Minakshi Traders, Through Its ... vs State Of Maharashtra, Thr. Its ...
2023 Latest Caselaw 10719 Bom

2023:BHC-NAG:15361-DB
                                       1                    WP-7006-7023-6955-2023.odt


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH, NAGPUR
                                 WRIT PETITION NO.7006 OF 2023
                                                  WITH
                                 WRIT PETITION NO.7023 OF 2023
                                                  WITH
                                 WRIT PETITION NO.6955 OF 2023


                                 WRIT PETITION NO.7006 OF 2023
                Minakshi Traders,
                through its Authorized Signatory
                and Partner, Mr. Sunil S/o Ganpatsingh
                Solanki, Age : 43 years,
                Occupation - Business,
                R/o Solanki Complex,
                Near Water Tank, Shivaji Nagar,
                Salebad, Amravati-444805.                      ... Petitioner
                   Versus
                1. State of Maharashtra,
                   through its Principal Chief Secretary,
                   Mantralaya, Mumbai-400032.


                2. The State Election Commission of
                   Maharashtra,
                   through its Commissioner,
                   New Administrative Building,
                   Hutatma Rajguru Chowk,
                   Madam Cama Road,
                   Mumbai-400032 (Mantralaya).


                3. State of Maharashtra,
                   through Collector and
                   District Election Officer,
                   Nagpur.
                        2                       WP-7006-7023-6955-2023.odt




4. State of Maharashtra,
   through Deputy Collector
   and Deputy District Election Officer,
   Nagpur.                                        ... Respondents


                WRIT PETITION NO.7023 OF 2023


Harish S/o Gopaldas Bajaj,
Aged about 60 years,
Occu: Proprietor,
Laxmi Enterprises,
Gondia, Tq. & Distt. Gondia.                      ... Petitioner
   Versus
1. State of Maharashtra,
   through its Secretary,
   Ministry of Revenue and Forests,
   Mantralaya, Mumbai-32.


2. State Election Commission,
   First Floor, New Administrative Building,
   Hutatma Rajguru Chowk,
   Madam Cama Road, Mumbai-400032.


3. Collector and District Election Officer,
   Nagpur,
   At Akashwani Chowk,
   Civil Lines, Nagpur.


4. Deputy Collector and Deputy District
   Election Officer, Nagpur,
   At Akashwani Chowk, Civil Lines,
   Nagpur.                                        ... Respondents
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                 WRIT PETITION NO.6955 OF 2023


Nagpur Tent House Association,
Nagpur, having its Registration
No.MM/511/99/NGP, and having
its Registered Office at
Aakre Decoration and Bichayat Kendra,
New Shukrawari Kashibai Deul,
Cement Road, Nagpur 440032,
through its President Shri Sunil Dewaji Raut,
Aged Major, Occupation - Business,
Resident of Nagpur.                                   ... Petitioner
   Versus
1. The State of Maharashtra,
   through its Principal Chief Secretary,
   Mantralaya, Mumbai-32.


2. The State Election Commission of
   Maharashtra,
   through its Commissioner,
   having its office at


3. The District Collector and District
   Election Officer, for Loksabha General
   Elections-2024, Nagpur.                            ... Respondents


Shri A.S. Thotange, Counsel for Petitioner in Writ Petition No.7006 of
2023.
Shri R.L. Khapre, Senior Advocate, with Shri R.G. Kavimandan,
Counsel for Petitioner in Writ Petition No.7023 of 2023.
Shri P.S. Wathore, Counsel for Petitioner No.6955 of 2023.
In all Writ Petitions :
Ms N.P. Mehta, Additional Government Pleader for Respondent
Nos.1 and 3.
Shri J.B. Kasat, Counsel for Respondent No.2.
                        4                               WP-7006-7023-6955-2023.odt


       CORAM : DEVENDRA KUMAR UPADHYAYA, CJ., AND
                  A.S. CHANDURKAR, J.

