Arihant Agro Sales vs State Of Gujarat
2021 Latest Caselaw 17747 Guj

     C/SCA/10607/2021                             ORDER DATED: 25/11/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 10607 of 2021

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                         ARIHANT AGRO SALES
                                Versus
                          STATE OF GUJARAT
==========================================================
Appearance:
MR HR PRAJAPATI(674) for the Petitioner
MS NISHKA H PRAJAPATI(10717) for the Petitioner
MR ISHAN JOSHI, AGP for the Respondent No. 1
AISHVARYA(8018) for the Respondent No. 2
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 CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
       and
       HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                            Date : 25/11/2021

                             ORAL ORDER

(PER : HONOURABLE MR. JUSTICE NIRAL R. MEHTA)

1. By way of this writ petition under Article 226 of the

Constitution of India, the petitioner has challenged the Tender

Notice dated 18.7.2021 inviting, inter-alia, fresh applications

for awarding transport contract by cancelling earlier tender

process for same work and further sought direction upon the

respondent authority to forthwith open the technical bid

submitted in connection with the first Tender Notice dated

13.5.2021, in other words, to continue tender process initiated

in connection with Tender Notice dated 13.05.2021.

C/SCA/10607/2021 ORDER DATED: 25/11/2021

2. The facts, according to the petitioner, giving rise to the

present petition can be narrated, in nutshell, are as under :

2.1 The respondents had issued the Tender on 13.5.2021

inviting, inter-alia, applications for transportation of grain,

sugar, edible oil, Daal and other essential articles (with

labour) for all districts for the year 2021-2023. The entire

process of tender was through On-line E-Tender process. The

schedule for entire tender process was from 13.5.2021 i.e. the

date of publication of notice, pre-bidding meeting date was

fixed on 18.5.2021 and last date for document uploading was

fixed at 24.5.2021 till 18.00 hours. Thereafter, technical bid

was to open on 26.5.2021 at 12.00 hours.

2.2 The petitioner being engaged in the business of trading

and transportation of grains etc. and having sufficient number

of trucks for the purpose of transportation, applied for the

said tender through E-Tendering process on 22.5.2021 for

Surat District and thereby deposited Rs.18 lakh as per the

tender condition. However, the date for submitting technical

bid came to be extended from 24.5.2021 to 2.6.2021 and

accordingly, the technical bid opening date was also extended

from 26.5.2021 to 4.6.2021 on the ground of Covid-19 and

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"TAAU" cyclone.

2.3 The above dates again came to be extended from

2.6.2021 to 7.6.2021 and from 4.6.2021 to 8.6.2021

respectively by Corrigendum No.4 dated 2.6.2021. Further,

for the 3rd time, the said date was extended from 7.6.2021 to

10.6.2021 and from 8.6.2021 to 11.6.2021 by way of

Corrigendum dated 5.6.2021. Again, the said dates were

extended from 8.6.2021 to 14.6.2021 and from 11.6.2021 to

15.6.2021 respectively by Corrigendum No.6 dated 8.6.2021.

2.4 The petitioner had also applied for other 3 Districts,

namely, Tapi, Navsari and Bharuch on 29.5.2021, 5.6.2021

and 13.6.2021 respectively during the extension time for

submitting the technical bid.

2.5 According to the petitioner, for the Surat District, the

petitioner and one Ratna R. Shah of Rachna Roadways had

applied, for Tapi District the petitioner, J.M. Roadways as well

as Creative Transportation had applied and for Navsari

District, the petitioner and one Lakshmi Roadways had

applied. Further, as per the case of the petitioner, Rachna

Roadways, J.M. Roadways and Lakshmi Roadways belonged to

C/SCA/10607/2021 ORDER DATED: 25/11/2021

one family and they tried to allure the petitioner for

withdrawing from the bid, however, the petitioner did not

succumb to the allurement and determined to participate in

the bid. Therefore, those transporters having used their

political clout, hijack the process of tender and halt the

opening of bid which was to be opened on 15.6.2021.

2.6 Thereafter, the respondents published fresh Tender

Notice on 18.7.2021 for the same nature of work contract. As

per the petitioner, publishing a fresh Tender Notice by

ignoring the earlier tender process in which the petitioner had

participated, is nothing but to favour the aforesaid Road-lines

company, that too having realized that the petitioner's quote

was lower than they offered.

