Bombay High Court
Mahendra Realtors And Infrastructure ... vs Jawaharlal Nehru Port Autority And Ors on 24 July, 2025
2025:BHC-AS:31523-DB
Neeta Sawant 903-WP-9935-2025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9935 OF 2025
Mahendra Realtors & Infrastructure Ltd. ....Petitioner
: Versus :
1. Jawaharlal Nehru Port Authority
2. Union of India
3. Painterior Protective Systems LLP
4. Shandar Interior Pvt. Ltd. ....Respondents
Mr. Zal Andhyarujina, Senior Advocate with Mr. Mayur Khandeparkar
and Mr. Aniesh S. Jadhav i/b Mr. Nikhil Adkine, for the Petitioner.
Mr. Pradeep Sancheti, Senior Advocate with Mr. Amit Patil, Ms. Srishti
Madgum i/b Parinam Law Associates, for the Respondent No.1.
Mr. D. P. Singh, for Respondent No.3-Union of India.
Mr. Girish Godbole, Senior Advocate with Ms. Shubhabrata Chakraborti
and Ms. Shivali Khadke, for Respondent No.3.
Mr. Atul Damle, Senior Advocate with Mr. Aayush Barat i/b Mr.
Mahernosh Humranwala, for Respondent No.4.
CORAM : ALOK ARADHE, CJ. &
SANDEEP V. MARNE, J.
DATED : 24 JULY 2025.
JUDGMENT :
(Per Sandeep V. Marne, J.)
1) In this Petition, Petitioner assails the decision of the
tendering authority in technically disqualifying in the impugned tender
process. It has accordingly challenged the communication dated
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7 July 2025, technical summary report dated 7 July 2025, minutes of
tender committee dated 2 July 2025 and corrigendum dated
14 July 2025, by which it has been declared technically disqualified.
Petitioner seeks a direction for acceptance of its technical bid as
qualified. Petitioner also challenges the decision of the tendering
authority in declaring the bids of Respondent Nos.3 and 4 as qualified.
2) Petitioner is engaged in the business of construction and
claims to have executed many government projects. On 11 April 2025,
Jawaharlal Nehru Port Trust (JNPT) issued tender notice for execution
of work of repairs and renovation of 'B' type-34 nos. of buildings in
Sectors-I & III at JNPT Township at estimated cost of
Rs.60,95,27,000/-. As per the tender notice, provision was made for
prospective bidders to raise queries, which was supposed to be
responded by 30 April 2025. The last date for submission of the bids was
7 May 2025. According to the Petitioner, several conditions of the
tender were not fair for competitive bidding and accordingly it raised
queries vide letters dated 22 April 2025 and 24 April 2025. Corrigendum
No.1 was issued by JNPT on 25 April 2025 amending certain clauses of
tender notice. Corrigendum No.2 was issued on 29 April 2025 by which
few of the queries were deleted. Corrigendum No.3 was issued on
2 May 2025 again amending the tender clauses and providing
clarifications. Another Corrigendum was issued on 10 May 2025 by
which the tender schedule was extended. Petitioner submitted its bid. It
appears that total nine entities had submitted their bids. The technical
bids were opened on 20 May 2025 by subjecting the documents
submitted by the bidders for evaluation. By communication dated
7 July 2025, Petitioner was informed that its bid has been rejected during
technical evaluation. The tender scrutiny report was published by the
tendering authority on Government E-Procurement system which
indicated that bid of the Petitioner was rejected and the technical bids of
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Respondent Nos.3 and 4 were accepted. Petitioner has procured the
minutes of the tender scrutiny committee. By Corrigendum No.6 dated
14 July 2025, the tendering authority has divulged reasons for
disqualification of the bidders. Petitioner has accordingly challenged the
communication dated 7 July 2025, tender summary report dated
7 July 2025, minutes of the tender committee and corrigendum No.6
dated 14 July 2025 in the present petition.
