Gujarat High Court

Suryase Energy Through Its Prop. ... vs Madhya Gujarat Vij Company Ltd. ... on 22 August, 2022

Bench: Ashutosh J. Shastri

    C/SCA/11105/2022                                 CAV JUDGMENT DATED: 22/08/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


             R/SPECIAL CIVIL APPLICATION NO. 11105 of 2022



FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND
KUMAR

and

HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI                               Sd/-

==================================================

1 Whether Reporters of Local Papers may be allowed to Yes see the judgment ?

2       To be referred to the Reporter or not ?                             Yes

3       Whether their Lordships wish to see the fair copy of                No
        the judgment ?

4       Whether this case involves a substantial question of                No

law as to the interpretation of the Constitution of India or any order made thereunder ?

================================================== SURYASE ENERGY THROUGH ITS PROP. MADHAV JAYESHKUMAR PATEL

Versus

MADHYA GUJARAT VIJ COMPANY LTD. (MGVCL) ================================================== Appearance:

SUDHANSHU A JHA(8345) for the Petitioner(s) No. 1,2,3,4,5,6,7 MR CHINMAY M GANDHI(3979) for the Respondent(s) No. 1 ==================================================

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 22/08/2022

CAV JUDGMENT

(PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)

[1] By way of this petition under Article 226 of the

Constitution of India the petitioners have prayed for following

reliefs:-

"15. (a) That this Hon'ble Court be pleased to direct the respondent to consider the tender application of the petitioners (at Annexure B) by directing the respondent to consider the tender bid of the petitioners in time;

(b) This Hon'ble Court may be pleased to direct the respondent MGVCL to accept the technical bid of the petitioner; and further be pleased to direct the respondent to consider the physical copy of the tender received by MGVCL through India Post on 03.06.2022 in time;

(c) Pending the hearing and final disposal of the writ petition the Hon'ble Court be pleased to stay the tender process of the tender dated 09.02.2022 being Tender No: MGVCL/DSM/EOV/SRT/2021-22/2137 for Design, supply, erection, testing and commissioning including warranty, Comprehensive operation & maintenance of Grid - Connected Rooftop Solar Plant of various capacities under the Phase-II of Grid Connected Rooftop Solar Scheme of MNRE/SURYA Gujarat Scheme in the State Gujarat during the Year (2021-22) for Residential Consumers in Urban Area;

(d) Be pleased to quash and set-aside the condition of physical submission of tender copy by 02.06.2022 in the corrigendum XI dated 30.05.2022;

(e) Be pleased to quash and set-aside the rejection

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

communication by the respondent MGVCL (at Annexure E);

(f) Pass such further and other order as the nature and Circumstances of the case may require."

[2] The case of the petitioners is that respondent No.1 invited

tender for Design, supply, erection, testing and commissioning

including warranty, Comprehensive operation & maintenance of

Grid - Connected Rooftop Solar Plant of various capacities under

Phase-II of Grid Connected Rooftop Solar Scheme of

MNRE/SURYA Gujarat Scheme in the State during the Year

2021-22 for Residential Consumers in Urban Area, being Tender

No: EOV No.: MGVCL/DSM/EOV/SRT/2021-22/2137 on

09.02.2022. Pursuant to such tender notice, since the

petitioners are registered firms, they filled-in their respective

Bids. Subsequently, the respondent-authority issued certain

corrigendums extending the date for submission of Bids online

as well as off-line from time to time. By detailing out in

paragraph No.6, in the form of Chart, the respective dates have

been mentioned by virtue of which, the petitioners have

submitted their respective Bids. The said Chart reads as under:-

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

Sr. No. Name of petitioner Date of Date of Date of online speed delivery of submissions post/RPAD Speed Post/RPAD 1 Suryase Energy 30.05.2022 31.05.2022 03.06.2022 2 Solarmax Energy Pvt. 31.05.2022 01.06.2022 03.06.2022 Ltd.

