Telangana High Court

M/S Praveen Electrical ... vs The State Of Telangna on 31 January, 2023

Bench: Surepalli Nanda

 IN THE HIGH COURT OF TELANGANA AT HYDERABAD

                 W.P. No.42094 OF 2022
Between:


M/Praveen Electrical Engineering Works
                                                ... Petitioner
                            And

The State of Telangana and others
                                           ... Respondents


       JUDGMENT PRONOUNCED ON: 31.01.2023


    THE HON'BLE MRS JUSTICE SUREPALLI NANDA



1. Whether Reporters of Local newspapers    :     yes
   may be allowed to see the Judgment?


2. Whether the copies of judgment may be
   marked to Law Reporters/Journals?       :      yes


3. Whether Their Lordships wish to
   see the fair copy of the Judgment?      :      yes




                                     _________________
                                     SUREPALLI NANDA, J
                                 2




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                  W.P. No.42094 OF 2022
% 31.01.2023

Between:


# M/Praveen Electrical Engineering Works
                                                  ... Petitioner
      and
$ The State of Telangana and others
                                             .....Respondents


< Gist:
> Head Note:



! Counsel for the Petitioner   : Sri P.Venkanna
^Counsel for Respondent No.4 : Sri G.Vidya Sagar
                             Learned senior counsel
^Counsel for Respondent No.3: Sri Vijay Prashanth


? Cases Referred:
   1. (2016) 16 SCC 818
   2. (2007) 14 SCC 517
   3. (2022) 1 SC 165
                                 3




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                  W.P. No. 42094 of 2022


ORDER:

Heard Sri P.Venkanna, the learned Counsel for the

Petitioner the learned Senior Counsel Sri G. Vidya

Sagar, appearing on behalf of the 4th Respondent and

the Learned Standing Counsel Sri Vijay Prashanth, for

the 3rd Respondent.

2. The Present Writ Petition is filed to issue an appropriate

Writ, Order or direction more particularly one in the nature of

Writ of Mandamus, declaring the action of 3rd Respondent, in

issuing the impugned proceedings Rc.No.32/DHH-

KMR/Plg/2022 dt.22.09.2022 to allot the contract and engage

the service of 4th respondent, in respect of e-Tender

No.Plg/32/IHFMS/2022 dated: 15.07.2022, providing

integrated Hospital Facility Management services in TVVP

Hospital (MCH, Banswada), though they are not eligible, as

illegal, arbitrary and violative of principles of natural justice,

consequently set aside the impugned proceedings

Rc.No.32/DHH-KMR/Plg/2022 dated.22.09.2022 issued by the

3rdrespondent.

3. The case of the petitioner, in brief, is as follows:

a) The 3rd respondent i.e., Telangana Vidya Vidhana

Parishad, had issued a e-Tender vide No.Plg/32/IHFMS/2022

dated 15.07.2022 for providing integrated Hospital Facility

Management services in TVVP Hospital (MCH, Banswada) in

Kamareddy District and the estimated value of the contract

was Rs. 90,00,000/- (Rupees Ninety Lakhs). The bid started

on 22.07.2022 and the closing date of the bid was

29.07.2022 and the said e-Tender contracts are reserved for

SC Category.

b) Petitioner being promoted by its proprietor, who

belongs to SC Category had bid for the e-Tender and

Respondent No. 4 too have submitted their bid for the e-

Tender even though they were not being promoted by the

persons belonging to SC Category. The 3rd director of the 4th

respondent had only been appointed on 27.04.2022, who

belongs to SC category, for the purpose of participating in the

e-Tender, as it had been reserved for SC Category only.

c) The action of respondent No.4 in appointing a director

of SC Category is in violation of G.O.Ms.No.59 dated

21.05.2018 and hence, the tender of respondent no.4 should

be rejected but the respondent no. 2 & 3 have accepted &

opened their bids and put the petitioner under huge loss.