DATE : 17th OCTOBER, 2023

ORAL JUDGMENT (PER DEVENDRA KUMAR UPADHYAYA, CJ.) :

1. Rule. Rule made returnable forthwith and heard finally by

consent of the learned counsel for the parties.

2. Since the common questions of law and facts are involved in all

these three petitions, the same are being decided by this common

judgment, which follows :

Preliminary facts and the challenge :

3. The Collector, Nagpur issued an e-tender notice

dated 29th September 2023 inviting bids for setting up polling booths,

supply of furniture and other auxiliary materials on rental basis to be

used for conducting the impending Parliamentary General Elections

2024 in Nagpur District.

4. The challenge in all these writ petitions is to certain conditions

contained in the e-tender notice dated 29 th September 2023 and the

corrigendum issued thereto, dated 10th October 2023 after the pre-bid

meeting held on 6th October 2023.

5. In Writ Petition No.7006 of 2023, prayer made is to quash the

tender notice dated 29th September 2023 and the corrigendum

dated 10th October 2023.

5 WP-7006-7023-6955-2023.odt

In Writ Petition No.7023 of 2023, apart from making a prayer

for quashing the tender notice dated 29th September 2023 and the

corrigendum dated 10th October 2023, a prayer has also been made to

stay the condition of the tender whereby the tenderers have been

required to pay an amount of Rs.2,40,000/- as tender fee and also to

stay the amended clause 8 and the added clause 11 as contained in

the corrigendum dated 10th October 2023. A further prayer has been

made in this writ petition for issuing a direction to the respondents to

accept the tender form of the petitioner by relaxing the conditions

No.8 and 11 of the corrigendum dated 10th October 2023.

In Writ Petition No.6955 of 2023, a prayer is made to quash the

tender condition, which requires the tenderers to make payment of

Rs.2,40,000/- as the cost of tender form and also to quash the tender

conditions No.7 and 8 as contained in the tender notice

dated 29th September 2023. The other prayer made in this writ

petition is to quash the corrigendum dated 10th October 2023 as

shown in Item (I) Envelope No.1 - Technical Bid. It has further been

prayed in this writ petition that the respondents be directed to accept

the bid of the petitioner ignoring the impugned clauses of the tender

notice, which are under challenge in this writ petition.

6. On the basis of pleadings available on record and the

submissions made by the learned counsel for the petitioners, the

conditions impugned herein are as follows :

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      (a) Envelope No.1 :

Please pay Rs.2,40,000/- (Rupees Two Lakhs Forty Thousand only) towards the tender application fee (Non-refundable).

(b) It is necessary to have the average financial turnover of the last three years which should be at least 40% of the estimated amount in the tender. A certificate of the Chartered Accountant in this regard is required to be submitted.

(c) An experience certificate signed by the competent authority about supply of goods, furniture and other auxiliary materials in the two districts during the previous Parliamentary General Elections.

(d) A certificate from the competent authority evidencing that the tenderer has completed the work up to 60% of the estimated amount mentioned in the earlier tender in any one year during seven years prior to 30th September 2023.

Submissions made by the learned counsel for the petitioners :

7. Drawing our attention to the aforesaid impugned tender

conditions contained in the tender notice dated 29 th September 2023

and the corrigendum dated 10 th October 2023, it has been argued that

the said tender conditions are absolutely arbitrary, unreasonable and

suffer from the vice of mala fides and accordingly deserve to be

quashed. In respect of the condition that the tenderer is required to

pay a sum of Rs.2,40,000/- towards tender application fee, it has been

stated that the same is completely arbitrary for the reason that it is 7 WP-7006-7023-6955-2023.odt

exorbitant considering the estimated tender amount of Rs.15 crores.

