Delhi High Court
Flemingo Duty Free Shop Pvt. Ltd. ... vs Union Of India & Ors. on 1 November, 2012
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 15.10.2012
Date of Decision: 01.11.2012
+ W.P.(C) 6110/2012
FLEMINGO DUTY FREE SHOP PVT. LTD. AND ANR. ... Petitioners
Through : Mr. Ashok Desai and Mr. Arvind Nigam,
Sr. Advs. with Mr. Arunabh Chowdhury,
Mr. Parthiv Goswami, Mr. Raktim Gogoi,
Mr. Vaibhav Tomar and
Mr. Gainilung Panmei, Advs.
versus
UNION OF INDIA & ORS. ... Respondents
Through : Mr. Sumeet Pushkarna, CGSC with
Mr. Varun Dubey, Adv. for R-1/UOI.
Mr. Rajiv Nayar, Sr. Adv. with
Mr. Digvijay Rai, Adv. for Rs-2 & 3/AAI.
Mr. Sandeep Sethi, Sr. Adv. with
Mr. Rishi Agarwala and
Mr. Akshay Ringe, Advs.
for R - 4 / IL&FS.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE VIPIN SANGHI
SANJAY KISHAN KAUL, J.
1. Respondent No. 2, namely, Airports Authority of India
(hereinafter referred to as, „AAI‟) was desirous of developing,
operating and maintaining duty-free outlets at Chennai and
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Kolkata Airports and, thus, floated a Request for Qualification (for
short, „RFQ‟) in the month of August, 2012. Petitioner No. 1,
namely, M/s. Flemingo Duty Free Shop Pvt. Ltd., who is
operating outlets at other airports, are aggrieved by the
qualifications prescribed for the said RFQ as they seek to oust
petitioner No. 1. The case of the petitioners is that, in fact, all
Indian players will be ousted in view of the terms and conditions
of the RFQ.
2. We may note that another aspect impugned in the present writ
petition is the action of respondent No. 2 / AAI in not issuing No
Dues Certificate(s) after reconciliation of accounts at existing
airports where petitioner No. 1 is operating, which is a mandatory
qualification requirement and such No Dues Certificate(s) are
stated to have been issued only for 4 airports out of 12 airports
where petitioner No. 1 is currently carrying out operations.
However, this issue has been sorted out during pendency of the
petition.
3. The petitioners claim that the impugned clauses are ex facie illegal
and illogical and are in teeth of the criteria set forth in the previous
tenders floated for Kolkata Airport in the year 2006 and Chennai
Airport in the year 2009. The petitioners are aggrieved by the
following clauses contained in the RFQ:
(a) The definition of an „Associate‟ in the definition clauses,
which reads as under:
"Associate" shall mean, in relation to the Applicant /
Consortium Member, a person who controls, is
controlled by, or is under the common control with
such Applicant / consortium Member (the
"Associate"). As used in this definition, the
expression "control" means, with respect to any
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person which is a company or corporation, the
ownership directly or indirectly, of at least 75%
(Seventy Five per cent) of the voting shares of such
person, and with respect to a person, which is not a
company or corporation, the power to direct the
management and policies of such person by
operation of law."
(b) The condition (ii) of sub-clause (A) dealing with technical
capacity of clause 2.2.2 providing eligibility for pre-
qualification and short-listing, which reads as under:
"2.2.2. To be eligible for pre-qualification and
short-listing, an Applicant shall fulfill the following
conditions of eligibility ("Threshold Eligibility
Criteria"):
(A)Technical Capacity : For demonstrating technical
capacity and experience ("Technical Capacity")
the Applicant shall satisfy each of the following
criteria:-
... ... ... ... ... ... ...
(ii) The Applicant (in the case of a Consortium,
the Lead Member and its Associates), shall
have presence in 3 International Airports
(Indian or overseas), each handling an
international passenger traffic of 5 million in
each year during the last 3 years.
... ... ... ... ... ... ..."
(c) The financial capacity sub-clause (B) of clause 2.2.2, which
reads as under:
"2.2.2. ... ... ... ... ... ...
