Bombay High Court
Kendriya Bhandar vs The State Of Maharashtra Thr Food Civil ... on 5 August, 2024
Author: Amit Borkar
Bench: Amit Borkar
2024:BHC-AS:30983-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10371 OF 2024
Digitally
signed by
Indo Allied Protein Foods Pvt. Ltd. ... Petitioner
BASAVRAJ V/s.
BASAVRAJ GURAPPA
GURAPPA PATIL
PATIL Date:
The State of Maharashtra, through
2024.08.05
17:03:58 Food, Civil Suppliers and Consumer
+0530
Protection Department ... Respondent
WITH
WRIT PETITION (ST.) NO.21115 OF 2024
Gunina Commercials Pvt. Ltd. ... Petitioner
V/s.
The State of Maharashtra, through
Food, Civil Suppliers and Consumer
Protection Department ... Respondent
WITH
WRIT PETITION (ST) NO.21119 OF 2024
Kendriya Bhandar ... Petitioner
V/s.
The State of Maharashtra, through
Food, Civil Suppliers and Consumer
Protection Department ... Respondent
Mr. Sharan Jagtiani, Senior Advocate with Mr. Mayur
Khandeparkar, Mr. Aniesh S. Jadhav, Mr. Siddharth Joshi and
Mr. Rushikesh S. Kekane for the petitioner in WP/10371/2024
Mr. Girish Godbole, Senior Advocate with Dr. Abhinav
Chandrachud and Mr. Jayan Jain i/by Mr. Ashish S. Vernekar for
the petitioner in WPST/21119/2024.
Mr. Gautam Ankhad, Senior Advocate with Mr. Aniesh Jadhav,
Ms. Samruddhi Lodha, Mr. Ankur Shah, Mr. Mahadji Phalake and
Mr. Nikhil Adkine for the petitioner in WPST/21115/2024.
Dr. Birendra Saraf, Advocate General with Mr. P.P. Kakade,
Government Pleader, Mr. O.A. Chandurkar, Additional G.P.,
Mrs. G.R. Raghuwanshi, Additional G.P. and Mr. Jay Sanklecha,
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B-Panel counsel for respondent No.1- State in all matters.
Mr. Santosh Gaikwad, Deputy Secretary, Food & Civil Supply &
Consumer Protection Department, is present.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
AMIT BORKAR, J.
RESERVED ON : JULY 31, 2024
PRONOUNCED ON : AUGUST 5, 2024
JUDGMENT (PER : CHIEF JUSTICE)
1. Heard learned counsel representing the respective
parties.
(A) CHALLENGE:
2. Challenge in this batch of petitions instituted under
Article 226 of the Constitution of India has been made to a
tender condition described in Clause 4 (PQ5) of the Request for
Proposal (hereinafter referred to as the RFP) floated on 18th July
2024 by the Department of Food and Civil Supply and Consumer
Protection of the Government of Maharashtra for supply of food
kits (Anandacha Shidha) for Gauri Ganpati festival in the
Financial Year 2024-2025.
3. The impugned condition in the RFP is as follows:
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4. Qualification Criteria
The bidder must meet the following pre-qualification requirements to
become eligible for the commercial evaluation.
# Basic Eligibility Criteria Documents to
Requirement be submitted
PQ5 Other Experience The experience of Bidder shall
loading, unloading or submit the
handling of food grains, following
food items etc. to be documents -
provided by bidder. 1. Relevant
Hence, bidder should Work Orders or
have experience of Contract
providing at least 300 agreements of
labourers in 70 multiple Award of
locations in Government Contract or LoI
and Semi-Government 2. Experience
establishment within or Completion
Maharashtra in single certificates
work order completed should be
during last 3 years (upto submitted
the last date of clearly stating
submission of tender). the scope of
The value of such work work
shall not be less than performed.
Rs.25 crores.
4. The impugned condition is a pre-qualification criterion
which requires the tenderers to have experience of providing at
least 300 labourers in 70 multiple locations in Government and
semi-Government establishments within the State in a single
work order which ought to have been completed during the last
three years. It further stipulates that the value of such work
shall not be less than Rs. 25 Crores.
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(B) FACTS:
5. The facts which are relevant for proper appreciation of the
issues and controversies involved in this batch of writ petitions
need to be noted, which are as under:
6. An RFP was issued by the State Government on 18 th July
2024 for supply of food kits which are to be distributed during
Gauri Ganpati festival commencing from 7th September 2024.
The supplier is required to provide food kits containing (i) 1 kg
pack of sugar, (ii) 1 kg pack of rawa, (iii) 1 kg pack of chana dal,
(iv) 1 litre pouch of edible soyabean oil with 1 polypropylene bag
containing these items. The food kits are to be supplied during
the festival at various delivery points across all the districts in
the State. According to RFP, the selected supplier will be
responsible for packaging, transportation and deliver of these
food kits to different locations to be specified by the Department.
7. Clause 4 of the RFP gives in detail the pre-qualification
criteria which have been summarized in a chart which includes
the impugned criterion viz. criterion No.PQ5. The Instructions to
the Bidders contained in the RFP provide that the bidding
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process will be on-line in two steps and the bid will comprise of
two envelopes viz. (a) Envelop 1 : Pre-qualification, and (b)
Envelop 2 : Commercial Proposal.
8. Clause 7 of the RFP describes scope of work. It also
describes the quantity to be supplied according to which the total
requirements would be around 1,70,82,086 food kits for the
festival which are to be delivered at godowns across the Districts
in the State. It further provides that four commodities with
polypropylene bag should be supplied in a single consignment.
Clause 7 also describes delivery schedule according to which
successful bidder will be required to supply the quantity of items
for food kits as per prescribed specifications within 30 days of
receiving supply order. Clause 7 of the RFP is extracted
hereunder:
"7. Scope of Work :
Following is an indicative Scope of Work for supply pack of Sugar,
Chana Dal, Rawa & Soyabean Oil along with a new polypropylene bag
to various taluka godowns in the districts of Maharashtra state.