3           Upvoltage Solutions          30.05.2022    02.06.2022        03.06.2022
            LLP
4           Green Solar Energy           03.06.2022    04.06.2022        Return on
                                                       due dated         03.06.2022
                                                       was               due to fault
                                                       08.06.2022        of India post
5           The Solar House              30.05.2022    01.06.2022        03.06.2022
6           Tulsikamal Energy            31.05.2022    01.06.2022        03.06.2022
7           Vision Infosys               31.05.2022    01.06.2022        03.06.2022

[2.1] According to the petitioners, the requirement of MGVCL

was to send physical copy of documents only through RPAD or

Speed Post from Government Postal Department. The petitioner

No.3 after submitting online Bid tried to contact several

branches including the main branch of Indian Post in

Ahmedabad to ensure that post reaches the office of MGVCL by

02.06.2022 and later on, as advised by several branch offices of

Indian Post, the petitioner No.3 had personally went to

Vadodara in the main branch for same day delivery but despite

that, the post had reached the respondent on 03.06.2022.

Petitioners have further asserted that in all previous

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

corrigendums, the general time limit for submission of physical

documents through RPAD was three days or four days but in the

last corrigendum; the said time limit was curtailed to two

working days only and Speed Posts are not delivering in such

time. It has been submitted that if the private courier services

were permitted for sending the documents, the same would

have been delivered on time and as such said part of the

condition being arbitrary and irrational, same is liable to be

quashed. It is contended that physical copy of documents

submitted by petitioners having not reached the respondent's

office by 02.06.2022 in an arbitrary manner without realizing

the aforesaid situation respondent authority has not accepted

the Bid of the petitioners only on said count namely documents

having not reached before 02.06.2022 and hence, on account of

such condition petitioners could not participate further in the

tender process and as such left with no other alternative,

petitioners are constrained to approach this Court by way of

present petition for the reliefs as claimed hereinabove and

aggrieved by that part of the condition in the tender document of

corrigendum 9 dated 30.05.2022, petitioners have prayed for their

Bids being processed for further consideration.

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

[3] The petition originally came up for consideration on

20.06.2022, on which date, the learned advocate appearing for

the respondent-authority had requested for time to file the

affidavit-in-reply and as such, matter was directed to be filed on

27.06.2022 and reply affidavit having been filed, the learned

advocates appearing for both parties have requested the Court

to take up the matter for hearing and accordingly, we have

heard the matter.

[4] Mr. Sudhanshu A. Jha, learned advocate appearing for the

petitioners has vehemently contended that condition contained

in the tender documents itself is arbitrary and same being not

reasonable it is liable to be quashed. Insistence by the authority

to send through Indian Post only is also an arbitrary clause

which requires to be declared as violative of Article 14 of the

Constitution of India. It has been contended that to grant two

days for physical copy to reach respondent authority that too by

Indian Post would be an arbitrary clause, unfair, irrational and

depriving the most eligible persons to participate in the Bid

process. It has also been contended that corrigendum which

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

has been issued giving practically two days only for forwarding

physical copies of documents does not appeal to logic. By

prescribing such limited days in corrigendum 9 is practically

depriving the petitioners from participating in tender process

though and there must be reasonable gap between online and

physical submission of the relevant documents and in the

absence of reasonable time being granted, the action on the

part of respondent-authority is not only unjust and arbitrary but

also unreasonable, irrational which violates Article 14 of the

Constitution of India. It has been submitted by Mr. Jha, the

learned advocate that though attempts were made to see that

the physical copies be made available to the authority well in

time but on account of private couriers not being permitted and

Indian Post was not in a position to deliver despite various

attempts by the petitioners ultimately could send only on

02.06.2022 which had reached the respondent authority after

the due date resultantly Bids of the petitioners were not

accepted. This action on the part of authority being unjust and

arbitrary learned counsel for petitioners has prayed for

quashing and setting aside the condition stipulated under

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

corrigendum dated 30.05.2022 and has prayed for grant of

reliefs as specified in the petition in the interest of justice.

