JUDGMENT : CAVEAT No. 1602/2023 With appearance of Mr. F. A. Natnoo, Advocate, as counsel for the caveator/respondent No.5, the caveat is discharged. WP (C) No. 2301/2023 1. Petitioner through the medium of this petition has sought the following reliefs : (a) An appropriate writ, order or direction in the nature of writ of certiorari quashing result of Technical Evaluation dated 17.08.2023 as well as revised result of Technical Evaluation dated 25.08.2023 issued by respondent no.3 whereby technical bid submitted by the petitioner in reference to E-NIT No. 14 of 2023-24 dated 12.07.2023 with respect to works indicated at serial no.4 i.e. “Construction of road from Main National Poonch Highway road to Mohalla Dramna Kindo Potha Lower, Tehsil surankote District Poonch” has been declared non-responsive and technical bid submitted by respondent no.5 has been declared responsive notwithstanding non compliance of various clauses of NIT/Standard Bidding Document by respondent no.5 i.e. non-uploading of mandatory documents by him. (b) An appropriate writ, order or direction in the nature of writ certiorari quashing result of the financial bid dated 26.08.2023 together with all subsequent actions taken by the respondents 2 to 4 whereby respondent no.5 has been declared lowest for the aforesaid work/contract and the said contract is or likely to be awarded to respondent no.5 without considering and deciding the objections dated 19.08.2023 filed by the petitioner to the result of technical evolution summary dated 17.08.2023. (c) An appropriate writ in the nature of mandamus commanding the respondents to declare the technical bid of the petitioner as "responsive" for the aforesaid contract/work and consider his financial bid on its merits and if the same is found to be lowest than respondent no.5 then allot the aforesaid contract in reference to E-NIT no. 14 of 2023-24 dated 12.07.2023, in favour of the petitioner. (d) An appropriate writ in the nature of prohibition restraining the respondents from issuing allotment order with respect to aforesaid contract in favour of respondent no.5 in any manner. 2. 14 of 2023-24 dated 12.07.2023, in favour of the petitioner. (d) An appropriate writ in the nature of prohibition restraining the respondents from issuing allotment order with respect to aforesaid contract in favour of respondent no.5 in any manner. 2. It has been asserted in the petition that the tenders were invited by official respondents, for construction of different roads in Poonch District in terms of e-NIT No. 14 of 2022-23 dated 12.07.2023 and seven bidders including respondent no.5 filed their tenders in response to the aforesaid e-NIT for “Construction of road from Main National Poonch Highway road to Mohalla Dramna Kindo Potha Lower, Tehsil surankote District Poonch” (Under NABARD), to be completed in a period of two years for an estimated costs of Rs. 319.62 lacs. 3. Petitioner contends that soon after issuance of e-NIT in question, the respondent no.3 issued a Corrigendum dated 19.07.2023 whereby the contractors were directed either to upload their consent from J&K Pollution Control Board duly renewed for the current financial year or upload an undertaking from a Hot Mix Plant Holder for the peripheral distance 60 kms for construction of road works for complete job/black topping works for all class of contractors and subsequently, another corrigendum dated 27.07.2023 came to be issued by the respondent No.3 whereby it was directed that the bidders, are required to upload the consent from a Hot Mix Plant duly renewed from the current financial year or upload an undertaking from a Hot Mix Plant Holder with the renewed certificate from J&K Pollution Control Board for the peripheral distance 40 kms instead of 60 kms, for construction of road works in question. 4. It is being pleaded that the petitioner being eligible in all respects competed in the tendering process for aforesaid two works and in this behalf besides submitting his financial bid, also submitted his technical bid, on the web-portal of the respondents; that the petitioner besides uploading various mandatory documents, also uploaded two certificates dated 23.07.2023 and 31.07.2023 in reference to corrigendums dated 19.07.2023 and 27.07.2023 respectively, for complete job/black topping works for all class of contractors. Besides aforesaid two certificates, the petitioner also uploaded renewed consent order dated 12.06.2019 issued by the J&K Pollution Control Board in favour of Hot Mix Plant Holder i.e. M/S Cheshti Enterprises which is valid till April, 2024; that respondent No.3 proceeded to evaluate the technical bids of all the participating bidders for the aforesaid work/contract on 17.08.2023 and as per the result of the technical bid evaluation summary sheet for the aforesaid work, the technical bid of the petitioner has been wrongly and erroneously declared as "non-responsive" on two counts, firstly on undertaking that Hot Mix Plant Holder is not valid and secondly the Methodology is not valid i.e. name of the work not mentioned on it. 5. After declaration of the technical evaluation result on 17.08.2023, petitioner came to know that the respondent no.5 had not uploaded : (i) Substantially completed certificate upto 90%, (ii) GST 3B for months from January to April, (iii) Last 5 years similar nature, (iv) Last 5 years litigation history, which were mandatory documents to qualify in the technical bid evaluation; that the petitioner has filed his detailed objections to it, to respondent no.3 through e-mail on 19.08.2023, however, those objections were not considered. It was finally prayed that technical as well as financial bids evaluations and the result be quashed. 