3) Mr. Andhyarujina, the learned Senior Advocate appearing
for the Petitioner would submit that Respondent No.1 has arbitrarily
rejected Petitioner's technical bid by subjecting the same to microscopic
enquiry. That Petitioner meets the eligibility criteria of having executed
three similar works costing not less than Rs.24.38 crores. That since the
tender is for execution of work of repairs and renovation of buildings,
the expression 'similar works' would necessarily mean possession of
experience of repairs and renovation of the buildings. That Petitioner
has executed repairs and renovation works for Stock Holding
Corporation of India Ltd., as well as for CIDCO for repair and
renovation of Vashi and Belapur Railway stations. That Clause-2.2.2.2
of the tender notice merely indicated six illustrative treatments in respect
of proposed repair and renovation works. That the said list is merely
indicative as the work of structural repairs of encompasses several
elements. That therefore mere illustrative list included in Clause-2.2.2.2
did not mean that each and every item so illustrated must be executed by
the bidders. That Petitioner satisfies five out of the six illustrative
treatments in respect of the work at Belapur Station and only treatment
of guniting work is absent in respect of that work. That non-completion
of one of six illustrative treatments in respect of the past work could not
have been a reason for technically disqualifying the Petitioner. That the
decision to disqualify Petitioner's technical bid is thus arbitrary,
irrational and aimed solely at curtailing the competition.
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4) Mr. Andhyarujina would further submit that the tendering
authority has given discriminatory treatment to the Petitioner as it has
accepted the bids of Respondent Nos.3 and 4, whose experience
certificates also did not indicate execution of all the six treatments in the
works claimed to have been executed by them. That the third
Respondents has mislead the tendering authority that the experience of
Wankhede Stadium is in respect of one work, when in fact, the same is
in respect of multiple works, executed against two separate work orders.
That documents submitted by Respondent No.3 would indicate that the
said work was executed in multiple phases and therefore the same
cannot be treated as 'one complete work' withing the meaning of
Clause-2.2.2.2 of the tender notice. Respondent No.3 did not produce
the Bill of Quantities to indicate performance of all the six treatments.
That the bid of Respondent No.3 is accepted without subjecting the
same to the same level of scrutiny as is done in the case of the
Petitioner. That so far as bid of Respondent No.4 is concerned, the
position is even worse as its work experience certificate does not indicate
that it has completed the treatments of injection grouting, chemical
coating of RCC structures and anti-carbonation panting. That the
power of attorney submitted by Respondent No.4 has not been
notarized, which shortcoming is ignored on a pretext of curable defect,
but the bid of another bidder has been rejected on the ground of non-
notarisation of the power of attorney.
5) Mr. Andhyarujina would further submit that Clause-3.1.4
of the tender document envisaged seeking of clarifications from the
bidders. That though such clarifications were sought from other bidders,
similar treatment was not given to the Petitioner and JNPT has
erroneously relied on correspondence made with CIDCO in respect of
the previous tender process which has no relevance to the impugned
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tender process. That if JNPT was to rely on any adverse material against
the Petitioner, it was all the more necessary to seek clarification from the
Petitioner. On the above broad submissions, Mr. Andhyarujina would
pray for setting aside the impugned decision of disqualifying Petitioner's
bid.
6) Mr. Sancheti, the learned Senior Advocate appearing for
Respondent No.1-JNPT would oppose the petition submitting that the
Petitioner has admittedly not performed guniting treatment in respect of
its work at Belapur Railway station. That the position is confirmed by
CIDCO vide letter dated 7 March 2025. That there was no question of
seeking any clarification from the Petitioner in view of admitted
position that it has not performed the guniting work treatment. That the
tendering authority is the best judge to decide technical specifications
and its decision of insisting on experience of guniting work cannot be
called in question by a bidder. That so far as bid of Respondent No.3 is
concerned, he would submit that JNPT made a correspondence with
Mumbai Cricket Association, who has confirmed that the works
performed by Respondent No.3 emanated out of a single tender. That
the tendering authority has duly applied its mind to the work experience
certificate, as well as Bill of Quantities submitted by Respondent No.3
and has satisfied that it possesses the prescribed technical eligibility
criteria. That so far as bid of Respondent No.4 is concerned, a query
was raised by JNPT on 30 May 2025, which was responded by
Respondent No.4 vide letter dated 3 June 2025 producing various
documents issued by MCGM. That after going through the work
specification, the tendering authority has satisfied itself that the work
executed by Respondent No.3 for MCGM contains all the prescribed
treatments under clause-2.2.2.2 of the tender document. That the
grouting treatment is nothing but filling of gaps between the tiles which
work is performed by Respondent No.3. That the anti-carbonation
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painting and chemical coating of RCC structure has also been
performed by Respondent No.3. Lastly, Mr. Sancheti would submit that
the satisfaction recorded by the tendering authority about fulfillment of
technical eligibility criteria by Respondent Nos.3 and 4 cannot be called
in question at the instance of the Petitioner who admittedly does not
fulfill the eligibility criteria. That the defect of non-notarisation of the
Power of Attorney is a curable defect in the opinion of the tendering
authority. In support of his contentions, Mr. Sancheti would rely upon
judgments of the Apex Court in Agmatel India Private Limited
Versus. Resoursys Telecom and Ors.1, Silppi Constructions
Contractors Versus. Union of India and another 2 and of this Court in
Larsen & Toubro Limited Versus. Mumbai Metropolitan Region
Development Authority (MMRDA) and another3.
