Gujarat High Court
M/S Saraswati Construction Co. ... vs Union Of India, Ministry Of ... on 10 August, 2021
Bench: J.B.Pardiwala
C/SCA/8093/2020 JUDGMENT DATED: 10/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8093 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
=============================================
M/S SARASWATI CONSTRUCTION CO. THRU SHRI MAHESHBHAI B.
VANIYA
Versus
UNION OF INDIA, MINISTRY OF HOUSING AND URBAN AFFAIRS,
CENTRAL PUBLIC WORKS DEPT THRU SECRETARY
=============================================
Appearance:
MR DA BAMBHANIA(139) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,4
MR DEVANG VYAS(2794) for the Respondent(s) No. 5
MR HR PRAJAPATI(674) for the Respondent(s) No. 6
=============================================
CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 10/08/2021
ORAL JUDGMENT
C/SCA/8093/2020 JUDGMENT DATED: 10/08/2021
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. By this writ application under Article 226 of the
Constitution of India, the writ applicant has prayed for the
following reliefs:
"A. Quashing and setting aside the decision and
communication dated 16/6/2020, issued by the respondent no.5,
at Annexure - A to the petition, including, actions and further
actions of the respondent authorities, which authorize and or
permit the authorities to further process the remaining tender,
and isssuance of work orders and entering into contract with the
sole agency, without considering the tender of the Petitioner, as
Pre-qualified, and acting on the said communication declaring
ineligible and its operation, and further operation may pleased
be declared illegal, null and void, and respondents be restrained
from taking any further actions and orders pursuant to E-mail-
letter, passed and issued by the respondent No.5, by holding it
to be illegal, arbitrary, in complete brech of provisions of law,
and set procedure and in clear violation of Article 14, 19 and 21
of the Constitution of India.
Be pleased to issue appropriate writ and or direction and or
orders, directing the respondents to treat the Petitioner as Pre-
qualified, and to entertain the tender bid and decide as if the
petitioner is Pre-qualified, as an agency competent to bid and
qualified for opening the tender.
B. Quashing and setting aside all the consequential actions
and orders, based on declaration as incligible, including action of
authority to process further the tenders and take steps relating
to the EMD of the Petitioner.
BB. Quashing and setting aside the decision and
communication dated 01.07.2020 at Annexure A & J dated
16.06.2020 and 01.07.2020 including actions and further
actions pursuant to acceptance of render of Respondent no.6
under Annexure - J, vide communication dated 01.07.2020 and
restoring the position prevent prior to 16.06.2020 and directing
the respondent authorities to examine the tender bid of the
petitioner for pre-bid qualification, in terms of tender clause, and
decide in accordance with the set procedure for awarding the
contract, by restoring the facts prior to 16.06.2020, as if no
further steps have been taken and tender bid of Respondent
no.6 and the petitioner are to be process de-novo by declaring
that, the petitioner bid reqires to be consider and opened for
pre-bid technical qualification, by issuing appropriate writ and/or
orders, and directions;
BC. Pending admission, hearing and final disposal of the
Petition, this Hon'ble Court may be pleased to restrain the
respondents and their agents and servants, from acting upon
the communication dated 16.06.2020 and 01.07.2020 Annexure-
C/SCA/8093/2020 JUDGMENT DATED: 10/08/2021
A & J, and further process pursuant to communication and order
dated 01.07.2020 (Annexure - J) without deciding and
considering the tender of the petitioner;
C. Pending admission, hearing and final disposal of the
petition be pleased to restrain by way of injunction, restraining
the respondents their agents and servants from implementing
and further executing the impugned letter dated 16/6/2020 and
further be pleased to make an order restraining the respondents
their agents and servant from further operating and deciding on
the basis of sole remaining tender of agency, without deciding,
and considering the tender of the petitioner.
D. to grant any other relief and or further relief/s which this
Hon'ble Court finds it just and proper in the interest of justice.
E. to provide for the cost of the petition.
F. The annexure to the petition is the true copy of the
original."