6. Mr. Ravinder Gupta, learned AAG caused his appearance on behalf of the official respondents submitted that allotment order has been issued in favour of successful bidder on 31.08.2023 as such, petition is misconceived and Mr. F.A. Natnoo, Advocate while appearing for caveator/respondent no.5, prayed that before passing of any order, they be heard. In this backdrop of the matter, the instant petition along with interim application is taken up, for consideration. 7. Petitioner, in view of allotment order having been issued in favour of successful bidder, filed a Supplementary Affidavit, placing on record, allotment order and prayed to treat the same as part of the writ petition and be quashed being illegal, arbitrary and actuated with malice and mala fide consideration. 8. Learned senior counsel appearing for the petitioner, vehemently, argued that in the Standard Bidding Document there was no scope of second technical bid evaluation as has been resorted to by the official respondents while declaring the petitioner as "non-responsive". 8. Learned senior counsel appearing for the petitioner, vehemently, argued that in the Standard Bidding Document there was no scope of second technical bid evaluation as has been resorted to by the official respondents while declaring the petitioner as "non-responsive". He has further argued that the defect with regard to Hot Mixed Plant and the litigation history had not been raised in the first technical evaluation by the respondents, therefore, the second technical evaluation is in contravention of Standard Bidding Document. He further argued that the petitioner has raised certain objections with regard to other bidders including the private respondent in which a decision was to be taken, however, instead of taking any decision on those objections, the respondents proceeded ahead with second technical evaluation showing that there was defect with regard to Hot Mix Plant, therefore, in absence of such glaring illegalities and irregularities committed by the official respondents which are unknown to law and such a process can be subjected to writ jurisdiction of this Court. He further argued that the affidavit as Part-IV with the Standard NIT is a format and the information by the bidders had to be submitted on that format only, therefore, the petitioner finding not sufficient space with regard to the information submitted a separate affidavit as has been enclosed by the other bidders as well and no exception can be taken with regard to filing of a separate affidavit in this behalf by the petitioner. He has further argued that in the tender document it had been recorded that there was no litigation pending and that this information is of no relevance and significance as pendency of the litigation cannot be made a basis by the official respondents while considering the bids filed by the tenderer as they had no right, whatsoever, to restrain any person from agitating his rights in a litigation before a court and also that there was no consequence of any pendency while considering the bids in the SBD. Therefore, the pendency of litigation makes no difference and can be bracketed as in discretionary. He has also argued that mandatory and directory requirements are interchangeable in case of being consequential and not otherwise. Therefore, the pendency of litigation makes no difference and can be bracketed as in discretionary. He has also argued that mandatory and directory requirements are interchangeable in case of being consequential and not otherwise. Finally, it was argued that the petitioner being qualified was required to be protected, for opening of his financial bid and in case the bid of the petitioner is found lowest, he has every right of being allotted the work in question. 9. Mr. Ravinder Gupta, learned AAG, appearing for the official respondents argued that the official respondents have strictly complied with the conditions of the Notice Inviting Tender and has not favoured any of the bidders and there is no question of having rejected the technical bid of the petitioner to oust him from the competition as alleged by the petitioner. He has finally argued that based on the record of the official respondents, the petition filed by the petitioner is found to be grossly misconceived and is liable to rejected. 10. Mr. F.A. Natnoo, learned counsel for the private respondent argued that the Standard Bidding Document provides in sub clause IVX of clause 4.3 that the bidder had to provide information regarding any litigation current, or during the last five years, in which the bidder is involved, the parties concerned, and disputed amount and argued that the private respondent had failed to submit this information and sub clause 2.9 with regard to litigation history also provides that the applicant should provide accurate information on any litigation or arbitration resulting from contracts completed or under execution by him over the last five years, including a consistence of awards against the applicant or any part of a joint venture, may result in failure of the applicant. He has argued that this litigation history clause incorporated in clause 2.9 has therefore, consequential effect and the contention raised by the learned senior counsel for the petitioner that such an information is inconsequential is misconceived and is liable to be rejected. 11. He has argued that this litigation history clause incorporated in clause 2.9 has therefore, consequential effect and the contention raised by the learned senior counsel for the petitioner that such an information is inconsequential is misconceived and is liable to be rejected. 