Krishna District Cooperative Marketing Society Ltd v. State of A. P. , Rep. by its Principal Secretary, Women 86 Child Welfare Department
2024-04-04
VENKATESWARLU NIMMAGADDA
body2024
DigiLaw.ai
ORDER : Venkateswarlu Nimmagadda, J. 1. Originally, this writ petition was filed by the petitioner against Respondent Nos.1 & 2. However, vide order of this Court in I.A.Nos.2, 4 & 5 of 2023 dated 27.11.2023, Respondent Nos.3 & 4 were impleaded as party respondents and vide order in I.A.No.5 of 2023 dated 27.11.2023, Petitioner No.2 was implead as proper and necessary party. 2. Though Petitioner No.2, was impleaded as proper and necessary party, no affidavit is filed on it’s behalf. 3. This writ petition is filed under Article 226 of the Constitution of India claiming the following relief : i. declaring the action of the respondent No 2 in rejecting the bid of the petitioner vide IDNo680036 at the Technical stage without assigning any reasons through the petitioner fulfils the technical criteria mentioned in the tender published notification for Supply of YSR Sampoorna Poshana and YSR Sampoorna Poshana Plus products all together to all Anganwadi Centers in Unit II Of Kakinada East Godawari Konaseema West Godawari Eluru N T R And Krishna Districts 07 Districts under supplementary nutrition programme as illegal arbitrary unfair unreasonable and violation of Principles of Natural justice besides violation of Article 14 of Constitution of India ii. consequently to set-aside the rejection order dated 9.11. 2023 passed by the 2nd respondent rejecting the bid of the petitioner vide ID No 680036 at the Technical stage and declare that the petitioner is eligible to be considered equally along with other tenderers in a fair and transparent manner 4. The petitioner claims its position as a prominent manufacturer, wholesaler, and trader of food commodities, having successfully supplied food products to various Government institutions for many years. Specifically, it has catered to the needs of different welfare schemes, including the Integrated Child Development Scheme (ICDS). Within the ICDS, the respondents have been tasked with providing supplementary nutrition to pregnant and lactating women to ensure safe childbirth. To achieve the said object, they used to distribute YSR Sampoorna Poshana (YSRSP) Kits and YSR Sampoorna Poshana Plus (YSRSPP) Kits at Anganwadi Centers, containing essential items such as Ragi Flour, Jaggery, Groundnut Chikki, Dry Dates, Rice Flakes, and Multigrain Atta. Tenders were invited by the respondents on a unit basis for the supply of these kits, covering with the entire State of Andhra Pradesh and divided into four Units, each unit comprising 6 to 7 districts. 5.
Tenders were invited by the respondents on a unit basis for the supply of these kits, covering with the entire State of Andhra Pradesh and divided into four Units, each unit comprising 6 to 7 districts. 5. In pursuance of the same, the 2nd respondent invited tenders for supply of YSRSP and YSRSP Plus Kits to all Anganwadi Centers in Unit II comprising of Kakinada, East Godavari, Konaseema, West Godavari, Eluru, N.T.R and Krishna Districts vide Tender ID No.680036 dated 03.11.2023. Being qualified, the petitioner submitted it’s bid strictly in accordance with the clauses of the tender notice. However, the 2nd respondent rejected without mentioning any ground. 6. During hearing, upon receipt of instructions from the commissioner, Women Development and Child Welfare Department, Guntur dated 19.11.2013, wherein it was informed that tender was finalized and allotted in favour of the successful bidder on 18.11.2023, this Court passed an interim direction on 20.11.2023 directing both the parties to maintain status quo as on date. 7. It is the contention of the petitioner that, the respondents rejected the bid of the petitioner without even mentioning any reason. It is alleged that, despite the petitioner meeting all the requisite conditions outlined in the tender notice, it appears that the respondents have rejected the bid with malicious intent, seemingly to favor a specific bidder for reasons unrelated to the tender's requirements. Challenging the same, the present writ petition is filed. 8. Respondent No.2 – Commissioner, Women and Child Welfare Department, Government of Andhra Pradesh filed counter affidavit along with vacate stay petition in I.A.No.7 of 2023, denying the allegations. It is submitted that, as per Tender Notification, NIT No.680036 dated 03.11.2023, 11 tender applications were received by the office, including petitioner’s participation in Unit-II. The Technical bids were opened on 09.11.2023 in e-procurement portal for evaluation. The State Government has constituted a State Level Procurement Committee vide G.O.Rt.No.109 Department of Women, Children, Differently Abled & Senior Citizens (Prog.I) dated 13.10.2023 for procurement of YSRSP & YSRSP Plus Kits to all Anganwadi Centres in the State. The State Level Procurement Committee has done a technical evaluation of all bids submitted under Unit-II bids and concluded on 16.11.2023. Out of 11 bidders, 6 bidders were qualified and 5 bidders were disqualified. The petitioner is among the 5 bidders who are disqualified.
