Lal Amarnath Shahdeo vs The State Of Jharkhand Through Its ...
2021 Latest Caselaw 4791 Jhar

                                       1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    W.P.(C) No. 271 of 2021

    1. Lal Amarnath Shahdeo, age about 56 years, son of late Lal Mangla Nath
       Shahdeo, resident of At Kamta, P.O. Kamta, P.S. Chandwa, District Latehar
       (Jharkhand)
    2. Govind Agrawal, age 60 years, son of late Chandmal Agarwal, resident of Saroj
       Nagar Aloudiya, P.O. and P.S. Chandwa, District-Latehar (Jharkhand).
                                                              ...... Petitioners
                            Versus
1.The State of Jharkhand through its Secretary, Department of Mines and Geology,
Government of Jharkhand, Ranchi.
2. Jharkhand State Mineral Development Corporation Ltd. ( A Government of
Jharkhand Undertaking ) through its Managing Director having its office at Khanij
Nigam Bhawan, Doranda, Ranchi, P.O. and P.S. Doranda, District-Ranchi
3. In Charge, Coal Marketing Cell, Jharkhand State Mineral Development Corporation
Ltd, Khanij Nigam Bhawan, Doranda,Ranchi, P.O. and P.S. Doranda, District-Ranchi
4. M/s Tirupati Niryat Pvt. Ltd. having its office at 145 Rash Behari Avenue, Gariahat,
Kolkata, P.O. and P.S. Gariahat, District- Kolkata-700029.
                                                                   ...... Respondents

                    ---------

CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                           ---------
For the Petitioners       : Mr. Anil Kumar Sinha, Sr. Advocate
                           Mr. Abhay Prakash, Advocate
For the Resp. Nos. 2 & 3 :Mr. P.A.S. Pati, Advocate
For the Resp. No. 4        : Mr. Indrajit Sinha, Advocate
                           ......

13/Dated: 14/12/2021
             Heard Mr. Anil Kumar Sinha, learned senior counsel         assisted by Mr.

Abhay Prakash, learned counsel for the petitioners, Mr. P.A.S. Pati, learned counsel for

the respondent nos. 2 and 3 and Mr. Indrajit Sinha, learned counsel for the

respondent no. 4.

2. This writ petition has been filed for direction to call upon respondent

no. 2 to produce on record the decision taken to grant order/delivery order, if any,

issued in favour of the respondent no. 4 pursuant to Notice No. 94/e Auction of

Coal/JSMDC/2020 dated 14.12.2020 and quash the same as it was granted to the

only single bidder who participated in aforesaid e-Auction i.e respondent no. 4.

Further prayer has been made for quashing of Notice No. 94/e Auction of

Coal/JSMDC/2020 dated 14.12.2020 issued by the Jharkhand Mineral Development

Corporation Ltd. inviting all to participate in the e-Auction being conducted by the M/s

MSTC Ltd. (a Government of India Enterprises) for sale of Coal of 1,00,000 MT from

Sikni Coal Mines, Chandwa, Latehar.

3. Mr. Anil Kumar Sinha, learned senior counsel for the petitioners submits

that petitioners are buyer/trader of coal and are duly registered as buyer of coal

before the e-auction portal i.e. M/s MSTC ( a Government of India enterprises). He

further submits that petitioners are registered before M/s MSTC to participate in the

e-auction of coal which is issued by the Jharkhand State Mineral Development

Corporation Ltd., (after bifurcation of State of Jharkhand). The Sikni Coal Mines is one

of the coal mines which are being operated by the JSMDC after re-organization of the

State of Bihar. He further submits that objective of allowing JSMDC to mine and sell

the coal was for the benefit of local peoples or for benefit of small and medium

industries running in the State of Jharkhand. He refers to Government of India letter

dated 22.07.1987 contained in annexure-1 to this writ petition and submits that

Government of India granted the coal mining lease over an area of 410.75 acres in

village Sikni to the Bihar State Mineral Development Corporation Limited and after

bifurcation of State of Bihar Jharkhand State Mineral Development Corporation Ltd.