Item to be Supplied (Constitutes of Food Kit)
For Gauri Ganpati festival, the supplier is required to food kits
containing:
1 Kg pack of Sugar
1 Kg pack of Rawa
1 Kg pack of Chana Dal
1 Litre pouch of edible Soyabean Oil
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1 polypropylene bag to contain the above items
Quantity to be Supplied.
The total requirement of Food Kits would be around 1,70,82,086 for
Gauri-Ganapati festival to be delivered at taluka godowns across all
districts in Maharashtra by the successful supplier. All four
commodities with new (PP) Polypropylene bag should be supplied in a
single consignment to the designated godowns.
Delivery Schedule and Penalties:
1. Delivery Timeline:
The successful bidder shall supply the ordered quantity of items for
food kits as per the prescribed specifications within 30 days of
receiving the supply order from the Department."
9. Clause 7 of the RFP also prescribes certain delivery
obligations, according to which supply of the ordered quantity
has to be made within 30 days of receiving of the supply order
and further that the supplier shall be responsible for packaging,
handling, loading, transporting and delivering the goods to the
designated godowns in the concerned Districts. It also describes
unloading process according to which the unloading of supplied
items at the designated godowns will be handled by the agencies
to be appointed by the respective District Supply Officers (DSO).
The delivery obligations which form part of clause 7 of RFP are
quoted hereunder:
"Delivery Obligations:
1. Supply Timeline:
The successful bidder shall supply the ordered quantity of Sugar,
Chana Dal, Rawa and Soyabean Oil, along with new Polypropylene
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(PP) bags, within 30 days of receiving the supply order from the
Department.
2. Logistics Responsibility:
The Supplier shall be responsible for packaging, handling, loading,
transporting, and delivering the goods to the designated Godowns in
the concerned districts.
3. Compliance with Order Specifications:
The successful bidder must supply the ordered quantity of each
commodity (Sugar, Chana Dal, Rawa, and Soyabean Oil) in strict
accordance with the Quality & Quantity parameters specified in the
supply order issued by the state government.
4. Packaging Specifications:
The successful bidder shall supply:
- 1 Kg (net weight) pack each of Sugar, Chana Dal, and Rawa
- 1 Litre pouch of Soyabean Oil
Alongwith a polypropylene bag
5. Product Integrity:
The Supplier must ensure that there is no damage to the packed
bags/pouches during transportation and handling.
6. Transit Liability:
Any transit losses will be borne by the Supplier on a no-recourse
basis.
7. Storage and Transportation Precautions:
The successful suppliers should take adequate precautions to prevent
damage or deterioration of supplied commodities during storage and
transportation. The supplier is responsible for ensuring the stock's
integrity during transit at their own cost.
8. Consolidated Delivery:
All items (Sugar, Chana Dal, Rawa, Soyabean Oil, and polypropylene
bags) should be supplied in a single consignment to the designated
warehouse/storage place as per the purchase order/indent issued by
the Food & Civil Supplies Department, Maharashtra State.
9. Unloading Process:
The unloading of supplied items at the designated Godowns will be
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handled by agencies appointed by the respective District Supply Office
(DSO)."
10. The RFP also contains two other relevant clauses
described as "Assaying" and "Change in Scope of work". Said
clause is also extracted hereunder:
ASSAYING
i) The Supplier shall, on his own and at his cost, arrange for
inspecting and certification of Sugar Chana Dal, Rawa & Soyabean
Oil in accordance with quality parameters as specified in above,
from any of the NABL accredited food testing laboratories as per
the list notified by Food Safety and Standards Authority of India.
Please refer to Annexure for the list of laboratories. The stocks
which qualify the parameters as per quality specifications shall
only be supplied. Each consignment shall accompany such
Assaying Certificate issued by NABL accredited food testing
laboratory.
ii) The Food, Civil Supplies & Consumer Protection Department may
randomly collect the samples at the depots and get the samples
tested in any of the NABL accredited laboratories independently
anytime after the delivery by the supplier. The quality of each
commodity will be evaluated based on specified quality
parameters. The results of such testing will be final and binding on
the suppliers. The stocks and whole consignment which fail the
test have to be taken back by the Supplier at his own cost within 2
days from the date of intimation by the respective District Supply
Officer of the Food, Civil Supplies & Consumer Protection
Department. In this case, cost to assaying will be borne by the
Department.
iii) In such cases payment will be made for such stocks which are in
accordance with quality parameters as certified by the Assaying
agency.
iv) The supplier shall arrange to record tare weight and gross weight
and gross weight on electronic weighbridge before loading and
after loading of the consignment. The copies of weigh bridge
receipt along with copy of invoice / delivery challan and assaying
report from the NABL accredited laboratories shall be handed over
to Depot Manager of the Food, Civil Supplies & Consumer
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Protection Department at the time of giving delivery. Deliveries
without valid documents will be rejected by the concerned Depot
Manager.
v) Consignment will be unloaded at the designated warehouse during
working hours only i.e. between 10 AM and 5 PM. On arrival of the
consignment the Depot Manager of The Food, Civil Supplies &
Consumer Protection Department will verify the documents and
the assaying report. On confirming the authenticity of the
consignment and after being satisfied with the quality based on
the assaying report submitted by the Supplier, directs the
representative of the supplier to arrange for recording the gross
weight of the consignment on an electronic weighbridge before
unloading.
vi) In case if the Depot Manager of The Food, Civil Supplies &
Consumer Protection Department is not satisfied with the quality
supplied then he would arrange to draw samples and forward the
same for testing and certification as per quality specification
above, anytime after the receipt of the goods.
vii) After unloading, the tare weight of the truck is recorded on the
same electronic weighbridge. The copies of the Weigh Bridge
receipts at the unloading point along with other documents i.e.
invoice / delivery challan, assaying report and weighbridge
receipts at the loading point shall be handed over to the Depot
Manager of The Food, Civil Supplies & Consumer Protection
Department
viii) In case of any quality claim by Godown keeper / concern authority
the supplier can provide Quality report of the truck and get the
samples verified by concerned authority. In case of final rejection,
the supplier would have to replace the material or provide fresh
supplies. The rejected supplies which are not unloaded would
stand cancelled.