The State Level Procurement Committee has done a technical evaluation of all bids submitted under Unit-II bids and concluded on 16.11.2023. Out of 11 bidders, 6 bidders were qualified and 5 bidders were disqualified. The petitioner is among the 5 bidders who are disqualified. In Paragraph No.4 of the counter affidavit, the reasons for the petitioner being disqualified are mentioned, and they will be discussed at appropriate stage. 9. It is submitted that, the bidders who have not submitted the documents as per Clause 2.2.1 of the Eligibility and Qualification requirements of the bidder will be informed as “disqualified”. The bidders who were declared qualified by the State Level Procurement Committee were only allowed to participate in the Financial Bid on 17.11.2023 for reverse auction on the L1 rate. Reverse auction was carried out on 17.11.2023, concluded on the same day and accordingly, the work order was issued vide Prog. No.WDC02/24040/1/2023-SNP dated 19.11.2023 and the entire process of finalization of tenders was done through online only. 10. The bids were cancelled due to L1 rate quoted in reverse auction was above 10:26%, 12:65% of Estimated Bid Value for Unit-II and Unit-IV respectively. The Government vide Memo No.2075786/2023/Progfs-1/A dated 03.11.2023 issued orders directing the Commissioner, WD &CW Department to take necessary action for notification of the 2nd tender for Unit-II and Unit-IV. As per the order of the Government, the department has cancelled the tenders of Unit-II and Unit-IV and 2nd call of tender for Unit-II and Unit-IV has been uploaded in e-procurement portal with NIT No.680036 on 03.11.2023 and closing date 09.11.2023 at 5:30 PM for Unit-II. 11. Respondent No.3 – M/s. Sree Maruti Agros and Sri Vigneswara Enterprises filed counter affidavit and vacate stay petition in I.A.No.3 of 2023 denying allegations. It is submitted that, Respondent No.3 is in the business of processing, manufacturer and supplier of food products to various organizations/ institutions and government departments. 12. It is submitted that, Respondent No.3 participated in the e-tender Notice No.NIT No.YSRSP/2023-2024/Tender P-2 dated 03.11.2023. the State Level Procurement Committee conducted technical evaluation on 17.11.2023. After evaluation, the qualified bidders were allowed to participate in reverse auction for the price bid. In reverse auction for UNITII, Respondent No.3 M/s. Maruthi Agros stood as the lowest bidder and became successful L1.
