JUDGMENT Rekha Sharma, J.
1. This writ petition under Article 226/227 of the Constitution of India has been filed by M/s UEE Electricals Engg. P. Ltd. The facts fall into a narrow compass. The petitioner has been black-listed by the respondent-Delhi Jal Board. Why? Because, to put it briefly, in response to a bid, it categorically stated that it had not been black-listed by any other department. The Board says that it was a palpable lie and it was resorted to knowingly and deliberately. As we shall presently show, the petitioner did take recourse to deliberate false-hood, inviting in its wake, a show-cause notice, consequent hearing and then the decision to black-list. Here are some details leading to the order of black-listing/debarment. The office of the Executive Engineer (E & M) WC-II TYR under the Delhi Jal Board, Govt, of NCT of Delhi invited applications for the issue of tenders for composite work of construction of 24.3 M.L. capacity underground reservoir and Booster Pumping Station at Vishwakarma Park, in TYA Delhi. Certain pre- qualifications were laid down for issue of tenders, one of which, was that the applicant was required to file an affidavit on a non-judicial stamp paper of Rs. 50/-, to the effect, that the applicant had never been black-listed or debarred in any of the department. In response to the tender notice, the petitioner applied for work order and submitted its tender in association with M/S Bhasin Association in joint venture under the name and style of M/S U.E.E.- B.A. J.V. The petitioner also submitted an affidavit of its Director- Shri Ashok Seghal dated 15.7.2003 stating therein that it had never been black-listed by any Govt. Department or Govt. of India Undertaking. The price bid of the said tender was opened on 31st August 2004 and the petitioner was found to be the lowest tenderer. Accordingly, it was declared to be a successful bidder of the tender which was worth Rs. 11,47,67,647/- However, before the tender could be finalised the petitioner received a letter dated 6.10.2004 from Executive Engineer (Tender Cell-II) Delhi Jal Board alleging that it had come to the notice of the Jal Board that the petitioner along with all its Directors had been debarred from tendering by Delhi Development Authority vide its order dated 3.1.2003 and that the said order was still in force when it had filed the affidavit dated 15.7.2003 stating therein that it had not been black-listed/debarred by any department/Undertaking of Govt. of India. It was further alleged that there was deliberate concealment of a material fact by the petitioner in as-much-as it had submitted an incorrect affidavit inspite of full knowledge that it had been debarred by the Delhi Development Authority vide order dated 3.1.2003. In view of these allegations the petitioner was called upon to show- cause within ten days of the issue of letter dated 6.10.2004 why action to debar it from tendering in Delhi Jal Board be not taken on account of making misleading and false affidavit and deliberately suppressing true information in pre-qualification.
3. As per the stand taken by the petitioner in reply to the show-cause notice, it had filed a writ petition No. 6957/2001 in the High Court of Delhi in which it had challenged the non-grant of tender No. NIT-28/DB/ED5/DDA/2000-2001. This writ-petition was allowed by a Division Bench of the High Court presided over by Hon'ble the then Chief Justice Mr. Justice S.B. Sinha and Hon'ble Mr. Justice A.K. Sikri vide judgment dated 19.7.2001, holding, that the petitioner was illegally deprived from the aforesaid tender, and consequently, cost of Rs.10,000/- was imposed upon the Delhi Development Authority. The petitioner was also permitted to file a suit for the losses suffered by it. The said judgment of the High Court remained in force till 19th March, 2004 when it was reversed by the Apex Court in Civil Appeal No. 1725/2004 arising out of SLP (Civil) No. 23987/2004. According to the petitioner the affidavit dated 15.7.2003 was filed during the operation of judgment of the High Court, much before, it was reversed by the Supreme Court, and as such, it felt that the black-listing was not approved by the High Court. The petitioner, in reply to the show cause notice also stated that the debarring order itself was challenged by way of another writ petition No.1173/2004 which too was pending at the time of filing of the affidavit.
4. The above stand taken by the petitioner in response to the show-cause notice did not find favor with the Delhi Jal Board, and accordingly, the Board vide its letter dated 23rd December, 2004 debarred the petitioner for a period of two years.
5. In the background of the above facts the question which arises for consideration is whether the order dated 23.12.2004 debarring the petitioner from tendering in Delhi Jal Board for a period of two years is sustainable in law.
6. It is the affidavit dated 15.7.2003 which led to the passing of the debarment order. What therefore is to be seen is whether the petitioner was justified in filing the affidavit as it did. Learned counsel for the petitioner, in justification of the same, raised the same grounds before us as were taken by the petitioner in reply to the show-cause notice which have already been enumerated hereinabove.
7. We have considered the explanations furnished by the petitioner in reply to the show-cause notice, as well as, the similar submissions made before us but we find ourselves unable to agree with the same. The reference made in reply to the show-cause notice to the filing of the writ-petition No. 6957/2003 is of no assistance to the petitioner. What was challenged in this writ was non-grant of tender No. NIT-28/DB/ED 5/DDA/2000-01. The question relating to debarment of the petitioner by the Delhi Development Authority was not the subject-matter of the writ. We therefore fail to understand how on the basis of judgment of the High Court rendered in CW No. 6957/2003 the petitioner could furnish the affidavit dated 15.7.2003 stating therein that it had not been black-listed/debarred by any department/Government of India Undertaking. True that writ-petitioner against non-grant of tender was allowed but the said writ had nothing to do with the debarment order, as that question was not before the Court. Had it been so, the petitioner, as was stated in further reply to the show-cause notice, would not have filed another writ petition No. 1173/2004 challenging the debarring order itself, which writ, admittedly was pending when the affidavit was filed and had not been disposed of. The mere filing and pendency of such a writ petition was no ground on the part of the petitioner to assume that the debarring order was bad. We thus are of the view that the petitioner knowingly and deliberately tried to withhold information that it had been black-listed by the Delhi Development Authority and that when it was caught it tried to justify such act on grounds which we do not find tenable.