(B) Financial Capacity : For demonstrating financial
capacity ("Financial Capacity") the Applicant
shall satisfy each of the following criteria:
(i) The Applicant (in the case of a Consortium,
the Lead Member and its Associates), claiming
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the experience in Duty-Free Business shall have,
a sales turnover from the said business of
operating Duty-Free business in India or overseas
equivalent of at least INR 500 crores during each
of the last 3 years period ending 31.03.2012 (as
per the last audited / certified copy from statutory
auditor);
The Applicant shall furnish in its Application,
certificate(s) from its statutory auditors certifying
the sales turnover and proof from the respective
airport operator for operating experience."
(d) In Evaluation of Applications, clause 3.1 prescribes
"Evaluation Parameters" and the grievance is against clause
3.1.3, which reads as under:
"3.1 Evaluation parameters
... ... ... ... ... ... ...
3.1.3 In evaluating the Technical Capacity and
Financial Capacity under clauses 2.2.2, the
experience and turnover of the Applicant (in the case
of a Consortium, the Lead Member and its
Associates) would also be eligible."
(e) Appendix I is the format for „Letter Comprising the
Application for Pre-Qualification' as per clause 2.13.2. The
grievance is against clause 14, which reads as under:
"14. I/We further certify that no investigation by a
regulatory authority is pending either against us /
any Member of the Consortium or against our / its
Associates or against our CEO or any of our
directors / managers / employees."
4. The clauses are identical for Chennai and Kolkata Airports except
clause 2.2.2(B) whereby the turnover has to be at least INR 250
crores during each of the last 3 years period ending 31.03.2012 in
case of Kolkata instead of INR 500 crores in case of Chennai.
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5. The petitioners, thus, addressed communications dated 06.09.2012
and 07.09.2012 seeking clarification in changes in respect of the
RFQ qua Chennai and Kolkata Airports respectively. A pre-bid
conference is stated to have been held at Kolkata on 13.09.2012,
which was attended to by the representatives of petitioner No. 1.
A similar conference qua Chennai Airport was held on
20.09.2012. In the interregnum period, there were various
communications on the same lines, but in the absence of any
favourable response, the present writ petition under Article 226 of
the Constitution of India (hereinafter referred to as, „the
Constitution‟) has been filed.
6. In the short affidavit filed by respondents No. 2 and 3 / AAI
affirmed on 03.10.2012, it has been averred that the AAI has
upgraded the Airports at Chennai and Kolkata to make them world
class airports and the eligibility criteria was framed as set out in
the RFQ keeping this in mind. The Ministry of Civil Aviation had
directed AAI vide its letter dated 23.10.2009 to appoint a
consultant for suggesting measures with detailed plans and
marketing strategies to maximize the revenue from rentals from
terminal buildings for spaces given for various purposes. M/s.
IL&FS Infrastructure Development Corporation Ltd. / respondent
No. 4 was appointed as a consultant vide letter dated 12.08.2011,
which is stated to have advised AAI on commercial potential of
airports and designing layout plan, developing and implementing
marketing strategy for optimizing the revenue generation and
preparing tender documents for the award of licence /
concessionaire.
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7. The affidavit states that qua clause 2.2.2(B) relating to financial
capacity, a clarification has already been issued that instead of the
requirement of handling international passenger traffic of 5
million in each year during the last 3 years, the same would stand
substituted by handling total passenger traffic of 5 million in each
year during the last 3 years, thus diluting the stringency of the
norms. The financial capacity of turnover is, however, defended
on the basis of volume of business and the passenger movement,
which was likely to be generated and the players existing in
different airports. The passenger traffic data has been annexed.
The affidavit emphasizing that in pre-bid meeting, 7 intended
bidders participated which shows that there is sufficient
competition in respect of the RFQ floated. The criteria is also
sought to be supported by the fact that for Mumbai International
Airport, the RFQ conditions framed recently provided for INR
2,000 crores (400 million dollars) as eligibility criteria, which had
at present an international traffic of 10 million and if the same
proportion is applied, then for 4.5 million traffic for Chennai
Airport, the turnover should have been fixed at INR 800 crores,
but has actually been fixed at INR 500 crores and for Kolkata
Airport, this is even lower at INR 250 crores. Another aspect
emphasized is that AAI has permitted a Consortium to bid and,
thus, nothing prevents petitioner No. 1 forming a Consortium and
participating in the tender process. In this context, the definition
of „Associate‟ incorporates the requirement of 75% so as to have
an effective majority, which is the benchmark for passing special
resolution under The Companies Act, 1956. In the end, it is
emphasized that the tender conditions have been framed not to
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eliminate existing licensees, but to get world class players at
international airports.