(JSMDC). He further refers to document contained in Annexure-2 which is letter

dated 30.07.1979 and submits that there was condition for carrying out the mining of

coal in the isolated small pockets and the coal produced from such areas would be

utilized for local consumption without transportation by Railways. Learned senior

counsel for the petitioners put much emphasis on Condition No. (iv) which speaks

that the sale of coal being is accordance with the grade wise prices notified by the

Central Government from time to time. By way of last condition, he submits that such

areas would be utilized for local consumption without transportation by Railways. He

took the Court to the Terms & Conditions of Spot e-Auction Scheme, 2015.

Referring to Clause 2.5, he submits that buyers having been registered with the

Service Provider shall also have to furnish non-interest bearing Earnest Money

Deposit (EWD). By way of referring Clause 3.1, he submits that at least one e-

auction per month and may increase to two e-auction per month was one of the

condition. By way of referring Clause 3.2 of the said Clause, he submits that this

condition clearly stipulates that there will be full auction for dispatches by Road mode

and the minimum quantity for bidding would be fifty tonnes for road mode. Much

emphasis has been put on this clause by the learned senior counsel for the

petitioners. He further refers to Clause 4.5 and submits that the bidder has to bid for

a price equal to or above the reserve price to secure consideration in the concerned e-

auction. He further refers to Clause 7.2 and submits that the validity period to

complete lifting of coal by road shall be thirty days from the date of issue of

sale/delivery/order and no extension of validity will be allowed in any case. Learned

senior counsel for the petitioners further submits that e-auction notice dated

27.12.2015 is contained as Annexure-4 to this petition wherein special terms and

conditions are prescribed. He submits that all the terms and conditions which he has

referred in earlier documents are same. He refers to Annexure-5 series which is

document with regard to sale of coal from e-auction for the different months. He

refers to grade , offer quantity and reserve price for e-Auction which is in Column

5, 7 and 8 at page 38 of the writ petition. Lastly, he refers to e-auction notice of

sale of coal dated 14.12.2020 which is under challenge in this writ petition. By way of

this document, he submits that all of sudden quantity of coal has been increased by

1,00,000/- M.T tonnes which is arbitrary. By way of referring terms and conditions in

the said document, he submits that arbitrarily it has been incorporated only to

completely oust the small traders and to favour the big bidders. He further submits

that all category of price bidders were allowed as per 2015 Scheme as per the price

precedent i.e. H1, H2, H 3. By way of this document, he submits that earlier small

quantity of coal was being auctioned and by way of increasing the quantity of coal

and putting rider of total quantity, the petitioners who are small traders, have been

deprived of to participate in the e-Auction. To strengthen his argument, learned

senior counsel for the petitioners relied on judgment in the case of "Meerut

Development Authority Vs. Association of Management Studies & Another"

reported in (2009) 6 SCC 171 wherein para 26, the Hon'ble Supreme Court has

held 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 bidding process."

4. By way of referring this judgement, he submits that nature of the price

bidder participating in the tender process has been considered by the Hon'ble

Supreme Court in this judgment.

5. Learned senior counsel for the petitioners further relied on judgment in

the case of "Michigan Rubber (India) Limited Vs. State of Karnataka &

Others" reported in (2012) 8 SCC 216 wherein para 23 the Hon'ble Supreme Court

has held as under:

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

(a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;

(b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited;

(c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted;

(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and

(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government."

Relying on this judgment, he put much emphasis on the observation

made at Clause (c) of the said para and submits that the Hon'ble High Court can

interfere in misuse of statutory powers brought to the notice of the Court.

6. Learned senior counsel for the petitioners further relied on judgement in

the case of " Uflex Ltd. Vs. Government of Tamil Nadu & Others" (Civil

Appeal No. 4862-4863 of 2021) wherein para 5 the Hon'ble Supreme Court has

held as under:-

"5. One other aspect examined by this Court is whether the terms and conditions of the tender have been tailor-made to suit a person/entity. In fact, this is what is sought to be contended in the facts of the present case by the respondents who were the original petitioners before the Court. In order to award a contract to a particular party, a reverse engineering process is evolved to achieve that objective by making the tender conditions such that only one party may fit the bill. Such an endeavour has been categorized as "Decision Oriented Systematic Analysis" (for short 'DOSA')."