2.7 Being aggrieved by the aforesaid, the petitioner has

approached this Court by way of present writ petition for the

reliefs stated herein-above. In furtherance thereto, this Court

vide order dated 28.7.2021 issued Notice. The said order

dated 28.7.2021 reads, thus;

"1. Mr. Prajapati, the learned counsel appearing for the writ applicant is permitted to implead the Gujarat State Civil Supply Corporation Limited as the

C/SCA/10607/2021 ORDER DATED: 25/11/2021

respondent No.2. The cause title be amended accordingly at the earliest.

2. We have heard Mr. Harshad Prajapati, the learned counsel appearing for the writ applicant.

3. Let Notice be issued to the respondents, returnable on 18th August 2021. Any further proceedings with respect to the fresh Tender Notice dated 18th July 2021 shall be subject to the final outcome of the present writ application.

4. In the peculiar facts and circumstances of the case and without prejudice to the rights and contentions of the writ applicant, we permit the writ applicant to participate in the fresh Tender process. We are much concerned with the allegations of mala fide which have been levelled in the writ application, more particularly, the allegation of favoritism. By the next date of hearing, we expect the Corporation to place its affidavit-in-reply on record. Direct service is permitted. Over and above direct service, the service through E-mail is also permitted."

2.8 Upon service of notice, the respondent - corporation

appeared and submitted its reply dated 15.9.2021 duly

affirmed by one Shri D.B.Chaudhary, General Manager of

Gujarat State Civil Supply Corporation Ltd. The petitioner also

filed its affidavit-in-rejoinder dated 30.9.2021 duly affirmed by

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Shri Manish Gevarchand Shah, Proprietor of the petitioner -

firm.

3. We have heard Mr.H.R. Prajapati, the learned counsel

appearing for the petitioner and Ms.Aishvarya Gupta, the

learned counsel appearing for the respondent - corporation.

4. Mr.H.R. Prajapati, the learned counsel, submitted that

the entire tender process which was initiated pursuant to the

advertisement dated 13.5.2021 came to be cancelled without

any reason whatsoever. He further submitted that

cancellation of the tender process in connection with Tender

Notice dated 13.5.2021 and issuance of fresh notice dated

18.7.2021 for the same nature of works or contract, is the

most arbitrary and colourable exercise of powers at the end of

the corporation and thereby, he requested to quash and set

aside such action.

4.1 Mr.Prajapati submitted that cancellation of the earlier

tender process initiated in connection with the Notice dated

13.5.2021 is nothing but a gross arbitrariness on the part of

respondent - corporation, more particularly with a view to

help Rachna Roadways, J.M. Roadways and Lakshmi

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Roadways, whose rates were higher than the rates of the

petitioner. In view of the aforesaid, Mr.Prajapati submitted

that it is a gross case of favourtism and nepotism and thereby,

the petition, as prayed for, may be allowed, in the interest of

justice.

4.2 Mr.Prajapati submitted that before cancelling the tender

process, no opportunity of hearing was given. Thus, the action

on the part of respondent - corporation is violative of

principles of natural justice and thereby, the decision based

on this act, deserves to be quashed and set aside.

5. Per contra, Ms.Aishvarya Gupta, the learned counsel

appearing for the respondent - corporation, vehemently

opposed the petition and requested this Court to dismiss the

same. Ms.Aishvarya Gupta submitted that the petition alleging

mala fides and connivance, without joining the conniving

party as respondent, is not maintainable and the same thereby

deserves to be dismissed accordingly. Ms.Aishvarya Gupta

also submitted that the bone contention of the petitioner in

the petition is that the respondent corporation, with a view to

help Rachna Roadways, J.M. Roadways and Lakshmi

Roadways, cancelled the earlier tender process. Therefore,

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without impleading them as party in the proceedings, the

contention with regard to the mala fides is nothing but a bald

allegation and thereby, not tenable in the eye of law. She

further submitted that as such, the entire tender process

undertaken pursuant to the Notice dated 13.5.2021 for 34

District Head Quarters, was transparent and fair in nature.

