Page No.# 1/16 vs The Indian Oil Corporation And 15
2022 Latest Caselaw 4759 Gua

                                                             Page No.# 1/16

GAHC010247212022




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WA/374/2022

         PINTU KUNDU AND 6 ORS
         S/O ARUN KUMAR KUNDU, R/O SASTRI ROAD, NEAR ISKCON TEMPLE
         NORTH BANGAIGAON, DIST. BONGAIGAON, ASSAM

         2: MOTISON CHOUDHAN
          S/O GANESH CHOUDHAN
          R/S NO. 1 KALAIGAON
          NEAR MAHABIR LACHIT SCHOOL
          UDALGURI-784525
         ASSAM

         3: JALAL ALI
          S/O AYNAL ALI R/O CHATIBARGAON
          CHIRANG-783385
         ASSAM

         4: ARJUN CHANDRA BARMAN
          S/O SACHINDRA CHANDRA BARMAN
          R/O SIMPAGURI
          CHIRANG 783381 ASSAM

         5: ISHTIAQUE AHMED KHAN
          S/O SRI JAMIL AHMED KHAN
          170 PUB SARANIA
          M.D. ROAD POLICE STATION CHANDMARI
          GUWAHATI-781003 ASSAM

         6: MAHENDRA SINGH
          S/O KRISHNA SINGH
          R/O 577 RAMJEET SINGH ROLA DUDHI
          KUSHINAGAR-274302 UTTAR PRADESH

         7: BHASKAR J GOGOI
          S/O BOLU RAM GOGOI
                                                        Page No.# 2/16

R/O CHINAKI
PATH ZOO NARENGI ROAD
GUWAHATI-781024 ASSA

VERSUS

THE INDIAN OIL CORPORATION AND 15
REP. BY ITS MANAGING DIRECTOR INDIAN OIL BHAVAN G9 ALI YAVAR
JUNG MARG, BANDRA EAST MUMBAI 400051 MAHARASHTRA

2:THE CHIEF GENERAL MANAGER
 INDIAN OIL CORPORATION LTD. MARKETING DIVISION REGIONAL
CONTRACT CELL
 EASTERN REGION OFFICE 2 GARIAHAT ROAD SOUTH KOLKATA 700068
WEST BENGAL

3:THE INDEPENDENT EXTERNAL MONITORS
 IP SECRETARIAT INDIAN OIL CORPORATION LTD. ROOM NO. 542 5TH
FLOOR CORE 6
 SCOPE COMPLEX
 LODHI ROAD
 NEW DELHI 110003

4:THE CHIEF GENERAL MANAGER OPERATION
 INDIAN OIL
AOD NOONMATI GUWAHATI-781020

5:ED AND SH IOAOD SO INDIAN OIL CORPORATION LTD.
 GUWAHATI

6:SATISH CHANDRA BASUMATARY
 S/O LT. MANSING BASUMATARY
 R/O DHALIGAON MAIN GATE
 P.O- KAJALGAON
 CHIRANG
ASSAM
 PIN- 783385.

7:RAHUL KUMAR JAIN
 S/O RAJESH KUMAR JAIN
 R/O B.O.C GATE
 P.O AND DISTRICT- BONGAIGAON
ASSAM
 PIN-783380.

8:SANTOSH PRASAD
 S/O LAXMAN PRASAD
 R/O CHAPAGURI ROAD
                                 Page No.# 3/16

P.O AND DISTRICT- BONGAIGAON
ASSAM
PIN-783380.

9:AZIZUL HOQUE
 S/O LATE TMAN ALI
 R/O VILL.- CHATIPUR
 P.O- DHALIGAON
 CHIRANG
ASSAM
 PIN- 783385.

10:KAMAL BASUMATARY
 S/O KHAGENDRA BASUMATARY
 R/O VILL. DANGAGAON
 P.O- KAJALGAON
 CHIRANG
ASSAM- 783385.

11:MANOJ KR JAIN
 S/O BIMAL KR JAIN
 R/O B.O.C GATE
 P.O AND DISTRICT- BONGAIGAON
ASSAM
 PIN-783380.