7) Mr. Godbole, the learned Senior Advocate appearing for
Respondent No.3 would submit that the work experience relied upon by
Respondent No.3 is in respect of single work performed at Wankhede
Stadium. That the work was required to be executed in phases on
account of request made by Mumbai Cricket Association due to
intervening event of world cup cricket matches. That the mentioning of
phase numbers in some of the documents is only for internal purposes
of Respondent No.3 and the same does not mean that the work
executed is not a single work within the meaning of Clause-2.2.2.2 of
the tender document. He would demonstrate as to how the six
treatments envisaged under Clause-2.2.2.2 of the tender document are
satisfied in respect of the bid submitted by Respondent No.3. In support
of his contentions, Mr. Godbole would rely upon judgments of the
Apex Court in Siemens Aktiengeselischaft and Siemens Limited
(2022) 5 SCC 362
(2020) 16 SCC 489
2025 SCC Online 2039
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Versus. Delhi Metro Rail Corporation Limited and others 4, Raunaq
International Ltd. Versus. I.V.R. Construction Ltd. and others 5 and
Silppi Constructions Contractors (supra). Mr. Godbole would pray
for dismissal of the petition.
8) Mr. Damle, the learned Senior Advocate appearing for
Respondent No.4 would submit that Respondent No.3 satisfies the
condition of having completed one similar work of not less than
Rs.48.76 crores as stipulated in Clause-2.2.2.2 of the tender document.
That it has carried out the work of renovation of Municipal Head
Office, Annex Building for contract cost of Rs.68.77 crores. That the
work completed by Respondent No.4 contains all the six treatments
described in Clause-2.2.2.2. He would place reliance on copies of
payment certificate issued by MCGM to demonstrate that grouting
treatment was done while execution of the work. He would further
submit that even chemical coating of RCC structures was carried out
while doing the water grouting treatment. That even anti-carbonation
painting treatment was done by Respondent No.4 while executing the
work for MCGM. He would submit that the tendering authority has
satisfied itself about the work experience of Respondent No.4 and the
Petitioner cannot be permitted to question the same especially when it
admittedly does not possess the requisite eligibility criteria. He would
pray for dismissal of the petition.
9) Rival contentions of the parties now fall for our
consideration.
10) Respondent No.1-JNPT has issued the tender notice for
execution of work of repairs and renovation of B type 34 Nos. buildings
(2014) 11 SCC 288
(1999) 1 SCC 492
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in Sectors-I & III at JNPT Township. Clause-2.2.2.2 of the tender
document prescribed technical capacity for bidders, which reads thus:-
2.2.2.2. Technical Capacity
The Firm/Company, as the case may be (hereinafter referred to as
"The Tenderer"), shall have following Minimum
i) Experience of having successfully completed the similar works
during last seven years ending last day of month previous to the
one in which applications are invited should be either of the
following:
a) Three completed works each costing not less than Rs. 2438.11
Lakhs (excluding GST)
Or
b) Two completed works, each work costing not less than Rs.
3047.63 lakhs (excluding GST)
Or
c) One completed work costing not less than Rs. 4876.22 lakhs.
(excluding GST).