8. In the rejoinder affidavit filed by the petitioners, the reasons cited
by AAI are sought to be denied as there cannot be any justification
for imposing extra stringent qualifying criteria. The most
important averment made in the rejoinder is that the opinion of the
consultant qua the rationale behind imposition of stringent
qualification had not been placed on record, which would have a
definite bearing on the present proceedings.
9. We had put to learned senior counsel for the petitioners at the
inception of the hearing itself that this Court is not to act as an
authority to re-write the conditions of the RFQ, which fall within
the commercial domain of AAI. It is, thus, for AAI to frame the
norms. Learned senior counsel did not dispute this proposition,
but sought to develop the legal principle on the basis that the
doctrine of „Wednesbury unreasonableness‟ would apply and if
the conditions are arbitrary, unreasonable, irrational, then it would
be open for this Court to interfere. The ousting of competition of
Indian players is stated to be the basis for the unreasonableness of
the criteria. In support of this proposition, various judgments were
referred to.
10. A Division Bench of this Court in Gharda Chemicals Limited v.
Central Warehousing Corpn., 118 (2005) DLT 159 (DB) after
perusing the material found that the insertion of a pre-qualification
condition of at least 3 years manufacturing experience of ISI
marked chemical was irrational and arbitrary having no nexus with
the stated object of maintaining quality and consistency of
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supplies, which was sought to be achieved qua tender for supply
of CWC diary, chemical and technical equipments.
11. In Meerut Development Authority v. Association of Management
Studies and Anr., (2009) 6 SCC 171, the nature of rights of
bidders participating in tender process have been discussed and a
limited judicial review has been held to be available where a
tender is tailor-made to suit the convenience of a particular person.
Para 26 reads as under:
"26. A tender is an offer. It is something which invites
and is communicated to notify acceptance. Broadly stated,
it must be unconditional; must be in the proper form, the
person by whom tender is made must be able to and
willing to perform his obligations. The terms of the
invitation to tender cannot be open to judicial scrutiny
because the invitation to tender is in the realm of contract.
However, a limited judicial review may be available in
cases where it is established that the terms of the invitation
to tender were so tailor-made to suit the convenience of
any particular person with a view to eliminate all others
from participating in the bidding process."
(emphasis supplied)
12. A Division Bench of this Court (of which one of us, Sanjay
Kishan Kaul, J. was a Member) in Medical Point (I) Ltd. v. Union
of India and Ors., IV (2011) BC 622 = MANU/DE/3055/2011
considered the aforesaid principle. In the said case, the concept of
DOSA, i.e., a decision oriented system analysis has been
explained as where the terms and conditions are made in such a
way as to obtain a particular decision as the final outcome.
13. In Reliance Energy Ltd. and Anr. v. Maharashtra State Road
Development Corpn. Ltd. and Ors., (2007) 8 SCC 1, more
particularly para 36, „level playing field‟ has been stated to be an
important concept while construing Article 19(1)(g) of the
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Constitution. This doctrine has, however, been held subject to
public interest, but in the world of globalization and competition,
it has been observed to be an important factor to be kept in mind.
This is because the doctrine provides space within which equally-
placed bidders are allowed to bid so as to sub-serve the larger
public interest. Since globalization in essence is liberalization of
trade, decisions or acts, which result in unequal or discriminatory
treatment, have been held to violate the doctrine of „level playing
field‟.
14. Respondents No. 2 and 3 have relied upon a Division Bench
judgment of this Court in WP (C) No. 20185-87/2005 titled „Visa
Steel Ltd. & Ors. v. Union of India & Ors.‟ decided on
08.12.2005, which has emphasized the limited scope of judicial
review over administrative actions as held in Tata Cellular v.
