Jharkhand High Court
Sunil Bajpayee S/O Parshuram Bajpayee ... vs The State Of Jharkhand Through The Chief ... on 5 September, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.4909 of 2024
-----
1. Sunil Bajpayee S/o Parshuram Bajpayee aged about 54 years
Resident of Village - Purnadih, P.O. and P.S. Devipur, Dist-
Deoghar.
2. Raj Narayan Thakur S/o Somanth Thakur aged about 42 years
resident of House No. 41, Ward No. 29, Bilasi Town Deoghar, P.O.
B. Deoghar, P.S. Deoghar, Town, Dist-Deoghar.
3. Shailesh Charan Mishra S/o Late Suresh Charan Mishra aged
about 40 years Resident of Dukhi Sah Road, Jhausagarhi, Deoghar,
P.O. - B. Deoghar, P.S.- Deoghar(T), Dist- Deoghar.
4. Manglanand Jha S/o Late Ganesh Prasad Jha aged about 50 years
Resident of Modibandh, P.O. & P.S. Sarath, Dist- Deoghar.
5. Jaikant Rai S/o Bhagwat Prasad Roy aged about 53 years Resident
of Village- Barakola, P.O. & P.S. Sarwan, Dist- Deoghar.
... ... ... Petitioners
Versus
1. The State of Jharkhand through the Chief Secretary Govt. of
Jharkhand Project Building Dhurwa, P.O. & P.S. Dhurwa, Dist-
Ranchi.
2. The Secretary, Food Public Distribution and Consumer Affairs
Department Govt. of Jharkhand Project Building Dhurwa, P.O. &
P.S. Dhurwa, Dist- Ranchi.
3. Joint Secretary Food Public Distribution and Consumer Affairs
Department Govt. of Jharkhand Project Building Dhurwa, P.O. &
P.S. Dhurwa, Dist- Ranchi.
4. The Director, Directorate of Food Consumer Affairs, 3rd floor
J.S.F.C. Building Kadru Ranchi P.O. & P.S. Kadru Dist- Ranchi.
5. Deputy Commissioner Deoghar P.O. & P.S. Deoghar Dist-
Deoghar.
6. District Supply Officer Deoghar P.O. & P.S. Deoghar Dist-
Deoghar. ... ... ... Respondents
-------
CORAM: HON'BLETHE ACTING CHIEF JUSTICE
HON'BLEMR. JUSTICE ARUN KUMAR RAI
-------
For the Petitioners : Mr.Lakhan Chandra Roy, Advocate
: Mrs. Ritu Kumar, Advocate.
For the Respondents : Mr. AchyutKeshav, A.A.G.-V.
------
Order No.03/Dated:5thSeptember, 2024
Per Sujit Narayan Prasad, A.C.J.
Page 1
Prayer:-
1. The instant writ petition has been preferred under Article 226 of
the Constitution of India whereby and whereunder, some of the
terms and conditions particularlycondition no. 3.2 and 9.6of the
notice inviting tender for the transportation of food grains articles
from the warehouse of the state of Jharkhand have been
questioned.
Factual Matrix of the case: -
2. The brief facts of the case as per the pleadings made in the writ
petition is requiredto be enumerated herein which reads as under:
3. The Food Public Distribution and Consumer Affairs Department
Govt. of Jharkhand issue a notification regarding term and
conditions request for proposal (R.F.P.) invitation of BID for
providing transportation and handling services for delivery of
food grains, Salt, Sugar and pulses from warehouse of Jharkhand
State Food and Civil Supply corporation Limited to the door step
of fair price shop located at deferent block of District State of
Jharkhand through E-BID on GEM Portal खा० ०-01 ज०िव० ०
(DSD)/6- 8/2020-1811 dated 29.07.2024 as per the letter issued
from The Director, Directorate of Food Consumer Affairs to Joint
Secretary Food Public Distribution and Consumer Affairs
Department Govt. Of Jharkhand vide letter खा०उप०िन०- 03 - DSD
01/2024 847 dated 16.07.2024 to the Deputy Commissioner and
District Supply Officer of all District of State of Jharkhand.