Financial Year RBI Consumer Multiplication factor
Price Index
2023-24 163.80 1.06
2022-23 155.3 1.11
2021-22 146.3 1.17
2020-21 139.6 1.21
2019-20 135 1.15
2018-19 130.30 1.31
Note: The similar works means structural repairing /strengthening
work of residential / commercial/institutional buildings
consisting of following treatment
a Micro concrete
b Injection Grouting
c Waterproofing and Chemical Coating of RCC structures
d Anti-carbonation painting
e Polymer modified mortar
f Guniting Work
ii) Tenderer shall be in the similar nature of business of minimum
period of seven years and shall submit the documentary proof for
the same.
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iii) The sole Bidder or in case the Bidder being a Joint Venture, any
member of Joint Venture shall necessarily demonstrate additional
experience in structural repairing /strengthening work of
residential /
commercial/institutional buildings consisting of following
treatment
a Micro concrete
b Injection Grouting
c Waterproofing and Chemical Coating of RCC structures
d Anti-carbonation painting
e Polymer modified mortar
f Guniting Work
11) Petitioner submitted its bid by relying on experience of
having completed three similar works costing not less than Rs.2438.11
lakhs. It has relied upon following three experience certificates :-
Work carried out Value
Structural repair, refurbishing and allied works Rs.25.50 crores
for Mahape premises of Stock Holding
Corporation India Ltd.
Structural repairs, waterproofing, plumbing Rs.40.13 crores
system and other allied works of Vashi
Railway Station issued by CIDCO
Structural repairs, waterproofing and Rs.41.47 crores
plumbing system and other allied works at
Belapur Railway Station issued by CIDCO
12) There is no dispute to the position that in respect of the
works performed by the Petitioner for Stock Holding Corporation
Limited and Vashi Railway Station all the six treatments prescribed in
Clause-2.2.2.2 of the tender documents are fulfilled. However, in respect
of the work experience of the Petitioner for Belapur Railway Station, the
treatment of guniting work was admittedly not done.
13) Though it was sought to be faintly suggested that even upon
exclusion of work experience of Belapur Railway Station, Petitioner has
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completed two works of Stock Holding Corporation Pvt. Ltd. and Vashi
Railway Station, it is seen that the tender criteria required each of the
two works to be not less than Rs. 30.47 crores. Petitioner's work
experience of Stock Holding Corporation India Ltd. is Rs.24.50 crores.
Therefore, even though the Petitioner has completed all the six
prescribed treatments in respect of the works for Stock Holding
Corporation India Ltd. and Vashi Railway Station, it does not fulfill the
essential criteria of each work being not less than Rs.30.47 crores.
Therefore, Petitioner has no option but to rely upon three work
experiences including that of Belapur Railway Station. There is no
dispute to the position that so far as value criteria is concerned,
Petitioner satisfies the said criteria as value of each of the three works is
in excess of Rs.24.38 crores. The only shortfall highlighted for rejecting
Petitioner's bid is non-performance of treatment of guniting work in
respect of the work experience of Belapur Railway Station.
14) It would be apposite to reproduce the reasons for
disqualification of Petitioner's bid issued in Corrigendum No.6 dated
14 July 2025 :-
i) In terms of "similar work" definition given in the Tender, for the
purposes of Minimum Qualification Criteria (clause No. 2.2.2.2 of
the
tender), under the work orders submitted by the bidder for
satisfaction of MQC criteria it must have done the following
treatments.
a) Micro concrete
b) Injection Grouting
c) Waterproofing and Chemical Coating of RCC Structures
d) Anti-carbonation Painting
e) Polymer modified mortar
f) Guniting Work
Under the bid submitted by M/s. Mahendra Realtors &
Infrastructure Limited it has not submitted the details as to whether
all treatments as specified in "similar work" definition has been
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done by it under the work order submitted for the purposes of
satisfaction of MQC.
ii) It is observed that the Guniting treatment is not executed in the
work of "Structural repairs waterproofing and plumbing system
and other allied works related to Belapur Railway Station cum
commercial Complex at Belapur Navi Mumbai" which is submitted
by M/s. Mahendra Realtors & Infrastructure Limited for
satisfaction of MQC. The bidder does not satisfy stipulated MQC
criteria. The bid is hence rejected.
15) It must be observed here that an additional reason of non-
disclosure of litigation history as well as alleged falsity in the list of
works in hand is also cited for rejecting the bid of the Petitioner.