d) Instead of Section 4.2.3 (m) of E-Tender Document

mandating submission of proof of SC Category, the

respondent Nos.2 & 3 have issued the impugned proceedings

Rc.No.32/DHH-KMR/Plg/2022, dated 22.09.2022 allotting and

engaging the services of the 4th respondent for providing

integrated Hospital Facility Management Services in TVVP

Hospital (MCH, Banswada) in Kamareddy District.

e) The SC/ST Contractors Association, Telangana on

13.09.2022 have approached the 2nd respondent and have

submitted a representation to comply with G.O.Ms.No.59 and

decide the bids accordingly. Even then, the 2nd and 3rd

respondents have allowed and opened the commercial bids of

4th respondent, which is in violation of Section 8.2.1. Even

the petitioner had submitted their objections to the 2nd

respondent on the illegalities committed under Section 4.2.3

and 4.2 of E-Tender Document.

4. The case of the respondents, in brief, is as

follows:

a) The 4th respondent herein is a company, which is owned

by Schedule Caste individual, holding a majority of 65% of

the entire share capital of the company and is "owned" by

persons from SC Community.

b) Reliance of petitioner on G.O.Ms.No.59, Irrigation and

CAD (Reforms) Department, dated 21.05.2018 is inapplicable

to the present tender and the applicable G.O as notified in the

Tender Document is G.O.Ms.No.32, Health, Medical & Family

Welfare (C2) Dept. dated 12.03.2022 and that the 4th

respondent had complied with the conditions specified

therein.

c) Out of the 6 bidders, who have submitted their bids, for

the 2 (Two) Tender notifications issued by the 2nd respondent

vide E-Tender No.Plg./32/IHFMS/2022 dated 15.07.2022 and

Tender Notification No.Plg./32/ IHFMS/2022, dated

15.07.2022, only 4 (Four) bidders including the petitioner and

the 4th respondent have qualified in the technical bid

evaluation.

d) While things stood thus, the petitioner had submitted

representation dated 13.09.2022 alleging irregularities in

awarding of the tender to 4th respondent.

e) The Petitioner having participated in the tender process

and adhering to all the conditions laid out in G.O.Ms.No.32,

Health, Medical & Family Welfare (C2) Dept. dated

12.03.2022 is estopped from applicability of conditions laid

out in G.O.Ms.No. 59, Irrigation & CAD (Reforms) Dept dated

21.05.2018 solely because the petitioner was unsuccessful in

procuring the works.

f) There is no deviation on the part of the 4th respondent

in complying with the conditions specified in para 4.2.3(m)

and has furnished the Community Certificate of the Managing

Director and moreover, the Tender Inviting Authority had

verified the technical bid of 4th respondent and after through

verification had opened Financial bid of the 4th respondent.

g) The petitioner had purposefully filed the least viable bid

and after being declared the unsuccessful bidder has resorted

to filing multiple Writ Petition with the sole purpose of gaining

unfair advantage at the expense of legitimate bidders. Hence,

the Writ Petition/s is filed without any merit and hence is

liable to be dismissed..

PERUSED THE RECORD :

5. Earlier orders dated 22.11.2022 of this Court in

the present case WP No.42094/2022 are as follows:

"Heard learned counsel for the petitioners and learned Standing Counsel for respondent No.3.

Perused the counter-affidavits filed by respondent No.3 in WP.No.36294 and 36305 of 2022.

Prima facie, the subject work is reserved for SC category in terms of the tender conditions as well as in terms of G.O.Ms.No.59, Irrigation and CAD (Reforms) Department, dated 21.05.2018. In order to become eligible to participate in the bidding process in respect of works reserved in favour of SC category, the partners/Directors of the firm/company/proprietary concern are required to be the persons belonging to the SC

category and they should have 100% share in the said firm or company, as the case may be.