[4.1] With a view to substantiate his submission, Mr. Jha,

learned advocate has drawn our attention to the averments

made in the petition but has candidly submitted that the MGVCL

has received physical copy through Indian Post only on

03.06.2022 i.e. after due date and as such has submitted that

respondent authority be directed to accept the petitioners' Bid

received on 03.06.2022 and same be processed further. No

other submissions have been made.

[5] As against this, Mr. Chinmay M. Gandhi, learned advocate

appearing for the respondent-authority has vehemently opposed

the petition by submitting that a serious attempt is made by

petitioners to suppress material facts. He would submit that if

petitioners had placed proper facts on record, probably this

Court might not have called upon the respondent to file its reply

and on this count alone, petition is liable to be dismissed. Mr.

Gandhi, learned advocate has further submitted that initial date

for online submission of tender was 02.03.2022 whereas for

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

submission of EMD / Technical Bid and submission of Bid

physically was provided till 05.03.2022 and there were several

extensions granted through various corrigendums and has

detailed out each corrigendum which was indicated with

specific time and the Chart with respect to that is also

mentioned in paragraph No.2 of the petition and we deem it

proper to reproduce hereunder:

"2) I respectfully submit that, the respondent herein has floated tender No. MGVCL/DSM/EOV/SRT/2021- 22/2137 through (n) procure portal on 09.02.2022. Initially, the date for Online submission of the Tender was 02.03.2022 and the date for submission to EMD/Technical Bid was 05.03.2022 and the date of opening of the same was 07.03.2022. Thereafter, there were several extensions of the same and accordingly, corrigendum were issued, details whereof is as under:

             Status        On line           Physical      Date of
                           submission        submission    opening of
                           last date         last date     Bid
             Original      02.03.2022        05.03.2022    07.03.2022
             Corri.-I             Regarding Pre-Bid meeting
             Corri.-II     23.03.2022        25.03.2022    28.03.2022
             Corri.-III    07.04.2022        11.04.2022    12.04.2022
             Corri.-IV     22.04.2022        26.04.2022    27.04.2022
             Corri.-V      07.05.2022        10.05.2022    11.05.2022
             Corri.-VI     23.05.2022        25.05.2022    26.05.2022
             Corri.-VII                Revision of Price Bid
             Corri.-VIII   30.05.2022        02.06.2022    03.06.2022
             Corri.-IX     30.05.2022        02.06.2022    03.06.2022
             Corri.-X      30.05.2022        02.06.2022    03.06.2022
             Corri.-XI     31.05.2022        02.06.2022    03.06.2022






  C/SCA/11105/2022                                   CAV JUDGMENT DATED: 22/08/2022

It is pertinent to mention at this stage that by way of Corrigendum-XI the date of Online submission was extended by a day only because of various representations received from bidders and representative of n procure portal that n procure website was not working properly due to slowness of its portal. It is submitted that on 30.05.2022 approximately 565 tenders were issued and after an extension of a day, on 31.05.2022, in all 734 bids were received online. Copy of the entire Tender Document is hereto annexed and marked as ANNEXURE-A. Copy of the last extension i.e. Corrigendum No.XI dated 30.05.2022 is hereto annexed and marked as ANNEXURE-B."

[5.1] After referring to this, Mr. Gandhi, learned advocate has

further submitted that there are specific clauses and important

footnotes have also been mentioned in the tender document in

which condition No.3 shown under the head "NOTE :

IMPORTANT" which relates to submission of Bid parts which

clearly stipulate that:

"The following Mandatory documents as stated hereunder are required to be submitted in physical form in offline (in Original) and Online Modes during Technical Bid submission in a sealed cover stated as "Offline Documents for RFP - Empanelment of Vendors for Implementation of Grid connected Roof Top Solar PV System for CAPEX for General/Open Category (Please mention clearly) PART & kWp capacity".