Relying on this judgment, learned senior counsel for the petitioners

submits that order was granted to a particular party. He submits that in the case in

hand, respondent no. 4 has been favourred by the officials of JSMDC.

7. Learned senior counsel for the petitioners further relied on judgment in

the case of "State of Jharkhand & Others Vs. CWE-Soma Consortium"

reported in (2016) 14 SCC 172 wherein para 11, 14, 15 and 20 the Hon'ble

Supreme Court has held a under:-

"11. Even though there were ten participants in the meeting on 24-3- 2014 of prequalification bid, in view of stringent clauses in the tender document, only three bidders namely: (i) M/s CWE-SOMA Consortium, Hyderabad; (ii) M/s IL&FS Engineering and Construction Co. Ltd., Hyderabad; and (iii) M/s Navyuga Engineering Co. Ltd., Hyderabad submitted their bids. Upon scrutiny of the three bids, only the respondent Company's bid was found responsive; the other two bids were found non-responsive in the light of the provisions of Clauses 4.5(A)(b) and 4.5(A)(c). The Tender Committee, therefore, decided to cancel the tender in order to make the tender more competitive and decided to reinvite tenders in the light of SBD norms on the basis of which tenders are invited by the Department. The minutes of the Departmental Tender Committee held on 2-6-2014 reads as under:

"In light of special conditions prescribed for the invited tender for the work, only one tenderer is found responsive in technically-cum-prequalification bid.

In view of the above, in order to make the tender under subject more competitive, the Departmental Tender Committee after due consideration while cancelling the tender has decided to reinvite tenders in light of SBD norms on the basis of which tenders are invited by the Department.

The Chief Engineer, Icha-Galudeeh Complex, Adityapur, Jamshedpur shall, accordingly, ensure action for inviting tenders according to the prescribed SBD norms without any delay."

(emphasis supplied)

It was later realised that the typographical error had been made in the above minutes and therefore "technically-cum-prequalification bid" was later modified to "prequalification bid" in the meeting held on 6-6-2014.

14. The appellant State was well within its rights to reject the bid without assigning any reason thereof. This is apparent from Clause 24 of NIT and Clause 32.1 of SBD which read as under:

"Clause 24 of NIT.--'Authority reserves the right to reject any or all of the tender(s) received without assigning any reason thereof.'

Clause 32.1 of SBD.--'... the employer reserves the right to accept or reject any bid to cancel the bidding process and reject all bids, at any time prior to award of contract, without thereby incurring any liability to the affected bidder or bidders or any obligation to inform the affected bidder or bidders of the grounds for the employer's action.'"

In terms of the above Clause 24 of NIT and Clause 32.1 of SBD, though the Government has the right to cancel the tender without assigning any reason, the appellant State did assign a cogent and acceptable reason of lack of adequate competition to cancel the tender and invite a fresh tender. The High Court, in our view, did not keep in view the above clauses and right of the Government to cancel the tender.

15. The State derives its power to enter into a contract under Article 298 of the Constitution of India and has the right to decide whether to enter into a contract with a person or not subject only to the requirement of reasonableness under Article 14 of the Constitution of India. In the case in hand, in view of lack of real competition, the State found it advisable not to proceed with the tender with only one responsive bid available before it. When there was only one tenderer, in order to make the tender more competitive, the Tender Committee decided to cancel the tender and invited a fresh tender and the decision of the appellant did not suffer from any arbitrariness or unreasonableness.