But, in the instant case, respondent No.4 is awarded the subject work on the ground that one of the Directors of respondent No.4 belongs to SC category byplacing reliance on Clause 1.1.6 of the Tender Document. Such an interpretation or treating respondent No.4 as one eligible to participate in the bidding process, which is reserved for SC category, prima facie, appears to be not in consonance with the tender conditions.

In the circumstances, respondent Nos.1 to 3 are directed not to entrust the subject work to respondent No.4, until further orders. In case, if respondent No.4 has already commenced the work, no payment shall be released in favour of respondentNo.4 till the next date of hearing."

6. Relevant conditions of the tender document

No.Plg/32/ IHPMS/2002, dated 15.07.2022 issued by

the 3rd Respondent herein in so far as the present case

is concerned are as follows:

"1.1.6 Bidder should submit attested copies of documents related to the instruments such as constitution of the company/firm; Memorandum of Articles of Association, partnership deed, power of attorney, resolution of board etc. The merger/amalgamation/transfer of business/transfer of assets/share in sister concern/share in joint venture/spin off etc., of a firm which affect the bid condition relating to 'turnover' in preceding years. The eligibility of a bidder in such cases shall be ascertained by the Technical Evaluation Committee on the basis of the above stated agreement/BOD resolution/CA Certificate or any other supportive document(s) annexed with the tender documents and the Decision of the Technical evaluation Committee shall be final.

1.1.14 The tender document operates within the scope of G.O.Ms.No.9, dated 30.01.2017, G.O.Ms.No.31, dated 12.03.2022 and G.O.Ms.No.32, dated 12.03.2022 of HM& FW Department, Government of Telangana approved an amount of Rs.7500/- per bed/month.

2.2.9 L1 rate - means the lowest percentage of management service charges quoted by the bidders for the services mentioned in this Tender Document.

2.1.10 Matched L1 rate - means the lowest percentage of management service charges of the bidder who have consented, in writing, to match with the L1 rate and

agreed to abide by the terms and conditions of the tender document.

4.2.3 other valid supportive documents Eligibility for Technical qualification.

(m) If the work is reserved for SC category, Community certificate from competent authority (TAHASILDHAR) of the proprietor/partners/Directors of the firm shall be submitted as proof of SC category.

8.3 Financial Bid Evaluation

8.3.3 Subject to technical bid qualification and satisfying other conditions stipulated in the tender schedule. L1(who quotes lowest management service charges up to 5%) will be considered as successful bidder.

7. G.O.Ms.No.32, dt. 12.03.2022 - Clause 2, Clause 3

and Clause 3(i) read as under :

2. In the reference 2nd read above, government has introduced 'Integrated Hospital Facility Management Services (HFMS) which envisages provision of patient care, sanitation, security and pest control services by an agency as amended in the reference 3rd read above.

3. To provide opportunities to entrepreneurs from Scheduled Caste (SC) community, it has been decided to provide reservation for agencies belonging to persons

from Scheduled Caste (SC) community, it has been decided to provide reservation for agencies belonging to persons from Scheduled Caste community in contracts related to provision of diet and integrated Hospital Facility Management Services (IHFMS) in government hospitals with following modalities: i. 16% reservation shall be provided for agencies owned by persons from SC community."

8. Details of the commercial stage of the suppliers.

View supplier Bids
     Supplier Name    Registration          EMD                 Commercial
                                     certificate                 particulars
stage

___________________________________________________________ Praveen Electrical Engineering Works 9449100(4.99% excess) Babu Jag Jeevan Ram SC P B E P S LCCS Ltd. ---

Veerabhadra Infra
And Facility
Managements
                                                   9000900(0.01%excess)

G.P.Infotech                                       9000900(0.01% excess)

TYG Outsourcing
Agency                                                  ---

TVT Contractors LLP                                9000900(0.01% excess)



9.      The    contents     of   the      letter   dated      27.04.2022

pertaining to the Director/Signatory details :

Directors/Signatory Details





PAN         Name                                        Begin Date

07194856 RAJA SEKHARA REDDY KOLLY                       13.05.2019

07663746 HANUMANTHA REDDY                               13.01.2017
09587234 DARJPALLY MANISH                               27.04.2022

10. The certificate of turnover of the 4th Respondent

dated 21.03.2022 evidences as follows:

"This is to certify that M/s. VEERABHADRA INFRA AND FACILITY MANAGEMENTS PRIVATE LIMITED with Income tax registration PAN No.AAFCV7264F has recorded the Annual Turnover during last four financial years.

