It is designed to promote justice (ex debito justiceiae). The grant or refusal of the writ is at the discretion of the court. The writ cannot be granted unless it is established that there is an existing legal right of the applicant, or an existing duty of the respondent. Thus, the writ does not lie to create or to establish a legal right, but to enforce one that is already established. While dealing with a writ petition, the court must exercise discretion, taking into consideration a wide variety of circumstances, inter-alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant or refusal." 11. While dealing with a writ petition, the court must exercise discretion, taking into consideration a wide variety of circumstances, inter-alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant or refusal." 11. Applying the test to the case in hand, the petitioners are held to have failed in carving out a case for interference. Virtually petitioners are caught by the law of estoppel and also by the law of resjudicata. 12. For all what is stated hereinbefore, the writ petitions are held to be meritless, therefore, dismissed along with all CMPs. 13. A copy of the order be placed on each file.