She submitted that with a view to enable more participants

and to avoid any complication, time to time, the corrigendum

was published and accordingly, the schedules of date of

opening technical bid and price bid were extended. Ms.Gupta

submitted that even at some stages, various representations

were received by the different bidders, levelling allegations

inter-se. She further submitted that certain representations

also received against the petitioner and in order to decide

such representations, a meeting of senior level officials of the

corporation was held and ultimately, the representation

against the petitioner was rejected. She submitted that in

view of the aforesaid, it can be inferred that there is no

personal grudge kept against the petitioner, else adverse

decision could have been taken at that level, as well.

5.1 Ms.Aishvarya Gupta submitted that the contention

raised in the petition that the technical bid was not opened on

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15.6.2021 is completely incorrect and false in nature. She

submitted that on 15.6.2021, using the digital key provided by

the (n) code solutions, the technical bids were opened. She

further submitted that thereafter, it was decided to open the

commercial / financial bid submitted by the various bidders

including the petitioner on 10.7.2021. She submitted that to

open the commercial bid, same digital signature key which

was used to open technical bid required to be used. However,

the said digital signature key could not be found, therefore,

considering the gravity of the situation, detailed search was

carried out in the premises of the corporation for 3 days i.e.

from 10.7.2021 to 13.7.2021. Learned counsel submitted that

despite the efforts being put-forth, the key could not be found,

for which even Janva Jog complaint was also filed in the

concerned police station. Ms.Gupta, thus, submitted that in

view of the aforesaid circumstances, the entire tender process

based on such digital signature key stood vitiated and tainted

because of loss of digital signature key and, therefore, a

decision was taken by the corporation on 16.7.2021 to cancel

the tender process. Therefore, Ms.Gupta submitted that the

decision to cancel the tender process initiated in connection

with Tender Notice dated 12.5.2021 was not only justified but,

was inevitable. She further submitted that on the above facts

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and circumstances, the decision was taken to cancel the

tender process in the larger interest of justice and not to

favour or accommodate anyone, as alleged by the petitioner.

5.2 Ms.Gupta submitted that the petitioner also participated

in the subsequent tender process and submitted its bid for 3

Districts i.e. Tapi, Navsari and Surat. Thus, having

participated in the subsequent tender proceedings, it will not

be open for the petitioner to challenge the decision of

cancellation of the earlier tender process. Ms.Gupta, by

making the aforesaid submissions, requested this Court to

dismiss the petition.

6. No other submissions have been made by the respective

parties.

7. Having considered the submissions and also having

considered the records, the question that falls for our

consideration is whether the tendering authority is justified in

cancelling the tender process, in the facts and circumstances

of the present case ?

8. So as to consider the aforesaid question, according to us,

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it would be profitable to refer to and rely upon the decisions

of the Apex Court as under :

8.1 In the case of Maa Binda Express Carrier & Anr. v.

North-East Frontier Railway & Ors., reported in (2014) 3

SCC 760, the Apex Court has in Para.8, 9 and 12, observed as

under:

"8. The scope of judicial review in matters relating to award of contract by the State and its instrumentalities is settled by a long line of decisions of this Court. While these decisions clearly recognize 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 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

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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.

9. Suffice it to say that in the matter of award of contracts the Government and its agencies have to act reasonably and fairly at all points of time. To that extent the tenderer has an enforceable right in the Court who is competent to examine whether the aggrieved party has been treated unfairly or discriminated against to the detriment of public interest. (See: Meerut Development Authority v. Association of Management Studies and Anr. etc. (2009) 6 SCC 171 and Air India Ltd. v. Cochin International Airport Ltd. (2000) 1 SCR 505).

12. As pointed out in the earlier part of this order the decision to cancel the tender process was in no way discriminatory or mala fide. On the contrary, if a contract had been awarded despite the deficiencies in the tender process serious questions touching the legality and propriety affecting the validity of the tender process would have arisen. In as much as the competent authority decided to

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cancel the tender process, it did not violate any fundamental right of the appellant nor could the action of the respondent be termed unreasonable so as to warrant any interference from this Court. The Division Bench of the High Court was, in that view, perfectly justified in setting aside the order passed by the Single Judge and dismissing the writ petition."

8.2 In yet another decision in the case of South Delhi

Municipal Corporation v. Ravinder Kumar & Anr.,

reported in (2015) 15 SCC 545, the Apex Court has in

Para.18 to 20, observed as under:

"18. By a careful examination of the impugned judgment and order of the High Court and the facts of the case on hand, the following aspects would emerge:

18.1 The High Court has failed to appreciate that the appellant-Corporation's decision of cancelling its earlier tender notice vide corrigendum dated 30.11.2012 was taken with a bonafide intention to serve the best interest of the Corporation ensuring that only a reasonable price is paid to the successful contractors for the works executed in the area as the money which it spends on getting such works done is public money.