12:RAJESH KR JAIN
 C/O RAHUL KR JAIN
 R/O B.O.C GATE
 P.O AND DISTRICT- BONGAIGAON
ASSAM- 783380.

13:AKBAR ALI SARKAR
 S/O USUF ALI SARKAR
 R/O 31 NO NATIONAL HIGHWAY
 NEAR GAON PANCHAYAT OFFICE
 GORAIMARI
 CHIRANG
ASSAM- 783390.

14:KAMAL SHARMA
 S/O LATYE SURAJMAL SHARMA
 R/O NEAR ICE FACTORY
 CHAPAGURI ROAD
 NORTH BONGAIGAN
ASSAM-783380.

15:SANI DAYAL BASFORE
                                                                    Page No.# 4/16

     S/O GHUTUNG BASFORE
     R/O VILL. CHUNGAPOTA
     NEAR L P SCHOOL
     NEW BONGAIGAON
     BONGAIGAON
     ASSAM- 783381.

     16:DILWARA SINGH
      S/O LT K SINGH
      R/O CHAPAGURI ROAD
      GURUNANAK NAGAR
      DISTRICT- BONGAIGAON
     ASSAM- 783380.

     17:SHAIDUL ISLAM
      S/O KORIFUDDIN SK
      R/O VILL ROWMARI
      P.O- CHAPAR
      DISTRICT- DHUBRI
     ASSAM- 783371




                              PRESENT
          HON'BLE THE CHIEF JUSTICE MR. R.M. CHHAYA
            HON'BLE MR. JUSTICE SOUMITRA SAIKIA

For the appellants             : Mr. M.Z. Ahmed, senior Advocate
                                 Mr. A.M. Dutta, Advocate
For the respondent nos.1 to 5 : Mr. M.K. Choudhury,

senior Advocate Mr. P. Bharadwaz, Advocate For the respondent nos.6 to 16 : Mr. U.K. Nair, senior Advocate Mr. N.R. Surana, Advocate

Date of hearing and judgment : 5th of December, 2022 Page No.# 5/16

JUDGMENT & ORDER R.M. Chhaya, C.J.

Feeling aggrieved and dissatisfied by the judgment and order dated 18.11.2022 passed by the learned Single Judge in WP(C) 4678/2022, the original writ petitioners have preferred this intra-Court appeal. The following facts emerge from the record of the appeal;

The Indian Oil Corporation Ltd. (hereinafter referred to as "Oil Company") issued a tender notice for road transportation of bulk petroleum product-ATF (Aviation Turbine Fuel) by top Loading Tank Trucks under Tender no.RCC/ERO/37/2022-23/PT-45 and e-Tender ID:2022-ERO-152818-1 on 25.06.2022 and as per the schedule, the bid was to open on 23.07.2022 for the locations of Guwahati RCO, Bongaigaon RCO, Lumding Terminal and Missamari Depot. As the record unfolds 155 transporters participated in the tender process out of which 128 tenderers, including the appellants, were eligible in 'technical bids' and the 'price bids' are yet to be opened.

2. It is the case of the appellant that the respondent Oil Company has incorporated certain conditions and terms in the said tender which are different from the earlier practice and procedure and are against the interest of the existing Tank Trunks, including the appellants. It is also contended that the rate fixed in the tender is totally unreasonable and unfair as the same has been fixed at the rate lower than one fixed in the earlier tender of 2017 by completely ignoring the escalation of price/cost with respect of maintenance of vehicle, staff salary, essential items etc. including the loss suffered by the tank trucks during the Covid-19 pandemic. It is also further contended by the appellants Page No.# 6/16

that the respondent Oil Company has incorporated a term stipulating that in case if more than one party has quoted the same rate, preference will be given to the fleet with less average age. It is also contended by the appellants that the life span of a commercial vehicle including oil tanker as fixed by the Government of India being 15 years, the appellants apprehend that they will be left out from the realm of proposed contract. It is also contended that the distance is also not properly calculated and shortage distance as considered by the respondent Oil Company will put the transporters to additional financial burden. As the record unfolds the appellants firstly filed a writ petition being WP(C) 4602/2022 before this Court and the learned Single Judge by order dated 12.07.2022 was pleased to direct the respondent Oil Company to take note of the said grievances and the appellants were given liberty to file a fresh representation before the Oil Company. Pursuant to the said order, a representation was filed by the appellants on 13.07.2022 which was replied by the Oil Company on 18.07.2022.