Union of India, AIR 1996 SC 11. In the same context, ordinarily,
non-interference of courts with the tender conditions in a contract,
unless it is purely illegal or shockingly arbitrary has been
emphasized by referring to the authoritative pronouncements of
the Apex Court in Global Energy Ltd. and Anr. V. Adani Exports
Ltd. and Ors., (2005) 4 SCC 435; Association of Registration
Plates v. Union of India, (2005) 1 SCC 679; Master Marine
Service Pvt. Ltd. v. Metcalfe and Hodgkinson Pvt. Ltd. & Anr.,
(2005) 6 SCC 138. Reason for this is stated to be that the courts
ordinarily cannot interfere in administrative matters since the
administrative authorities are specialized in matters relating to
administration and the courts does not have expertise in such
matters. It is in real exceptional matters where the Wednesbury
principle applies. The courts do not sit as a court of appeal over
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administrative decisions, but merely reviews the manner in which
the decision was made.
15. An important aspect examined in Visa Steel Ltd.‟s case (supra) is
qua the stringency of norms, which were held to be within the
rights of the respondent to so prescribe and it was not for the
courts to sit in appeal over these conditions. Even if the court may
feel that a better decision could have been taken or some other
action could have been adopted by the Executive would be no
ground to strike down the administrative decision.
16. If we analyse the terms and conditions prescribed by AAI, we are
of the view that it is difficult to state that they would fit within the
parameters of a „shockingly arbitrary‟ or „outrageous' conditions
incorporated. What has been provided is actually benchmarks,
which are more stringent and the rationale for this has already
been explained in the affidavit filed by respondents No. 2 and 3 /
AAI that keeping in mind the upgradation of the airports to
international levels, it was deemed appropriate that the best quality
may be obtained, which may be possible from the larger player in
the field. It would really not be in the nature of judicial scrutiny
by the Court to say whether the benchmark should be X crores or
Y crores turnover. This is a matter, which is completely within
the technical domain and it would be wholly unjustifiable for this
Court to sit in appeal over these parameters. In fact, the common
thread, which runs through all the clauses, which have been
impugned in the present petition, is that it is petitioners, who want
clauses tailor-made to suit the requirements of petitioner No. 1 so
that petitioner No. 1 can participate. It is the DOSA principle in
reverse! The fact that petitioner No. 1 is serving a number of
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airports today and there is no complaint against it is no ground
why the parameters should be made to fit petitioner No. 1. It is
not as if AAI is having a prejudice or bias against petitioner No. 1
as is apparent from the existing contracts already with it. We
cannot be expected to compare passenger traffics, segregate
international and national traffic, look into projections for the
future and then prescribe lower standards than what are prescribed
in the RFQ.
17. The aforesaid should have brought the matter to an end, but for the
one peculiar fact. This was the production in Court of a copy of
what was stated to be a letter dated 11.09.2012 addressed by the
Chief Executive Officer of the consultant / IL&FS to Shri L.L.
Krishnan, Executive Director (Commercial) of AAI. The purport
of this letter was that the consultant had opined that the conditions
ought not to be made so stringent and suggesting amendments in
the RFQ document for Duty Free Retail Concessions at Chennai
and Kolkata Terminals. Learned senior counsel for the petitioners
contended that AAI was, thus, going contrary to the opinion of
their own consultant and though he could not seriously contend
that adherence to those recommendations was mandatory, due
weightage must be given to the opinion of the consultant and this
Court must also peruse the records as to why the recommendations
have not been accepted. The production of this letter before the
Court occurred on 04.10.2012, when learned counsel for
respondents No. 2 and 3 produced the records stating that
Corrigendum No. 2 had been issued, which reads as under:
1. Reference is invited to the Request for Qualification
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(RFQ) published by Airports Authority of India on
01.09.2012.
2. Following amendments are made to Clause 1.3
(Schedule of Bidding Process) of the RFQ document.
"Qualification Stage
Event Description Date
1. Last date for sale of tender 12.10.2012 (1700 hrs IST)
2. Application Due Date 19.10.2012 (1100 hrs IST)
Online opening 19.10.2012 (1200 hrs IST)
3. 2.2.2 (A) Technical Capacity Clause (ii) may be read
as under:
"The Applicant (in the case of a Consortium, the Lead
Member) and its Associate (s) shall have presence in 3
International Airports (Indian or Overseas), each
handling a total passenger traffic of 5 million in each
year during the last 3 years."