However, a separate show cause notice has been issued to the Petitioner
in respect of the said allegations and apparently a final decision in that
show cause notice is yet to be taken. The Petitioner had filed Writ
Petition No. 10135 of 2025 challenging the said show cause notice,
which has been withdrawn on 22 July 2025 with liberty to challenge the
order passed in pursuance the show cause notice dated 15 July 2025. In
that view of the matter, Mr. Sancheti has fairly clarified that the
correctness of decision rejecting bid of the Petitioner be determined only
with reference to non-fulfillment of the technical criteria prescribed in
Clause-2.2.2.2 of the tender notice. We are therefore not going into the
additional reasons of non-disclosure of litigation history and alleged
falsity in the list of works in hand and all contentions of parties in that
regard are kept open.
16) There are two reasons indicated in Corrigendum No.6
dated 14 July 2025, for rejecting Petitioner's bid. The first reason is
failure to submit the details of performance of six treatments. The
second reason is non-execution of guniting treatment in respect of the
work of Belapur Railway Station. We need not go into the first reason of
failure to submit details of performance of all six treatments as JNPT
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does not dispute the position that all the six treatments are performed in
respect of the works of Stock Holding Corporation India Ltd. and Vashi
Railway Station. It is also not dispute that five out of the six treatments
are also performed in respect of the work of Belapur Railway Station.
Therefore, mere non-disclosure of details of performance of six
treatments can no longer be a valid reason after JNPT has been able to
detect the exact defect in the bid of the Petitioner. This leaves the reason
of non-performance of guniting treatment by the Petitioner in respect of
the work of Belapur Railway Station. Here, Mr. Andhyarujina is fair in
pointing out that the guniting treatment has actually not been performed
by the Petitioner in respect of the work of Belapur Railway Station.
17) After having admitted that guniting treatment is not
performed by the Petitioner in respect of the work of Belapur Railway
Station, two contentions are raised by the Petitioner. Firstly, it is
contended that the list of six treatments indicated in Clause-2.2.2.2 is
merely illustrative in nature and that the words 'similar work' cannot be
interpreted to mean that the similar work must contain all the six
illustrative treatments. Secondly, it is contended that the tendering
authority has given discriminatory treatment to the Petitioner by
rejecting its bid for failure to execute one treatment while relaxing the
said condition in respect of Respondent Nos.3 and 4 by not subjecting
their bids to similar microscopic enquiry.
18) So far as the first contention of the Petitioner is concerned,
it is sought to be suggested that the six treatments prescribed in Clause-
2.2.2.2 are mere illustrative in nature and that it is not necessary that all
the six treatments must be present in respect of every structural
repairing/strengthening work. It is contended that structural
repairing/strengthening work of existing buildings may comprise of
several elements depending on the work requirement. It is sought to be
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suggested that it is too technical to reject the bid of the Petitioner on the
ground of failure to perform guniting treatment in one out of the three
works performed by it. It is suggested that Petitioner has performed
guniting work in respect of the building Stock Holding Corporation
India Ltd. and Vashi Railway Station and mere non-inclusion of the
work of guniting in the BOQ of Belapur Railway Station would not
mean that Petitioner is not an experienced entity in performing the work
of structural repairing/strengthening.
19) In the work experience certificates relied upon by the
Petitioner, the certificate issued by Stock Holding Corporation of India
Ltd. indicated the details of various treatments performed, including the
guniting treatment. It however appears that in respect of the work
experience certificates of Vashi and Belapur Railway Stations, the exact
treatments performed were not reflected in the said certificates. JNPT
had previously issued tender for execution of the same work and in
connection of the same, query was raised with Superintending Engineer
(Railways) about Petitioner completing all the six treatments in respect
of works of Vashi and Belapur Railway Stations. A reply was received
from Executive Engineer, CIDCO confirming that guniting work was
included in respect of work of Vashi Railway Station but the same was
not included in respect of work of Belapur Railway Station.
20) Petitioner has objected to the course of action adopted by
JNPT in relying on queries made in respect of the previous bidding
process for disqualifying the Petitioner in current tender process. It is
submitted that if any adverse material was in possession of JNPT, the
same ought to have been brought to the notice of the Petitioner while
proceeding to disqualify its bid. Reliance is placed on Clause-3.1.4 of
the tender document, which reads thus :-
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3.1.4. To facilitate evaluation of Technical BIDs, the Employer
may, at its sole discretion, seek clarifications in writing from any
Bidder regarding its Technical BID. Such clarification(s) shall be
provided within the time specified by the Employer for this
purpose. Any request for clarification(s) and all clarification(s) in
response thereto shall be in writing.