3. It is the case of the appellants that they were awarded contract in 2017 for locations of Guwahati, Bongaigaon, Numaligarh and Missamari depot and the appellants have been discharging their duties sincerely, honestly and to the satisfaction of the respondent authorities, even during the pandemic in spite of having incurred huge financial loss. It is contended by the appellants that in the instant tender dated 25.06.2022, the respondent Oil Company has deviated from the earlier practice and procedure which is against the interest of existing tank trucks, including the appellants and the said conditions are totally unreasonable, unfair and whimsical and the tenderers may not be capable of executing the same in a practical manner. According to the appellants, such conditions are stipulated with the aim to ultimately oust the appellants and the Page No.# 7/16

local transporters from the realm of contract and to award the contract in favour of the contractors outside the State. Several other detailed contentions were raised by the appellants before the learned Single Judge. The appellants have challenged certain conditions of the tender, more particularly, clause 21 of the said tender notice dated 25.06.2022 and have contended that this Court has no jurisdiction.

4. The petition came to be opposed by the respondent Oil Company and the Oil Company inter alia contended that the writ petition is filed solely for the purpose of delaying the tender process and with the aim to continue to reap the benefits of earlier tender which was allotted to the appellants. It was also contended by the respondent Oil Company that terms and conditions of the tender are within the realm of the tendering authority and as such jurisdiction under Article 226 of the Constitution of India can be exercised only if there is violation of the mandates of Article 14. It was also contended by the respondent Oil Company that the conditions of the tender issued in 2017 and that of the tender dated 25.06.2022 are almost same and the transport charges are payable based on the shortest route approved by the Oil Company on the round trip basis.

5. The private respondents also opposed the petition and contended that total 155 tenderers submitted tenders and hence, it cannot be said that the terms are onerous in view of the wide participation by various bidders. It was contended by the private respondents that the present litigation is complete abuse of the process of the Court and contended that the petition was filed with a motive to continue to enjoy and reap the benefit of the earlier contract by delaying the settlement of the contract in terms of the present tender notice. It was contended that in view of the well settled principles of law, the Page No.# 8/16

constitutional Courts ought not to interfere with the tender documents unless there is mala fide or perversity in the same.

6. The learned Single Judge examined and appreciated the contentions and the grounds raised before it and by the impugned judgment was pleased to dismiss the petition.

7. Heard Mr. M.Z. Ahmed, learned senior counsel assisted by Mr. A.M. Dutta, learned counsel for the appellants. Also heard Mr. M.K. Choudhury, learned senior counsel assisted by Mr. P. Bharadwaz, learned counsel for the respondent nos.1 to 5 and Mr. U.K. Nair, learned senior counsel assisted by Mr. N.R. Surana, learned counsel for the respondent nos.6 to 16.

8. Mr. M.Z. Ahmed, learned senior counsel appearing for the appellants has taken this Court to the factual matrix arising out of this appeal and has predominantly contended that the respondent Oil Company while issuing the tender notice dated 25.06.2022 have changed the conditions of the contract from what was there in 2017 only with a view to oust the appellants and to accommodate other bidders from outside. It is also contended that the learned Single Judge thus committed an error in dismissing the writ petition without appreciating the grounds raised before him. The learned senior counsel, therefore, contended that the appeal requires consideration.