18.2 The High Court has not appreciated the fact that for the same financial year i.e. 2012-2013 the concerned department of the appellant-Corporation

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has issued 72 other work orders for similar works in the adjacent areas of the Corporation and all of them were issued for much lower rates than the rates offered by both the respondents.

18.3 Further, the High Court has conveniently ignored the very relevant aspect of the case namely, that the appellant-Corporation, before issuance of a particular tender notice, is required to satisfy itself about the reasonableness of the rates quoted by the bidders keeping in view the prevalent market rates in the Corporation Area. The internal system for financial check by the concerned department of the appellant-Corporation justifies the reasonableness of the rates offered by the bidders by comparing them with the rates at which other similar works were awarded by the appellant-Corporation in the recent past in favour of successful bidders. For the aforesaid valid reason, the appellant-Corporation being the custodian of public money, with bonafide intention to get the best price, has cancelled its earlier tender notice referred to supra and invited fresh bids by issuing another tender notice dated 13.12.2012.

18.4 Further, the High Court has not noticed another important aspect of the case namely, that there are CVC guidelines to ensure that the Corporation gets the best price for the execution of the works as per the said guidelines and to ensure the transparency in awarding the contracts in favour of successful bidders in the tender process the

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appellant- Corporation decided to cancel its earlier tender notice and a subsequent tender notice dated 13.12.2012 was issued afresh by it for getting the same works done through successful contractors.

18.5 The High Court has erroneously quashed the Corporation's decision of cancelling its earlier tender notice vide corrigendum dated 30.11.2012 on the wrong assumption that the concerned department of the appellant- Corporation has prepared the justification of rates but in reality the same were never prepared by the concerned department of the appellant- Corporation as the rates received from both the respondents were much higher than the rates at which similar works were awarded in favour of the successful bidders by it in the recent past.

18.6 Further, the High Court has failed to consider another important fact that the Government being guardian of public finance it has right to refuse the lowest or any other tender bid or bids submitted by the bidders to it provided its decision is neither arbitrary nor unreasonable as it amounts to violation of Article 14 of the Constitution of India. The appellant- Corporation's decision in cancelling its earlier tender is not in violation of Article 14 of the Constitution of India, as the High Court did not find any malafide intention on the part of the appellant- Corporation to favour someone in taking such decision. The appellant-Corporation's decision in cancelling the earlier tender notice vide corrigendum dated 30.11.2012 and then issuing a subsequent

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tender notice dated 13.12.2012 inviting fresh bids from eligible persons for the same works was with a bonafide intention to get better and reasonable rates from the bidders for the execution of the works and not to show favouritism in favour of any bidder.

18.7 The High Court has also failed to appreciate the relevant fact that the officials of the appellant- Corporation made proper analysis about the rates quoted by both the respondents as the same were higher than the usual market tendency and accordingly, they decided to cancel the entire tender process.

19. A careful reading of the impugned judgment and order would show that none of the aforesaid aspects have been borne in mind by the High Court and it has failed to appreciate the same in a proper perspective while exercising its judicial review power. The High Court has erred in quashing the decision of the appellant-Corporation regarding the cancellation of its earlier tender notice and also the subsequent tender notice issued afresh by it on 13.12.2012 for the same works.

20. For the reasons stated above, the High Court has failed to see that the appellant-Corporation adopted a fair and transparent method by inviting the bids for the re-tender notice issued by it. The High Court has not found any malafide intention on the part of appellant-Corporation in inviting the fresh bids after taking the decision to cancel its earlier tender notice. The appellant-Corporation, being the

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custodian of public finance, took its decision objectively with a bonafide intention to serve the best interest of the public in general. Thus, for the foregoing reasons, the appellant- Corporation has not committed any wrong in cancelling its earlier tender notice and issuing subsequent tender notice afresh inviting bids from the eligible contractors."