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

[5.2] Further, it has been pointed out that condition No.(F) of

the tender document would also clearly stipulate the date and

time for submission of physical documents by the respective

Bidders and it has further been pointed clearly in condition No.

(G) that :

"No tender shall be accepted/opened in any case which are received after due date and time of receipt of tender irrespective of delay due to Postal Service or any other reasons and concern company shall not assume any responsibility for late receipt of tender. Any correspondence in this matter will not be entertained."

[5.3] Mr. Gandhi, learned advocate by inviting our attention to

this condition has clearly stated that from the beginning of

publication, the petitioners were conscious about these

conditions and were aware about consequences of its non-

compliance thereof and as such it is not open for the petitioners

now to raise any grievance about the time or date or any

schedule of the tender. It has further been pointed out by Mr.

Gandhi, learned advocate that when the tender was preliminary

opened up at the initial stage 702 Bids were qualified while 32

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

Bids were disqualified for various reasons. Out of such 32 Bids,

in 14 Bids the EMD/Technical cover were received after the due

date i.e. 02.06.2022 and as such same were rejected in view of

clauses contained in the tender document, namely, clauses (F)

and (G) and as such petitioners would not be entitled to contend

that on account of fixed time schedule, petitioners could not

submit the tender on time on account of short period especially

when more than 700 persons have been able to submit their Bid,

how petitioners were not in a position to tender their bids within

the very same schedule has remained unanswered and as such

it is not open for the petitioners to raise any grievance with

regard to inadequate time. In fact, they were clearly aware

about the requirement of time right from the beginning.

[5.4] Mr. Gandhi, learned advocate for respondent has further

submitted that in respect of this tender process 702 qualified

Bidders were verified on 07.06.2022, 08.06.2022 and

09.06.2022 the technical Bids were opened for such Bidders.

While all other disqualified Bidders were intimated about their

disqualification on 09.06.2022 and as such petition may not be

entertained when all other persons were in a position to tender

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

their Bids. In fact, when on the very same schedule as many as

716 Bidders have been able to submit their tenders off-line,

there was no earthly reason for the petitioners not to meet with

the same time schedule if others are in a position to comply.

Hence, there is no merit in the stand taken by the petitioners in

the present petition.

[5.5] Mr. Gandhi, learned advocate has further submitted that

except three corrigendums, 3, 4 days were given while in all

other corrigendum, the same time schedule of 2 days was

prescribed and simply because the petitioners could not meet

with the time schedule the condition contained in the tender

document cannot be agitated by the petitioners to be

unreasonable or arbitrary. Hence, in view of this situation,

hardly any case is made out to call for any interference.

[5.6] Mr. Gandhi, learned advocate has further submitted that

once having accepted the conditions with open eyes and tried to

submit the Bids and having participated in the process,

petitioners cannot agitate any process contained in the tender

publication. Hence, no case is made out and there is hardly any

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

merit for the petitioners to request for acceptance of Bid which

is undoubtly, undisputedly received after the deadline

prescribed in the tender reason. In fact, the material document

of MGVCL which has been published was well within the

knowledge of petitioners and it has not been produced and

respondent-authority is constrained to produce the same to

assist the Court and for that purpose, Mr. Gandhi, learned

advocate has drawn the attention of the Court to page 203 of

the petition compilation and the documents attached to the

affidavit-in-reply and has pointed out the clause which relates to

delayed and late tenders and by referring to it, has vehemently

opposed the petition and requested the Court to dismiss the

same.

[6] Having heard learned advocates appearing for the

respective parties and having gone through the material placed

on record before us, we are of the considered view, this petition

lacks merits and is liable to be dismissed for reasons indicated

hereinbelow.