the State Level Procurement Committee conducted technical evaluation on 17.11.2023. After evaluation, the qualified bidders were allowed to participate in reverse auction for the price bid. In reverse auction for UNITII, Respondent No.3 M/s. Maruthi Agros stood as the lowest bidder and became successful L1. The State Level Procurement Committee in its meeting held on 17.11.2023 accepted the price quoted by Respondent No.3 against UNIT-II of the State. In terms of 6.9(b) of the conditions stipulated in the agreement, the conditions should be strictly adhered to and violation of any conditions will entail termination of the contract. The order was approved on 18.11.2023 and proceedings dated 19.11.2023 were issued in favour of Respondent No.3. 13. In the minutes of the meeting of the State Level Procurement Committee, the writ petitioner was shown as disqualified on the ground that, it has not submitted required documents to the tender inviting authority with regard to Statement of Accounts, Income Tax Returns, Audited/Provisional Balance Sheet duly audited by a Chartered Accountant. The invitation of tenders and revocation of the tender notification are prerogatives of a tenderer and the writ petitioner does not have any say in the matter. The petitioner’s bid was rejected on the ground it has submitted unaudited and unsigned Statement of Accounts, Income Tax Returns, Audited/Provisional Balance Sheets, as such liable to be rejected and disqualified as per Clause 2.2.1 (f) & (j) of the terms and conditions of the bid and requested to dismiss the writ petition. 14. Respondent No.4 – M/s. Kendriya Bhandar filed counter affidavit and vacate stay petition in I.A.No.6 of 2023 denying allegations, while reiterating the contents of Respondent No.3. it is specifically submitted that in terms of Clause 1.2.11 of the bid document, in view of the value and timeless, the authority at its discretion can invite L12, L3 in sequence to match the price of L1 and release orders. Respondent No.3 addressed letter dated 18.11.2023 to Respondent No.2 requesting to split the tender order in Unit-II for L1 price with L2 price. Respondent No.4 also addressed letter dated 18.11.2023 showing their interest with L-1. Based on the letters received from Respondent Nos.3 & 4, and as per Clause 1.2.11 of the bid document, Letter of Acceptance was issued and requested to dismiss the writ petition. 15.
Respondent No.4 also addressed letter dated 18.11.2023 showing their interest with L-1. Based on the letters received from Respondent Nos.3 & 4, and as per Clause 1.2.11 of the bid document, Letter of Acceptance was issued and requested to dismiss the writ petition. 15. The petitioner filed reply to the counter affidavit dated 23.11.2023 and 12.12.2023 filed by the respondents, denying the allegations, reiterating the contentions urged in the affidavit. 16. During hearing, learned counsel for the petitioner would submit that, the 2nd respondent had rejected the petitioner’s bid solely with a malafide intention to award the tender in favour of one of the bidders in whom the respondents are interested to award the work for extraneous considerations. Though the petitioner is fully qualified under all the requisite conditions of the tender notice, the respondents have rejected the petitioner’s bid arbitrarily and high-handedly. 17. Learned counsel for the petitioner submits that, as per Clause No.2.2.1 of the terms and conditions, the selected bidder has to deposit a sum of 3% of ECV as performance guarantee/security deposit and as per Clause 3.9.6, the selected bidder before entering the agreement in the period stipulated, shall produce GST registration within the State. Without fulfilling the above conditions, supply of material by the proposed 3rd respondent does not arise. 18. Learned counsel for the petitioner would submit that, even if there is a clause in the bid notification that it need not state reasons while rejecting the bid, still the tender accepting authority is not free to take decisions in an arbitrary manner. The tender authority failed to state reasons and there are no justiciable reasons for rejecting the bid of the petitioner and requested to grant the relief as stated supra. 19. On the other hand, Sri Narasimha Reddy G.L., learned Government Pleader for Social Welfare appearing for Respondent No.2 contended that, as per Clause 2.2.1 (f), copy of the Audited Statement of Accounts and Income Tax Returns duly certified by Chartered Accountant for preceding three years i.e. 2020-32, 2021-22, 2022-23 and IT returns with positive net worth shall be considered. But, the turnover and IT returns and provision balance sheet has been submitted for all the three years by the bidder without Chartered Accountant Certification.