2. The facts giving rise to the present writ application may
be summarized as under:
2.1 The writ applicant is a partnership firm, carrying on
business activity as M/s. Saraswati Construction Co., having
established and registered as 'AA'-Class Contractor and the
same is in operation with Government of Gujarat and with
other specified various Government Authorities in the territory
of India.
2.2 The respondents authorities invited E-tenders for
constructions of Border Road from BP 1175 to G-17 including
Protection work, Precast RCC box type culverts, Modular
Fencing and flood lighting along Indo-Pak B0rder in Bhuj
Sector, Gujarat. The writ applicant submitted E-tender with all
documents as per the terms of the Notice inviting E-tender on
24.04.2020. However, on 01.06.2020, the writ applicant was
asked to submit the work completion certificate. Thereafter,
several E-mail communications were took place between the
C/SCA/8093/2020 JUDGMENT DATED: 10/08/2021
respondents and the writ applicant regarding the requisite
documents and certain clarifications. On 16.06.2020, one E-
mail communication was addressed by the Executive Engineer
of the respondent authority to the writ applicant informing
about the ineligibility of the writ applicant for the pre-
qualification bid.
2.3 Being aggrieved by the communication dated
16.06.2020, the writ applicant approached this Court by filing
the present writ application.
3. Submissions on behalf of the writ applicant:
3.1 Mr. Bambhania, the learned counsel appering for the writ
applicant would submit that pursuant to the tender notice
No.07/CE/BFZ/EE(P-II)/2019-20 inviting online tender, the writ
applicant submitted its tender by following and completing all
the formalities for execution of work contract i.e. Construction
of Border Road from BP 1175 to G-17 including protection
work, Precast RCC Box type culverts, Modular Fencing and
Flood lighting along Indo-Pak Border in Bhuj Sector, Gujarat for
an estimated cost of Rs.146,88,33,311/-. Mr. Bambhania would
submit that while uploading and submitting the tender as per
the procedure prescribed, the writ applicant
annexed/submitted and uploaded the completion certificate in
the prescribed format under the General Law of Contract and
CPWD Manual, mode and method of issuance of such
certificate as prescribed in the form of "G" Form. Relying upon
page 37 of the application, Mr. Bambhania would submit that
the writ applicant fulfills all the eligibility criteria as per the
terms and conditions of the notice inviting tender.
3.2 Mr. Bambhania, would also submit that the writ applicant
C/SCA/8093/2020 JUDGMENT DATED: 10/08/2021
was fulfilling all the eligibility criteria more particularly, as
mentioned in condition no.1.2.1 of the notice inviting tender
and has submitted the work completion certificate under the
prescribed form in due compliance with the terms and
conditions of the Notice inviting Tender. Mr. Bambhania, would
further submit that with a view to favour the respondent no.6
for awarding the contract, all the queries and issues were
raised in the bid documents of the present writ applicant. Mr.
Bambhania, would further submit that the action on the part of
the respondents has not only resulted in depriving the writ
applicant of benefits which had accrued from the contract
agreement in question but it has also adversely affected the
writ applicant of other works out of which some are pending
and payment has not been made to the writ applicant. Mr.
Bambhania, would further submit that there is total non
application of mind on the part of the respondents in not
considering the facts and circumstances mentioned by the writ
applicant in his replies dated 16.06.2020 and 21.06.2020. Mr.
Bambhania, would therefore, urge that the writ application
may be allowed and the impugned communication dated
16.06.2020 may be quashed and set aside.
3.3 Mr. Bambhania, the learned counsel has relied upon the
decisions of the Supreme Court rendered in the cases of
Ramana Dayaram Shetty vs. International Airport Authority of
India reported in (1979) 3SCC 489, Afcons Infrastructure Ltd.
vs. Nagpur Metro Rail Corporation Ltd. & Anr. reported in
(2016) 16SCC 818, Vidarbha Irrigation Development
Corporation vs. Anoj Kumar Agarwala reported in 2019(2) Scale
134 and Andhra Industrial Works A.P. vs. Chief Controller of
imports and ors. reported in AIR 1974 SC 1539.
