Rajasthan High Court
Shri Shanti Constrution Company vs State Of Rajasthan ... on 30 January, 2023
Bench: Inderjeet Singh
[2023/RJJP/000848]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 730/2023
Shri Shanti Constrution Company, Krishna Colony, Badi Road,
Dholpur (Raj.) Through Its Proprietor Shivam Sharma Son Of
Shri Munna Lal Sharma, Aged About 27 Years, Resident Of
Krishna Colony, Badi Road, Dholpur (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary, Medical
And Health Services Department, Government Of
Rajasthan, Secretariat, Jaipur.
2. Chief Medical And Health Officer, Dholpur (Raj.).
3. District Collector, Dholpur (Raj.).
4. Accounts Officer, Nrhm, District Health Samiti, Dholpur
5. H.b. Group, H.b. House, Gali No. 7, Haud Bari, District
Dholpur (Raj.).
----Respondents
For Petitioner(s) : Mr. Govind Upadhyay
For Respondent(s) :
HON'BLE MR. JUSTICE INDERJEET SINGH
Order
30/01/2023
This writ petition has been filed by the petitioner with the
following prayer:-
"It is, therefore, most respectfully
prayed that this writ petition may kindly be
allowed;
i) By issuing an appropriate writ, order or
direction thereof thereby the respondent
No. 2 may kindly be directed to remove the
condition No. 5 of the E-Tender Information
-3/ 2022-23 dated 2.1.2023 with regard to
Rs.25 lacs of working order for the financial
years 2019-20, 2020-21 and 2021-2022.
ii) Any other appropriate order or direction
which this Hon'ble Court deems fit and
[2023/RJJP/000848] (2 of 5) [CW-730/2023]
proper may kindly be passed in favour of
the petitioner.
iii) Cost of the writ petition may also be
awarded to the petitioner."
By way of this writ petition, the petition has challenged the
Condition NO.5 of the E-tender issued by the respondents on
02.01.2023.
The condition No.5 of the tender reads as under:-
"5 . संवेदक का वित्तीय वर्ष 2019 -20 ,2020 -21 तथा 2021 -22
का टर्न ओवर औसत 50 लाख रु . याअधिक होना चाहिए। राजकीय कार्य
में भोजन एवं आवास का अनुभव प्रमाण पत्र न्यू नतम वार्षिक औसत 25 .00
लाख का कार्य आदे श वित्तीय वर्ष 2019 -20 , 2020 -21 तथा 2021
-22 में होना चाहिए। covid -19 के कारन किसी फर्म के पास वित्तीय वर्ष
2020 -21 में निर्धारित टर्नओवर / अनुभव न होने की स्तिथि में वित्तीय वर्ष
2022 -23 के प्रथम छमाही का टर्नओवर / अनुभव भी मान्य होगा।
निर्धारित टर्न ओवर / अनुभव से कम टर्न ओवर / अनुभव वाले संवेदक की
निविदा को स्वीकार नहीं किया जावेगा।"
Counsel for the petitioner submitted that the respondents
have incorporated the condition NO.5 just to give favour to
respondent No.5. Counsel further submits that earlier also the
respondents have issued E-tender wherein a condition was
mentioned of having annual turnover of Rs. 30 lacs, however, in
the fresh tender process, the annual turnover has been reduced
only for Rs.5 lacs and prayed for quashing of Condition No.5 as
mentioned by the respondents in their E-tender.
Heard counsel for the petitioner and perused the record.
The Hon'ble Supreme Court in the matter of Uniflex Ltd.
Vs. Government of Tamli Nadu and ors. reported in 2021 SCC
Online SC 738 wherein para No.4(23) & 7 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
[2023/RJJP/000848] (3 of 5) [CW-730/2023]
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 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 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 fundamental
right to carry on business with the Government."
7. It may also be pertinent to note the principles
elucidated in the case of Tata Cellular v. Union of
India:
"94. The principles deducible from the above are:
[2023/RJJP/000848] (4 of 5) [CW-730/2023]
(1) The modern trend points to judicial restraint in
administrative action.
(2) The court does not sit as a court of appeal but
merely reviews the manner in which the decision
was made.
(3) The court does not have the expertise to
correct the administrative decision. If a review of
the administrative decision is permitted it will be
substituting its own decision, without the necessary
expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be
open to judicial scrutiny because the invitation to
tender is in the realm of contract. Normally
speaking, the decision to accept the tender or
award the contract is reached by process of
negotiations through several tiers. More often than
not, such decisions are made qualitatively by
experts.
(5) The Government must have freedom of
contract. In other words, a fair play in the joints is
a necessary concomitant for an administrative body
functioning in an administrative sphere or quasi-
administrative sphere. However, the decision must
not only be tested by the application of
Wednesbury principle of reasonableness (including
its other facts pointed out above) but must be free
from arbitrariness not affected by bias or actuated
by mala fides.
(6) Quashing decisions may impose heavy
administrative burden on the administration and
lead to increased and unbudgeted expenditure."
This writ petition filed by the petitioner deserves to be
dismissed for the reasons; firstly, incorporation of condition in the
tender process is within the sole domain of the procuring entity;
secondly, although the petitioner has levelled the allegations of
[2023/RJJP/000848] (5 of 5) [CW-730/2023]
giving favour to respondent No.5, however, no such person by
name has been impleaded as party in the present writ petition and
lastly in view of the judgment passed by the Hon'ble Supreme
Court in the matter of Uniflex Ltd. (supra), no case is made out
for interference by this Court under Article 226 of the Constitution
of India.
Hence, this writ petition stands dismissed.
(INDERJEET SINGH),J
JYOTI /103
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