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

[7] The initial date with respect to submission of online Bid

was 02.03.2022 whereas for physical submission of documents

was prescribed on 05.03.2022 which dates came to be extended

from time to time and it has been contended by the respondent-

authority that corrigendums were issued by virtue of which

several extensions came to be granted and this fact was also

well within the knowledge of all the petitioners. Further, on the

basis of very time schedule, prescribed by the authority,

including the deadline prescribed in corrigendum-9 as well as

other corrigendums approximately in all 734 Bids were received

through online upto 31.05.2022 and as petitioners are not

justified in contending that on account of lack of time it was

physically impossible to tender Bids. When 734 persons are in a

position to submit their respective Bids on the basis of very

same schedule there is hardly any justification on the part of

petitioners to submit that on account of two days being provided

they were not in a position to tender the Bids and as such the

contention of petitioners is outrightly rejected. From the

record, it further appears these petitioners were from the

beginning aware about the process of tender and procedure

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

adopted thereunder, including the conditions which were noted

down in the documents. It appears from the record that

condition No.3 which deals with submission of Bid parts,

requiring such person to submit the Bid documents in physical

form in off-line (in original) and online modes during technical

Bid submission in a sealed cover. Condition No.(F) clearly

stipulates that if the physical documents of tender would not

reach the respondent office within the mentioned date and time

the offer will be outrightly rejected even if successful

submission of online tender. Since these two conditions are

relevant, the Court deems it proper to reproduce hereunder:-

"3. Submission of Bid Parts:

"The following Mandatory documents as stated hereunder are required to be submitted in physical form in offline (in Original) and Online Modes during Technical Bid submission in sealed cover stated as "Offline Documents for RFP - Empanelment of Vendors for Implementation of Grid connected Roof Top Solar PV System for CAPEX for General/Open Category (Please mention clearly) PART & kWp capacity".

(F) If the physical documents tender will not reached the office within mentioned date and time the office will be out rightly rejected even if successfully submission of On Line Tender"."

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

[8] From the record, it further appears that there is yet

another condition No.(G), which deals with delayed and late

tender whereunder it has been specifically indicated that no

tender would be accepted irrespective of delay due to Postal

Service or any other reason. Since the said condition is also

relevant here in the present controversy, the Court deems it

proper to reproduce hereunder:

"No tender shall be accepted/opened in any case which are received after due date and time of receipt of tender irrespective of delayed due to postal service or any other reasons and concern company shall not assume any responsibility for late receipt of tender. Any correspondence in this matter will not be entertained."

[9] The aforesaid conditions are well within the knowledge of

petitioners. Thus, it is not open for the petitioners now to

contend that such conditions are arbitrary after having

participated in the process with open eyes and on the basis of

same very conditions as many as 734 Bids have been received

by the respondent-authority even on online basis. As such, at

the instance of these petitioners, the Court is not inclined to

declare the said conditions as arbitrary or irrational if any form.

If others are in a position to comply with said time schedule on

very same condition it is not open for the petitioners to agitate

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

about such conditions especially when undisputedly they made

an attempt only on 02.06.2022 to forward the documents. That

being so, the grievance voiced out by the petitioners is not

possible to be accepted by this Court.

[10] Even apparent reading of conditions does not sound any

arbitrariness or violation of Article 14 of the Constitution of

India and as such no case is made out by the petitioners to call

for any interference more particularly in view of the fact that

prescription of condition is essentially domain of tender inviting

authority.

[11] On the basis of very same conditions from amongst those

who tendered their Bids, 702 Bidders got qualified after

verification which took place on 07.06.2022, 08.06.2022 and

09.06.2022 by opening their respective technical Bids. It is also

stated on oath by the respondent authority that all other

disqualified Bidders were intimated about their disqualification

on 09.06.2022 and as such when the aforesaid situation is

prevailing on record, the contention of petitioners that they

were not in a position to successfully go through the process on

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

account of last date fixed for grant of relief appears to be unjust

and improper and as such we are not inclined to set aside the

condition of physical submission of tender copy as indicated in

corrigendum-11 dated 30.05.2022. Such condition cannot be

declared as invalid on the basis of averments made in the

petition which is bereft of material particulars.