As far as the requirement in the tender condition to the effect that the

tenderer will have to submit a certificate from the Chartered

Accountant evidencing that the tenderer had a turnover of 40% of the

estimated value of the tender in the last three years, it has been

argued that the said condition is also unreasonable for the reason that

the estimated tender amount of Rs.15 crores itself has been fixed

without there being any reasonable basis for the same. It has also

been argued that the condition that the tenderer is required to submit

a certificate for the work done by the tenderer in previous seven years

in Lok Sabha/Vidhan Sabha elections for an amount equal to at least

60% of the value of the earlier tender is also unreasonable and has

been stipulated to suit some particular prospective tenderer. Further

submission on behalf of the petitioners is that similar tenders have

been floated in Dharashiv and Palghar Districts, but such

unconscionable conditions have not been put. Similar averments have

been made in respect of Districts Washim, Yavatmal and Amravati.

8. The learned counsel for the petitioners have also stated in

support of their submission that if the impugned tender conditions are

insisted upon; the tenderers in Vidarbha region will not be able to

participate in the tender process which will be discriminatory and

arbitrary as well thereby making the impugned tender conditions

violative of Article 14 of the Constitution of India. Further argument

is that for determining the value of the tender even if the escalation 8 WP-7006-7023-6955-2023.odt

index is applied to the expenditure incurred in the last election, i.e.

the election held in the year 2019, the value of the tender can never

be Rs.15 crores. Thus, the submission is that the tender conditions are

tailor-made to suit big contractors from Mumbai and Nashik regions.

In sum and substance, the grounds of challenge made in these

petitions to the impugned tender conditions are that the same are

arbitrary and unreasonable and hence are liable to be struck down. In

support of the submissions, the petitioners have placed reliance on the

judgments of the Hon'ble Supreme Court in the case of

Michigan Rubber (India) Limited Versus State of Karnataka and

others, (2012) 8 SCC 216; and in the case of Shivajirao Nilangekar

Patil Versus Dr. Mahesh Madhav Gosavi and others, AIR 1987 SC 294 .

Submissions made by the learned counsel representing the Collector/ District Election Officer, Nagpur :

9. An affidavit-in-reply has been filed on behalf of the Collector/

District Election Officer, Nagpur wherein a preliminary objection has

been raised about maintainability of the writ petitions on the ground

that as per the law laid down by Hon'ble Supreme Court in various

judgments, the tender conditions are not challengeable, unless the

same are found to be manifestly arbitrary and unreasonable and that

no bidder is entitled to insist that the authority inviting the tender to

have a particular condition for the reason that the authority calling the

tender is the best judge so far as the conditions prescribed in the

notice inviting the tender are concerned. Even on merits, it has been 9 WP-7006-7023-6955-2023.odt

argued by the learned Additional Government Pleader representing

the Collector/District Election Officer, Nagpur that none of the

conditions as impugned in the instant writ petitions are unreasonable

or arbitrary from any point of view and, as a matter of fact, all the

conditions which are impugned in the present writ petitions have been

put by the Collector/District Election Officer, Nagpur with a rationale.

It has been argued that in the pre-bid meeting held on

6th October 2023, the tender conditions were modified and further

that the price of the tender application has been determined on the

basis of the estimated cost of the tender in terms of the provisions

contained in clause 3.1.2.1 of the Government Resolution

dated 1st December 2016. It has also been argued that the Earnest

Money Deposit has also been fixed as per the table available in

Appendix-8 to the Government Resolution dated 1st December 2016.

10. Further submission made on behalf of the Collector/District

Election Officer, Nagpur is that as per the provisions contained in the

Government Resolution dated 1st December 2016, the tender fee can

be increased by 10% per year having regard to the estimated cost of

the tender and if the cost of the tender goes above Rs.10 crores, then

the respective Department floating the tender in its discretion shall fix

the tender fee. It has been stated that since the estimated cost of the

tender is Rs.15 crores, which has been determined on the basis of the

types of goods to be rented by the tenderer, as compared to the actual 10 WP-7006-7023-6955-2023.odt

amount spent towards the work in question in the Lok Sabha elections

held in the year 2019, which was Rs.11 crores.