8.3 In the case of Rishi Kiran Logistics Private Limited

v. Board of Trustees of Kandlpa Port Trust & Ors.,

reported in (2015) 13 SCC 233, the Apex Court has in

Para.29 to 32, observed as under:

"29. Again, we clarify at the outset that even the principle of PROMISSORY estoppel is in the field of administrative law and while entertaining the arguments and discussion on this issue, the question Has to whether there was a concluded contract or not as to be kept aside. Precisely this was done in Kisan Sehkari Chini Mills Case (Supra). The Court dealt with the issue of legitimate expectation etc. separating it from the issue pertaining to conclude contract and made following pertinent observation in the process:

"23. If the dispute was considered as purely one relating to existence of an agreement, that is whether there was a concluded contract and whether the cancellation and consequential non-

supply amounted to breach of such contract, the first respondent ought to have approached the civil court for damages. On the other hand, when a writ petition was filed in regard to the said

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contractual dispute, the issue was whether the Secretary (Sugar), had acted arbitrarily or unreasonably in staying the operation of the allotment letter dated 26.3.2004 or subsequently cancelling the allotment letter. In a civil suit, the emphasis is on the contractual right. In a writ petition, the focus shifts to the exercise of power by the authority, that is, whether the order of cancellation dated 24.4.2004 passed by the Secretary (Sugar), was arbitrary or unreasonable. The issue whether there was a concluded contract and breach thereof becomes secondary. In exercising writ jurisdiction, if the High Court found that the exercise of power in passing an order of cancellation was not arbitrary and unreasonable, it should normally desist from giving any finding on disputed or complicated questions of fact as to whether there was a contract, and relegate the petitioner to the remedy of a civil suit. Even in cases where the High Court finds that there is a valid contract, if the impugned administrative action by which the contract is cancelled, is not unreasonable or arbitrary, it should still refuse to interfere with the same, leaving the aggrieved party to work out his remedies in a civil court. In other words, when there is a contractual dispute with a public law element, and a party chooses the public law remedy by way of a writ petition instead of a private law remedy of a suit, he will not get a full fledged adjudication of his contractual rights, but only a judicial review of the administrative action. The requisition whether there was a contract and whether there was a breach may, however, be examined incidentally while considering the reasonableness of the administrative action. But where the question whether there was a contract, is seriously disputed, the High Court cannot assume that there was a valid contract and on that basis, examine the validity of the administrative action.

24. In this case, the question that arose for consideration in the writ petition was whether the order dated 24.4.2004 passed by the Secretary (Sugar), cancelling the allotment letter

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dated 26.3.2004 was arbitrary and irrational or violative of any administrative law principles. The question whether there was a concluded contract or not, was only incidental to the question as to whether cancellation order dated 24.4.2004 by the Secretary (Sugar), was justified. As the case involved several disputed questions in regard to the existence of the contract itself, the High Court ought to have referred the first respondent to a civil court. But the High Court in exercise of its writ jurisdiction, proceeded as if it was dealing with a pure and simple civil suit relating to breach of contract."

30. Having noted the conceptual aspect of the doctrine of promissory estoppel, let us consider as to whether the appellant can successfully invoke this principle in the present case? For this, let us recapitulate the salient features of this case having bearing on this issue. Apart from paying EMD of Rs. 3 lakhs alongwith tender documents, the appellant did nothing more and in fact, no occasion for the same even occurred in the present case. As stated above LOI was issued but it clearly mentioned that the total premium amount in respect of each of the three plots (which runs into several crores in each case) was not to be paid on the issuance of said LOIs. Reason for this was that formal LOI or leased documents were to be executed only after the CRZ clearance. For this reason it was specifically mentioned in the LOI itself that the premium amounts were to be paid by the appellant only after the receipt of CRZ clearance in general and after issuance of allotment letter as well as individual CRZ clearance and on execution of these documents.

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Before these events could happen, the Port Trust decided to cancel the entire process. Thus, except making payment of Rs. 3 lakhs by way of earnest money the appellants did not incur any other expenses or suffered any liabilities or took any steps to implement the project of construction and maintenance of the tanks. The High Court has, therefore, rightly remarked that even if it is assumed that issuance of LOI tantamounted to a promise given by the Port Trust, the appellants did not alter its position to its prejudice pursuant thereto to such an extent which could inspire the court to take the decision that holding the promisor to its representation is necessary to do justice between the parties.