C/SCA/8093/2020 JUDGMENT DATED: 10/08/2021
4. Submissions on behalf of the respondents:
4.1 Mr. Devang Vyas, the learned ASG would submit that the
work of construction of Border road, for which the tendering
was done, relates to the National security of the Country. This
work has been undertaken to develop protection infrastructure
of the boundaries for effective operational domain as also to
ensure fullproof security by Border Security Force and other
defense forces which are being undertaken as of utmost
priority by Ministry of Home Affairs with assistance and
execution through CPWD. According to Mr. Vyas, when the bids
were invited and the tender documents were floated, one of
the most significant and mandatory condition to be fulfilled by
potential bidders was tender condition being condition no.1.2.1
of the Notice inviting tender, which inter alia provided for the
criteria of eligibility for contractors/bidders and those who
fulfills the requirements, were the only entities to be
considered as eligible to apply. Considering the national policy
formulated by the Central Government, the joint ventures are
not accepted and the most essential requirement was that of
satisfactory completion of the works mentioned in the said
clause.
4.2 Relying upon the condition no.1.2.1 of the Notice inviting
tender, Mr. Vyas would submit that the tender conditions/bid
conditions are equally applied to every bidding entity and are
not only binding to every bidder, but are to be strictly adhered
to by the answering respondent while undertaking the entire
bidding process. He would also submits that it is an admitted
position that the condition in no uncertain terms contemplates
that only satisfactorily completed works will be taken into
C/SCA/8093/2020 JUDGMENT DATED: 10/08/2021
consideration. The tender was responded by two bidders i.e.
the writ applicant and the respondent No.6. Mr. Vyas would
submit that the bid of the writ applicant has not been
considered and the same was rejected on two grounds; (1) for
want of non-furnishing of completion certificate and (2) for
non-submission of contract executed between the original
tenderer M/s. Sadbhav Engineering Limited and the writ
applicant.
4.3 According to Mr. Vyas, it is impossible for the authorities/
competent authority to ascertain the veracity of the claims
made by the writ applicant and the said aspect is therefore,
rightly considered by the competent authority against the writ
applicant. He would submit that this Court may not entertain
the contentions raised by the writ applicant in the present writ
application and be pleased to dismiss the present petition as it
involves disputed question of facts.
4.4 Relying upon page 37 of the petition, Mr. Vyas would
submit that the document, which according to the petitioner
fulfills the eligibility criteria, is nothing but a misperception on
the part of the writ applicant inasmuch as, the form and format
in which the eligibility certificate was to be provided, was not
as per the bid document and in fact, the said document is
nothing, but just an experience certificate issued by the
Executive Engineer, MSRDC (Limited), Mumbai (Camp office
Nasik) and the same is not a satisfactorily completed work
certificate. Mr. Vyas would also submit that if the said
certificate is perused, more particularly, serial no.9 thereof, it
clearly indicates that the actual date of completion/expected
date of completion is mentioned as 31.03.2020 whereas the
C/SCA/8093/2020 JUDGMENT DATED: 10/08/2021
certificate is issued on 20.03.2020. He would further submit
that as the work is not complete and thus, the writ applicant
cannot claim himself to be eligible and cannot said to be
fulfilling the criteria of NIT bid condition no.1.2.1.
4.5 Mr. Vyas would further submit that it is a settled position
of law that when the bidder fails to fulfill the criteria as
contemplated in the bid documents/tender documents, he
cannot claim any rights for such tender and having failed to
meet the eligibility criteria, it would not be open for him to
challenge either the tender conditions or to subject grant of
tender in favour of a successful bidder. He would submit that
when the writ applicant failed to produce a valid completion
certificate in support of its claim of being eligible, the other
contention raised in the writ application deserve no attention
of this Court and therefore, on the same ground, the present
writ application may also be dismissed.
4.6 Mr. Vyas, the learned ASG has relied upon the decisions
in case of Municipal Corporation, Ujjain and another vs. BVG
India Limited and others reported in (2018) 5SCC 462,
Consortium of Titagarh Firema Adler, S.P.A., Titagarh Wagons
Ltd. Through Authorized Signatory, West Bengal vs. Nagpur
Metro Rail Corporation Ltd., through its General Manager
(Procurement) and Ors. reported in (2017) 7 SCC 486, and JSW
Infrastructure Limited and Ors. vs. Kakinada Seaports Limited
and Ors. reported in (2017) 4 SCC 170.
