Jammu & Kashmir High Court - Srinagar Bench

Jrcc Private Limited & Anr vs Union Territory Of Jk & Ors on 17 May, 2021

                                                                      Serial No. 121
                                                                Supplementary 1 Causelist
                                                                  (Through Virtual Mode)


              HIGH COURT OF JAMMU AND KASHMIR
                        AT SRINAGAR
                                                              CM No. 3168/2021
                                                          In WP(C) No. 982/2021
                                                              CM No. 3169/2021
JRCC Private Limited & Anr.
                                                             ......Petitioner(s)

                          Through:      Mr Rabinder Singh, Advocate.
                                        vs
Union Territory of JK & Ors.
                                                             ......Respondent(s)
                          Through:
CORAM:

             Hon'ble Mr Justice Ali Mohammad Magrey, Judge.

                                  ORDER

17.05.2021 CM No. 3168/2021;

On the set of facts and the ground urged coupled with submissions

made at Bar, the instant application is allowed and requirement of affixing the

court fee in the shape of stamps etc. is dispensed with for the time being.

However, the deficiency shall be made good by the applicant as and when the

Court starts functioning in the normal manner. CM disposed of accordingly.

WP(C) No. 982/2021 CM No. 3169/2021;

In the instant petition, the petitioner has prayed for the following reliefs:

a) A writ of Mandamus, commanding the respondents to extend the last date for submission of bids for execution of works for which NIT's were issued by the respondents in view of the prevailing circumstances and restrictions in the Union Territory.

b) A writ of Prohibition, may be issued against the respondents thereby prohibiting the respondents from opening the bids and finalize the bidding process without considering the genuine representation of the petitioners submitted through their association annexed with the petition in order to meet the ends of justice.

The relief claimed in the writ petition amounts to supplementing

the terms and conditions of the contract, which is not the power of the

Court. In the matters of Contract, there is a golden principle prevalent

which provides that where a power is given to do a certain thing in a

certain way, the thing must be done in that way or not at all and any

other methods of performance are necessarily forbidden. This principle

is applied in contractual disputes, particularly in commercial contracts

or bids leading up to commercial contracts, where there is stiff

competition. It must follow from the application of this principle that if

the tendering issuing authority prescribes a particular format of the

tender document to be furnished, then a bidder ought to submit the same

in that particular format only and not in any other format. Any decision

taken by the tendering issuing authority in accepting or rejecting a

tender document in a format not prescribed by it could lead to

unnecessary/ avoidable litigation requiring the authority to justify the

rejection or acceptance of each tender document. This is hardly

conducive to a smoother and hassle-free bidding process.

It is well settled principle of law that there must be judicial

restraint in interfering with the administrative action, particularly in

matter of tender or contract. Ordinarily, the soundness of the decision

taken by the tendering issuing authority ought not to be questioned, but

the decision-making process can certainly be subject to judicial review.

The soundness of the decision may be questioned, firstly, if the decision

made is so arbitrary and irrational that the Court can say that the

decision is such that no responsible authority acting reasonably and in

accordance with relevant law could have reached or, second, if the process adopted or decision made by the authority is malafide or

intended to favour someone or, third, if the public interest is affected.

In Poddar Steel Corpn. v. Ganesh Engineering Works, the

Supreme Court has observed that the requirements in a tender notice

can be classified into two categories - those which lay down the

essential conditions of eligibility and the others which are merely

ancillary or subsidiary with the main object to be achieved by the

conditions. It has been held that in the first case the authority issuing

the tender may be required to enforce them rigidly; in the other cases it

must be open to the authority to deviate from and not to insist upon the

strict literal compliance of the condition in appropriate cases. In that

case, the relevant clause of the tender notice required the tender to be

accompanied by deposit of earnest money of Rs.50,000.00 by cash or

by demand draft drawn on the State Bank of India. The tenderer to

whom the tender was allotted had accompanied its tender with a

Banker's cheque marked and certified by the Union Bank of India as

good for payment. The Tender Committee also had verified the cheque

from the Bank and allowed the tenderer to participate in the tender

process. The unsuccessful tender challenged the decision by a writ

petition before the Allahabad High Court contending that there was no

defect in its tender and that the tender of the successful tenderer could

not have been validly accepted as the necessary condition of payment

of Rs.50,000.00 as earnest money with the tender had not been

complied with. The High Court allowed the writ petition. The

successful tenderer took the matter to the Supreme Court. It was in

context of the aforesaid fact scenario that the Supreme Court allowed the appeal and set aside the judgment of the High Court holding as

under:

"...As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories - those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. This aspect was examined by this Court in G. J. Fernandez v. State of Karnataka, (1990) 2 SCC 488 : AIR 1990 SC 958, a case dealing with tenders. Although not in an entirely identical situation as the present one, the observations in the judgment support our view. The High Court has, in the impugned decision, relied upon Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 : AIR 1979 SC 1628, but has failed to appreciate that the reported case belonged to the first category where the strict compliance of the condition could be insisted upon. The authority in that case, by not insisting up on the requirement in the tender notice which was an essential condition of eligibility, bestowed a favour on one of the bidders, which amounted to illegal discrimination. The judgment indicates that the Court closely examined the nature of the condition which had been relaxed and its impact before answering the question whether it could have validly condoned the shortcoming in the tender in question. This part of the judgment demonstrates the difference between the two categories of the conditions discussed above. However, it remains to be seen as to which of the two clauses the present case belongs."

While allowing the appeal in the aforesaid case, the Supreme Court held as under:

"In the present case the certified cheque of the Union Bank of India drawn on its own branch must be treated as sufficient for the purpose of achieving the object of the condition and the Tender Committee took the abundant caution by a further verification from the bank. In this situation it is not correct to hold that the Diesel Locomotive Works had no authority to waive the technical literal compliance of clause 6..."

The three judgments of the different High Courts in M/s Jyothi Krishna

Engineers v. State Bank of Hyderabad; M/s B. D. Yadav & M. R. Meshram,

E & C. v. Administrator; and Kollam Royal Park Hotel v. The State of Kerala

(supra) do not add anything to the preposition of law enunciated by the

Supreme Court in the above two judgments.

Let the instant case be examined on the touch stone of the law laid down

by the Supreme Court in Poddar Steel Corpn. v. Ganesh Engineering Works

and Mr. B. S. N. Joshi & Sons Ltd. v. Nair Coal Services Ltd (supra).

Going by the law laid down by the Supreme Court in the cases

mentioned above, there is no merit in this petition. It, accordingly, deserves to

be dismissed.

In view of the above, the instant petition is, therefore, dismissed