Assessment Year Financial Year Annual Turnover (in Rs.) 2019-20 2018-19 9,34,657/-

2020-21                 2019-20                              36,24,876/-
2021-22                 2020-21                              32,58,245/-
2022-23                 2021-22                              89,10,296/-
(provisional)           (Provisional

The above figures are based on the audited financials, records and books verified by us.

11. Few relevant paras i.e. paras 10(c) and 16 of the

counter affidavit filed by the 4th respondent are as

under:

"10(c) The Superintendent, District Headquarters Hospital, Kamareddy, vide Proc. Rc.No. 32/DHH-

KMR/Plg./2022, dated 22.09.2022 awarded contract to this answering respondent to engage the sanitation, patient care and security services for Integrated Hospital Facility Management Service at Area Hospital, Banswada, Kamareddy District for a period of three years commencing from 22.09.2022 to 21.09.2025. Further, by separate proceedings dated 22.09.2022 was issued awarding to contract to his answering respondent for Mother and Child Hospital, (MCH Hospital), Banswada for a period of three years commencing from 22.02.2022 to 21.09.2025. Accordingly, the answering respondent has been providing Integrated Hospital Facility Management Services to both the Hospitals from 01.10.2022 after complying with the necessary formalities. Thus, by the present writ petition, the petitioner herein seeks to set the clock back and seek for cancellation of tender dated 15.07.2022 as they failed to succeed in getting the contract.

16. In reply to averments made in Para No.9, as stated supra, the petitioner in this case has repeatedly filed writ petitions to obstruct the bidding process only because it was considered a losing bidder. The petitioner has utterly failed to demonstrate any exceptional circumstances justifying the use of writ jurisdiction in the present tender process. It is also pertinent to note that the petitioner has failed to demonstrate the violation of any rights that would make him eligible for the granting of any prayer. The

petitioner is not even the second-lowest bidder who should receive the contract instead of the fourth respondent. The petitioner has purposely filed the least commercially viable bid and after being declared the unsuccessful bidder, has resorted to filing multiple writ petitions with the sole purpose of gaining an unfair advantage at the expense of legitimate bidders. Therefore, the petitioner lacks good faith, rendering him ineligible for any order, and for this reason alone, the current writ petition is liable to be dismissed.

12. The specific contentions putforth by the learned

counsel for the petitioner are as follows:

a) That as per G.O.Ms.No.59, dt.21.05.2018, "The

team of SC/ST contractors include the individual

contractors, proprietor firms, partnership firms and

private limited companies promoted by the SC/ST's and

the shareholders of the SC/STS in the proprietor ship

firms, partnership firms and private limited companies

should be 100%. But in the case of respondent No.4,

one Scheduled caste person inducted as one of the

partner/director, so, there is no 100% shareholders in

case of Respondent No.4, as such these Respondent

No.4 is not eligible for participating in the above said e-

Tenders.

b) As per the G.O, the respondents No.2 & 3 should

have rejected the tender bid of R-4, instead of rejecting

their tenders, the respondents No.2 & 3 are allowed

their bids and opened their bids.

c) The petitioner suffered injustice, and deprived of

its legitimate right.

d) If the official respondents are allowed to do so,

the purpose of G.O.Ms.No.59, date 21.05.2018 will be

defeated.

e) If the official respondents rejected the bids of

Respondents No.4, petitioner will be a successful

bidder.