11. The learned Additional Government Pleader representing the

Collector/District Election Officer, Nagpur has also argued that the

authority floating the tender is empowered in its discretion to fix the

tender fee depending on the scope of the project, which, in this case,

has been fixed considering the yearly increase from the date of

issuance of the Government Resolution dated 1 st December 2016 till

the issuance of the tender notice in this case. As per the

Collector/District Election Officer, Nagpur, the yearly increase for six

years from the year 2016 has been considered while fixing the tender

fee and the huge amount of estimated cost of the tender, which is

Rs.15 crores, has also been taken into account. In her submission, the

learned Additional Government Pleader has thus submitted that the

tender fee of Rs.2,40,000/- cannot be said to be unreasonable or

excessive. Regarding the estimated cost of the tender, it has been

stated on behalf of the Collector/District Election Officer, Nagpur that

the arrangements are to be made for ten Assembly Constituencies

falling in Nagpur Parliamentary Constituency and nine Assembly

Constituencies falling in Ramtek Parliamentary Constituency and if the

geographical area of both these two Constituencies is taken into

consideration, the same has a transit area of 18 - 19 kms., which is

too large as compared to the other Districts. Further submission is

that in both the Parliamentary Constituencies, total number of voters 11 WP-7006-7023-6955-2023.odt

as on 1st July 2023 were 41,73,877 and total polling booths

which are to be set up are 4,464. In this view, the submission is that

since a large area is to be covered in both the Parliamentary

Constituencies, a huge set up, vast infrastructure and sufficient

manpower are required. The learned Additional Government Pleader

has submitted that, therefore, keeping in mind these factors and also

taking into account that the elections are to be conducted in a

time-bound manner, the estimated cost of tender has been worked out

to Rs.15 crores and as such no objection or reservation can be had by

the tenderers in fixation of the cost of the tender.

12. As regards the condition regarding submission of certificate

evidencing average financial turnover for last three years, which

should be more than the amount estimated in the tender is concerned,

it has been stated that the same was revised after the pre-bid meeting

which has been done in tune with the guidelines issued by the Central

Vigilance Commission, Government of India,

dated 17th December 2002. Drawing our attention to the said

guidelines, it has been stated that the guidelines provide that so far as

the civil/electrical works are concerned, the tenderer should have an

average financial turnover during the last three years which should be

at least 30% of the estimated cost and further that the tenderer should

have experience of having completed similar works during the last

seven years and that such similar works should be either three in

number costing not less than the amount equal to 40% of the 12 WP-7006-7023-6955-2023.odt

estimated cost of the tender or two similar works costing not less than

the amount equal to 50% of the estimated cost of the tender or one

similar work costing not less than the amount equal to 80% of the

estimated cost of the tender. Thus, it has been stated that keeping in

view the guidelines issued by the Central Vigilance Commission,

Government of India, after the pre-bid meeting was held on

6th October 2023, a corrigendum was issued on 10 th October 2023

modifying the earlier conditions whereby the annual turnover for a

bidder now required is that it should be 40% of the value of the tender

in the last three years. Similarly, in the corrigendum

dated 10th October 2023, it has been provided that the tenderer should

have a certificate from the Competent Authority evidencing that the

tenderer has completed one Parliamentary/Legislative Election related

work in any one year during seven years prior to 30 th September 2023

which should be equal to 60% amount of the estimated amount of the

tender cost.

13. Opposing the prayers thus made in these writ petitions, the

learned Additional Government Pleader representing the

Collector/District Election Officer, Nagpur has submitted that each and

every condition, which is impugned in these writ petitions, bears a

rationale and has been fixed taking into consideration the provisions

contained in the Government Resolution dated 1 st December 2016 and

the guidelines issued by the Central Vigilance Commission,

Government of India. On the basis of the submissions advanced by 13 WP-7006-7023-6955-2023.odt

the learned Additional Government Pleader, it has been prayed that

the writ petitions are liable to be dismissed at their threshold.