11. The petitioner had not only failed to give the litigation history despite there being cases filed by him had clearly denied that there was any litigation, therefore there being the consequence of failure of the applicant it cannot be stated that this requirement of providing litigation history is of no consequence so as to reject the technical bid filed by any bidder as the applicant in the case. He has further argued that the technical evaluation summary sheet was issued by the respondent-Superintending Engineer after consideration of the objections raised by the bidders with regard to the technical bids filed by the other contractors and as per the summary sheet, the petitioner Farooq Hussain had been shown as "non-responsive" for his invalid undertaking of Hot Mix Plant holder and invalid methodology as name of the work has not been mentioned on it, therefore, by this technical evaluation summary, two of the contractors including respondent No.5 had been shown as responsive and six of the contractors including the petitioner had been shown as non-responsive with regard to the subject work. He has relied upon the law laid down by this Court in case titled Nayak Infrastructure Pvt. Ltd. Vs. State of J&K & Ors., wherein it has been held that when a person comes forward with his offer, he has to satisfy the terms and conditions of NIT and SBD and that competent authority can take a decision to accept or not to accept the tender document when no information of vital importance is given and on terms and conditions of NIT and SBD tenders were to be rejected. Mr. Natnoo further argued that the respondent No.5 being L-I has been allotted the work and the construction is underway, therefore, it will not be in the interest of justice to interfere with the tender process at this stage when the allotment of work has already been ordered in favour of private respondent No.5, who has pressed into service the men and machinery for execution of the work. He in support of his contention has produced some photographs indicating that the JCB has been pressed into service for earth work of the road in question. 12. Heard, perused the record and considered. 13. On receipt of technical bids for the work in question and on opening of the technical bids on 17.08.2023, petitioner was declared as non-responsive simply for the reason that undertaking submitted by him for Hot Mix Plant holder and non-mentioning of e-NIT number on methodology, rejected his technical bid. The petitioner on his being declared as non-responsive claims to have filed detailed objections and on 25.08.2023 a revised result of the technical bid was issued and the earlier fault pointed out again shown against the petitioner as non-responsive for the reason that the undertaking of the Hot Mix Plant holder was not valid and also the methodology i.e the name of the work not mentioned on it, was also not valid, and the financial bid was opened on 26.08.2023 declaring the private respondent as lowest bidder contemplating the award of contract in his favour. 14. The stand taken by the respondents is that the official respondents had already finalized the bidding process and issued the allotment of contract on 31.08.2023 in favour of the private respondent and thereafter the petitioner had challenged the technical bid when the financial bid was also declared and after issuance of Letter of Intent (LoI), allotment order was also issued before that. 15. Hon'ble Apex Court in a case titled National High Speed Rail Corporation Limited Vs. Montecarlo Limited & Anr. (Civil Appeal No. 6466/2021) vide judgment dated 31.01.2022 had held that as per the tender document all the bidders were required to adhere to the requirement as per the terms and conditions mentioned in the tender document and there cannot be any deviation by any bidder, therefore, when a conscious decision has been taken by the JICC vs. JICA on the bids submitted by the original writ petitioner being non-responsive/non-complied to the technical requirement of the bidding document, unless there are specific allegations of mala fide and/or favoritism the same could not have been the subject matter of scrutiny by the High Court in exercise of the powers under Article 226 of the Constitution of India. 16. 16. The Apex Court in a case of Tata Cellular v. Union of India; (1994) 6 SCC 651 , has laid down in Para-94 as under:- 94. The principles deducible from the above are: (1) The modern, trend points to judicial restraint in administrative action. (2) The court does not 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. (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 fair play 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) but must be free from 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. 17. Similarly, in Jagdish Mandal vs. State of Orrisa, 2007 (14) SCC 517 , Hon'ble the Supreme Court has laid down the following tests for judicial interference in exercise of powers of judicial review of administrative action : “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. 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 succor 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…...” 