Change in Scope of Work
a) The Department may at any time at its convenience and without
assigning any reason whatsoever, change or modify the Scope of
Work of the Supplier by providing an intimation in writing to the
Supplier specifying inter alia the nature and scope of the
modification of the Scope of Work ("Modification Intimation")
b) Upon receipt of the Modification Intimation by the Supplier relating
to a reduction in the Scope of Work, the Supply Contract with the
Supplier shall be deemed to have been modified to the extent of
reduction in the Scope of Work of the Supplier. Further, in the
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event of abovementioned reduction of the Scope of Work, the
Total Supply Payment that the Supplier is entitled to receive under
the terms of the Supply Contract shall also be proportionately
reduced
c) After receipt of the Modification Intimation by the Supplier relating
to an increase in the Scope of Work, the Supplier shall perform
such increased Scope of Work at the rate equivalent to the
Financial Proposal of the Supplier which has been accepted by the
DEPARTMENT; and
d) The Supplier shall implement the change in Scope of Work
promptly and in compliance with the terms of the Supply Contract
and the Supply Order."
11. The petitioners, as observed above, are aggrieved by
condition No.PQ5 which is a pre-bid condition according to which
a tenderer will have to submit the documents evidencing that
the tenderer has experience of providing at least 300 labourers
in 70 multiple locations in the Government and semi-
Government establishments within the State in single work order
which ought to have been completed during the last three years.
12. The petitioners are said to have raised objection in the
pre-bid meeting held on 22nd July 2024 to the inclusion of
condition No.PQ5 under clause 4 of the RFP. However, as per
the petitioners, no heed was paid to the said objection. The
petitioners, after raising their objections to the impugned
condition, have filed instant petitions, however, they have also
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submitted their bids before the last date of submission.
According to the petitioners, non-participation in the bid process
would have rendered the petitioners non-suited to file these
petitions and accordingly, while challenging the impugned tender
condition by filing these writ petitions, they have also
participated in the tender.
(C) Submissions on behalf of the petitioners:
13. Arguments on behalf of the petitioners have been led by
Mr.Sharan Jagtiani, learned Senior Advocate, who, while drawing
our attention to various provisions of the RFP, has submitted
that the impugned pre-qualification condition of having
experience of providing at least 300 labourers at 70 multiple
locations is completely against the very scope of the work which
is apparent from a bare reading of RFP where the scope of work
has been described. In this regard, it has been stated by Mr.
Jagtiani that scope of work as described in RFP only stipulates (i)
packaging, (ii) handling, (iii) loading, (iv) transporting, and; (v)
delivering the goods and it does not include unloading the goods
at the designated godowns. Drawing our attention to Logistic
Responsibility, which has been extracted hereinabove, it has
categorically been submitted by Mr. Jagtiani that since unloading
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the goods does not form part of the scope of work, hence the
impugned condition requiring experience of providing 300
labourers at 70 multiple locations is not only arbitrary but it is
also that the same does not have any nexus with the object to
be achieved and hence, it is violative of Article 14 of the
Constitution of India.
14. To buttress the ground based on violation of Article 14 of
the Constitution of India, our attention has also been drawn to a
clause relating to Unloading Process which occurs in Clause 7(9)
of the RFP. It has been submitted that as per the said clause,
unloading of supplied items is to be handled by the agencies
which are to be appointed by the respective DSOs at the
designated godowns and not by the supplier to be selected in
terms of the subject tender. It is, thus, his submission that once
the work relating to unloading of the goods supplied at the
respective godowns is to be handled by separate and distinct
agency to be appointed by the respective DSOs, putting a
condition of providing 300 labourers at 70 multiple locations in
the State, has no relevance with the scope of work for the simple
reason that scope of work to be performed by the successful
bidders does not include any task relating to unloading.
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15. Mr. Jagtiani has also argued that as per the scope of the
work for which subject tender has been floated, the successful
bidder is only expected to (i) procure the goods viz. rawa, chana
dal, edible oil, (ii) to pack these items and to put the eatables in
a polypropylene bag and further (iii) to load it on their own
delivery vehicles or trucks, and (iv) to transport it to the
godowns, where supply is to be received by the Government
officials. He, thus, submits that however, once the supply of
these items reaches the godown concerned at the designated
places, unloading of the supplied items is to be done by a
different agency to be appointed by the DSOs in terms of what
has been prescribed in Clause 7(9) of the RFP.
16. On the strength of the aforesaid submissions, it has
been argued that since the scope of work does not require the
successful bidder to carry out unloading of supplied goods hence,
there is no rationale in putting a condition of having experience
of supplying at least 300 labourers at 70 multiple locations. He
has further argued that as per the scope of work, the successful
tenderer will procure and store the goods to be supplied at his
own facility, package them and thereafter transport and deliver
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them to the specified destinations. This process, according to
the petitioners, does not involve unloading for which a specific
provision has been made in the RFP according to which
unloading of supplied items is to be done by a separate agency
to be appointed for the said purpose by the respective DSOs.
17. The petitioners have, thus, stated that such a condition
is absolutely arbitrary, irrational and further that it does not
have any nexus with the object sought to be achieved and
hence, does not meet the requirement of said action being in
conformity with the requirement of Article 14 of the Constitution
of India. Drawing our attention to a division bench judgment of
this court in the case of Health-O-Wonder Private Limited
Vs. The Commissioner, Medical Education and Ayush &
Ors.1, it has been submitted by Mr.Jagtiani that even in tender
matters, State action has to be necessarily free from
arbitrariness and irrationality otherwise the same cannot be
sustained. Other learned Counsel representing the petitioners
have adopted the submissions made by Mr.Jagtiani.