Scope of interference with the conditions of tender by this Court under Article 226 of the Constitution of India :

14. In Tata Cellular Versus Union of India, (1994) 6 SCC 651 , it has

been held by Hon'ble Supreme Court that a right balance between

administrative discretion to decide such matters on the one hand, and

the need to remedy any unfairness on the other, is to be struck. In

Paragraph 94 of the said decision, Hon'ble Supreme Court has

observed 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.

(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) 14 WP-7006-7023-6955-2023.odt

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."

15. In Jespar I. Slong Versus State of Meghalaya and others,

(2004) 11 SCC 485, it has been held by Hon'ble Supreme Court that,

"... fixation of a value of the tender is entirely within the purview of

the executive and courts hardly have any role to play in the process

except for striking down such action of the executive as is proved to

be arbitrary or unreasonable."

16. In the case of Association of Registration Plates Versus Union of

India, (2005) 1 SCC 679, the challenge made to the condition

prescribing minimum turnover of the business was not accepted by

Hon'ble Supreme Court and argument that high turnover for business

is only for the purposes of advancing the business interests of a group

of companies having foreign links and support, was turned down. In

Paragraph 38 of the decision in the case of Association of Registration

Plates (supra), it has been held as under :

"38. In the matter of formulating conditions of a tender document and awarding a contract of the nature of ensuring supply of high security registration plates, greater latitude is required to be conceded to the State authorities. Unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, tender conditions are 15 WP-7006-7023-6955-2023.odt

unassailable. On intensive examination of tender conditions, we do not find that they violate the equality clause under Article 14 or encroach on fundamental rights of the class of intending tenderers under Article 19 of the Constitution. On the basis of the submissisons made on behalf of the Union and the State authorities and the justification shown for the terms of the impugned tender conditions, we do not find that the clauses requiring experience in the field of supplying registration plates in foreign countries and the quantum of business turnover are intended only to keep indigenous manufacturers out of the field. It is explained that on the date of formulation of scheme in Rule 50 and issuance of guidelines thereunder by the Central Government, there were not many indigenous manufacturers in India with technical and financial capability to undertake the job of supply of such high dimension, on a long-term basis and in a manner to ensure safety and security which is the prime object to be achieved by the introduction of new sophisticated registration plates."

In Paragaph 43 of the judgment in the case of Association of

Registration Plates (supra), it has further been held by Hon'ble

Supreme Court that no person can claim a fundamental right to carry

on business with the Government and that all that he can claim is that

in competing for the contract, he should not be unfairly treated and

discriminated, to the detriment of public interest. Paragraph 43 of the

judgment is extracted hereunder :

"43. Certain preconditions or qualifications for tenders have to be laid down to ensure that the contract has the capacity and the resources to successfully execute the work. Article 14 16 WP-7006-7023-6955-2023.odt

of the Constitution prohibits the Government from arbitrarily choosing a contractor at its will and pleasure. It has to act reasonably, fairly and in public interest in awarding contract. At the same time, no person can claim a fundamental right to carry on business with the Government. All that he can claim is that in competing for the contract, he should not be unfairly treated and discriminated, to the detriment of public interest. Undisputedly, the legal position which has been firmly established from various decisions of this Court, cited at the Bar is that government contracts are highly valuable assets and the court should be prepared to enforce standards of fairness on the Government in its dealings with tenderers and contractors."

17. After a thorough review of the judgments on the issue relating

to scope of interference by Courts in conditions of a tender, Hon'ble

Supreme Court in the case of Michigan Rubber (India) Limited Versus

State of Karnataka and others, 2012) 8 SCC 216 , has deduced the

following principles in Paragraph 23 of the judgment, which are

extracted 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 17 WP-7006-7023-6955-2023.odt

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."