18. Petitioner, participated in the tendering process by filing technical as well as financial bids, without challenging the conditions, either of the SBD or e-NIT, in question, cannot turn around and contend that the requirement of litigation history is immaterial, particularly, in view of clause 2.9 of SBD, which provides that on absence to do so, may result into failure of the bidder. With this consequential condition, the requirement of providing litigation history is quite significant and legally tenable to declare such a bidder as non-responsive. The respondents have thus correctly declared petitioner as non-responsive. Having regard to the principles adumbrated in the above quoted judgments, it is held that no interference/indulgence is required by this court, while invoking writ jurisdiction in the petitioner's case. 19. Another aspect with regard to the fact that in view of the allotment of work in favour of private respondent on 31.08.2023, the petitioner had filed this petition on 01.09.2023. 19. Another aspect with regard to the fact that in view of the allotment of work in favour of private respondent on 31.08.2023, the petitioner had filed this petition on 01.09.2023. The private respondent has claimed that in view of the allotment of the work in his favour by the official respondent, he had taken up the work and invested huge amount in the execution of the work. The Apex Court in a case of Tata Motors Limited vs. Brihan Mumbai Electric Supply & Transport Undertaking (BEST) & Ors., reported as 2023 LiveLaw SC 467 has laid down the guidelines to be followed in contract matters. Para 52, 53 and 54 of the judgment are important to be noted and are extracted as under : “52. Ordinarily, a writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer unless something very gross or palpable is pointed out. The court ordinarily should not interfere in matters relating to tender or contract. To set at naught the entire tender process at the stage when the contract is well underway, would not be in public interest. Initiating a fresh tender process at this stage may consume lot of time and also loss to the public exchequer to the tune of crores of rupees. The financial burden/implications on the public exchequer that the State may have to meet with if the Court directs issue of a fresh tender notice, should be one of the guiding factors that the Court should keep in mind. This is evident from a three-Judge Bench decision of this Court in Association of Registration Plates v. Union of India and Others, reported in (2005) 1 SCC 679 . 53. The law relating to award of contract by the State and public sector corporations was reviewed in Air India Ltd. v. Cochin International Airport Ltd., reported in (2000) 2 SCC 617 and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere. 54. As observed by this Court in Jagdish Mandal v. State of Orissa and Others, reported in (2007) 14 SCC 517 , that while invoking power of judicial review in matters as to tenders or award of contracts, certain special features should be borne in mind that evaluations of tenders and awarding of contracts are essentially commercial functions and principles of equity and natural justice stay at a distance in such matters. If the decision relating to award of contract is bona fide and is in public interest, courts will not interfere by exercising powers of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. Power of judicial review will not be invoked to protect private interest at the cost of public interest, or to decide contractual disputes 20. The Apex Court, also in a case titled Silppi Construction Contractors vs. Union of India & Anr. etc etc, reported as (2020) 16 SCC 489 has held in para 25 that while rejecting the tender, the person or authority inviting the tenders is not required to give reasons even if it be a State within the meaning of Article 12 of the Constitution. These decisions are neither judicial nor qasi-judicial. If reasons are to be given at every stage, then the commercial activities of the State would come to a grinding halt. The State must be given a sufficient leevway in this regard. The respondents 1 and 2 were entitled to give reasons in the counter to the writ petition, which they have done. If reasons are to be given at every stage, then the commercial activities of the State would come to a grinding halt. The State must be given a sufficient leevway in this regard. The respondents 1 and 2 were entitled to give reasons in the counter to the writ petition, which they have done. 21. A Coordinate Bench of this Court in WP(C) No. 1259/2023 titled Ghulam Nabi Mir vs. Union Territory of J&K & Ors., has held “that another aspect which must be born in mind before judicial interference is done in matters concerning tenders is the financial implication on the public exchequer that the State may have to meet with if the court directs fresh tender notice. To say the least, it would not be in public interest to set at naught the entire tender process at the stage when the contract is well underway”. 22. The technical bid filed by the petitioner, has been rejected by the official respondents as he had not filed the tender in accordance with the tender notice/SBD. The petitioner challenged the technical bid, when whole of the tender process had culminated into allotment order on 31.08.2023 and the private respondent had already started work for its execution. 23. Having regard to the observations of the Apex Court in various cases for the High Court, ordinarily not to interfere with the administrative decision to review the same while sitting in appeal, when the public interest is involved, unless a grave illegality is found to have been committed in view of any mala fide/ favoritism and also, that the tender process has already been culminated and after allotment of work, the work is in execution, this Court does not find any merit in the petition to warrant any interference by this court at this stage. 24. In this backdrop of the matter, the petition is dismissed in limini along with interim application(s).