But, the turnover and IT returns and provision balance sheet has been submitted for all the three years by the bidder without Chartered Accountant Certification. It is also contended that, as per Clause 2.2.1 (f), the Audited/Provisional Balance Sheet for the year 2022-23, it bears no signature of the bidder nor certified by a Chartered Accountant and it is an unsigned/unattested document. It is contended that, the allegation that the bid of the petitioner was rejected without giving any notice is baseless, since there is no such procedure contemplated in the tender process and tenders will be finalized basing on the terms and conditions stipulated in the tender document. In the absence of any such clause to issue notice at the time of disqualification of the bids at the stage of technical evaluation, the petitioner is not entitled to insist for issuance of any such notice by the authority. 20. Sri Raviteja Padiri, learned counsel appearing for Respondent Nos.3 & 4 would contend that, the bid of the writ petitioner was rejected at the technical stage on the ground that the petitioner has made material misrepresentation and made materially false/incorrect information with regard to their delivery experience, as such rejected and disqualified as required under Clause 2.2.1 (f) and 2.2.1 (i) of the terms and conditions of the Bid. As per Clause 2.5.2, the bidding authority reserves right to reject any single bid or more than one bid or the entire bidding process, if it is found that there is any material misrepresentation is made and the petitioner who has submitted false statements and misrepresented the facts cannot invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India and requested to dismiss the writ petition. 21. Learned counsel would contend that, the petitioner cannot be permitted to challenge the bid condition/clause which might not suit him and/or convenient to him. Learned counsel placed reliance on the judgments of the Hon’ble Apex Court in Balaji Ventures Pvt. Ltd vs. Maharashtra State Power Generation Company Limited, 2022 LiveLaw (SC) 295; The Silppi Constructions Contractors vs. The Union of India and Ors., Special Leave Petition (Civil) Nos.13802-13805 of 2019 dated 21.06.2019; Montecarlo Limited vs. National Thermal Power Corporation Limited, (2016) 15 SCC 272 .
It is also contended that, judicial review in contractual or tenders is limited to the given circumstances where, unless and until there is scope for arbitrariness and public interest involved. But, in the case on hand, non-compliance of tender conditions is the core issue in the bid of this petitioner was rejected, accordingly the same was rejected and therefore, requested to dismiss the writ petition. 22. Heard learned counsel for the petitioner, learned Government Pleader for Social Welfare; Sri Ravi Teja Padiri, learned counsel appearing for Respondent Nos.3 & 4 and perused the material available on record. 23. It is an admitted fact that, the 2nd respondent called for tenders for procurement of YSRSP and YSRSP Plus kits vide Notice Inviting Tender No.680036 dated 03.11.2023. In pursuance of the tender referred above issued by 2nd respondent, the petitioner along with Respondent Nos.3 & 4 participated in the process. Out of 11 bidders, 6 bidders were qualified and 5 bidders were disqualified. The petitioner is among the 5 bidders who are disqualified for failure to meet the Eligibility and qualification requirements of the bidder as per Clause 2.2.1 (f) & (i) of the Tender Conditions. 24. According to Clause 2.2.1 (f) of the Tender Conditions – copy of the Audited Statement of Accounts and Income Tax Returns duly certified by Chartered Accountant for preceding three years i.e. 2020-21, 2021-22, 2022-23 and IT returns with positive net worth shall be considered. But, the turnover and IT returns and provisional balance sheet has been submitted for all the three years by the bidder without Chartered Accountant Certification. As per Clause 2.2.1 (f), the Audited/Provisional Balance Sheet for the year 2022-23, requires certification, but in the case on hand it bears no signature of the bidder nor certified by a Chartered Accountant and it is an unsigned/unattested document. 25. Thus, according to Clause 2.2.1 (f) & (i), the petitioner should have submitted Audited Statement of accounts and Income Tax returns duly certified by the Chartered Accountant for preceding three years and also Audited/Provisional balance sheet for the year 2022-23. But, the petitioner submitted the turnover and IT Returns and Provisional Balance sheet for the three years without Chartered Account Certification. Further, the Audit Certificate for FY 2022-23 neither bears the signature of the bidder nor the signature of the Chartered Accountant. Thus, upon evaluation, the petitioner was disqualified on technical grounds. 26.