20. Admittedly, in the pre-bid meeting held on 24-3-2014, ten tenderers have participated. After conclusion of the pre-bid meeting on 24-3-2014, as a result of stringent conditions prescribed in Clauses 4.5(A)(a) and 4.5(A)(c), only three tenderers could participate in the bidding process and submit their bids. As noticed earlier, upon scrutiny two were found non-responsive. In our considered view, the High Court erred in presuming that there was adequate competition. In order to make the tender more competitive, the Tender Committee in its collective wisdom has taken the decision to cancel and reinvite tenders in the light of SBD norms. As noticed earlier, the same was reiterated in a subsequent meeting held on 9-7-2014. While so, the High Court was not justified to sit in judgment over the decision of the Tender Committee and substitute its opinion on the cancellation of tender. Decision of the State issuing tender notice to cancel the tender and invite fresh tenders could not have been interfered with by the High Court unless found to be mala fide or arbitrary. When the authority took a decision to cancel the tender due to lack of adequate competition and in order to make it more competitive, it decided to invite fresh tenders, it cannot be said that there are any mala fides or want of bona fides in such decision. While exercising judicial review in the matter of government contracts, the primary concern of the court is to see whether there is any infirmity in the decision-making process or whether it is vitiated by mala fides, unreasonableness or arbitrariness."

8. Lastly by way of referring Article 39 of the Constitution of India, learned

senior counsel for the petitioners submits that directive principle of State policy is

required to be followed by the State.

9. On these premises, learned senior counsel for the petitioners submits

that respondent no. 4 has been favoured and e-Auction was restricted to a single

bidder and in that view of the matter this writ petition is fit to be allowed.

10. Per contra, Mr. P.A.S. Pati, learned counsel appearing on behalf of the

respondent nos. 2 and 3 submits that the Corporation has been selling the raw coal

produced from Sikni Coal Mines through e-auction at the MSTC platform which is

domain of that platform which is Government of India platform and no person can

interfere with the declaring any successful bidder in e-auction. He submits that this

policy was adopted to avoid litigation and allegation to the Corporation. He further

submits that the Corporation has been fixing the reserve price of ROM and Steam for

e-auction in accordance with notified price of CIL declared for G-12 grade coal and

has been following the marketing policy as being followed by CCL. He submits that

in December, 2020 due to Covid-19 pandemic, sale of coal has been reduced. He

further submits that sale of coal which was in the stock of JSMDC for e-auction from

01.04.2020 to 19.03.2021 is given in para 11 of the counter-affidavit. He further

submits that on the date of e-auction on 12.06.2020 and 22.06.2020 nobody turned

up in the auction and on 07.07.2020 in the e-auction ROM 18000 Steam 500 MT coal

was auctioned and further on 30.07.2020 no one turned up. On 29.09.2020 only ROM

15000 MT was e-auctioned and on 24.12.2020 1,00,000/- MT coal was e-auctioned

only by respondent no. 4. He submits that respondent no. 4 deposited entire amount

of transaction. He further submits that it was necessitated to sale the coal in view of

the fact that the coal is required to be stored in limit. He further submits that the

respondent-Corporation as such decided to sale Run of Mine (RoM) coal from Sikni

Coal Mine without any binding on sale of Stem Coal (Hand picked) and this decision

was duly placed and approved by the Board of the respondent corporation. He further

submits that the reserve price was fixed taking the notified price of Steam & RoM in

ratio of 60:40 at its proportionate rate and the reserve price so arrived was Rs. 1225/-

per MT for the e-auction. He submits that once the criteria for e-auction is decided

and fixed, the details are sent to MSTC which conduct the e-auction. He submits that

there is no intervention at the end of the respondent corporation once the process for

e-auction is started by MSTC. He submits that it is an online process where the

details of the successful bidder is furnished by MSTC after the e-auction is held, so

there is no chance of any interference or favoritism by the Corporation for any bidder.