18. In addition to the submissions made by Mr.Jagtiani,
decided on 14th March 2024 in wp No.2445 of 2024
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Mr. Girish Godbole, learned Senior Advocate appearing for the
petitioner in writ petition (ST) Nos.21119 of 2024 and 21115 of
2024, has submitted that it is settled law that if there are
essential conditions, the same must be adhered to; and further
that if there is no power of general relaxation, however, if a
deviation from a condition is made in relation to all the parties,
ordinarily power of relaxation may be held to be existing. To
advance this submission, Mr.Godbole has relied on paragraph 21
of the judgement of the Hon'ble Supreme Court in the case of
Municipal Corporation, Ujjain and Anr. Vs. BVG India Ltd.
& Ors.2, which is quoted hereunder:
21. Likewise, in B.S.N. Joshi and Sons Ltd. v. Nair Coal Services Ltd.
(2006) 11 SCC 548] , this Court while summarising the scope of judicial
review and the interference of superior courts in the matter of award of
contracts, observed thus:
"65. We are not oblivious of the expansive role of the superior courts
in judicial review.
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;
(2018) 5 SCC 462
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(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."
19. He has further relied on the supreme court judgement in
the case of Monarch Infrastructure (P) Ltd. Vs.
Commissioner, Ulhasnagar Municipal Corporation & Ors. 3
and submitted that ordinarily, the Courts would not, though
interfere with the matters of administrative action, however, if
the Government action is found to be arbitrary or discriminatory
or the policy adopted has no nexus with the object it seeks to
achieve or is found to be mala fide, interference by the Court in
administrative action is permissible. Paragraph 11 of the said
judgment relied on by Mr. Godbole is extracted hereinbelow:
"11. Broadly stated, the courts would not interfere with the matter of
administrative action or changes made therein, unless the
Government's action is arbitrary or discriminatory or the policy
(2000) 5 SCC 287
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adopted has no nexus with the object it seeks to achieve or is mala
fide."
20. On the strength of the aforesaid submissions, the
petitioners have thus urged that the impugned condition no. PQ5
being absolutely arbitrary, irrational and having no nexus with
the object sought to be achieved, deserves to be quashed.
21. Learned Counsel for the petitioners have also prayed, in
the alternative, that the petitioners may be permitted to
participate in the tender process with a direction to respondents
to accept their technical bid without insisting upon the impugned
condition No. PQ5. It has also been prayed that, alternatively,
respondents may be directed to invite fresh tenders for supply of
food kits for Gauri Ganapati festival in the Financial Year 2024-
2025.
(D) Submissions made on behalf of State Respondents:
22. Dr. Birendra Saraf, Learned Advocate General, along
with Mr. O. A. Chandurkar, Learned Additional Government
Pleader representing the State Respondents has opposed the
prayers made in the writ petitions denying the contentions of the
petitioners that the impugned condition No. PQ5, in any manner,
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suffers from the vice of either arbitrariness or irrationality. He
has argued, inter alia; that considering the volume of work
required to be undertaken under the subject tender, requirement
of experience of providing 300 laborers at 70 different locations
is only in furtherance of ensuring that the supplies to be made
by the supplier reach the beneficiaries in time without any
hassle. He has drawn our attention to the scope of our work as
described in clause 7 of RFP and has submitted that the said
clause gives "indicative scope of work" for supply of goods under
the subject tender and accordingly, in his submission, he has
submitted that the logistic responsibilities of the supplier cannot
be said to be confined only to packaging, handling, loading,
transporting and delivering the goods to the designated
godowns. Learned Advocate General, thus, states that unloading
is, though, specifically not provided as one of the logistic
responsibilities in the scope of work, however, considering the
mammoth task which will be required for distribution of
1,70,82,086 number of food kits during Gauri Ganapati festival
throughout all the districts in the State, the State may require
the supplier to have the experience of providing at least 300
laborers at 70 different locations.
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23. He has also submitted that supply of such food kits
during such festivals is a regular feature which is undertaken by
the State in past and since in the past supplies made during
such occasions, various complaints were received of untimely
delivery and distribution of food kits, the State authorities in
their wisdom thought it proper to put a condition of experience
of providing 300 labourers at 70 different locations. He has also
submitted that this figure of 70 locations bears a rationale for
the reason that it has been thought proper and appropriate by
the State authorities to have such number of locations
considering the fact that the State of Maharashtra comprises of
35 Districts and for smooth supply and distribution of food kits,
at least 2 locations in each District may be required.
24. Dr. Birendra Saraf has also argued that scope of judicial
review of administrative action of the State in the matters
relating to tenders is very limited. He has further stated that
tendering authority is the best judge of the conditions to be
stipulated in a tender for the reason that it knows better the
nature of work, logistics involved therein and yardsticks to judge
the capacity of a tenderer to execute the work and accordingly,
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interference in a tender condition is not permissible unless it is
found to be absolutely arbitrary or it suffers from the vice of
mala fide. It is his submission that the impugned tender
condition in the subject tender has been provided for to evaluate
the capacity of the supplier to execute the work and having
regard to the volume of work to be executed pursuant to the
subject tender, the impugned tender condition cannot be said to
be arbitrary or irrational. He has, thus, urged the Court to
dismiss the writ petitions at their threshold.
(E) DISCUSSION:
Scope of interference by this Court under Article 226
of the Constitution of India, in tender matters:
25. Hon'ble Supreme Court in a latest judgment in the case
of Subodh Kumar Singh Rathour Vs. Chief Executive
Officer & Ors.,4 after reviewing the entire law on the subject,
has come to a conclusion that there has been a considerable
shift in the scope of judicial review by the Courts in respect of
contractual disputes where one of the parties is State or its
instrumentality. It has been observed by the Hon'ble Supreme
Court that where State action is challenged on the ground of
2024 SCC OnLine SC 1682
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arbitrariness, unfairness and unreasonableness, the State would
be under an obligation to comply with the basic requirements of
Article 14 of the Constitution and not act in an arbitrary, unfair
or unreasonable manner. The Hon'ble Supreme Court has
further emphasized that there is a jural postulate of good faith in
business relations and undertakings which is given effect to by
preventing arbitrary exercise of powers by the public
functionaries in contractual matters with private individuals.