[12] From the pleadings, it appears that when more than 700

Bidders have been able to maintain the time schedule

prescribed in the tender process for few handful persons like

petitioners such conditions which are already operated upon

cannot be relaxed. It appears to this Court that in a given

situation even if there is some delay caused on account of postal

authorities, the Writ Court would not issue direction to the

authorities to accept the bid. Subsequent to the last date of

submission for submission of bids. Same would tantamount to

substitution or relaxation of condition which is essentially within

the domain of authority and what kind of condition is to be

stipulated or what should be the last date to be prescribed is

basically the function of tender inviting authority and on

account of petitioners not being able to maintain the last date

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

fixed under tender, this Court would not be inclined to take any

lenient view which may tantamount to unsettling the time

schedule prescribed by tender inviting authority and

undisputedly petitioners have made an attempt only on

02.06.2022 to submit the documents by physical mode by

dispatching through speed posts. On the basis of such postal

delay or the delay which has taken place, no sympathetic view

can be taken since Writ Court has its own self imposed

limitation and keeping such circumstances in mind the stand of

the petitioners is not possible to be accepted. Accordingly,

there is hardly any case made out by the petitioners.

[13] From the averments of the application, it would emerge

that physical copy of documents submitted by the petitioners

through post had not reached the respondent by 02.06.2022.

Accordingly, on the basis of this undisputed situation, the Court

is not inclined either to quash or set aside the condition of

physical submission of tender nor this Court is inclined to direct

the authority to consider and treat the tender submitted by

petitioners which is received beyond the time fixed to be treated

as submitted within the time schedule. Hence, none of the

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

contentions raised by the petitioners have appealed to this

Court for grant of relief as prayed for in the petition.

[14] At this stage it is apposite to note the law laid down by

Hon'ble Apex Court with regard to judicial review in respect of

contractual matters wherein it has been held that Courts should

refrain from either altering the conditions or to substitute the

same as it is essentially within the domain of tender inviting

authority and as such unless and until the condition appears to

be absolutely arbitrary or it would violate Article 14 of the

Constitution of India, the Courts normally refrain from

exercising writ jurisdiction and especially in the Government

contracts. Hence, in view of this proposition of law which has

been settled by series of decisions, this Court is not inclined to

entertain the petition.

[15] Since the Court has considered such proposition in mind

while disposing of the present petition, the Court deems it

proper to refer to and rely upon few observations contained in

the decision delivered by Hon'ble Apex Court, in a very recent

judgment, in the case of M/S. N. G. Projects Limited versus

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

M/S. Vinod Kumar Jain & Ors. rendered in Civil Appeal

No.1846 of 2022 decided on 21.03.2022 whereunder it has

clearly demarcated the line of exercise of jurisdiction in respect

of contractual issues more particularly in tender matters. The

relevant observations are 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 malafide. 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 re-frain 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 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 ex-pertise 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 malafide 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

C/SCA/11105/2022 CAV JUDGMENT DATED: 22/08/2022

costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.

26. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good. The grant of interim injunction by the learned Single Bench of the High Court has helped no-one except a contractor who lost a contract bid and has only caused loss to the State with no corresponding gain to anyone."

[16] Yet, in another decision, Hon'ble Apex Court in the case of

Agmatel India Private Limited versus Resoursys Telecom

and Others reported in (2022) 5 SCC 362, has clearly held

that when the decision is taken by tender inviting authority if it

is in consonance with the language of the tender document then

Court should follow the principle of restraint and it has been

further held that the author of tender document, is taken to be

the best person to understand and appreciate its requirement

and if the interpretation of such author is manifestly in

consonance with the language of the tender document, the

Court should not normally interfere with and it has also been

held that interpretation of terms and conditions is essentially