f) As per Clause 4.2.3 (m) of the e-Tender Document

"If the work is reserved for SC category. Community

Certificate from Competent authority (Thasildar) of the

Proprietor/Partners/Directors of the firm shall be

submitted as proof of SC Category".

g) The official respondents allowed the tender bid of

Respondent No.4 and impugned proceedings

Rc.No.32/DHH-KMR/Plg/2022 dt.22.09.2022 to allot

the contract and engage the service of 4 respondent, in

respect of e-Tender No.Plg/32/IHFMS/2022 dated:

15.07.2022, providing integrated Hospital Facility

Management services in TVVP Hospital (MCH,

Banswada), in favour of 4th respondent though the 4th

respondent did not comply with Clause 4.2.3(m).

h) The writ petition has to be allowed as prayed for.

13. The learned Senior counsel Sri G.Vidyasagan

appearing in behalf of the 4th Respondent specifically

contends as follows :

(a) That the Petitioner failed to qualify in the financial

bid and his tender had been rejected by the Tender

Finalisation Committee.

(b) The Petitioner having participated in the Tender

being an unsuccessful tenderer with an ulterior motive

to stall tender proceedings and contract approached the

Court with unclean hands.

successful bidder on the strength of highest annual

turnover for the Area Hospital, Banswada.

(d) The 4th Respondent is operating as Managing

Director of Veerabadra Infra and Facility Management

Private Limited since 28.04.2022.

(e) The 4th Respondent complied with the

requirements of the tender dt. 15.07.2022 and the

conditions specified in G.O.Ms.No.32, Health, Medical

and Family Welfare (C2) Department, dt. 12.03.2022.

(f) The present Writ Petition needs to be dismissed as

infructuous since the 4th Respondent being the

successful tenderer was awarded contract by the

Superintendent, District Head Quarters, Kamareddy

vide Proc.Rc.No.32/DHH-KMR/Plg./2022, dt.

22.09.2022 to engage the Sanitation, Patient Care and

Security Services for Integrated Hospital Facility

Management Service at Area Hospital, Banswada,

Kamareddy District for a period of 3 years commencing

from 22.09.2022 to 21.09.2025.

(g) That the 4th Respondent was complying with the

necessary formalities from 01.10.2022 itself and

commenced the work and therefore, the Petitioner

cannot seek cancellation of tender dt. 15.07.2022 at

this point of time and hence the Writ Petition has to be

dismissed in limini.

DISCUSSION AND CONCLUSION :

14. The Petitioner herein in the present Writ Petition

is seeking a direction to set aside the allotment of

tender to the 4th Respondent vide Proceedings Dt. 22-

09-2022 and for consequential allotment to the

Petitioner herein. This Court opines that the Petitioner

herein is not entitled for the relief prayed for in the

present Writ Petition for the following reasons :

A) Strictly in conformity with the conditions specified

in Para 4.2.3(m) (extracted above) the 4th Respondent

has furnished the Community Certificate of the

Managing Director of the Company and in view of the

same, the tender has been allotted to the 4th

Respondent.

B) The plea of the petitioner that the community

certificate should be submitted by all the heads of the

firm is not sustainable because a bare perusal of Clause

4.2.3(m) extracted above clearly indicates the words as

proprietory/partners/Directors of the firm either of

them and not all of them as interpreted by the learned

counsel for the petitioner and further the plea that the

4th respondent company should have 100%

shareholders of the SC/STs is untenable.

C) As per Clause 1.1.14 of the Tender Document dt.

15.07.2022 the tender document operates within the

scope of G.O.Ms.No.9, dt. 30.01.2017, G.O.Ms.No.31, dt.

12.03.2022 and G.O.Ms.No.32, dt. 12.03.2022 of

HM&FW Department, Government of Telangana and not

G.O.Ms.No.59, dated 21.05.2018 which admittedly as

borne on record is a G.O. issued by Irrigation & CAD

(Reforms) Department and the same is not relevant nor

applicable to the present case.