4. The tender can be procured only by making online
payment through the payment gateway. For details,
please see the guidelines to the bidders given on the
home page of the e-tender portal. No other mode of
payment will be accepted.
5. Further clarifications/corrigendum in regard to this
RFQ, if any, shall be posted only on the website of AAI
(www.airportsindia.org.in, www.aai.aero).
6. This RFQ is global."
18. Learned counsel for respondents No. 2 and 3 / AAI submitted that
now, the tender being a global one, there can be no doubt that
petitioner No. 1 can apply through a Consortium as was being
proposed in their rejoinder. However, learned senior counsel for
the petitioners submitted that the crucial issue is the extent of the
turnover as provided, which had no co-relation with the estimated
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sale and would impede competition, which was the opinion of the
consultant vide letter dated 11.09.2012. We, thus, called upon
respondents No. 2 and 3 / AAI to produce the records where this
letter had been dealt with and if the advice had not been adhered
to, reasons recorded for not adhering to the advice and the final
decision taken in the matter.
19. In the next proceedings of 08.10.2012, learned counsel for
respondents No. 2 and 3 / AAI stated that the complete records of
respondents had been examined and the letter dated 11.09.2012
had not been received by them from their consultant ever. The
letter dated 11.09.2012 was, thus, alleged to have been created for
purposes of this writ petition possibly in tandem with the
consultant. This allegation was made by learned counsel for
respondents No. 2 and 3 / AAI on account of the records available
with the respondents as compared with the letter dated 11.09.2012.
The submissions made in this behalf as recorded in the Oder dated
08.10.2012 are being reproduced for convenience as under:
"Learned counsel points out that the letter dated
11.9.2012 under the heading of „Definition of Associate‟
refers to the advice of keeping the threshold shareholding
for being qualified as associate at 50 per cent while in the
final proposed RFQ e-mailed on 28.7.2012 to respondents
2 & 3 and referred in the letter dated 3.8.2012 the
consultants themselves have proposed it at 75 per cent.
Similarly so far as the minimum eligibility criteria
conditions detailed in letter dated 11.9.2012 are concerned,
as per the same final proposed RFQ the recommendation is
Rs.250.00 crore while in the letter dated 11.9.2012 the
advice is to have it at Rs.140.00 crore. In this behalf
learned counsel has produced the original letter dated
3.8.2012 and the final proposed RFQ sent on 28.7.2012.
Learned counsel submits that the consultants in their
purported letter dated 11.9.2012 are conveniently silent on
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the communication dated 3.8.2012 while referring to their
presentations made during the meeting held on 2.4.2012
and 9.5.2012. The final picture which emanated from the
consultant is stated to be as reflected in the proposed RFQ
sent on 28.7.2012 and referred to in the letter dated
3.8.2012.
Learned senior counsel further submits that a three
member Expert Committee had, in fact, been constituted
by respondents 2 & 3 on 1.8.2012 which examined
recommendations made by the consultant on 3.8.2012 and
then made its own recommendations which were sent to
the Commercial Advisory Board on 27.8.2012 and the
finalized terms were, in fact, put on the website of
respondents 2 & 3 on 1.9.2012. It is, thus, submitted that
there can be no occasion for the letter dated 11.9.2012 to
emanate from the consultants. He further submits that it is
no part of the job of the consultants to comment on the
final picture as is sought to be done vide letter dated
11.9.2012 with reference to the RFQ published on the
website on 1.9.2012."
20. On having recorded the aforesaid submissions, we opined that
normally the issue between the consultant and the principal has to
be sorted out at their end, but since something more had been said
before us alleging that the consultant appears to have acted
contrary to the interest of respondents No. 2 and 3 / AAI by
handing over copies of communication to the petitioners
subsequently and that too without the communication actually
being addressed to respondents No. 2 and 3 / AAI, we would
implead the consultant as respondent No. 4. Notice was
consequently issued to respondent No. 4 whereafter respondent
No. 4 entered appearance and filed their affidavit.