26. The Hon'ble Supreme Court in Subodh Kumar Singh
Rathour (supra) has further emphasized that in matters
relating to modalities of a contract, such as required work,
execution methods, material quality, timeframe, supervision
standards and other aspects impacting the purpose of tender,
the Court usually would refrain from interference. Further
observation in this regard made by the Hon'ble Supreme Court is
that stipulations or terms of the underlying purpose of the
contract are part of a consensual aspect which need not be
entertained by the Court in its jurisdiction and the parties may
be relegated to private law remedies for the reason that the
judicial review does not extend to fixing the contractual
stipulations but it only ensures that the public authorities act
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within their power.
27. Laying down the test for interference in such matters,
Hon'ble Supreme Court has further observed that the difference
between private law element and public law element in such
matters should be assessed by ascertaining whether the dispute
or the controversy pertains to consensual aspect of the contract
or tender or not and that judicial review is permitted only to
prevent arbitrariness and to ensure that public authorities do not
abuse their powers even in contractual transactions. The apex
Court further observes in Subodh Kumar Singh Rathour
(supra) that ordinarily, the disputes arising purely out of
contracts are not amenable to writ jurisdiction, however, having
regard to the obligation of the State to act fairly, it is well settled
that when contractual power is being used for public purpose it is
certainly amenable to judicial review. Paragraph 56 to 59 of the
said report are relevant in the context of the facts of this case,
which are reproduced hereunder:
"56. What can be discerned from the above is that there has been a
considerable shift in the scope of judicial review of the court when it
comes to contractual disputes where one of the parties is the State or
its instrumentalities. In view of the law laid down by this Court in >ABL
(supra), Joshi Technologies (supra) and in M.P. Power (supra), it is
difficult to accept the contention of the respondent that the writ
petition filed by the appellant before the High Court was not
maintainable and the relief prayed for was rightly declined by the High
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Court in exercise of its Writ jurisdiction. Where State action is
challenged on the ground of being arbitrary, unfair or unreasonable,
the State would be under an obligation to comply with the basic
requirements of Article 14 of the Constitution and not act in an
arbitrary, unfair and unreasonable manner. This is the constitutional
limit of their authority. There is a jural postulate of good faith in
business relations and undertakings which is given effect to by
preventing arbitrary exercise of powers by the public functionaries in
contractual matters with private individuals. With the rise of the Social
Service State more and more public-private partnerships continue to
emerge, which makes it all the more imperative for the courts to
protect the sanctity of such relations.
57. It is needless to state that in matters concerning specific
modalities of the contract -- such as required work, execution
methods, material quality, timeframe, supervision standards, and
other aspects impacting the tender's purpose -- the court usually
refrains from interference. State authorities, like private individuals,
have a consensual element in contract formation. The stipulations or
terms in the underlying contract purpose are part of the consensual
aspect, which need not be entertained by the courts in writ jurisdiction
and the parties may be relegated to ordinary private law remedy.
Judicial review does not extend to fixing contract stipulations but
ensures that the public authorities act within their authority to prevent
arbitrariness.
58. Thus, the demarcation between a private law element and public
law element in the context of contractual disputes if any, may be
assessed by ascertaining whether the dispute or the controversy
pertains to the consensual aspect of the contract or tender in question
or not. Judicial review is permissible to prevent arbitrariness of public
authorities and to ensure that they do not exceed or abuse their
powers in contractual transactions and requires overseeing the
administrative power of public authorities to award or cancel contracts
or any of its stipulations.
59. Therefore, what can be culled out from the above is that although
disputes arising purely out of contracts are not amenable to writ
jurisdiction yet keeping in mind the obligation of the State to act fairly
and not arbitrarily or capriciously, it is now well settled that when
contractual power is being used for public purpose, it is certainly
amenable to judicial review."
emphasis supplied
28. In Subodh Kumar Singh Rathour (supra), Hon'ble
Supreme Court has also touched upon the contours of
arbitrariness in State action in contractual disputes and has
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observed that whether an action is arbitrary or not, has to be
answered on the facts and circumstances of a given case and an
obvious test to be applied in such matters is to see whether
there is any discernible principle emerging from the act
complained of and if it is so found, it has to satisfy the test of
reasonableness. The Court, further observes that every State
action must be informed by reasons. In securing the balance
between accountability and autonomy of State action it has also
been observed by the Hon'ble Supreme Court in Subodh
Kumar Singh Rathour (supra) that the balance between
accountability and autonomy of State action should be
maintained for ensuring the efficiency in administration. The
Court further emphasizes that either would impinge upon public
efficiency. The Court has also observed that undermining the
accountability would give immunity to the State to act as it
pleases.
29. It has also been observed by the Hon'ble Supreme Court
in Subodh Kumar Singh Rathour (supra) that the Court
should carefully attend to the facts and circumstances of the
case to find out whether the action complained of unerringly
points to arbitrariness. The Court further observes that another
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way to assess if the impugned action on the part of the State
authorities is arbitrary or not, is by way of scrutinizing the
reasons assigned by the State to such an action which process
will involve analyzing whether the reasons given genuinely form
part of the decision-making process. In other words, the Court
states as a principle of law in the said judgment that the
question to be answered in such case is whether the impugned
decision is based on valid considerations. Paragraph 65 to 71 of
the judgment in the case of Subodh Kumar Singh Rathour
(supra) are also relevant to be quoted which run as under:
"65. The meaning and true import of arbitrariness is more easily
visualized than precisely stated or defined. The question, whether an
impugned action is arbitrary or not, is ultimately to be answered on the
facts and in the circumstances of a given case. An obvious test to apply
is to see whether there is any discernible principle emerging from the
impugned act and if so, does it satisfy the test of reasonableness. Where
a mode is prescribed for doing an act and there is no impediment in
following that procedure, the performance of the act otherwise and in a
manner which does not disclose any discernible principle which is
reasonable, may itself attract the vice of arbitrariness. Every State action
must be informed by reason and it follows that an act uninformed by
reason, is arbitrary. Rule of law contemplates governance by laws and
not by humour, whims or caprices of the men to whom the governance is
entrusted for the time being. It is trite that be you ever so high, the laws
are above you.