21) Though the submissions of Mr. Andhyarujina of
impermissibility to rely on information secured during previous tender
process for rejecting Petitioner's bid in current tender process as well as
failure to seek clarification from Petitioner may look attractive in the
first blush, but the same is actually misplaced in the facts and
circumstances of the present case. It is not Petitioner's case that it has
actually performed guniting treatment even in respect of the work at
Belapur Railway Station. In fact, during the course of his submissions,
Mr. Andhyarujina has fairly conceded that Petitioner did not perform
guniting work for Belapur Railway Station. Therefore, the technical plea
of JNPT relying on correspondence relating to previous tender process
cannot be accepted. Similarly, no useful purpose would have been served
by seeking a clarification from the Petitioner under Clauses-3.1.4 of the
tender document in the light of Petitioner's admission of non-
performance if guniting work. As a matter of fact, Clause-6.2(d) of
tender document empowered the tendering authority to independently
verify, disqualify, reject and/or accept any or all submissions or
information submitted by the bidder. Clause-6.2(d) of the tender
document reads thus :-
(d) independently verify, disqualify, reject and/ or accept any and
all submissions or other information and/ or evidence submitted by
or on behalf of any Bidder.
22) Thus, JNPT had full authority to independently verify the
veracity of information claimed by a bidder by raising queries with the
certificate issuing authorities. Similar course of action was apparently
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adopted even for Respondent No.3 when independent correspondence
was made by JNPT with Mumbai Cricket Association. In any case,
since the Petitioner concedes the position that it has not performed
guniting work for Belapur Railway Station, raising of any query with
the Petitioner under Clause-3.1.4 would have been a mere useless
formality.
23) The tendering authority has considered performance of
guniting work in respect of the past performance as a mandatory
qualification criterion. Being the author of tender document and as the
principal of the work, the tendering authority is the best judge to decide
its own requirements. In the facts and circumstances of the present case,
the tendering authority has formed an opinion that only bidders having
past work experience of performance of work of structural
repairs/strengthening with guniting treatment can be held eligible. In
exercise of powers of judicial review under Article 226 of the
Constitution of India, this Court cannot sit as an appellate authority
over the wisdom of the tendering authority in insisting for past
experience of guniting work for each of the three experiences relied
upon by a bidder. In Silppi Constructions Contractors (supra), the
Apex Court has held that the authority floating tender is the best judge
of its requirement and therefore Court's interference needs to be
minimal. The Apex Court has held 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
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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.
24) In Agmatel India Pvt. Ltd. (supra), the Apex Court has
reiterated the position that the author of the tender document is the best
judge to understand and appreciate its requirements. The Apex Court
held in para-26 as under :-
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.
25) Since the tendering authority has formed an opinion that
performance of guniting work is an essential ingredient of the work of
structural repairs/strengthening, we cannot sit as an appellate authority
over the decision of the tendering authority. We are therefore unable to
accept the contention raised by the Petitioner that guniting work is a
mere illustrative treatment, which is not required to be mandatorily
performed for meeting the eligibility criteria prescribed in Clause-2.2.2.2
of the tender document.
26) Now we examine the second contention about non-
subjecting of Respondent Nos.3 and 4 to similar microscopic enquiry
and accepting their technical bids in absence of documents showing
performance of all six treatments. It must be observed here that once the
Petitioner fails to qualify the eligibility criteria, the issue of this Court
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going into the issue of fulfillment of eligibility criteria by Respondent
Nos.3 and 4, becomes academic. In Raunaq International Ltd. (supra),
the Apex Court has held that it is impermissible to grant judicial relief at
the instance of the party which does not fulfill the requisite eligibility
criteria. However, even if this aspect is to be momentarily ignored, we
find that sufficient material is produced on record by the tendering
authority to demonstrate that Respondent Nos. 3 and 4 satisfy the
technical eligibility criteria prescribed in the tender document. We are
unable to accept Petitioner's contention that Respondent No.3 has
performed multiple works for Mumbai Cricket Association. Though two
work orders are issued and the work may have been executed in phases,
Mumbai Cricket Association has responded to the query raised by
JNPT vide email dated 4 June 2025 and has clarified that both the work
orders were issued to Respondent No.3 in respect of a single tender. The
phasewise execution of the work by Respondent No.3 is also explained
by demonstrating that certain work was directed to be executed only
after world cup cricket matches. We are therefore unable to accept the
contention of Petitioner that Respondent No.3 does not fulfill the
criteria of having performed single work of specified value. The
tendering authority has satisfied itself that all the elements of treatments
have been performed by Respondent No.3 while executing the work at
Wankhede Stadium.