31. In MP Mathur & Ors. v. OIC & Ors.; 2006 (13) SCC 706 it is held that;

"once the public interest is accepted as the superior equity which can override individual equity, the principle would be applicable. If there is a supervening public equity, the Government would be allowed to change its stand and has the power to withdraw from representation made by it which induced persons to take certain steps which may have gone adverse to the interest of such persons on account of such withdrawal. Merely because the resolution was announced for a particular period, it did not mean that the Government could not amend and change the policy under any circumstances. If the party claiming application of doctrine acted on the basis of a notification, it should have known that such notification was liable to be amended or rescinded at any point of time, if the Government felt that it was necessary to do so in public interest."

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32. This contention of the appellant, therefore, is equally devoid of any merits."

8.4 In the case of Meerut Development Authority v.

Association of Management Studies and Anr., reported in

(2009) 6 SCC 171, the Apex Court has in Para.26 to 29,

observed 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 biding process.

27. The bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the above stated ground, the reason

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being the terms of the invitation to tender are in the realm of the contract. No bidder is entitled as a matter of right to insist the Authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations.

28. It is so well-settled in law and needs no restatement at our hands that disposal of the public property by the State or its instrumentalities partakes the character of a trust. The methods to be adopted for disposal of public property must be fair and transparent providing an opportunity to all the interested persons to participate in the process.

29. The Authority has the right not to accept the highest bid and even to prefer a tender other than the highest bidder, if there exist good and sufficient reasons, such as, the highest bid not representing the market price but there cannot be any doubt that the Authority's action in accepting or refusing the bid must be free from arbitrariness or favoritism."

9. Now, keeping in mind the aforesaid legal proposition

laid by the Apex Court vis-a-vis the facts of the present case,

in our considered opinion, the cancellation of an earlier

tender at the instance of the respondent - corporation was

because of an incident of having lost the digital key to open

the financial bid. The entire tender process was on-line

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process. Therefore, the digital key was very crucial so as to

maintain the confidentiality as well as safety of entire process.

Having lost the digital key, the respondent - corporation had

in its wisdom deemed not fit to go on with the tender process.

In view of the aforesaid, in our view, the cancellation of the

entire process from the stage of technical bid and before the

opening of the financial bid, is well justified and cannot be

said to be an arbitrary action. More so, according to us, the

retendering should be the only best option that was available

to the Corporation.

10. So far as the contentions as to mala fide and favourtism

are concerned, the petitioner could not be able to produced

any single evidence so as to establish the mala fide intention

of the respondent - corporation and also any favourtism made

to the various transporters as alleged. Further, the petitioner

has not even joined those transporters with whom the

respondent - corporation alleged to have connived. Thus, in

our view, the mala fide is not only required to be pleaded, but

has to be established by way of cogent evidence. However, the

petitioner has not produced anything on record so as to prove

the mala fide and favourtism at the instance of the

respondent - corporation.

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11. So far as the contention raised by the petitioner with

regard to cancellation of tender process without any reasons

and/or without affording any opportunity of hearing is

concerned, in our view, when the respondent - corporation

being a public body had taken a policy decision to cancel the

tender process keeping in view the larger public interest, the

judicial review of that decision is very limited. In the instant

case, as stated above, the respondent - corporation had to

cancel the tender process for the compelling reason i.e.

loosing the digital key which is the heart of the entire on-line

process, the action of the respondent - corporation thereby

cannot be brought within the ambit of judicial review. Having

considered the compelling reason for cancelling the tender

process, we are unable to hold that the respondent -

corporation has acted unreasonably or arbitrarily.

12. According to us, even otherwise, merely because the

petitioner had participated in the tender process and

submitted its bid, would not create any right in his favour.

Having appeared in the tender process would mean only an

offer which is always subject to acceptance by the tendering

authority. If, the tendering authority takes any decision to

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cancel the tender process at any stage, would not make it

illegal provided the cancellation of tender process is not

arbitrarily or discriminatory to any of the parties.

13. In the instant case, the cancellation of tender process

after completion of technical bid and before opening of the

financial bid, according to us, is in the larger interest of fair

play in tender process. Thus, in our considered opinion, the

writ petition is bereft of any merit and deserves to be

rejected. In the result, the writ petition fails and is hereby

rejected. Notice is discharged. Interim relief, if any, granted

earlier stands vacated.

(J. B. PARDIWALA, J)

(NIRAL R. MEHTA,J) V.J. SATWARA