9. Mr. M.K. Choudhury, learned senior counsel appearing for the respondent Oil Company and Mr. U.K. Nair, learned senior counsel appearing for the private respondents have supported the impugned order and have contended that the learned Single Judge has rightly come to the conclusion that each condition, which is to be made part of the tender notice, is the prerogative of the author of the tender and not the bidder. It was also contended that the learned Single Page No.# 9/16

Judge has rightly come to the conclusion that there is no violation of Article 14 of the Constitution of India and has been pleased to dismiss the petition rightly and thus contended that the appeal being meritless deserves to be dismissed. No other or further submissions or grounds or contentions have been raised by the learned counsel appearing for the respective parties.

10. Having considered the reasons given by the learned Single Judge and also considering the record of this appeal and the settled principles of law as regards exercise of jurisdiction under Article 226 of the Constitution of India, in the opinion of this Court, it is a matter of fact that incorporation of each condition in a tender notice, is within the prerogative of the author and any bidder cannot insist that the old conditions should continue. Considering the averments made in the appeal as well as in the writ petition, the deviation, if any, in the conditions of the tender is not only reasonable but by no stretch of imagination it can be termed as mala fide or perverse. In facts of this case, we do not find that there is any violation of Article 14 of the Constitution of India. Earlier the appellants were awarded contract of similar nature based upon certain conditions which prevailed in 2017. However, the respondent Oil Company cannot be forced to incorporate the same old conditions in the tender notice dated 25.06.2022. The contract is for the transport of bulk petroleum product- ATF (Aviation Turbine Fuel) by top Loading Tank Trucks and it is a contract of large magnitude and in such situation, judicial review in exercise of writ jurisdiction would be available only if it is found that the conditions so stipulated in the instant tender notice are in any manner arbitrary, irrational, unreasonable, bias or mala fide. Merely by making a vague allegation that the same would prejudice the chances of the appellants in getting the contract, they cannot insist upon the respondent Oil Company not to change the conditions of the Page No.# 10/16

tender and to keep same conditions as stipulated in earlier tender notice. Therefore, the appellants' contention that such conditions are stipulated only to oust the appellants is without any basis. Every tender notice is a fresh procedure and conditions as its author wishes can be stipulated. It is sole prerogative of the author of the tender and any bidder cannot insist for conditions suitable to him. As observed above, no case for interference is made out.

11. At this juncture, it would be appropriate to refer to the recent judgment of the Hon'ble Apex Court in the case of N.G. Projects Limited vs. Vinod Kumar Jain and Others, reported in (2022) 6 SCC 127 wherein the Hon'ble Apex Court has considered the plethora of judgments and has observed in paragraph 22 and 23 as under:

"22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e., not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was mala fide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.

23. In view of the above judgments of this Court, the 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. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the Page No.# 11/16

State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work."

12. The Hon'ble Apex Court in the case of Uflex Limited vs. Government of Tamil Nadu, reported in (2022) 1 SCC 165 has observed in paragraph 42 as under:

"42. We must begin by noticing that we are examining the case, as already stated above, on the parameters discussed at the inception. In commercial tender matters there is obviously an aspect of commercial competitiveness. For every succeeding party who gets a tender there may be a couple or more parties who are not awarded the tender as there can be only one L-1. The question is should the judicial process be resorted to for downplaying the freedom which a tendering party has, merely because it is a State or a public authority, making the said process even more cumbersome. We have already noted that element of transparency is always required in such tenders because of the nature of economic activity carried on by the State, but the contours under which they are to be examined are restricted as set out in Tata Cellular vs. Union of India, (1994) 6 SCC 651 and other cases. The objective is not to make the Court an Page No.# 12/16

appellate authority for scrutinising as to whom the tender should be awarded. Economics must be permitted to play its role for which the tendering authority knows best as to what is suited in terms of technology and price for them."