But, the petitioner submitted the turnover and IT Returns and Provisional Balance sheet for the three years without Chartered Account Certification. Further, the Audit Certificate for FY 2022-23 neither bears the signature of the bidder nor the signature of the Chartered Accountant. Thus, upon evaluation, the petitioner was disqualified on technical grounds. 26. A State Level Procurement Committee was convened for Evaluation of Technical Bids received for supply of Nutrition Products altogether to all AWCs in the State under YSRSP and YSRSP Plus Schemes. In the Minutes of the State Level Procurement Committee Meeting held on 16.11.2023, the Committee has verified the Bid documents and disqualified the petitioner on the ground of furnishing unaudited and unsigned Statement of Accounts, Income Tax Returns, Audited/Provisional Balance Sheet to the Tender Inviting Authority. In the remarks column, it is stated as follows : “Clause 2.2.1 (f): The turn-over and IT returns and provisional balance sheet has been submitted for all the 3 years by the bidder without Chartered Accountant certification. Clause 2.2.1 (i): The Audit certificate for the FY 2022-23 bears no signature of the Bidder nor certified by a Chartered Accountant. It is an unsigned/unattested document” 27. In view of the above with reference to Minutes of State Level Procurement Committee Meeting, the petitioner did not comply with the tender conditions i.e. regarding Clause 2.2.1 (f) & (i) of Prequalification Conditions to participate in the tender. When the petitioner did not comply with the requirements of pre-qualification in the tender, rejection of his tender for non-compliance of requirements cannot be said to be arbitrary, illegal and violative of fundamental rights. On this score itself, the claim of this petitioner is liable to be rejected without discussing anything further. 28. A tender is issued by the 2nd respondent, calling for tenders for procurement of YSRSP and YSRSP Plus Kits products to all Anganwadi Centres of Unit-II, prescribing certain qualifications in the tender itself. The tender is only an offer made to the public, inviting quotations. When the petitioner is disqualified by the State Level Procurement Committee, for its failure to comply with the requirements of pre-qualification in the tender, the petitioner is disentitled to claim any right in the tender process, being a disqualified tenderer. When the petitioner being a disqualified tenderer, he has no right to claim any relief. 29.
When the petitioner is disqualified by the State Level Procurement Committee, for its failure to comply with the requirements of pre-qualification in the tender, the petitioner is disentitled to claim any right in the tender process, being a disqualified tenderer. When the petitioner being a disqualified tenderer, he has no right to claim any relief. 29. The jurisdiction of Court under Article 226 of Constitution of India is limited and such power can be exercised only certain circumstances which are enumerated in “West Bengal Central School Service Commission v. Abdul Halim (Civil Appeal No.5824 of 2019 dated 24.07.2019)” wherein the Apex Court reiterated the following principles of judicial review. “It is well settled that the High Court in exercise of jurisdiction Under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision and calls for intervention Under Article 226 of the Constitution of India. In any case, the High Court exercises its extraordinary jurisdiction Under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. To pass orders in a writ petition, the High Court would necessarily have to address to itself the question of whether there has been breach of any fundamental or legal right of the Petitioner, or whether there has been lapse in performance by the Respondents of a legal duty. The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities. In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it.
The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC 137 . If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari. The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse. However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect.” 30. Yet issuance of Writ of Mandamus is purely discretionary and the same cannot be issued as a matter of course. 31.
The writ Court does not interfere, because a decision is not perfect.” 30. Yet issuance of Writ of Mandamus is purely discretionary and the same cannot be issued as a matter of course. 31. In “Oriental Bank of Commerce v. Sunder Lal Jain, (2008) 2 SCC 280 ” the Supreme Court held thus : “The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.: Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed. Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles.
An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances.” When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows : “Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law.