The judgment in the case of Michigan Rubber (India) Limited

(supra) has been followed with approval by Hon'ble Supreme Court in

the latest judgment in the case of National High Speed Rail

Corporation Limited Versus Montecarlo Limited and another,

(2022) 6 SCC 401.

18 WP-7006-7023-6955-2023.odt

18. Reference may also be had to certain other judgments, such as

the judgment of Hon'ble Supreme Court in the case of Agmatel India

Private Limited Versus Resoursys Telecom and others,

(2022) 5 SCC 363, wherein it has been held that the author of the

tender document is taken to be the best person to understand and

appreciate its requirements. Paragraph 26 of the said judgment is

quoted hereunder :

"26. The abovementioned statements of law make it amply clear that the author of the tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with the language of the tender document or subserving the purchase of the tender, the Court would prefer to keep restraint. Further to that, the technical evaluation or comparison by the Court is impermissible; and even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the constitutional court, that, by itself, would not be a reason for interfering with the interpretation given."

In Montecarlo Limited Versus National Thermal Power

Corporation Limited, (2016) 15 SCC 272 , Hon'ble Supreme Court has

held inter alia that floating of tenders and inviting bids are highly

technical subjects as the same require understanding and appreciation

of the nature of work and the purpose it is going to serve.

In Afcons Infrastructure Limited Versus Nagpur Metro Rail

Corporation Limited and another, (2016) 16 SCC 818 , Hon'ble

Supreme Court has held in Paragraph 15 of the judgment that the 19 WP-7006-7023-6955-2023.odt

constitutional courts must have deference to the 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 has further been held by

Hon'ble Supreme Court in the said judgment that 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. Paragraph 15 in the case of Afcons Infrastructure Limited

(supra) runs as under :

"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."

Hon'ble Supreme Court in yet another case, viz. Silppi

Constructions Contractors Versus Union of India and another,

(2020) 16 SCC 489, has held that the judicial intervention in the

matter of contract involving the State or its instrumentalities has to be 20 WP-7006-7023-6955-2023.odt

cautious and restrained and further that the Court does not sit like a

court of appeal over the authority floating the tender. It has further

been held by Hon'ble Supreme Court that the court must realise that

the authority floating the tender is the best judge of its requirements

and, therefore, the Court's interference should be minimal.

Paragraph 20 of the judgment in the case of Silppi Constructions

Contractors (supra) is extracted hereunder for ready reference :

"20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the State instrumentalities; the courts should give way to the opinion of t he experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. ..."

19. The above exposition of law as laid down by Hon'ble Supreme

Court, thus, puts a caution and restraint on exercise of our jurisdiction

under Article 226 of the Constitution of India while judicially

reviewing and scrutinizing the tender conditions and unless and until 21 WP-7006-7023-6955-2023.odt

the tender conditions under challenge are manifestly arbitrary and

discriminatory or are infested with malice, the same cannot be

interfered with. It is also to be noticed that interference in tender

conditions required to be fulfilled by the tenderers, as are stipulated in

the tender notice, is minimal by the court in exercise of its jurisdiction

of judicial review as the requirement and scope of work can be best

judged by the authority floating the tender.

Findings :

20. If the facts and arguments pleaded by the respective parties in

these writ petitions are analyzed on the anvil of the law laid down by

Hon'ble Supreme Court. as mentioned above, what we need to

determine is as to whether the impugned tender conditions are so

unreasonable and manifestly arbitrary that the same require any

interference by this Court or as to whether the conditions impugned in

these writ petitions are tailor-made, which have been prescribed to

suit any particular prospective tenderer/party.