21. In the reply on behalf of M/s. IL&FS Infrastructure Development
Corporation Ltd. / respondent No. 4 supported by an affidavit of
its President affirmed on 15.10.2012, it has been stated that the
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letter dated 11.09.2012 was not an exact copy of the letter written
by respondent No. 4 to the Executive Director of AAI. It was
pleaded that all correspondence addressed between the consultant
and AAI are privilege and confidential and that all correspondence
in writing or suggestions made orally to AAI are mere suggestions
and the final authority to accept or reject the suggestion lies
exclusively with AAI. The authenticated letter dated 11.09.2012,
a copy of which was annexed to the reply, was stated to have been
handed over to the Executive Director of AAI by hand during a
pre-bid meeting on 13.09.2012. We may, however, note that the
difference between the copy of the letter produced before us and
the authenticated copy is not a major one, but that where the
turnover is referred to, the expression „during each of the last
three years‟ does not appear in the unauthenticated copy. In
effect, what has been stated is that possibly copy of the letter at a
draft stage may have been procured by the petitioners.
22. In the context of production of this letter, learned senior counsel
for the petitioners relied upon the Division Bench judgment of this
Court in Surgical Electronics and Anr. v. Union of India and Ors.,
60 (1995) DLT 359 (DB) where a copy of a letter had been
produced and such a letter was taken into account. However, in
view of the present scenario, especially with the enactment of The
Right to Information Act, 2005, we are of the view that not much
can be made out from any objection to the production of the letter
other than the fact that the letter is not a copy of the original
document in its absolute sense.
23. We had in our Order dated 08.10.2012, in view of the controversy
over the letter, called upon the petitioners to file an affidavit as to
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how they came into possession of the copy of the letter dated
11.09.2012 as it had become necessary in view of the stand of
respondents No. 2 and 3 / AAI. An affidavit in this behalf was
filed by Mr. P.K. Thimmayya, Director (Operations) of petitioner
No. 1. In this affidavit, it is stated that the deponent had attended
the pre-bid meeting(s) at Kolkata on 13.09.2012 and at Chennai on
20.09.2012 when more than 15 persons including the
representatives of the prospective bidders, representatives of the
consultant and Officers of AAI were present. The deponent and
several other bidders had complained about the restrictive and
steep tender conditions. The deponent has also stated that on
01.10.2012 when he was at Mumbai Office at around 12 hours,
one of the office boys came in and handed over an envelope
addressed to him, which contained the typed copy of the letter
dated 11.09.2012. On enquiry, office boy informed him that the
said letter was found inside the mail drop box of the Mumbai
Office of petitioner No. 1 company.
24. All we would like to say is that this explanation is difficult to
swallow! The interested persons were the petitioners. Without
the endeavours of the petitioners, why would a third-party or any
one from the consultant pitch in with assistance by sending a copy
of the letter and that too of apparently a draft letter in view of the
inconsistency between that letter and the authenticated copy albeit
not a major one. We are, however, not required to go further into
this aspect.
25. The submissions on behalf of respondents No. 2 and 3 reiterated
that the letter dated 11.09.2012 presented by the petitioners was
never received in the office of AAI and even as per the affidavit of
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the consultant / respondent No. 4 is alleged to have been given
personally to the Executive Director (Commercial), who actually
stands suspended w.e.f. 05.10.2012. The document had not come
through any normal course as per procedure. In the written
synopsis filed, each of the grounds raised by the petitioners has
been responded to. An independent consultant had been appointed
to suggest the RFQ conditions. Regarding certain aspects,
clarifications had already been issued, i.e., the pre-requisite of
handling of requisite passenger traffic had been diluted from
international passengers to the total passengers for the airport.
The financial capacity requirements had been defended. The
projections for international passenger for Chennai and Kolkata
over the next 10 years had been analysed. No other bidder is
stated to have raised any grievance and there is sufficient
competition available, especially with Consortium bids being
made permissible. The object is stated to be not to eliminate
Indian players, but to bring in world class players. It had already
been clarified that the tender was a global tender.
26. The original records had been produced and copies thereof had
been filed with the written synopsis annexing the relevant minutes
of the meeting through which the final decision has been reached.
These minutes show that the consultant made presentations in the
various meetings where the very parameters, which have been
incorporated in the RFQ, have been presented. The minutes filed,
in fact, support what had been contended before this Court on
08.10.2012, which has been extracted aforesaid.