He further submits that the petitioners have also purchased coal at the reserve price

on several occasion through e-auction and the same has been disclosed in para 18 of

the counter-affidavit. By way of referring para 24 of the counter-affidavit, he submits

that there is no restriction for the local buyer to participate and transportation was

road mode. He submits that a representation of one of the trader was submitted

before the Corporation which has been received by the Corporation when process of

the tender was already over. On these grounds, Mr. P.A.S. Pati, learned counsel for the

respondent nos. 2 and 3 distinguishes judgement in the case of "CWE-Soma

Consortium" (supra) and submits that it has not accepted single bidder and that

was affirmed by the Hon'ble Supreme Court in that case and it was not a case of e-

auction. He further submits that supplementary affidavit has been filed on behalf of

the petitioners where document with regard to purchase of coal by the petitioners

have been annexed in which petitioners have purchased the coal on same terms and

conditions and the same has been submitted by them in this writ petition. On these

grounds, he submits that there is no merit in this writ petition and the same is fit to

be dismissed.

11. Mr. Indrajit Sinha, learned counsel appearing on behalf of the respondent

no. 4 submits that gradation has been done by the Coal Controller under the Colliery

Rules. He further submits that Notice Inviting Tender was called on 14.12.2020 and

on 24.12.2020 e-Auction took place and the respondent no. 4 deposited the entire

amount in terms and conditions of the tender and thereafter, the present writ petition

was filed when the entire process of tender has already been completed. According

to him, the petitioners have not participated in e-Auction. The petitioners have no

locus standi. To buttress his argument, learned counsel for the petitioners relied on

judgment in the case of "Rajeev Suri Vs. Delhi Development Authority and

Others" reported in 2021 SCC Online SC 7 wherein para 525, 526, 527 the

Hon'ble Supreme Court has held as under:-

"525. A tender is essentially a contract between two parties and merely because one party to the contract is the State, the basic character of the transaction does not change. In India, we follow the principle of privity of contract and the law relating to contracts and specific relief provides ample remedy to an aggrieved party to the contractual transaction. The principle of privity of contract has sound basis in law. It is owing to the basic character of a commercial relation wherein two parties of sound mind choose to enter into a legal relationship with each other and decide mutual rights and liabilities in accordance with the needs of the transaction with their free consent. There is an element of consensus ad idem. In a free commercial transaction, it is the foremost desire of the parties to keep third person interference away.

526. As a general rule, there is no locus for a third person to question a free contractual relationship. In special circumstances, no doubt, the Specific Relief Act, 1963380 provides for circumstances when "any person" could initiate action for recission of contracts or cancellation of instruments. However, this action is available only if the initiator is able to show that the contract/instrument is detrimental to its interests. Moreover, that is a remedy to be pursued in civil Court or the Court of first instance. There is no basis in law to permit an absolutely unaffected person to shake a settled transaction between two parties.

527. No doubt, it is settled that an award of tender by the Government, though a contract, stands on a slightly different footing. It is so because when a Government chooses to engage with a citizen, it is expected to extend a fair treatment to all those persons who choose to engage with the Government. This requirement of fairness brings in the element of equality of treatment and absence of favouritism and thus, the requirements of Article 14 cannot be ousted. The question here is about the scope of interference by a writ Court in a challenge against an award of tender at the instance of a third party to the transaction. Undisputedly, none of the petitioners before us had participated in the tender process and they cannot be termed as aggrieved as they do not satisfy the requirement of privity of contract in conventional terms. We have before us a bunch of public-spirited individuals who wish to question the award of tender, not because of the ineligibility of the duly selected/appointed Consultant or unfair advantage given to him but on other grounds by invoking high constitutional principles, which we have already negatived hitherto."

12. Learned counsel for the respondent no. 4 submits that the learned senior

counsel for the petitioners has relied only para 5 of the judgment in the case of