13. Similar view is expressed by the Hon'ble Apex Court in the case of Galaxy Transport Agencies v. New J.K. Roadways, Fleet Owners & Transport Contractors, reported in (2021) 16 SCC 808. The learned Single Judge considered the judgments of the Hon'ble Apex Court in the cases of Afcons Infrastructure Limited vs. Nagpur Metro Rail Corporation Limited reported in (2016) 16 SCC 818; Central Coalfields Limited & Anr. Vs. Sll-Sml (Joint Venture Consortium) & Ors. reported in (2016) 8 SCC 622 and M/s Agmatel India Private Limited vs. Resoursys Telecom and others, reported in (2022) 5 SCC 362, wherein the Apex Court in paragraphs 21, 22, 23 and 24 observed as under:

"21. More or less similar submissions have been made by the learned Senior Counsel appearing on behalf of the appellant-Agmatel (successful bidder) while supplementing that the High Court has erred in going into the technical evaluation of two products and their similarity; and this remains an impermissible area for judicial review, as held by this Court in Galaxy Transport Agencies v. New J.K. Roadways, Fleet Owners & Transport Contractors (2021) 16 SCC 8089. The learned Senior Counsel has further argued that the view taken by the tender inviting authority and its Evaluation Committee remains a reasonable view that "smartphones" are not similar to "Tablets". In this regard, the learned Senior Counsel has, apart from reiterating the categories specified on the online portal GeM, has also referred to the classification of "Tablet" computers by the Central Board of Excise and Customs under Section 151-A of the Customs Act, 1950 while specifically noting that a "Tablet" computer is different from a "smartphone", as it is an automatic data processing machine classifiable under heading 847130 and not 8517. Learned Senior Counsel has further referred to the fact that various other authorities have considered "Tablet" computers as computing devices similar to Laptops, PCs etc., while taking "Mobile Phones" under a different category. Thus, according to the learned senior counsel, there being a reasonable view taken by NVS and there being no mala fides or bias, there was no case for interference by the High Court.

22. While countering the submissions so made on behalf of the appellants, the learned counsel for the contesting respondent-writ petitioner, has in the first Page No.# 13/16

place, submitted that its bid was rejected on rather specious grounds inasmuch as even the reasons for rejection had not been consistent, as noticeable from different stands taken in the initial rejection dated 25.06.2021, in the clarification dated 29.06.2021, in the other response dated 01.07.2021 and in the submissions made before the High Court and this Court. 22.1. The main plank of the submissions of the learned counsel for the writ petitioner has been that various similarly placed PSUs and Government Agencies, in various tender documents, have used the terms "Tablets" and "smartphones" rather interchangeably. In this regard, the learned counsel has referred to the prescriptions in tender documents by Meghalaya Information Technology Society, REC Power Distribution Co. Ltd., Department of Education, Government of Bihar, and Himachal Pradesh State Electronics Development Corporation Ltd. The learned counsel has further submitted that, wherever the tender inviting authority wanted to restrict the past performance only to "Tablets", the same was stated in unambiguous terms and has referred to the tender documents issued by Keltron and the Government of Maharashtra. The learned counsel has further submitted that not only tender issuing authorities have interchangeably used the products "Tablets" and "smartphones" but, even the utility based application issued by various Governments do not make any distinction between "Tablets" and "smartphones"; and has referred to the Government portal e-pathshala which provides for e-pub, an android based application, which is required for tablets and smartphones alike whereas for laptops and desktops, it provides for flip-book, which is a Windows based programme. It has also been pointed out that MSME, Kolkata has issued common training programme for repair and working of smart phones and tablets.

22.2. With the aforesaid details and comparisons, it has been contended on behalf of the writ petitioner that the interpretation sought to be suggested by the tender inviting authority in the present case is entirely unreasonable and has rightly been interfered with by the High Court. It has also been submitted that in the present case, the tender inviting authority has attempted to exercise its discretion to suit a particular bidder and to curb the competition on rather inconsistent grounds by attempting to distinguish between otherwise identical products. It is contended that when the tender inviting authority was conscious of the terms stated in a particular manner, it cannot be permitted to change such terms by way of interpretation to suit a particular bidder or by taking away the level playing field. The submission has been that "smartphones" and "Tablets" are rather synonymous terms and the stand of the appellants deserves to be disapproved.