Submissions on behalf of the respondent no.6:
5. Mr. H.R. Prajapati, the learned counsel appearing for the
respondent no.6 would submit that the respondent no.6 has
C/SCA/8093/2020 JUDGMENT DATED: 10/08/2021
fully qualified all the relevant terms and conditions of the
tender document and after following all the due procedure, the
respondent no.6 is awarded the contract work. He would
submit that the writ applicant was not qualified as per the
terms and conditions of the tender and therefore, the contract
work has not been awarded to the writ applicant. Mr. Prajapati,
would also submit that the contract for which the tender was
issued and in respect of which grievance is raised by the writ
applicant, is not a statutory contract. Mr. Prajapati, would
further submit that the Supreme Court in numerous cases, has
held that the terms of the invitation to tender cannot be open
to judicial scrutiny because the same are within the realm of
the contract. Mr. Prajapati, would further submit that the
Hon'ble Supreme Court has held that the State while inviting
tenders can fix its own terms of invitation to the tender and
that is not open to judicial scrutiny.
5.1 Mr. Prajapati, would submit that the writ applicant agreed
upon an acceptance of all the terms and conditions while
participating in the tender proceedings and therefore, it is now
not open for the writ applicant to contend anything contrary to
the terms and conditions of the tender documents. Mr.
Prajapati would also submit that the writ applicant could not
produce the required successful completion certificate which is
specifically and mandatorily required as per the tender
documents and therefore, the writ applicant was not found
eligible to award the contract. Mr. Prajapati, would further
submit that instead of providing the successfully completed
work certificate, the writ applicant has provided the work
experience certificate, which cannot be termed as the
successfully completed work certificate. Mr. Prajapati, would
C/SCA/8093/2020 JUDGMENT DATED: 10/08/2021
submit that the writ applicant being a company, cannot seek
any relief under Article 19 of the Constitution of India, and
therefore, the present writ application at the instance of the
company is not maintainable and the same is required to be
dismissed.
6. We have heard Mr. D. A. Bambhania, the learned counsel
appearing for the writ applicant, Mr. Devang Vyas, the learned
Additional Solicitor General appearing for the respondent no.5
and Mr. H.R. Prajapati, the learned counsel appearing for the
respondent no.6.
Analysis:-
7. Having heard the learned counsel appearing for the
respective parties and having gone through the material
placed on record, the short question which falls for our
consideration is whether the writ applicant has duly complied
with the eligibility criteria of the bid document providing
eligibility criteria and conditions more particularly, condition
no.1.2.1 which provides for the criteria of eligibility for
submission of the bid document.
8. At this stage, we would like to refer the condition no.1.2.1
of the Notice inviting Tender, which reads as under:
"1.2.1 Criteria of eligiblity for submission of dib documents.
Contractors who fulfill the following requirements shall be
eligible to apply.
Joint ventures are not accepted.
(a) should have satisfactorily completed the work as
mentioned below in the last Seven years ending on the last day
of the month previous to the one in which the bids are invited.
This hould be certified by an officer not below the rank of
Executive Engineer/ Project Manager or equivalent:-
Three similar works of each costing not less than R.5875/- lacs.
C/SCA/8093/2020 JUDGMENT DATED: 10/08/2021
Two similar works each costing not less than Rs.Rs.8815/- lacs.
One similar work costing not less than Rs.11,750/- lacs."