66. Control of administrative discretion is an important concern in the
development of Rule of Law. According to Wade and Forsyth, the Rule of
Law has four meanings, and one of them is that "government should be
conducted within a framework of recognized rules and principles which
restrict discretionary power".
67. To enthuse efficiency in administration, a balance between
accountability and autonomy of action should be carefully maintained.
Overemphasis on either would impinge upon public efficiency. But
undermining the accountability would give immunity or carte blanche
power to act as it pleases with the public at whim or vagary. Whether the
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public authority acted bona fide would be gauged from the impugned
action and attending circumstances. The authority should justify the
action assailed on the touchstone of justness, fairness and
reasonableness. Test of reasonableness is more strict. The public
authorities should be duty conscious rather than power charged. Its
actions and decisions which touch the common man have to be tested on
the touchstone of fairness and justice. That which is not fair and just is
unreasonable. And what is unreasonable is arbitrary. An arbitrary action
is ultra vires. It does not become bona fide and in good faith merely
because no personal gain or benefit to the person exercising discretion
has been established. An action is mala fide if it is contrary to the
purpose for which it was authorised to be exercised. Dishonesty in
discharge of duty vitiates the action without anything more. An action is
bad even without proof of motive of dishonesty, if the authority is found
to have acted contrary to reason. [See : Mahesh Chandra v. Regional
Manager, U.P. Financial Corporation : (1993) 2 SCC 279]
68. The dictum as laid in Tata Cellular v. UOI reported in (1994) 6 SCC
651 is that the judicial power of review is exercised to rein in any
unbridled executive functioning. It was observed that the restraint has
two contemporary manifestations viz. one is the ambit of judicial
intervention and the other covers the scope of the court's ability to quash
an administrative decision on its merits. These restraints bear the
hallmarks of judicial control over administrative action. It was held that
the principle of judicial review is concerned with reviewing not the merits
of the decision in support of which the application for judicial review is
made, but the decision-making process itself. It was held that the
principle of judicial review would apply to the exercise of contractual
powers by the Government bodies in order to prevent arbitrariness or
favouritism. It was held that the duty of the court is to confine itself to
the question of legality and its concern should be whether a decision-
making authority exceeded its powers; whether it committed an error of
law or committed a breach of the rules of natural justice or reached a
decision which no reasonable tribunal would have reached or, abused its
powers. The grounds upon which an administrative action can be
subjected to judicial review are classified as illegality, irrationality and
procedural impropriety. In that very decision, while deducing the
principles from various cases referred, it was held that the modern trend
points to judicial restraint in administrative action; that the Court does
not sit as a court of appeal but merely reviews the manner in which the
decision was made; that the court does not have the expertise to correct
the administrative decision and 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; that the terms of the
invitation to tender cannot be open to judicial scrutiny because the
invitation to tender is in the realm of contract; and, that the government
must have freedom of contract, i.e. a free-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
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principle of reasonableness, but must be free from arbitrariness not
affected by bias or actuated by mala fides. Moreover, quashing decisions
may impose heavy administrative burden on the administration and lead
to increased and unbudgeted expenditure.
69. To ascertain whether an act is arbitrary or not, the court must
carefully attend to the facts and the circumstances of the case. It should
find out whether the impugned decision is based on any principle. If not,
it may unerringly point to arbitrariness. If the act betrays caprice or the
mere exhibition of the whim of the authority it would sufficiently bear the
insignia of arbitrariness. In this regard supporting an order with a
rationale which in the circumstances is found to be reasonable will go a
long way to repel a challenge to State action. No doubt the reasons need
not in every case be part of the order as such. If there is absence of good
faith and the action is actuated with an oblique motive, it could be
characterised as being arbitrary. A total non-application of mind without
due regard to the rights of the parties and public interest may be a clear
indicator of arbitrary action.
70. One another way, to assess whether an action complained of could
be termed as arbitrary is by way of scrutinizing the reasons that have
been assigned to such an action. It involves overseeing whether the
reasons which have been cited if at all genuinely formed part of the
decision-making process or whether they are merely a ruse. All decisions
that are taken must earnestly be in lieu of the reasons and
considerations that have been assigned to it. The Court must be mindful
of the fact that it is not supposed to delve into every minute details of
the reasoning assigned, it need not to go into a detailed exercise of
assessing the pros and cons of the reasons itself, but should only see
whether the reasons were earnest, genuine and had a rationale with the
ultimate decision. What is under scrutiny in judicial review of an action is
the decision-making process and whether there is any element of
arbitrariness or mala fide.
71. Thus, the question to be answered in such situations is whether the
decision was based on valid considerations. This is undertaken to ensure
that the reasons assigned were the true motivations behind the action
and it involves checking for the presence of any ulterior motives or
irrelevant considerations that might have influenced the decision. The
approach of the court must be to respect the expertise and discretion of
administrative authorities while still protecting against arbitrary and
capricious actions. Thus, now the only question that remains to be
considered is whether the action of the respondent to cancel the tender
could be termed as arbitrary?
30. Referring to an earlier judgment in the case of Jagdish
Mandal Vs. State of Orissa (2007) 14 SCC 517, Hon'ble
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Supreme Court in the case of Michigan Rubber (India) Ltd.
Vs. State of Karnataka & Ors. 5 has summed up the principles
to be applied by the Court when it is faced with a challenge to a
State action in contractual/tender matters. Paragraphs 23 and
24 of the said judgment are extracted hereinbelow:
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:
(2012) 8 SCC 216
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(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."