D) A bare perusal of sub-clause (i) of clause 3 of

G.O.Ms.No.32, Health, Medical & Family Welfare (C2)

Department, dt.12.03.2022 clearly indicates that 16%

reservation shall be provided for agencies owned by

persons of SC community and the 4th Respondent

belongs to Schedule Caste and holds 65% of the entire

Share Capital of the company and evidencing the said

fact the 4th Respondent belongs to SC category the 4th

Respondent had furnished the community certificate of

the Managing Director of the Company in conformity

with the conditions specified in Clause 4.2.3 (m)

extracted above.

E) As per Petitioner's own affidavit the Petitioner

submitted a bid for 4.99% excess to the estimated cost

and a bare perusal of Clause No.2.1.9 and 2.1.10 of the

Tender Notification (extracted above) clearly indicates

that the bidder should quote the lowest percentage of

Management Services Charges for the services

mentioned in the Tender Document which is considered

as a L1 rate, who are eligible for qualification in

Financial Bid. Whereas the petitioner quotation was

4.99% excess considered as L4 rate and the Petitioner

was therefore not qualified in the financial bid. So the

bid of the Petitioner was rejected rightly by the Tender

Finalization Committee (TFC). The commercial stage

details (extracted above) clearly indicate that the

Petitioner quoted service charges as 4.99% excess and

the 4th Respondent as 0.01% excess.

F) A bare perusal of Tender condition of 1.1.6 clearly

indicates that turnover is also significant and the 4th

Respondent herein was selected as successful bidder

on the strength of highest annual turnover for the area

hospital, applying Clause 1.1.6 of the tender documents

(extracted above).

G) A bare perusal of Clause 8.3.3 pertaining to

Financial Bid Evaluation (extracted above) clearly

indicate that L1 who quote lowest Management Service

charges upto 5% will be considered as successful

bidder and admittedly as borne on record the 4th

Respondent herein quoted the lowest Management

Service charges i.e., @ 0.01% whereas the Petitioner

quoted Service Charges at 4.99%. Hence this Court

opines that there is no any illegality in awarding the

contract in favour of the 4th Respondent as alleged by

the Petitioner herein.

H) In so far as the pleas raised by the Petitioner in

para 6 and para 7 of the reply affidavit that the 4th

Respondent is not even a Director at the time of filing

the Tender Document and further that the 4th

Respondent had not filed any document or certificate

stating that he is Managing Director of the Company the

said pleas are not sustainable. This Court on bare

perusal of the material documents filed by the 4th

Respondent along with the counter affidavit opines that

as per the information furnished by the Ministry of

Corporate Affairs dt. 12.04.2022, the 4th Respondent is

the Managing Director as on 28.04.2022 and his

original date of appointment in the said capacity of the

4th Respondent company is on 27.04.2022 i.e., much

prior to the date of the present subject Tender

Document i.e., 15.07.2022. A bare perusal of the

content of the declaration form dt. 26.07.2022 also

confirm the fact that the 4th Respondent is a Director

and Authorized Signatory of the 4th Respondent

Company.

I) This Court opines that the reliance of the

Petitioners on G.O. Ms. No. 59, Irrigation and CAD

(Reforms) Department Dt. 21-05-2018 for a tender

issued by the Medical and Health Department is wholly

irrelevant when specific directions have been issued by

the Official Respondents vide G.O.Ms. No. 32, Health,

Medical & Family Welfare (C2) Dept. Dt. 12-03-2022 for

the present tender.

J) This Court is of the firm opinion that after having

participated in the tender process and having adhered

to all the conditions as laid out in G.O. Ms. No. 32,

Health, Medical & Family Welfare (C2) Dept. Dt.

12.03.2022, the Petitioner is estopped from seeking

conditions of G.O. Ms. No. 59, 1&CAD (Reforms) Dept.