9. The Supreme Court in case of Municipal Corporation,
Ujjain and another vs. BVG India Limited and others reported in
(2018) 5SCC 462, has held as under:
"48. The authority concerned is in the best position to find out
the best person or the best quotation depending on the work to
be entrusted under the contract. If a bidder had faced a number
of show-cause notices from various municipal corporations in the
matter of non-performance of door to door collection of garbage
etc., the Court cannot compel the authority to choose such
undeserving person/company to carry out the work. Ultimately,
the public interest must be safeguarded. The public would be
directly interested in the timely fulfilment of the contract so that
the services become available to the public expeditiously and
effectively. The public would also be interested in the quality of
work undertaken. Poor quality of work or goods can lead to
tremendous public hardship and substantial financial outlay
either in correcting mistakes or in rectifying defects or even at
times in re-doing the entire work. Lethargy or tardiness in
collecting door to door garbage on a day-to-day basis would
definitely lead to increase collection of garbage on the roads
and public properties, which leads to health hazards and also
reduces the cleanliness of the city. Since the public is directly
interested and would be affected if the work entrusted is not
carried out appropriately, and as the technical expert has found
that respondent no.1 would not be a suitable company to be
entrusted the work inasmuch as it had faced 73 show-cause
notices from different Municipal Corporations, the High Court
could not have interfered with the decision taken by the
authority. In our considered opinion, the High Court has ignored
the element of public interest involved in the matter.
49. As aforementioned, unless the Court concludes that the
decision making process or the decision taken by the authority
bristles with mala fides, arbitrariness, or perversity, or that the
authority has intended to favour someone, the Constitutional
Court will not interfere with the decision-making process or the
decision.
50. Thus, the questions to be decided in this appeal are
answered as follows:
(a) Under the scope of judicial review, the High Court could not
ordinarily interfere with the judgment of the expert consultant
on the issues of technical qualifications of a bidder when the
consultant takes into consideration various factors including the
basis of non-performance of the bidder;
(b) A bidder who submits a bid expressly declaring that it is
submitting the same independently and without any 52
partners, consortium or joint venture, cannot rely upon the
C/SCA/8093/2020 JUDGMENT DATED: 10/08/2021
technical qualifications of any 3rd Party for its qualification.
(c) It is not open to the Court to independently evaluate the
technical bids and financial bids of the parties as an appellate
authority for coming to its conclusion inasmuch as unless the
thresholds of mala fides, intention to favour someone or bias,
arbitrariness, irrationality or perversity are met, where a
decision is taken purely on public interest, the Court ordinarily
should exercise judicial restraint."
9.1 The Supreme Court in case of Consortium of Titagarh
Firema Adler, S.P.A., Titagarh Wagons Ltd. Through Authorized
Signatory, West Bengal vs. Nagpur Metro Rail Corporation Ltd.,
through its General Manager (Procurement) and Ors. reported
in (2017) 7 SCC 486, has held as under:
"30. The learned counsel for the appellants invited our attention
to the authority in W.B. Electricity Board v. Patel Engineering Co.
Ltd. wherein it has been ruled:
"24. ... The appellant, Respondents 1 to 4 and Respondents 10
and 11 are all bound by the ITB which should be complied with
scrupulously. In a work of this nature and magnitude where
bidders who fulfil prequalification alone are invited to bid,
adherence to the instructions cannot be given a go-by by
branding it as a pedantic approach, otherwise it will encourage
and provide scope for discrimination, arbitrariness and
favouritism which are totally opposed to the rule of law and our
constitutional values. The very purpose of issuing
rules/instructions is to ensure their enforcement lest the rule of
law should be a casualty. Relaxation or waiver of a rule or
condition, unless so provided under the ITB, by the State or its
agencies (the appellant) in favour of one bidder would create
justifiable doubts in the minds of other bidders, would impair the
rule of transparency and fairness and provide room for
manipulation to suit the whims of the State agencies in picking
and choosing a bidder for awarding contracts as in the case of
distributing bounty or charity. In our view such approach should
always be avoided. Where power to relax or waive a rule or a
condition exists under the rules, it has to be done strictly in
compliance with the rules. We have, therefore, no hesitation in
concluding that adherence to the ITB or rules is the best principle
to be followed, which is also in the best public interest.
xxxxx
31. ... Thae Project undertaken by the appellant is undoubtedly
for the benefit of the public. The mode of execution of the work
of the Project should also ensure that the public interest is best
served. Tenders are invited on the basis of competitive bidding
for execution of the work of the Project as it serves dual
purposes. On the one hand it offers a fair opportunity to all those
who are interested in competing for the contract relating to
C/SCA/8093/2020 JUDGMENT DATED: 10/08/2021
execution of the work and, on the other hand it affords the
appellant a choice to select the best of the competitors on a
competitive price without prejudice to the quality of the work.