4. The petitioners along with other aggrieved persons have made
their applications before the concerned authority with a prayer to
rectify/modify the term and condition of the said invitation of
BID which is mention in the aforesaid column i.e. column No. 3.3
Page No.4, 3.10 Page No.5, 4.3 Page No.6, 4.4 Page No.6, 4.10 (E),
5.5 Page No.7 and 9.6- and 9.10Page No. 10 on 13.08.2024.
Page 2
5. It is the case of the petitioner that the aforesaid term and
condition which is mentioned in the column No. 3.3 Page No.4,
and 9.6 and 9.10 Page No.10 have not required at all for handling
the food grain and other article from warehouse to PDS shop for
example in column No. 9.6 and 9.10 of page No.10 it has been
stated that the carrying capacity of vehicle will required in
between 5 MT to 13 MT and authority have not allowed the small
vehicle i.e. Pickup Van, Tractor etc. to handling the food grains
from ware house to P.D.S. Shop.
6. It is further stated that most of the P.D.S. Shops are situated in
village and congested area where heavy vehicle will not able to go
and the respondents have not allowed the small vehicle like
Pickup van, tractor etc. it is also stated that the small vehicle are
life line vehicle to handling the aforesaid article in village area
and in congested area and without such vehicle it is not possible
to handling the aforesaid article.
7. Further, the respondents have inserted a condition that those
vehicles which will engaged in the aforesaid work, permit of said
vehicle will necessary.
8. It is the case of writ petitioner that those vehicle which are
engaged in the aforesaid work are moved either within the block
and/or within the district and for same, permit are not required
but the respondents have inserted such condition only to
eliminate or disengaged the small contractor those who are
involved or engaged to handling the aforesaid article.
9. It is further alleged that the concern authorityhave unnecessarily
inserted the aforesaid terms and condition only to give benefit or
to accommodate the some selected contractors and to
eliminate/disengaged the small contractor those who are engaged
in to handling the aforesaid article from warehouse to PDS shop.
Page 3
10. Aggrieved with the aforesaid the instant writ petition has been
preferred.
11. It is evident from the factual aspect that the notice inviting
tender has been issued for the purpose of transportation of the
food grains (rice, wheat, pulses, salt, sugar and other items) under
the public distribution system which are supposed to be
transported from warehouses stock godowns of Jharkhand State
Food and Civil Supply corporation Limited to the door step of fair
price shop situated in Kanke, block of Ranchi, District of
Jharkhand.
12. By referring to condition no. 3.2 as under
caption"eligibility/pre-qualification condition" wherein the
requirement has been made for intending biddershould have
minimum average annual turnover of Rs. 26,00,000.00/- equal to
25 % of Trade value in multiple of Rs. 100000.00 in any three
financial years out of five i.e., FY 2018-19, 2019-20, 2020-21, 2021-
22 and 2022-23.
13. It is the case of the petitioner that such condition has been
inserted only to eliminate the bidders who are in the lower strata,
so far as the turnover is concerned and only to facilitate the bigger
bidder who are having with the annual turnover in the tune of the
aforesaid amount.
14. Further, the condition stipulated under condition no9.6 under
which the requirement is that the contractor shall engage vehicles
for transportation have carrying capacity between5MT to 12MT,
as the requirednumber of vehicles shall be calculated on the basis
of carrying capacity as such this clause is discriminatory in nature.
15. Hence this petition has been filed.
Argument on behalf of the learned counsel for the Petitioners:
Page 4
16. Learned counsel appearing for the petitioner has submitted that
both the conditions are only made to eliminate the bidders like the
petitioners who are in the lower strata.
17. Further, so far as the transportation having carrying capacity
between 5MT to 12MT is concerned, the same is also not feasible
because the fair price shops where the food grains are to be
supplied is located in the remotest area of the town Ranchi, and as
such, it is not feasible that the goods allowedto be transported
from the vehicle carrying capacity between 5MT to 12MT due to
the lesswidth of the road in that area.
18. Therefore, both the conditions inserted under condition no. 3.2
and 9.6 are arbitrary as also unreasonable and therefore, the same
are fit to be quashed and set aside.
Argument on behalf of the learned counsel for the
Respondents-State:-
19. Per contra, Mr. AchyutKeshav, A.A.G.-V appearing for the State
has submitted by taking the plea that the conditions which have
been stipulated which are under challenge in this writ petition is
not fit to be struck down reason being that the inserting
conditions in the bid isthe exclusive domain of the authority
concerned.
20. It has been submitted that the purpose for inviting such
bidders having annual turnover of Rs.26,00,000.00/- is only to
assess the financial viability of one or the other bidder, so that the
bidder may have substantial financial liability to supply from the
warehouses to the food corporation uninterruptedly to their
respective destination.