21. In the affidavit-in-reply filed on behalf of the Collector/District

Election Officer, Nagpur, the basis of putting the impugned tender

conditions, that is the condition relating to fixation of the tender fee,

the requirement of particular turnover, experience, etc., have been

disclosed. The tender conditions have been prescribed keeping in

view the large area where the Parliamentary Elections are to be held in

Nagpur District, which covers two Parliamentary Constituencies

having ten and nine Assembly Constituencies each. The tender 22 WP-7006-7023-6955-2023.odt

conditions have been prescribed also in terms of the provisions of the

Government Resolution dated 1st December 2016 and the guidelines

issued by the Central Vigilance Commission, Government of India.

22. Nothing has been brought on record or to our notice which can

lead to any such inference that the impugned tender conditions are in

any manner arbitrary or unreasonable; rather the conditions, as

observed above, have been prescribed keeping in view the relevant

factors and considerations such as the expanse of the area in which

the elections are to be held, the number of booths which are to be

established, the expenditure incurred in the last Parliamentary

Elections held in the year 2019 and the huge requirement necessary

for timely conducting the elections.

23. The submission, thus, made on behalf of the petitioners that the

tender fee of Rs.2,40,000/- has been prescribed exorbitantly, is not

tenable for the reason that the basis of fixation of such tender fee has

been given in the affidavit-in-reply filed on behalf of the

Collector/District Election Officer, Nagpur. The tender fee prescribed

in the tender notice cannot be said to be unreasonable or arbitrary as

the same has been fixed by the authority floating the tender in its

discretion considering the scope of the work which is required to be

performed by the tenderer. So far as the other conditions prescribed

in the corrigencum dated 10th February 2023 are concerned, we do not

find any substance in the submission made by the learned counsel for

the petitioners that the same are unreasonable or arbitrary. As already 23 WP-7006-7023-6955-2023.odt

observed above, the said conditions have been prescribed keeping in

view the guidelines issued by the Central Vigilance Commission,

Government of India and also having regard to the nature and scope

and the extent of the work which will be required to be performed by

the successful bidder for conducting the elections in the two

Lok Sabha Constituencies of District Nagpur. There is no substance in

the submission made by the learned counsel for the petitioners that

the impugned tender conditions are tailor-made to suit any particular

prospective bidder or party. As a matter of fact, no substantial factual

foundation has been laid in either of these three writ petitions to

arrive at an inference that the impugned tender conditions are

tailor-made or have, thus, been prescribed with mala fide intention to

suit any particular tenderer or party.

24. As per the judgments of Hon'ble Supreme Court quoted above,

there is no fundamental right available to any of the tenderers to do

business with the Government, what to say about business with

Government on their own conditions. Any tender condition has to

have some rationale and should be germane to the nature of work to

be performed by the tenderer. If we closely examine the reasons given

in the affidavit-in-reply filed on behalf of the Collector/District

Election Officer, Nagpur which have been discussed in the preceding

paragraphs, we find that sufficient reasons have been given for

prescribing the impugned conditions. Coupled with the reasons given

in the affidavit-in-reply for prescribing the impugned tender 24 WP-7006-7023-6955-2023.odt

conditions is the legal position that it is the party floating the tender,

who is the best judge and most suited to prescribe particular

conditions of tender keeping in view the nature and scope of the work.

25. For the reasons aforesaid, in our analysis, what we find is that

none of the impugned conditions prescribed in the tender notice and

the corrigendum thereto can be said to be unreasonable or arbitrary or

mala fide.

ORDER

(i) For the discussion made and the reasons given above,

we do not find any good ground to interfere in the tender

conditions impugned in these writ petitions. The writ petitions

are devoid of any merit, which, resultantly, are hereby

dismissed.

(ii) Rule stands discharged. There shall be no order as to

costs.

                                        (A.S. CHANDURKAR, J.)                        (CHIEF JUSTICE)

                         LANJEWAR




Signed by: Prashant D. Lanjewar
Designation: Senior Pvt. Secretary
Date: 19/10/2023 15:21:36