Uflex Ltd. (supra) wherein para 14 and 47 of the said judgment is in favour of

respondent no. 4 which reads as under:-

"14. The other aspect was the grievance made about the technical requirement of a "Hidden Text on Colour Change Background" feature stated to be based on a patented technology. Holograms with this feature were supplied to other public sector undertakings such as the IRCTC in the past by the suppliers other than Uflex and Montage. However, those suppliers had never supplied to any State excise department and, thus, could not meet the two conditions cumulatively. Montage and Uflex were alleged to be the only two bidders who would qualify under the existent tender conditions as they held the license to use the patented technology. The writ petition was resisted by the State inter alia on the ground of bona fide exercise and the factum of a clarification being issued on 27.10.2020 on the objections of Kumbhat and Alpha, petition having been filed even without waiting for the clarification to be issued. Corrigendum 2 to the tender conditions was issued whereby the condition as to the identification of hidden text by special Polaroid identifier was relaxed by providing that in addition to Polaroid identifier, the hidden text could also be identified by film. The grievance about only limited companies being permitted to participate was also met by permitting LLPs to participate in the tender.

47. Insofar as the participating entities are concerned, it cannot be contended that all and sundry should be permitted to participate in matters of this nature. In fact, in every tender there are certain qualifying parameters whether it be technology or turnover. The Court cannot sit over in judgment on what should be the turnover required for an entity to participate. The prohibition arising from only a Limited company being permitted to participate was again addressed by the corrigendum permitting LLPs to participate. If entities like Kumbhat and Alpha want to participate they must take some necessary actions. Alpha is already an LLP. Kumbhat cannot insist that it will continue to be a partnership alone and, thus, that partnerships must necessarily be allowed to participate."

13. Learned counsel for the respondent no. 4 distinguishes the judgment

relied by the learned senior counsel for the petitioners in the case of ' Michigan

Rubber (India) Limited' (supra). He submits para 9 of the said judgment is

identical issue which was argued before the Hon'ble Supreme Court which was

negated by the Hon'ble Supreme Court in para 37 of the said judgment. He adopted

rest of the submissions advanced by P.A.S. Pati, learned counsel for the O.P. Nos. 2

and 3.

14. In the light of the arguments advanced on behalf of the learned

counsel for the parties, the Court has gone through the materials on record. It is

admitted fact that by letter dated 22.07.1987, the lease was granted for exploitation

of coal to the Sikni Coal Mines in favour of M/s Bihar State Minerals Development

Corporation Limited which was taken by JSMDC after bifurcation of State of Bihar.

By letter dated 30.07.1979 issued by the Government of India, the State

Government was allowed to carry out mining operations in isolated small pockets in

which grade wise condition for transportation for by road and not by Railway. So far

Clauses relied by Mr. Sinha, learned senior counsel for the petitioners with regard to

Clause 2.5, 2.1 are undisputed which is condition in the terms and conditions of e-

Auction Scheme, 2015. Much emphasis has been put by Mr. Sinha, learned senior

counsel for the petitioners on Clause 3.2. Minimum quantity for bidding was fixed as

fifty tonnes for a source for Road mode. By clause 3.2, minimum quantity for

transportation is fixed higher is not mentioned therein. This clause has been fulfilled

in the Notice Inviting Tender (NIT). Clause 4.5 to bid for a price equal to or above

the Reserve Price to secure consideration in the concerned e-Auction that is already

incorporated in terms and conditions and this has not been challenged. There is no

violation of this Clause in the entire process. In Clause 7.2. the validity period is made

therein. The petitioners have moved before this Court and by order dated 22.02.2021

respondent no. 4 was restrained from lifting further coal from Sikni Coal Mines.

Looking to order dated 22.02.2021 it appears that order was obtained by the

petitioners by way of submitting that CVC guidelines has not been followed. In the

final argument that point has not been argued by the learned senior counsel for the

petitioners. Thereafter, interim order was modified by this Court vide order dated

22.03.2021 whereby respondent no. 4 was allowed to lift 12,000 metric tonnes of

coal in terms with the e-Auction. Thus, even if the said Clause 7.2 is not complied

with, the petitioners and the JSMDC are not liable. At the instance of the petitioners

Clause 7.2 has been violated and interim order was obtained by the petitioners. In all

the documents grade of the coal is shown as G-12. Reserve price has been disclosed

in some of the documents which will offer quantity upto 14,000 metric ton. Reserve

price for e-Auction has also been mentioned in the sale of coal letter 21.07.2020. This

was practice which goes to show that the petitioners also availed this facility which is

disclosed therein supplementary affidavit which is on record. It is well-settled that the