21. So far as the condition stipulated under condition no. 9.6 is
concerned that is also for the reason that the food grains be
Page 5
supplied in large volume at a moment so as not to cause any
inconvenience to the people who are the beneficiaries.
22. So far as the contentionadvance on behalf of learned counsel
for the petitioner is concerned that the vehicle having
transportation capacity between 5MT to 12MT is not feasible to
ply in the road in remote area i.e. in the present case, Kanke
Block, in the Ranchi town is not tenable, reason being that the
heavy vehicles are being allowed to carry the food grains in the
bulk of the articles even if the destination of the food grains shops
are in the remote area.
23. It has further been submitted that no relief can be granted with
respect to this condition by taking into consideration the larger
issue of supply of food grains in the bulk by vehicle having
transportation capacity between 5MT to 12Mt.
24. It has further been submitted that the same can also be taken
into consideration on the ground thatby transporting the food
grains from the vehicle having capacity between 5MT to 12MT
will also reduce the cost factor in transporting the food grains.
25. On the basis of the aforesaid facts, the learned counsel has
submitted that the instant petition is fit to be dismissed.
Analysis: -
26. This Court has heard the learned counsel for the parties and
gone across the pleadings made in the writ petition as also the
conditions which are under challenged in this writ petition i.e.
condition nos. 3.2 and 9.6.
27. The conditions which are appended in this writ petition are 3.2
and 9.6, for the reference, herein as under:
"3.2 Intending bidder should have minimum average annual turnover
of Rs. 26,00,000.00 (equal to 25% of Trade value in multiple of Rs.
100000.00) in any three financial years out of five i.e. FY 2018-19,
2019-20, 2020-21, 2021-22 and 2022-23."
Page 6
"9.6 Contractor shall engage vehicles for transportation having
carrying capacity between 5MT to 12 MT. required number of
vehicles shall be calculated on the basis of its carrying
capacity".
28. This Court before entering into the propriety of the said
condition is to refer herein that the jurisdiction of the High Court
in exercise of power conferred under Article 226 of the
Constitution of India as to whether the terms and conditions
cannot be interfered with and if yes, then under which
circumstances,referencein this regard may be made to the
judgment rendered by the Hon'ble Apex Court in the case of Tata
Cellular Vs. Union of India reported in (1994) 6 SCC 651 wherein
it has been held that the scope of judicial review can be exercised
in such a matter where there is lack of reasonableness in
administrative law which means to distinguish between proper
use of power so as to eliminate the possibility of arbitrariness.
Such power is to be exercised to find out the right balance
between the administrative discretion to decide matters whether
contractual or political in nature or include a policy is contrary to
the statutory provision.
29. In such circumstances, the duty of the Court is to confine itself
the question of legality and its concern should be:
(i). Whether the decision-making authority exceeded its powers?
(ii). committed an error of law,
(iii). committed a breach of rules of natural justice,
(iv). reached a decision with no reasonable tribunal could have
reached or,
(v). abused its power.
30.Further, in the Case ofRaunaq International Ltd. Vrs. I.V.R.
Construction Ltd. &Ors., [(1999)1 SCC 492],the Hon'ble Apex Court
Page 7
while dealing with the issue of scope of judicial review has laid down
by holding therein that the decision-making process suffers from bias
of arbitrariness the same will be scrutinized under the power of
judicial review.
31.The law relating to award of contract by the State and public sector
corporations was reviewed by the Hon'ble Apex Court in the case of
Air India Ltd. v. Cochin International Airport Ltd., reported in (2000) 2
SCC 617 wherein it has been observed that the award of a contract,
whether by a private party or by a State, is essentially a commercial
transaction and it can choose its own method to arrive at a decision
and it is free to grant any relaxation for bona fide reasons, if the tender
conditions permit such a relaxation.
32.In the case of Jagdish Mandal Vrs. State of Orissa &Ors. [(2007) 14
SCC 517], it has been laid down by the Hon'ble Apex Court that the
power of judicial review in the contractual matters is permissible only
if (I) the process adopted or decision made is mala fide or intended to
favour someone or the same is so arbitrary and irrational that the court
can say: 'the decision is such that no responsible authority acting
reasonably and in accordance with law could have reached.' (II) public
interest is affected.
33. It is further settled connotation of law that the decisions for the terms
of the invitation to tender are not open to judicial scrutiny the same
being in the realm of contract, the Government must have a free hand
in setting the terms of the tender.