Above all, it eliminates favouritism and discrimination in
awarding public works to contractors. ... Merely because a bid is
the lowest the requirements of compliance with the rules and
conditions. ..."
31. Having stated this, we have to see, how the 1st respondent
has perceived the offer of the respondent No. 2 in the backdrop
of the tender conditions. It is not in dispute that the project in
question has been funded by KfW Development Bank, Germany
and as per Clause ITB 35.8, it is necessary at all stages of bid
evaluation and contract award has to be subject to no-objection
from KfW Development Bank. Emphasis has been laid on the
approach of the High Court which has taken note of the fact that
the respondent No. 2 had been awarded the tender by the Delhi
Metro Rail Corporation. It has also been highlighted that the
papers relating to the financial bid along with report were
forwarded to KfW which gave its no- objection. Be it noted, the
appellants have been quite critical about the acceptance of the
offer and the 1st respondent has given a number of reasons to
justify the same. As indicated earlier, we are only concerned with
the eligibility criteria and not with the fiscal aspect.
34. As is noticeable, there is material on record that the
respondent No. 2, a Government company, is the owner of the
subsidiaries companies and subsidiaries companies have
experience. The 1st respondent, as it appears, has applied its
commercial wisdom in the understanding and interpretation
which has been given the concurrence by the concerned
Committee and the financing bank. We are disposed to think that
the concept of "Government owned entity" cannot be conferred
a narrow construction. It would include its subsidiaries subject to
the satisfaction of the owner. There need not be a formation of a
joint venture or a consortium. In the obtaining fact situation, the
interpretation placed by the 1st respondent in the absence of
any kind of perversity, bias or mala fide should not be interfered
with in exercise of power of judicial review. Decision taken by the
1st respondent, as is perceptible, is keeping in view the
commercial wisdom and the expertise and it is no way against
the public interest. Therefore, we concur with the view expressed
by the High Court.
"36. That it is further clear from the record that besides being
the lowest bidder, the experience of R 2 in supplying Metro
Trains across the world exceeds the Petitioner's experience by a
huge margin. Where for clause 12, R 2 has shown a figure of 594
Metro Cars, Petitioner has shown only 72 Cars; and for clause
12.1 where R 2 has shown 432 Cars, Petitioner has again shown
only 72 Cars. This vast experience of R 2 would be beneficial for
the project and would further public interest.
37. That R 1 without any malice, or malafide has treated R 2
along with its 100% subsidiaries as one entity. This
understanding of the clause has been at the ends of both parties
viz. R 1 and R 2, who were ad idem vis-à- vis the eligibility of the
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parent company to bid using the experience and executing the
contract through its various 100% wholly owned subsidiaries.
38. That the above understanding of R 1 of treating R 2 along
with its 100% subsidiaries is supported by the understanding of
the Delhi Metro Rail Corporation Ltd., which has on a similarly, if
not same, worded bid- document granted the tender/agreement
to R 2, which had even there bid as a parent company claiming
experience of and execution through 100% wholly owned
subsidiaries."
9.2 The Supreme Court in case of JSW Infrastructure Limited
and Ors. vs. Kakinada Seaports Limited and Ors. reported in
(2017) 4 SCC 170, has held as under:
"8. On a bare reading of the Policy Clause some weightage and
meaning has to be given not only to the word "next" as done by
the High Court but also to the words "only one private operator"
appearing in the opening part of the Clause. The words "only
one private operator" cannot be treated as surplusage. The
entire clause has to be read as a whole in the context of the
purpose of the policy which is to avoid and restrict monopoly. In
our opinion, this Clause will apply only when there is one single
private operator in a port. If this single private operator is
operating a berth, dealing with one specific cargo then alone will
he not be allowed to bid for next berth for handling the same
specific cargo. The High Court erred in interpreting the clause
only in the context of the word "next" and ignored the opening
part of the Clause which clearly indicates that the Clause is only
applicable when there is only one private berth operator. It
appears to us that the intention is that when a port is started, if
the first berth for a specific cargo is awarded in favour of one
private operator then he cannot be permitted to bid for the next
berth for the same type of cargo. However, once there are more
than one private operators operating in the port then any one of
them can be permitted to bid even for successive berths. In the
present case, as pointed out above there already 5 private
operators other than the first consortium.