This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective." (emphasis supplied) 32. In view of the law declared by the Apex Court in the judgments referred supra, one of the pre-condition is that the petitioner must have an interest or right to claim such relief. In the facts of the present case, the bid made by the petitioner in response to Tender ID No.680036 calling for “Supply YSRSP kits and YSRSP Plus Kits to Anganwadi Centres in Unit-II”, the petitioner was disqualified by the State Level Procurement Committee to participate in the tender process for his failure to furnish required information/documents, which is a pre-requisite condition to participate in the tender in terms of Clause 2.2.1 (f) & (i) of Tender Condition. When the petitioner is disqualified, he has no right to claim any such direction, on this ground alone, the petitioner is disentitled to claim writ of mandamus declared by the Courts stated above. 33. Normally, the Courts cannot give different interpretation to the tender terms and the duty of this Court is to verify whether the respondent followed the procedure in processing the tender or not and the Courts would not interfere with the tenders, interpreting tender conditions, relaxing any tender conditions, in view of law declared by the Apex Court in Durgawathi Devi v. Union of India THR, Its Secretary, Ministry and others, Special Leave Petition (c) No.37479 of 2016. 34.
34. In The Silppi Constructions Contractors vs. The Union of India and Ors., Special Leave Petition (Civil) Nos.13802-13805 of 2019 dated 21.06.2019, the Apex Court reiterated the same principles with regard to maintainability of writ petition in tender of contractual matters, relying on the catena of judgments of Supreme Court, more particularly, Tata Celluar v. Union of India, (1994) 6 SCC 651 , wherein the Apex Court laid down six guidelines which are as follows : (1) The modern trend points to judicial restraint in administrative action. (2) The Court does no 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 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. 35.
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 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. 35. The Apex Court also referred to various earlier judgments in Raunaq International Ltd. V. I.V.R. Construction Ltd, (1999) 1 SCC 492 , Air India Limited v. Cochin International Airport Ltd, (2000) 2 SCC 617 , Karnataka SIIDC Ltd v. Cavalet India Ltd, (2005) 4 SCC 456 , Master Marine Services (P) Ltd v. Metcalfe & Hodgkinson (P) Ltd, (2005) 6 SCC 138 , B.S.N. Joshi & Sons Ltd v. Nair Coal Services Ltd, (2006) 11 SCC 548 , Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 and Michigan Rubber (India) Ltd. v. State of Karnataka & Ors., (2012) 8 SCC 216 and finally concluded that the power of the Court to interfere with contractual matter of tender is limited. 36. The Apex Court succinctly held that the Court shall not interfere with the tender process. In Municipal Corporation, Ujjain & another v. BVG India Ltd. and Ors., Civil Appeal No. 3330 of 2018 arising out of SLP (Civil) No. 11967 of 2016] dated 27.03.2018 the Apex Court held that, public interest litigation is not maintainable in contract matters. Moreover, only when a decision making process is so arbitrary or irrational that no responsible authority proceeding reasonably or lawfully could have arrived at such decisions, power of judicial review can be exercised. However, if it is bona fide and in public interest, the Court will not interfere in the exercise of power of judicial review even if there is a procedural lacuna. The principles of equity and natural justice do not operate in the field of commercial transactions. Wherever a decision has been taken appropriately in public interest, the Court ordinarily should exercise judicial restraint. When a decision is taken by the concerned authority upon due consideration of the tender document submitted by all tenderers on their own merits and it is ultimately found that the successful bidder had in fact substantially complied with the purpose and object for which the essential conditions were laid down, the same may not ordinarily be interfered with. 37.
When a decision is taken by the concerned authority upon due consideration of the tender document submitted by all tenderers on their own merits and it is ultimately found that the successful bidder had in fact substantially complied with the purpose and object for which the essential conditions were laid down, the same may not ordinarily be interfered with. 37. As discussed in the earlier paragraphs, this Court is of the view that the petitioner was ineligible to participate in the tender and rejection of his tender at the stage of technical bid for failure to furnish required documents to the Tender Inviting Authority is sufficient to reject the contention of the petitioner. When, the petitioner is found ineligible on account of alleged failure to meet the requirements of tender conditions, the petitioner cannot be allowed to participate in reverse auctioning. Hence, this Court has no hesitation to hold that the petitioner is disentitled to claim any relief as sought and no direction need be issued to the official respondents, more particularly 2nd respondent, consequently, the writ petition is liable to be dismissed. 38. In the result, writ petition is dismissed. No costs. 39. Consequently, miscellaneous applications pending if any, shall stand dismissed.