Allahabad High Court
M/S Sunshine Infratech Pvtltd vs State Of Up And 4 Others on 31 May, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:100289-DB
Court No. - 2
Case :- WRIT - C No. - 19108 of 2024
Petitioner :- M/S Sunshine Infratech Pvtltd
Respondent :- State Of Up And 4 Others
Counsel for Petitioner :- Manu Khare
Counsel for Respondent :- C.S.C.,Vivek Saran
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Anish Kumar Gupta,J.
1. Heard Sri Manu Khare, learned counsel for the petitioner; Sri Ambrish Shukla, learned Additional Chief Standing Counsel for the State-respondent and Sri Vivek Saran, learned counsel for the respondent nos. 2 to 5/U.P.Avas Evam Vikas Parishad.
2. The present writ petition has been preferred assailing the order impugned dated 13.2.2024 passed by the respondent no. 4 (Annexure No. 22 to the writ petition). Alternatively prayer is made direct the respondent authority to allot an appropriate plot to the petitioner.
3. Brief matrix of the case is that the U.P.Avas Evam Vikas Parishad (hereinafter referred to as "Parishad") issued a scheme for bulk sale of plots in Siddharth Vihar Yojana, Ghaziabad on 3.2.2014. Tenders were invited for bulk sale of plot No. 4/B-03 area 48564 square meter at a reserve price of Rs. 38500/- per square meter and plot No. 4/BS-04 area 48564 square meter at a reserve price of Rs. 38500/- per square meter. The token money was to be submitted to the tune of Rs. 9.40 crores for each plot. The tenders was to be submitted on 12.2.2014 and technical qualification bid was to be opened on 13.2.2014. The petitioner submitted tender for plot no. 4/BS-03 after completing all the formalities including the submissions of Bank Draft of Rs. 9.40 crores. The record further reveals that the petitioner was highest bidder and was technically eligible but on account of pendency of various writ petitions before this Court wherein even in some of the matters stay orders were operating, the further proceedings in this regard were kept in abeyance. Thereafter vide letter/communication dated 17.06.2016 issued by the respondent no. 5, it was informed that on account of pending writ/contempt proceedings on the said plot, the auction/bid could not be accepted, therefore, Board of Directors decided to cancel the auction and return the money. In response thereof, he petitioner submitted a representation dated 26.10.2016 to the respondent no. 1 requesting therein till decision of the High Court, the token money of a sum of Rs. 9.40 crores should be kept with Parishad. The respondent no. 1 vide letter dated 27.10.2016/2.11.2016 asked the respondent no. 2 to look into the matter. In spite of repeated representations as no decision was taken by the Parishad, such situation impelled the petitioner to approach this Court earlier by preferring Writ C No. 29228 of 2022 with innocuous prayer to decide representations of the petitioner. The said writ petition was disposed by the Division Bench vide order dated 13.10.2022 directing the respondent no. 2 to decide the representations of the petitioner within 12 months. Once the said order has not been complied by the respondent, the petitioner initiated contempt proceeding i.e. Contempt Application (Civil) No. 8752 of 2023, which too was disposed of vide order dated 4.12.2023 granting one more indulgence to the respondent to comply with the order dated 13.10.2022 within three months' further time. Eventually by the order impugned, claim of the petitioner has been non-suited on the ground that there is no provision for allotment of alternate plot. However, it is open for the petitioner to participate in fresh auction.
4. In this backdrop, Sri Manu Khare, learned counsel for the petitioner vehemently contended that the entire action of the respondents is discriminatory as in similar circumstances, plot Nos. 4/BS-1, 4/BS-2 and 4/BS-5 have already been given to other persons and the same are being developed. The said action is also assailed on the ground that in spite of the pendency of writ petitions in respect of Khasra No. 201, land to the extent of 22580 square meter is still available to Parishad and the same can be transferred to petitioner immediately and for the remaining land some suitable land may be allotted which is available to the Parishad.