22.3. It has also been submitted on behalf of the writ petitioner that in fact, it has been awarded another contract for supply of 3,00,000 tablets and it had been regularly supplying various electronic products, including tablets. 22.4. Yet further, it has been submitted that a caution was sounded by the Central Vigilance Commission ('CVC') to the effect that the terms of tender must be clear and ascertainable with specificity; and post facto interpretations must be avoided to bring in transparency in tendering matters. Thus, the learned counsel has supported the order impugned and submitted that the appeals Page No.# 14/16

deserve to be dismissed.

23. We have given thoughtful consideration to the rival submissions and have examined the record with reference to the law applicable. Interpretation of Tender Document: Relevant Principles Interpretation of tender document: Relevant principles

24. The scope of judicial review in contractual matters, and particularly in relation to the process of interpretation of tender document, has been the subject matter of discussion in various decisions of this Court. We need not multiply the authorities on the subject, as suffice it would be refer to the three- Judge Bench decision of this Court in Galaxy Transport Agencies (supra) wherein, among others, the said decision in Afcons Infrastructure Limited (supra) has also been considered; and this Court has disapproved the interference by the High Court in the interpretation by the tender inviting authority of the eligibility term relating to the category of vehicles required to be held by the bidders, in the tender floated for supply of vehicles for the carriage of troops and equipment."

14. In a recent decision rerndered in the case of Airport Authority of India vs. Centre for Aviation Policy, Safety & Research (CAPSR) & Others , being Civil Appeal Nos.6615 and 6616/2022, the Hon'ble Apex Court referring to the judgments in the cases of Maa Binda Express Carrier v. North-East Frontier Railway, reported in (2014) 3 SCC 760 and Michigan Rubber (India) Limited v. State of Karnataka, reported in (2012) 8 SCC 216, has observed in paragraph 7 as under:

"7. While considering the scope and ambit of the High Court under Article 226 of the Constitution of India with respect to judicial scrutiny of the eligibility criteria/tender conditions, few decisions of this Court are required to be referred to, which are as under:

In the case of Maa Binda Express Carrier (supra), in paragraph 8, this Court observed and held as under:

"8. The scope of judicial review in matters relating to award of contracts by the State and its instrumentalities is settled by a long line of decisions of this Court. While these decisions clearly recognise that power exercised by the Government and its instrumentalities in regard to allotment of contract is subject to judicial review at the instance of an aggrieved party, submission of a tender in response to a notice inviting such tenders is no more than making an offer which the State or its agencies are under no obligation to accept. The bidders participating in the tender process Page No.# 15/16

cannot, therefore, insist that their tenders should be accepted simply because a given tender is the highest or lowest depending upon whether the contract is for sale of public property or for execution of works on behalf of the Government. All that participating bidders are entitled to is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. It is also fairly well settled that award of a contract is essentially a commercial transaction which must be determined on the basis of consideration that are relevant to such commercial decision. This implies that terms subject to which tenders are invited are not open to the judicial scrutiny unless it is found that the same have been tailor-made to benefit any particular tenderer or class of tenderers. So also, the authority inviting tenders can enter into negotiations or grant relaxation for bona fide and cogent reasons provided such relaxation is permissible under the terms governing the tender process."

In the case of Michigan Rubber (India) Ltd. (supra), after considering the law on the judicial scrutiny with respect to tender conditions, ultimately it is concluded in paragraph 23 as under:

"23. From the above decisions, the following principles emerge:

(a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within 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."

Page No.# 16/16

In the aforesaid decision, it is further observed that the Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the courts would interfere. It is further observed that the courts cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical.

Similar views have been expressed in the case of Educomp Datamatics Ltd. (supra) and Meerut Development Authority (supra)."

15. In the case at hand also, the respondent Oil Company being a government undertaking must have a free hand in prescribing the conditions which as observed hereinabove are neither arbitrary, discriminatory, mala fide or actuated by bias and hence no interference is required.

16. We are in total agreement with the view taken by the learned Single Judge and the observations made in the impugned judgment and order. No case for interference is made out. The appeal being bereft of merit, deserves to be dismissed and the same is hereby dismissed.

However, the parties to bear their own costs.

                  JUDGE                               CHIEF JUSTICE




Comparing Assistant