9. We may also add that the law is well settled that superior
courts while exercising their power of judicial review must act
with restraint while dealing with contractual matters. A Three
Judge Bench of this Court in Tata Cellular vs. Union of India[3]
held that (i) there should be judicial restraint in review of
administrative action; (ii) the court should not act like court of
appeal; it cannot review the decision but can only review the
decision making process (iii) the court does not usually have the
necessary expertise to correct such technical decisions.; (iv) the
employer must have play in the joints i.e., necessary freedom to
take administrative decisions within certain boundaries.
10. In Jagdish Mandal vs. State of Orissa[4] this Court held that
evaluation of tenders and awarding contracts are essentially
C/SCA/8093/2020 JUDGMENT DATED: 10/08/2021
commercial functions and if the decision is bonafide and taken
in the public interest the superior courts should refrain from
exercising their power of judicial review. In the present case
there are no allegations of mala fides and the appellant
consortium has offered better revenue sharing to the employer.
11. In Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail
Corporation Ltd. & Anr.[5] This Court held as follows :-
"14.....a mere disagreement with the decision making process or
the decision of the administrative authority is no reason for a
constitutional Court to interfere. The threshold of mala fides,
intention to favour someone or arbitrariness, irrationality or
perversity must be met before the constitutional Court interferes
with the decision making process or the decision.
xxx xxx xxx
16. We may add that the owner or the employer of a project,
having authored the tender documents, is the best person to
understand and appreciate its requirements and interpret its
documents. The constitutional Courts must defer to this
understanding and appreciation of the tender documents, unless
there is mala fide or perversity in the understanding or
appreciation or in the application of the terms of the tender
conditions. It is possible that the owner or employer of a project
may give an interpretation to the tender documents that is not
acceptable to the constitutional Courts but that by itself is not a
reason for interfering with the interpretation given.
17. In the present appeals, although there does not appear to be
any ambiguity or doubt about the interpretation given by NMRCL
to the tender conditions, we are of the view that even if there
was such an ambiguity or doubt, the High Court ought to have
refrained from giving its own interpretation unless it had come
to a clear conclusion that the interpretation given by NMRCL was
perverse or mala fide or intended to favour one of the bidders.
This was certainly not the case either before the High Court or
before this Court...." The view taken in Afcons (supra) was
followed in Monte Carlo Ltd. Vs. NTPC Ltd.[6] . Thus it is
apparent that in contractual matters, the Writ Courts should not
interfere unless the decision taken is totally arbitrary, perverse
or mala fide.
12. Strong reliance has been placed on behalf of the second
consortium on the judgment rendered in APM Terminals B.V. vs.
Union of India and Another. We are of the considered view that
the said judgment cannot be applied to the present case
because in that case this court considered the clauses of the
contract. The policy which was applicable in APM Terminal, was
not the policy of 2010 but the policy of 2007, the wording of
which is totally different. True it is, that in the said judgment
reference has also been made to the new policy but that was not
specifically dealt with by the Court, and the matter was decided
on an interpretation of the terms of the contract and the policy
of 2007."
C/SCA/8093/2020 JUDGMENT DATED: 10/08/2021
10. The Supreme Court in case of Vidarbha Irrigation
Development Corporation reported in 2019(2) Scale 134 has
held as under:
"14. However, learned counsel appearing on behalf of the
appellant strongly relied upon Afcons Infrastructure Ltd. v.
Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818, and
paragraphs 14 and 15 in particular, which state:
"14. We must reiterate the words of caution that this Court has
stated right from the time when Ramana Dayaram Shetty v.