Dt. 21.05.2018 to be applied to the present tender

solely because the Petitioner was unsuccessful in

procuring the works.

K) A bare perusal of Clause 2, Clause 3 and 3(i) of

G.O.Ms.No.32, Health, Medical and Family Welfare (C2)

Department, dt. 12.03.2022 clearly indicates that

specific directions have been issued by the Official

Respondents for the present Tender vide G.O.Ms.No.32,

pertaining to Selection of Agency to provide Diet to the

Patients admitted in Government Hospitals with the

approval of the Hospital Development Society. A bare

perusal of Clause 2, Clause 3 and Clause 3(i) extracted

above amply proves the said fact, therefore the Plea of

the Writ Petitioner that the conditions mentioned in

G.O.No.59, Irrigation & CAD (Reforms) Department, dt.

21.05.2018 need to be applied in the present case are

unsustainable and untenable.

L) This Court opines that since the Petitioner has not

raised any allegations of specific malafides with

supporting evidence and in the absence of the same,

the Petitioner cannot invoke the extraordinary

jurisdiction of this Court under Article 226 of the

Constitution of India especially in matters pertaining to

Commercial transactions. Therefore, the present Writ

Petition is liable to be dismissed.

M) The Apex Court in Afcons Infrastructure Limited

vs. Nagpur Metro Rail Corporation Limited reported in

(2016) 16 SCC 818 held that the author of Tender

Document is the best person to understand and

appreciate its requirements, and that the Courts must

defer to such understanding and appreciation of Tender

Documents by the tender inviting authority, unless

there be any allegation of malafide or perversity. At

Para 13 of the said Judgment the Apex Court observed

as follows:

"In other words, a mere disagreement with the decision-making process or the decision of the administrative authority is no reason for a constitutional court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional court interferes with the decision-making process or the decision".

N) The Apex Court in Jagdish Mandal vs. State of

Orissa reported in (2007) 14 SCC 517 at Para 22 held

as follows:

"Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides: Its purpose is to check whether choice or decision is made lawfully and not to check whether choice or decision is sound. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self,

and persuade courts to interfere by exercising power of Judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for or delay relief and succour to thousands and millions and may increase the project cost manifold."

O) In Uflex Ltd. Vs. Government of Tamilnadu,

reported in (2022) 1 SCC 165 the Apex Court held that

the enlarged role of the Government in economic

activity and its corresponding ability to give economic

'largesse' was the bedrock of creating what is

commonly called the 'tender jurisdiction'. The objective

was to have greater transparency and the consequent

right of an aggrieved party to invoke the jurisdiction of

the High Court under Article 226 of the Constitution of

India, beyond the issue of strict enforcement of

contractual rights under the civil Jurisdiction. However,

the ground reality today is that almost no tender

remains unchallenged. Unsuccessful parties or parties

not even participating in the tender seek to invoke the

jurisdiction of the High Court under Article 226 of the

Constitution.

P) The Apex Court held at Para 2 of the said

Judgment as follows:

"The judicial review of such contractual matters has its own limitations. It is in this context of judicial review of administrative actions that this Court has opined that it is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fide. The purpose is to check whether the choice of decision is made lawfully and not to check whether the choice of decision is sound. In evaluating tenders and awarding contracts, the parties are to be governed by principles of commercial prudence. To that extent principles of equity and natural justice have to stay at a distance".

15. Taking into consideration all the above referred

facts and circumstances and the law laid down by the

Apex Court in the Judgments referred to and discussed

above, duly considering the specific averments made by

the 4th respondent in his counter affidavit (extracted

above), this Court opines that in the absence of any

specific malafides against the Respondents herein, the

Petitioner is not entitled for the relief prayed for in the

present Writ Petition. In view of the fact as borne on

record that the 4th Respondent was awarded the

contract to engage the Sanitation, Patient Care and

Security Services for Integrated Hospital Facility