8. As for the order of debarment, the same was sought to be challenged by the petitioner, on the ground, that it was passed by the Executive Engineer ( E & M) WC-II TYR who was not competent to do so and it was therefore liable to be quashed.
9. A bare perusal of the debarring order (annexure P-8), particularly, its penultimate and concluding paragraphs, go to show that the representative of the petitioner was heard in person on 10th October, 2004 and after due and careful consideration of the reply to the show cause notice, the documents submitted in its support and the deliberations in personal hearing with Chief Engineer (WWW), the competent authority decided to debar the firm for making misleading false statement, deliberately suppressing true information in the affidavit submitted along with other documents for pre-qualification as a tenderer in Delhi Jal Board. The debarring order therefore leave us in no doubt that it was passed by the competent authority and not by the Executive Engineer. The latter merely conveyed the same to the petitioner. In this regard we also satisfied ourselves by calling for the concerned file of the department in which the decision was taken. The same revealed that the decision to debar the petitioner was not taken by the Executive Engineer alone but the decision making process involved the higher-ups as well, including, the Chief Engineer.
10. It was also sought to be contended by the petitioner that the debarring order was vague, in-as-much-as, it merely stated that the petitioner had been debarred for a period of two years but did not indicate the purpose for which it was debarred. This submission again is devoid of any merit. The debarring order dated 23.12.2004 (annexure P-8) is to be understood in the context of the show-cause notice dated 6th October, 2004 (annexure P-3) which specifically called upon the petitioner to show-cause within ten days as to why action to debar it from tendering in Delhi Jal Board shall not be taken against it on account of making misleading and false statement. It is clear from the show-cause notice that the petitioner was sought to be debarred from tendering. Hence, it does not lie in the mouth of the petitioner to contend that the debarring order was vague and it was not aware as to for what purposes he has been debarred.
11. Whatever has been noticed above does not end the matter. We have yet to examine whether the Delhi Jal Board was justified in debarring the petitioner from tendering for a period of two years, notwithstanding, the conduct of the petitioner in filing a false affidavit.
12. It is not disputed that the order of debarment is an administrative decision. It is by now well-settled that judicial review of an administrative decision is permissible if the decision making authority exceeds its power; commits an error of law; commits breach of rules of natural justice, reaches a decision which no reasonable Tribunal would reach or abuses its power. This has been so held in Tata Cellullar v. Union of India . The propositions stated in the said judgment are contained in paragraph 94 which reads as under:-
" (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."
13. Reference in this regard may also be made to the judgment of a three Judges Bench of the Supreme Court Delhi Development Authority and Anr. v. U.E.E. Electricals Engg.(P) Ltd. and Anr. This incidently is a judgment which was passed in the case of none other than the petitioner and relates to the same tender of the Delhi Development Authority that was not awarded to the petitioner leading to filing of writ-petition No. 957/2001 to which reference has been made in reply to the show-cause notice and which was allowed by the High Court but was reversed by the Apex Court in appeal preferred by the DDA. The said judgment lays down broad parameters which can justify judicial review of an administrative decision. Some of the paragraphs which are relevant to the context are as under:-
"One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is illegality the second irrationality and the third procedure mpropriety. These principles were highligted by Lord Diplock in council of Civil Unions Minister for the Civil service (1984 (3) ALL. ER. 935) commonly known as CCSU case).
Courts are slow to interfere in matters relating to administrative functions unless decision is tainted by any vulnerability such as lack of fairness in procedure illegality and irrationality. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.
The famous case ?Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (KB at p. 229: All ER P.682) commonly known as The "Wednesbury's case"is treated as the landmark so far as laying down various basic principles relating to judicial review of administrative or statutory direction.
That law is settled that in considering challenge to administrative decisions courts will not interfere as if they are sitting in appeal over the decision.
These principles have been noted in aforesaid terms in Union of India and Anr. v. G. Ganayutham , and Indian Railway Construction Co. Ltd. v. Ajay Kumar . In essence the test is to see whether there is any infirmity in the decision making process and not in the decision itself."
14. Having regard to the paragraphs quoted above and the principles laid down therein we are of the view, that no fault can be found with the order of debarment. The petitioner did not dispute that it had filed the affidavit dated 15.7.2003, stating therein, that it had not been debarred by any department. It simply sought to justify the affidavit, on the grounds, which we have not found cogent and we have therefore not accepted the same. The Delhi Jal Board, on its part, before passing the impugned order of debarment not only gave show-cause notice to the petitioner but also gave personal hearing and it was only then that the impugned order was passed. On an over-all perspective we have no doubt that the petitioner tried to procure a contract from the Delhi Jal Board by suppressing a material fact that it had been black-listed from tendering by the Delhi Development Authority. Had the petitioner done so its tender document could have been rejected at the very inception. In view of this suppression, if the Delhi Jal Board, in its wisdom felt that such a party should not be permitted to deal with it for a period of two years, we do not find it an un-reasonable order, and in any case, such an order cannot be said to be so unjustified that we may feel inclined to substitute it by our own decision.
15. For the fore-going reasons, the writ petition is dismissed.