International Airport Authority of India [Ramana Dayaram Shetty
v. International Airport Authority of India, (1979) 3 SCC 489] was
decided almost 40 years ago, namely, that the words used in the
tender documents cannot be ignored or treated as redundant or
superfluous -- they must be given meaning and their necessary
significance. In this context, the use of the word "metro" in
Clause 4.2(a) of Section III of the bid documents and its
connotation in ordinary parlance cannot be overlooked.
15. We may add that the owner or the employer of a project,
having authored the tender documents, is the best person to
understand and appreciate its requirements and interpret its
documents. The constitutional courts must defer to this
understanding and appreciation of the tender documents, unless
there is mala fide or perversity in the understanding or
appreciation or in the application of the terms of the tender
conditions. It is possible that the owner or employer of a project
may give an interpretation to the tender documents that is not
acceptable to the constitutional courts but that by itself is not a
reason for interfering with the interpretation given."
It is clear even on a reading of this judgment that the words
used in the tender document cannot be ignored or treated as
redundant or superfluous - they must be given meaning and
their necessary significance. Given the fact that in the present
case, an essential tender condition which had to be strictly
complied with was not so complied with, the appellant would
have no power to condone lack of such strict compliance. Any
such condonation, as has been done in the present case, would
amount to perversity in the understanding or appreciation of the
terms of the tender conditions, which must be interfered with by
a constitutional court."
11. In view of the ratio laid down in the above referred
decisions, we are of the view that the tender conditions are
required to be read as provided in the tender document and if
there are two views or construction possible than the view of
the authority interpreting the tender document should be
C/SCA/8093/2020 JUDGMENT DATED: 10/08/2021
accepted. The owner/employer of the project having authored
the tender document is the best person to understand and
appreciate the terms and conditions of the said document. The
Court should be slow in interpreting the tender conditions
unless the interpretation sought to be put forward smacks of
malafide or is perverse.
11.1 In the case on hand, the certificate produced by the writ
applicant at page 37 cannot be termed as a work completion
certificate but it is an experience certificate. By communication
dated 01.06.2020, the relaxations were given by the
Government and the writ applicant was asked to submit the
certificate at the earliest. However, the writ applicant informed
the authority that although the work had been completed yet
due to nation wide lockdown in view of Covid-19 pandemic, the
completion certificate could not be procured. Further, by
communication dated 02.06.2020, the writ applicant was
asked to submit the agreement executed between the M/s.
Sadbhav Engineering and the writ applicant, who claims to
have completed the work as sub-contractor, for the work of
Shreenathji- Udaipur Toll Way Pvt. Ltd. project 4 laning of
Gomati-Choraha to Udaipur section NH-8 from 177.00 to
260.100in the State of Rajasthan under NHDP Phase 4 on toll
basis. By communication dated 09.06.2020, the respondent
authority once again asked the writ applicant to submit the
aforesaid agreement, however, the same was not furnished.
12. We have no hesitation in coming to the conclusion that
the writ applicant was unable to produce the work completion
certificate, which is a mandatory requirement and also the
agreement between the M/s. Sadbhav Engineering Ltd. and
C/SCA/8093/2020 JUDGMENT DATED: 10/08/2021
Principal Agency, in-spite of the extension of time granted by
the State Government for production of such certificate and as
requested by the concerned authority, the writ applicant has
not made a positive submission asserting that the writ
applicant was possessing the required documents.
13. In view of the aforesaid, we are not inclined to interfere
with the decision dated 16.06.2020 of the respondent no.5 and
the consequent decision of awarding the contract in favour of
the respondent no.6. Further, the Union awarded the contract
in favour of the respondent no.6 way back on 10.07.2020.
Since the contract has been awarded to respondent no.6 as
back as on 10.07.2020 as also considering the fact that the
respondent no.6 has mobilized its menpower and machinery
and is already undertaking the awarded work, we are not
inclined to exercise jurisdiction under Article 226 of the
Constitution of India.
14. In the result, the present writ application fails and is
hereby dismissed.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
NEHA