5. Sri Vivek Saran, learned counsel for the Parishad submits that no doubt the petitioner's bid was highest against the bulk sale of plot in dispute but on account of pendency of various litigations, the Board had taken a decision in the year 2016 for return of the token amount. Admittedly the bank Draft submitted by the petitioner, was returned and the said amount was received by the petitioner in the year 2016, therefore, at this belated stage merely on account of participation in the bid, the petitioner cannot be press the aforesaid relief and insist for settlement of remaining plot. He further submits that when the petitioner made a request for an alternate plot, the Housing Commissioner constituted a committee. After due consideration it was recommended by the committee that due to pending writ/contempt dispute on the said plot, the auction/bid could not be accepted, in such situation, the Parishad had taken a decision to return the token money deposited against the said bulk sale plots and to dispose of the plots afresh. He further submits that in the bid matters, power of judicial review is very limited and the Court may examine (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"? And (ii) Whether the public interest is affected? In support of his submissions, he has placed reliance upon the judgment of the Apex Court in National High Speed Rail Corporation Limited v. Montecarlo Limited And Another (2022) 6 Supreme Court Cases 401. He lastly submits that the action of the respondents is fully justified and there is no arbitrariness, irrationality or perversity in the order impugned, therefore, the write petition is liable to be dismissed by this Court.
6. Heard rival submissions and perused the record. We find even though in the present case the petitioner's bid was highest but on account of pendency of various litigations on same very plot, after due consideration once it was recommended that the auction/bid could not be accepted, accordingly, the token amount deposited by the petitioner was returned in the year 2016. The earlier decision taken by the Parishad in the year 2016, is not under challenge whereas in the light of the Division Bench order dated 13.10.2022 in Writ C No. 29228 of 2022, respondents have rejected the representations of the petitioner by the order impugned. The order impugned gives an impression that the proposal to return the bank draft of registration money in respect of plot no. 4/BS-3 and 4/BS-4 in original was presented on item no. 6 of the 238th meeting of the Board of Directors of the Parishad. The same was approved by the Board of Directors and accordingly the Property Management Office, Ghaziabad informed to the petitioner by letter No. 18040 dated 17.10.2016 that the registration token deposited against bulk sale plot no. 4/BS-3 located at Siddharth Vihar Yojana, Ghaziabad can be obtained. In spite of sufficient notice, when nobody had turned up in the office of Parishad on behalf of petitioner, the bank draft was sent to Bank concerned with a request that the bank should deposit the draft in the same account from which it was issued. The said decision is not under challenge.
7. At this stage, few decision of the Hon'ble Apex Court on the interference by the courts in tender are required to be referred to:
7.1. In the case of Afcons Infrastructure Limited Vs. Nagpur Metro Rail Corporation Limited, 2016(16) SCC 818, Hon. Apex Court in paras 11 to 13 and 15 has observed and held as under :-
"11. Recently, in Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622, it was held by this Court, relying on a host of decisions that the decision- making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision-making process is mala fide or is intended to favour someone. Similarly, the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words, the decision- making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYT-TPL JV in the High Court or before us.
12. In Dwarkadas Marfatia and Sons v. Port of Bombay, (1989) 3 SCC 293, it was held that the constitutional courts are concerned with the decision-making process. Tata Cellular v. Union of India, (1994) 6 SCC 651 went a step further and held that a decision if challenged (the decision having been arrived at through a valid process), the constitutional courts can interfere if the decision is perverse. However, the constitutional courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was confirmed in Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, as mentioned in Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622.
13. In other words, a mere disagreement with the decision-making process or the decision of the administrative authority is no reason for a constitutional court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional court interferes with the decision-making process or the decision.
15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given."
7.2. In the case of B.S.N. Joshi & Sons Ltd. Vs. Nair Coal Services Ltd. and Ors., (2006) 11 SCC 548, after considering the various decisions on the point enumerated in para 66, Hon. Apex Court has observed and held as under:
"66. We are also not shutting our eyes towards the new principles of judicial review which are being developed; but the law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarised as under:
(i) if there are essential conditions, the same must be adhered to;
(ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully;
(iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing;
(iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction;
(v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with;
(vi) the contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority;
(vii) where a decision has been taken purely on public interest, the court ordinarily should exercise judicial restraint."
7.3. In the case of Michigan Rubber (India) Limited Vs. State of Karnataka, (2012) 8 SCC 216, after considering various other decisions on the point, more particularly, after considering the decisions in the case of Jagdish Mandal (supra) and Tejas Constructions and Infrastructure (P) Ltd. (supra), in paras 23 and 24, Hon. Apex Court has observed and held as under:
"23. 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. 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 the 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 the 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 a fundamental right to carry on business with the Government.
24. 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"? and
(ii) Whether the public interest is affected?
If the answers to the above questions are in the negative, then there should be no interference under Article 226."
8. In view of the above and for the reasons stated above, we do no find any illegality or infirmity in the order impugned which requires interference under Article 226 of the Constitution of India. Needless to say, it is always open for the petitioner to participate in fresh auction.
9. The writ petition sans merit and is accordingly dismissed.
Order Date :- 31.5.2024
A.K.Srivastava