34.Reference in this regard may be taken from the judgment rendered by
the Hon'ble Apex Court in the case of Directorate of Education &Ors.
Vrs. EducompDatamatics Ltd. &Ors. reported in (2004) 4 SCC 19,
wherein it has been observed at paragraphs 11 and 12 as under:
11. This principle was again restated by this Court in Monarch
Infrastructure (P) Ltd. v. Commr., Ulhasnagar Municipal Corpn.
Page 8
[(2000) 5 SCC 287] It was held that the terms and conditions in the
tender are prescribed by the Government bearing in mind the nature
of contract and in such matters the authority calling for the tender is
the best judge to prescribe the terms and conditions of the tender. It is
not for the courts to say whether the conditions prescribed in the
tender under consideration were better than the ones prescribed in the
earlier tender invitations.
12. It has clearly been held in these decisions that the terms of the
invitation to tender are not open to judicial scrutiny, the same being
in the realm of contract. That the Government must have a free hand
in setting the terms of the tender. It must have reasonable play in its
joints as a necessary concomitant for an administrative body in an
administrative sphere. The courts would interfere with the
administrative policy decision only if it is arbitrary, discriminatory,
mala fide or actuated by bias. It is entitled to pragmatic adjustments
which may be called for by the particular circumstances. The courts
cannot strike down 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. The courts can interfere only if the
policy decision is arbitrary, discriminatory or mala fide.
35. It is evident from the aforesaid judgment that the power of judicial
review sofar as showing interference with the terms and conditions
although it is not to be exercised, but depending upon the facts and
circumstances i.e., if the conditions are so arbitrary and unreasonable,
then only the power of judicial review can be exercised.
36. It is further evident that interference by the Court exercising the
power under Article 226 of the Constitution of India is only if the
decision-making process of the authority suffers from propriety by
hitting the principle laid down under Article 14 of the Constitution of
India.
37. Recently, the Hon'ble Apex Court has rendered the judgment in the
case of N.G. Projects Ltd. v. Vinod Kumar Jain &Ors. [(2022) 6 SCC
127] wherein the restrictive order has been passed restraining the High
Page 9
Court not to pass ad interim order in the contractual matter, Courts
should be even more reluctant in interfering with contracts involving
technical issues as there is a requirement of the necessary expertise to
adjudicate upon such issues. For ready reference the relevant
paragraph of the aforesaid judgment is being quoted as under:
23. In view of the above judgments of this Court, the writ court should
refrain 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 expertise 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 mala fide
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 costs and secondly, by being deprived of the infrastructure
for which the present day Governments are expected to work
38.This Court after going through the aforesaid proposition and
adverting to the factual aspect of the present case particularly the
conditions no. 3.2 and 9.6 of the notice inviting tender is of the view
that so far as the condition no. 3.2 is concerned which is to assess the
financial viability of one or the other bidder and that is the reason, the
minimum average annual turnover of Rs. 26,00,000.00/- has been put
for any three financial years out of five i.e. FY 2018-19, 2019-20, 2020-
21, 2021-22 and 2022-23.
Page 10
39.The aforesaid condition needs no interference due to the reason that if
the authority who has invited the bidder, in order to assess the
financial viability of one or the other bidder, the same cannot be said to
arbitrary or unreasonable for the reason that to obtain the objective of
uninterrupted supply during the contract period to the respective fair
price shops so that the beneficiary make the benefit uninterruptedly.
40. The authority if taken into consideration the said eventuality
which needs no interference in view of the settled position of law
that the putting such condition is exclusive domain of the State
authority, but by the aforesaid condition, we are of the view that
the conditions which are under challenged in this writ petition said
not to be arbitrary or unreasonable.
41. So far as the condition as inserted under condition no. 9.6 is
concerned i.e. the requirement has been made therein that the
contractor shall engage readyfor transportation having carrying
capacity between 5MT to 12MT.
42. It is evident that the condition is not as such the contractor is
to possess the vehicle having carrying capacity between 5MT to
12MT, but the requirement has been made for engaging such
vehicles for transportation by the contractor.
43. The reason as has been submitted on behalf of the State that in
one bulk of transportation, the large volume of food grains be
supplied uninterruptedlyto the respective food grain shops for its
onward distribution in favour of the beneficiary.