27) When it comes to Respondent No.4, though it is sought to
be contended that the work experience certificate issued by MCGM
does not contain the treatments of injection grouting, chemical coating
of RCC structures and anti-carbonation painting, this suggestion is
denied by the tendering authority who has satisfied itself that all the six
treatments are performed while executing the work of renovation of
Municipal Head Office, Annex Building of MCGM by Respondent
No.4. The tendering authority has clarified that injunction grouting is a
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Neeta Sawant 903-WP-9935-2025
part of tiling work and that chemical coating of RCC structures and
anti-carbonated painting is also performed by Respondent No.4. The
bills produced by Respondent No.3 in support of its bid do indicate that
the opinion of the tendering authority is not entirely wrong. What must
also be borne in mind is that the tendering authority has reached to be
subjective satisfaction that the work executed by Respondent No.4 for
MCGM's Head office contained all the six prescribed treatments. We
again cannot sit as an appellate authority over the opinion formed by the
tendering authority in exercise of powers of judicial review under
Article 226 of the Constitution of India.
28) The scope of interference by Courts in tender matters is in a
narrow compass. In Tata Cellular Versus. Union of India6, the Apex
Court has held that Court does not sit as a court of appeal over the
decision of the tendering authority but merely reviews the manner in
which the decision is made. The Courts do not have the expertise to
examined the correctness of the administrative decision and decision of
the tendering authority cannot be substituted by the Courts, in absence
of any expertise. In para-94, the Apex Court held as under :-
94. The principles deducible from the above are:
(1) The modern trend points to judicial restraint in administrative
action.
(2) The court does not sit as a court of appeal but merely reviews
the manner in which the decision was made.
(3) The court does not have the expertise to correct the
administrative decision. If a review of the administrative decision is
permitted it will be substituting its own decision, without the
necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial
scrutiny because the invitation to tender is in the realm of contract.
Normally speaking, the decision to accept the tender or award the
contract is reached by process of negotiations through several tiers.
More often than not, such decisions are made qualitatively by
experts.
(5) The Government must have freedom of contract. In other
words, a fair play in the joints is a necessary concomitant for an
(1994) 6 SCC 651
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Neeta Sawant 903-WP-9935-2025
administrative body functioning in an administrative sphere or
quasi-administrative sphere. However, the decision must not only
be tested by the application of Wednesbury principle of
reasonableness (including its other facts pointed out above) but
must be free from arbitrariness not affected by bias or actuated by
mala fides.
(6) Quashing decisions may impose heavy administrative burden on
the administration and lead to increased and unbudgeted
expenditure.
Based on these principles we will examine the facts of this case
since they commend to us as the correct principles.
29) In Siemens Aktiengeselischaft and Siemens Limited
(supra) it is held that the tenders floated by the government and
government agencies are amenable to judicial review in order to prevent
arbitrariness and favourtism and to protect the financial interest of the
State. The scope of judicial review is confined only to determine
whether there is any illegality or irrationality, or procedural impropriety
committed by the decision-making authority. The Courts do not sit in
the appeal over the soundness of decision-making authority. So long as
the decision is found to be fair, reasonable, transparent and bonafide
with no perceptible injury to the public interest, the Court must refrain
from interfering in the decision of the tendering authority.
30) After considering the overall conspectus of the case, we are
unable to trace any element of arbitrariness, irrationality or perversity in
the decision of the tendering authority in disqualifying the technical bid
of the Petitioner and in qualifying the bids of Respondent Nos.3 and 4.
The petition must fail. It is accordingly dismissed.
[SANDEEP V. MARNE, J.] [CHIEF JUSTICE]
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2025.07.28
19:03:57
24 July 2025