High Court sitting under Article 226 of the Constitution of India is not required to re-

define the policy of the State unless it is demonstrated before the Court that it is

malicious and arbitrary policy. In the case of "Uflex Ltd"(supra) relied by learned

senior counsel for the petitioners the Hon'ble Supreme Court has clearly held that if

there is less participation than necessary, it cannot be said that terms and conditions

of the tender have been violated to somehow one of the party. This judgment is not

helping the petitioners rather this judgment is helping to the respondents. In the case

of Michigan Rubber (India) Limited (supra), argument advanced in para 9 of

the said judgment is quoted here-in-below:

"9. It is the grievance of the appellant Company that the pre- qualification criteria as specified in Conditions 2(a) and 2(b) [amended Conditions 4(a) and 4(b)] of the tender in question are unreasonable, arbitrary, discriminatory and opposed to public interest in general. It is also their grievance that the said conditions were incorporated to exclude the appellant Company and other similarly situated companies from the tender process on wholly extraneous grounds which is unsustainable in law. In other words, according to the appellant Company, the decision of KSRTC in restricting their participation in the tender to original equipment manufacturer (OEM) suppliers is totally unfair and discriminatory."

15. The same has been answered by the Hon'ble Supreme Court in several

paragraphs and finally writ petition was dismissed by the Hon'ble Supreme Court. This

judgment is not helping the petitioners.

16. The judgement relied by the learned senior counsel for the petitioners in

para 26 in the case of "Meerut Development Authority" (supra), in the same

paragraph it has been held that a limited of 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 bidding process. In the case in hand, the petitioners have not been

able to show how the respondent no. 4 has been favoured by JSMDC. This judgment

is also not helping the petitioners.

17. The judgement relied by the learned senior counsel for the petitioners in

"CWE-Soma Consortium" (supra) has not interfered with and in that case the

order of the Division Bench of the High Court was reversed by the Hon'ble Supreme

Court. It is mentioned that it is within the domain of the State not to provide tender

to a single bidder. This judgment is on different fact and not helping the petitioners.

The petitioners have not participated in e-Auction. However, after completion of

entire process of e-Auction tender, the petitioners have filed the present writ petition

before this Court. In the case of 'Rajeev Suri' (supra) issue of locus standi has

already been considered by the Hon'ble Supreme Court. In the case in hand, the facts

of the case of the petitioners are same with that of judgment. Reference may be

made to the judgment relied by the learned senior counsel for the petitioners in the

case of " Michigan Rubber (India) Limited" (supra) wherein para 35, the Hon'ble

Supreme Court has held as under:

"35. As observed earlier, the Court would not normally interfere with the policy decision and in matters challenging the award of contract by the State or public authorities. In view of the above, the appellant has failed to establish that the same was contrary to public interest and beyond the pale of discrimination or unreasonable. We are satisfied that to have the best of the equipment for the vehicles, which ply on road carrying passengers, the 2nd respondent thought it fit that the criteria for applying for tender for procuring tyres should be at a high standard and thought it fit that only those manufacturers who satisfy the eligibility criteria should be permitted to participate in the tender. As noted in various decisions, the Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the courts would interfere. The courts cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. In the case on hand, we have already noted that taking into account various aspects including the safety of the passengers and public interest, CMG consisting of experienced persons, revised the tender conditions. We are satisfied that the said Committee had discussed the subject in detail and for specifying these two conditions regarding pre-qualification criteria and the evaluation criteria. On perusal of all the materials, we are satisfied that the impugned conditions do not, in any way, could be classified as arbitrary, discriminatory or mala fide."

18. In view of the discussions made here-in-above, the Court comes to the

conclusion that the petitioners have not been able to make out case of interference.

Accordingly, this writ petition is hereby dismissed. Pending I.A., if any, stands disposed

of.

( Sanjay Kumar Dwivedi, J.) Satyarthi/