44. As of the aforesaid submission, this Court considered it to be
the reasonable and if the State authority hasinserted the said
condition the same cannot be said to be arbitrary in the eyes of law.
45. Further, it is settled principle of law that the bidder/tenderer
cannot be permitted to challenge the bid condition/clause which
Page 11
might not suit him and/or convenient to him and the authority
floating the tender is the best judge of its requirements and,
therefore, the court's interference should be minimal.
46. Reference in this regard be made to the judgment rendered in
the case of Balaji Ventures Pvt. Ltd. Vs. Maharashtra State Power
Generation Company Ltd. &Anr. [2022 SCC OnLine SC 1967],
wherein at paragraph 9 to 11 it has been held as under:
"9. Now so far as the impugned Judgment and order passed by the
High Court dismissing the writ petitions is concerned, what was
challenged before the High Court was one of the tender
conditions/clauses. The High Court has specifically observed and
noted the justification for providing clause 1.12(V). The said clause
was to be applied to all the tenderers/bidders. It cannot be said that
such clause was a tailor made to suit a particular bidder. It was
applicable to all. Owner should always have the freedom to provide the
eligibility criteria and/or the terms and conditions of the bid unless it
is found to be arbitrary, mala fide and/or tailor made. The
bidder/tenderer cannot be permitted to challenge the bid
condition/clause which might not suit him and/or convenient to him.
As per the settled proposition of law as such it is an offer to the
prospective bidder/tenderer to compete and submit the tender
considering the terms and conditions mentioned in the tender
document.
10. In the case of Silppi Constructions Contractors v. Union of India,
(2020) 16 SCC 489, it is observed in para 20 as under:
"20. The essence of the law laid down in the judgments referred to
above is the exercise of restraint and caution; the need for
overwhelming public interest to justify judicial intervention in
matters of contract involving the State instrumentalities; the
courts should give way to the opinion of the experts unless the
decision is totally arbitrary or unreasonable; the court does not sit
like a court of appeal over the appropriate authority; the court must
realise that the authority floating the tender is the best judge of its
requirements and, therefore, the court's interference should be
minimal. The authority which floats the contract or tender, and has
Page 12
authored the tender documents is the best judge as to how the
documents have to be interpreted. If two interpretations are
possible then the interpretation of the author must be accepted. The
courts will only interfere to prevent arbitrariness, irrationality,
bias, mala fides or perversity. With this approach in mind we shall
deal with the present case."
11. In the case of Montecarlo Limited v. National Thermal Power
Corporation Limited, (2016) 15 SCC 272, it is observed and held that
the tender inviting authority is the best person to understand and
appreciate its requirement and tender documents, so long as there are
no mala fides/arbitrariness etc. It is further observed and held that the
Government must have freedom of contract and such action can be
tested by applying Wednesbury principle and also examining whether
it suffers from arbitrariness or bias or mala fides"
Conclusion
47. Since, as per the settled position of law and the judgments
referred hereinabove, it is the exclusive domain of the authority to
insert conditions as per requirement, as such it cannot be said that
any error in the decision-making process has been made
warranting interference by this Court.
48. Further, it is not in dispute that the power of judicial review is
to be exercised by the High Court sitting under Article 226 of the
Constitution of India but the scope of judicial review is very
limited and that can only be exercised if there is arbitrariness or the
qualification is unreasonable or after conclusion of the process of
bid that there is any error in the process of selection; and equally it
is settled that the High Court should not exercise the power in the
decision taken by the competent authority in the matter of tender,
otherwise it will be said that the High Court has sit as an appellate
court over the decision taken by the authority concerned.
Page 13
49. In view of the discussions made hereinabove, this Court is of
the view that it is not a case in the nature where the tender or terms
or conditions thereof can be said to suffer from vice of arbitrariness
or biasness or unreasonableness, hence being a policy decision it is
within the domain of the administrative authority, therefore, this
Court refrains itself from exercising the power of judicial review
conferred under Article 226 of the Constitution of India.
50. This Court in view of the aforesaid discussion and basing
upon the settled position of law as referred in the aforesaid
judgment as settled in the judgment is of the view that both the
conditions cannot be said to be arbitrary or unreasonable.
51. Accordingly, the instant writ petition stands dismissed.
52. In consequence of dismissal of writ petition, pending
Interlocutory Applications also stand dismissed.
(Sujit Narayan Prasad, ACJ.)
(Arun Kumar Rai, J.)
Suman/Abhishek-AFR
Page 14