27. In our considered view, respondents No. 2 and 3 / AAI have been
able to show from records the discussions on various aspects of
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the RFQ and the presentations made by the consultant.
Respondents No. 2 and 3 / AAI have also rightly pointed out that
even if the authenticated copy of the letter dated 11.09.2012 is
taken into account, there are matters stated therein, which are
contrary to the earlier recommendations of the consultant. The
important aspects are as under:
(i) In the definition of „Associate‟, the letter dated 11.09.2012
opines to keep the threshold shareholding for being
qualified as „Associate‟ at 50 per cent, while in the proposed
RFQ sent through e-mail on 27.08.2012 to respondents
No. 2 and 3 / AAI and referred to in the letter dated
03.08.2012, the consultant itself had proposed it at 75 per
cent.
(ii) The minimum eligibility criteria conditions as per the same
final proposed RFQ was recommended at INR 250 crores
for Kolkata, while in the letter dated 11.09.2012, it has been
advised as INR 140 crores.
(iii) In the letter dated 11.09.2012, there is silence of the
consultant qua the communication dated 03.08.2012 while
referring to their presentation(s) made during the meeting(s)
held on 02.04.2012 and 09.05.2012.
(iv) The final picture, which emanated from the consultant, is as
per the proposed RFQ sent on 28.07.2012 and referred to in
the letter dated 03.08.2012.
(v) The Expert Committee constituted by respondents No. 2
and 3 / AAI on 01.08.2012 examined the recommendations
made by the consultant on 03.08.2012 and then made its
own recommendations, which were sent to the Commercial
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Advisory Board on 27.08.2012 and the final terms were, in
fact, put on the website by respondents No. 2 and 3 / AAI
on 01.09.2012. The advisory role of the consultant was,
thus, practically over and, thus, the occasion for sending the
letter dated 11.09.2012 is not understood more so in view of
the aforesaid inconsistency.
(vi) The task of a consultant is to advice the principal and not
really to comment on the final picture, which emerged as
put on the website, after the Expert Committee had already
considered their recommendations made by the consultant.
28. In our view, there are important aspects, which clearly throw
doubt on both the existence and purpose of the letter dated
11.09.2012, which is alleged to have been handed over „by hand‟
to an Officer of respondent No. 2 / AAI, who stands suspended
subsequently. In any case, the final call is of the principal being
respondent No. 2 / AAI and it is not as if the advice of the
consultant has not been examined. The projection of difference
between the view of the consultant as reflected in the letter dated
11.09.2012 vis-à-vis the RFQ is not correct as the letter dated
11.09.2012, in fact, states some aspects including of minimum
turnover, which are in dilution of the standards sent vide the
proposed RFQ by the consultant itself and e-mailed on 28.07.2012
to respondents No. 2 and 3 / AAI, which documents have also
been produced for our perusal. The letter dated 11.09.2012 creates
a doubt and the purpose with which it has been issued and the
manner in which it has found itself in the hands of the petitioners
albeit an unauthenticated copy, which to some extent differs from
the authenticated copy.
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29. We are, thus, unequivocally of the view that the legal parameters
for scrutiny of the RFQ cannot convert this Court into an appellate
authority for the terms and conditions of the tender. The terms
and conditions are not completely irrational or arbitrary nor are
they tailor-made to fit any third-party. In fact, there is not even a
specific allegation in that behalf. It also does not satisfy the test of
Reliance Energy Ltd. and Anr.‟s case (supra) of there being any
violation of „level playing field‟. The provisions for minimum
turnover and satisfaction of essential parameters are part of the
process of laying down norms in the RFQ and keeping in mind the
nature of the tender, they cannot be labeled as irrelevant or
irrational. These are not conditions, which fall within the test of
„clearly illegal‟ or „shockingly arbitrary‟ and respondents No. 2
and 3 / AAI are well within their rights to insist on more stringent
conditions keeping in mind the objective of having a world class
international airport facility. These are not conditions, which no
sensible person can be said to have made.
30. We find the writ petition completely devoid of any merit and
dismiss the same with costs quantified at Rs.50,000/- payable to
respondents No. 2 and 3 / AAI.
SANJAY KISHAN KAUL, J.
NOVEMBER 01, 2012 VIPIN SANGHI, J.
madan
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