Delhi High Court
Metropolitan Social Art & ... vs Delhi State Government & Anr on 17 August, 2015
Author: Badar Durrez Ahmed
$~60
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 17.08.2015
+ W.P.(C) 7757/2015
METROPOLITAN SOCIAL ART
& CULTURAL SOCIETY ..... Petitioner
versus
DELHI STATE GOVERNMENT & ANR ..... Respondents
Advocates who appeared in this case:
For the Petitioners : Mr Sushil Kumar Pandey, Advocate.
For the Respondent No. 1 : Mr Gautam Narayan, Additional Standing
Counsel.
For the Respondent No.2 : Mr K.C. Dubey, Advocate.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
CM No.15284/2015(exemption)
Exemption is allowed, subject to all just exceptions.
W.P.(C) 7757/2015 & CM No.15283/2015(stay)
This petition is directed against the Notice Inviting Tender dated
15.07.2015 issued by the East Delhi Municipal Corporation (Education
Department : HQ) with regard to the Mid-Day Meal Programme under National
Programme for Nutritional Support to Primary Education (NP-NSPE).
The grievance of the petitioner is that in the eligibility criteria for
voluntary Organizations, serial No.5 prescribes that the voluntary organization
should have space of a minimum plotted area of 1000 sq. yds. for establishing a
semi-automated kitchen. He submits that on an earlier occasion, when the
tender was floated on 16.03.2011, the condition with regard to space prescribed
was only 500 sq. yds. The learned counsel for the petitioner submits that for
this tender also, the condition should be 500 sq.yds. and not 1000 sq. yds.
We have heard the learned counsel for the parties. There is no dispute
that one eligibility critera for voluntary organizations is that the organization,
which intends to bid, must have a minimum plotted area of 1,000 sq.yds. for
establishing a semi-automated kitchen. The voluntary organization is required
to cater to a minimum of 60,000 students each day. Therefore, it has been
submitted by the learned counsel appearing for the respondents that the
condition of having a minimum plotted area of 1,000 sq. yds. is not an arbitrary
or unreasonable condition because considerations of personal hygiene and
larger public interest have also to be kept in mind. The specific clause
contained in the NIT is given at serial No.14 under the heading „general terms
and conditions‟ which clearly stipulates that the supply of cooked meals from
each kitchen would be limited to a minimum of 60,000 and a maximum of
1,60,000 units per day.
The learned counsel for the respondents has also drawn our attention to
the decision of the Supreme Court in the case of Michigan Rubber (India)
Limited v. State of Karnataka And Others : 2012 (8) SCC 218, wherein the
Supreme Court, after referring to various other decisions, set down the
following principles:-
"23. From the above decisions, the following principles emerge:
(a) the basic requirement of Article 14 is fairness in action
by the State, and non-arbitrariness in essence and
substance is the heartbeat of fair play. These actions are
amenable to the judicial review only to the extent that the
State must act validly for a discernible reason and not
whimsically for any ulterior purpose. If the State acts
within the bounds of reasonableness, it would be
legitimate to take into consideration the national priorities;
(b) fixation of a value of the tender is entirely within the
purview of the executive and the courts hardly have any
role to play in this process except for striking down such
action of the executive as is proved to be arbitrary or
unreasonable. If the Government acts in conformity with
certain healthy standards and norms such as awarding of
contracts by inviting tenders, in those circumstances, the
interference by Courts is very limited;
(c) In the matter of formulating conditions of a tender
document and awarding a contract, greater latitude is
required to be conceded to the State authorities unless the
action of the tendering authority is found to be malicious
and a misuse of its statutory powers, interference by
Courts is not warranted;
(d) Certain preconditions or qualifications for tenders have
to be laid down to ensure that the contractor has the
capacity and the resources to successfully execute the
work; and
(e) If the State or its instrumentalities act reasonably, fairly
and in public interest in awarding contract, here again,
interference by Court is very restrictive since no person
can claim a fundamental right to carry on business with the
Government.
24. Therefore, a Court before interfering in tender or contractual
matters, in exercise of power of judicial review, should pose to
itself the following questions:
(i) Whether the process adopted or decision made by the
authority is mala fide or intended to favour someone; or
whether the process adopted or decision made is so
arbitrary and irrational that the court can say: "the decision
is such that no responsible authority acting reasonably and
in accordance with relevant law could have reached"? and
(ii) Whether the public interest is affected?
(underlining added)
If the answers to the above questions are in negative, then there
should be no interference under Article 226."
On going through the above extract, it is evident that in the matter of
formulating conditions of a tender document, a great decree of latitude is
required to be conceded to the State Authorities unless and until the action of
the tendering authority is found to be malicious or a misuse of its powers. That
is not the case here and, therefore, no interference is warranted. Furthermore, it
has also been indicated that in any tender, certain pre-conditions and
qualifications have to be laid down to ensure that the contractor has the
capacity and the resources to successfully execute the work. The setting down
of minimum area of 1,000 sq. yds. is one such pre-condition/qualification. We
do not find this to be unreasonable or arbitrary keeping in mind the magnitude
of the number of meals to be supplied from each kitchen. The said term of the
tender, which is objected to in the present petition is, in our view, reasonable
and fair and is not contrary to public interest.
There is no interference by this Court is called for.
The writ petition is dismissed. There shall be no order as to costs.
BADAR DURREZ AHMED, J
SANJEEV SACHDEVA, J
AUGUST 17, 2015
'sn'