Emphasis supplied
31. Thus, one of the considerations which ought to weigh
with the Court while considering the matters like the present
one, is as to whether the public interest is affected. Hon'ble
Supreme Court in Michigan Rubber (India) Ltd. (supra), has
observed that the Court, before interfering in the tender or
contractual matters, should pose to itself not only a question as
to whether the process adopted or decision made by the
authorities was mala fide or is intended to favour to someone or
the process or decision made is arbitrary or irrational but it
should also pose a question whether the public interest is
affected. Thus, the public interest is one of the primary
considerations which should be taken into account by a Court
before interfering in a tender matter. Hon'ble Supreme Court in
paragraph 24 of the judgment in the case of Michigan Rubber
(India) Ltd. has categorically held that if answers to both the
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questions as spelt out in the said paragraph are in negative,
then there should not be any interference in tender matters
under Article 226 of the Constitution of India.
Emphasis supplied
32. In Balaji Ventures Pvt. Ltd. Vs. Maharashtra State
Power Generation Company Ltd. and Anr. 6, Hon'ble
Supreme Court has quoted with approval the judgment in the
case of Silppi Constructions Contractors Vs. Union of India
(2020) 16 SCC 489. In Silppi Constructions Contractors
(supra), the Apex Court has held that the power of judicial
review in such matters should be exercised with restraint and
caution and that need for overwhelming public interest to justify
judicial intervention in the matters of contract involving State
instrumentalities has to be given due weightage. The Supreme
Court further observes that the tendering authority is the best
judge of its requirements and therefore, the Court's interference
should be minimum, that is to say interference is permissible
only to prevent arbitrariness, irrationality, bias, mala fide or
perversity. Paragraph 10 of Balaji supra is extracted
hereinbelow:
2022 SCC OnLine SC 1967
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"10. In the case of Silppi Constructions Contractors v. Union of India,
(2020) 16 SCC 489, it is observed in para 20 as under:
"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
the 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. With this approach
in mind we shall deal with the present case."
33. The scope of interference by High Court under Article
226 of the Constitution of India in tender/contractual matters
was discussed by Hon'ble Supreme Court in Tata Motors
Limited Vs. Brihan Mumbai Electric Supply & Transport
Undertaking (BEST) and Others7, where it has been held that
writ Court, ordinarily should refrain itself from imposing its own
decision over the decision of the tendering authority as to
whether or not to accept the bid of a tenderer unless something
very gross or palpable is found. The apex Court further observes
in the said judgment that to set at naught the entire tender
process at the stage when the contract is well underway, would
2023 SCC OnLine SC 671
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not be in public interest and that initiating fresh tender process
at this stage may consume lot of time and loss to the public
exchequer to the tune of crores of rupees. The Court has further
observed that financial burden/implications which the State may
have to meet with if the Court directs for issuing a fresh tender,
should be one of the guiding factors that should be kept in mind
by the Courts. In Tata Motors Limited (supra), the Hon'ble
Supreme Court has gone to the extent of laying down the
principle that even when some defect is found in the decision-
making process, the Court must exercise its discretionary powers
under Article 226 with caution and should exercise it only in
furtherance of public interest and not merely on the making out
of a legal point and that the Court should always keep the larger
public interest in mind in order to decide whether its intervention
is called for or not. The Apex Court has also laid down that only
when the Court comes to a conclusion that overwhelming public
interest requires interference, the Court should interfere. It has
also been held that if the decision complained of is in public
interest the Court will not interfere by exercise of powers of
judicial review even if a procedural aberration or error in
assessment or prejudice to a tenderer is made out. The Court
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also stated in this judgment that power of judicial review will not
be invoked to protect private interest at the cost of public
interest. Paragraph 52 to 54 of Tata Motors Limited (supra)
are extracted hereinbelow:
"52. Ordinarily, a writ court should refrain itself from imposing its
decision over the decision of the employer as to whether or not to
accept the bid of a tenderer unless something very gross or palpable
is pointed out. The court ordinarily should not interfere in matters
relating to tender or contract. To set at naught the entire tender
process at the stage when the contract is well underway, would not be
in public interest. Initiating a fresh tender process at this stage may
consume lot of time and also loss to the public exchequer to the tune
of crores of rupees. The financial burden/implications on the public
exchequer that the State may have to meet with if the Court directs
issue of a fresh tender notice, should be one of the guiding factors
that the Court should keep in mind. This is evident from a three-Judge
Bench decision of this Court in Association of Registration Plates v.
Union of India, reported in (2005) 1 SCC 679.
53. The law relating to award of contract by the State and public
sector corporations was reviewed in Air India Ltd. v. Cochin
International Airport Ltd., reported in (2000) 2 SCC 617 and it was
held that the award of a contract, whether by a private party or by a
State, is essentially a commercial transaction. It can choose its own
method to arrive at a decision and it is free to grant any relaxation for
bona fide reasons, if the tender conditions permit such a relaxation. It
was further held that the State, its corporations, instrumentalities and
agencies have the public duty to be fair to all concerned. Even when
some defect is found in the decision-making process, the court must
exercise its discretionary powers under Article 226 with great caution
and should exercise it only in furtherance of public interest and not
merely on the making out of a legal point. The court should always
keep the larger public interest in mind in order to decide whether its
intervention is called for or not. Only when it comes to a conclusion
that overwhelming public interest requires interference, the court
should interfere.
54. As observed by this Court in Jagdish Mandal v. State of Orissa,
reported in (2007) 14 SCC 517, that while invoking power of judicial
review in matters as to tenders or award of contracts, certain special
features should be borne in mind that evaluations of tenders and
awarding of contracts are essentially commercial functions and
principles of equity and natural justice stay at a distance in such
matters. If the decision relating to award of contract is bona fide and
is in public interest, courts will not interfere by exercising powers of
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judicial review even if a procedural aberration or error in assessment
or prejudice to a tenderer, is made out. Power of judicial review will
not be invoked to protect private interest at the cost of public interest,
or to decide contractual disputes."
Emphasis supplied
34. Having noticed the principles evolved by the Hon'ble
Supreme Court in the aforementioned judgments relating to
scope of interference by this Court in exercise of its jurisdiction
under Article 226 of the Constitution of India in tender or
contractual matters where the State or its instrumentality is
party, we will now discuss as to whether any interference in
these petitions will be in public interest and further as to
whether the impugned tender condition No.PQ5 is so irrational
and arbitrary that it vitiates the entire tender process.
35. The supplies of food kits are to be made for distribution
during Gauri Ganpati festival which is celebrated in the entire
State of Maharashtra. The said festival is to commence from 7 th
September 2024. The volume to be supplied is 1,70,82,086
food kits which is a huge number. The task to be performed by
the selected bidder for executing the work in reference to the
subject tender is through-out the State in all its districts at
various destinations where the festival is to be held and the work
to be executed for distribution will necessarily involve firstly;
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procurement of huge quantity of the food items, their packaging,
loading to supply vehicles and transportation to the designated
places and thereafter unloading. Once the supplies of these food
items reach the designated godowns maintained by the
Government/semi-Government agencies, the food kits are to be
unloaded and thereafter distributed amongst the beneficiaries.
The task, thus, is humungous and ultimate goal of the scheme
under which the food items are to be distributed is to benefit the
beneficiaries, that too in a limited period of time since as per the
RFP, supplies are to be made by the successful bidder within 30
days from the date work order is issued.
36. Festival is to commence from 7th September 2024 that is
to say, it is hardly a month left when the distribution of food kits
are to start and accordingly; having regard to such a short time
left for distribution of food kits in terms of the subject tender,
unless we find that the impugned tender condition No.PQ5 is
manifestly arbitrary or irrational, in our considered opinion,
interference in the instant matter at this juncture would not be
warranted as it will not be in public interest. We have already
noticed that the Hon'ble Supreme Court in Tata Motors
Limited (supra) has observed that even when some defect is
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found in the decision making process the Court must exercise its
discretionary powers under Article 226 of the Constitution of
India with great caution and such powers should be exercised
only in furtherance of public interest and not merely on the
making out of a legal point.
Emphasis supplied
37. While forming an opinion whether in the present matter
the Court should intervene, the larger public interest has to be
borne in mind. Hon'ble Supreme Court in Tata Motors Limited
(supra) has also emphasized that the Court will not interfere in
exercise of its powers of judicial review in tender matters even if
a procedural aberration or error in assessment or prejudice to a
tenderer is made out if the decision complained of is found to be
in public interest. We are, thus, conscious of these principles
which entrust the Court to exercise the power of judicial review
only to farther the public interest and as such even if some error
or prejudice to a tenderer is made out, the powers under Article
226 cannot be invoked to protect private interest at the cost of
public interest. We may also notice that in case at the instance
of the petitioners the impugned tender condition is quashed by
the Court, it would entail a direction to re-tender the subject
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work, however, having regard to the constraint of time for the
reason that the festival is to start from 7 th September 2024, in
the facts of the present case any order of re-tendering will not
be in public interest.
38. As far as the submissions made by the learned Counsel
for the petitioners that the bid should be evaluated without
insisting on the impugned tender condition No.PQ5, we may only
observe that such a direction, if issued by the Court, would not
be in conformity of Article 14 of the Constitution of India as it
would create a non-level playing and uneven field for the reason
that there may be many entities/parties which could have
participated in the tender process had the impugned condition
No.PQ5, which provides for having experience of providing 300
labourers at 70 different locations, not been stipulated in the RFP
at its inception. In case such a direction is issued, such
entities/parties will be deprived of participation in the tender
which will be in direct conflict with Article 14 of the Constitution.
Such a direction as has been prayed for by the petitioners, in our
opinion, will be impermissible to be issued by the Court.
39. Coming to the impugned tender condition No.PQ5, we
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would only observe that it is a prequalifying condition and
requires bidders to possess the experience of providing 300
labourers at 70 different locations. The task of supplying
1,70,82,086 food kits throughout the State in 35 districts and
many taluka places is extremely large and if the State
authorities, based on their past experience where they were
flooded with complaints of untimely supply and not so smooth
distribution of food kits, have prescribed such a condition, in our
opinion, same is not liable to be interfered with, especially
keeping in view the limited time available within which re-tender
process would not be possible and hence, it would not be in
public interest to interfere with such condition. Even otherwise,
as held by Hon'ble Supreme Court in various judgments
including Agmatel India Private Limited Vs. Resoursys
Telecom and Others8, author of the tender document is taken
to be the best person to understand and appreciate its
requirements. Thus, in the said view of the matter as well, we
are unable to appreciate the prayer made by the petitioners to
interfere in the impugned tender condition and the tender
process, at this juncture.
(2022) 5 SCC 362
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(F) CONCLUSION:
40. In light of what has been discussed above, we are of the
considered opinion that in the facts and circumstances of the
case especially having regard to the stage of the tender and the
short time left for ensuring timely and smooth supply and
distribution of the food kits, any interference in this matter in
exercise of our discretionary jurisdiction under Article 226 of the
Constitution of India, is not called for.
41. Thus, we are not inclined to interfere in these petitions.
42. Resultantly, the writ petitions are dismissed.
43. However, there will be no order as to costs.
44. Interim Application(s), if any, stand disposed.
(AMIT BORKAR, J.) (CHIEF JUSTICE)
45. After the judgment was pronounced, Shri Sharan
Jagtiani, learned Senior Advocate representing one of the
petitioners, prays that for a week or so interim protection may
be granted directing the respondents not to open/finalize the
bid.
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46. We have considered the said prayer, however, we are
unable to grant the said prayer for the reasons already assigned
in the judgment dismissing the writ petitions.
(AMIT BORKAR, J.) (CHIEF JUSTICE)
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