WPMS/2456/2020
2021 Latest Caselaw 968 UK

 IN THE HIGH COURT OF UTTARAKHAND
                    AT NAINITAL
          ON THE 17th DAY OF MARCH, 2021
                         BEFORE:
     HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI

        Writ Petition (M/S) No. 2456 of 2020


BETWEEN:
      Mohd. Ishtiyaq                           .....Petitioner
      (Mr. Rahul Consul, Advocate)


AND:
      Nainital Dugdh Utpadak Sahkari
      Sangh Limited & others.               ....Respondents
      (Mr. J.C. Belwal & Mr. Yogesh Pandey, Advocates)


                        JUDGMENT

Petitioner is a transporter, who has challenged a Notice Inviting Tender, issued by Nainital Dugdh Utpadak Sahkari Sangh Limited.

2. According to the petitioner, the condition imposed in the tender notice is unjust and arbitrary, inasmuch as it provides that the vehicle offered for transportation of milk/milk products, should have load bearing capacity of at least 11 quintals.

3. Learned counsel for the petitioner submits that the weight of the milk/milk products, sought to be transported in hilly routes is less than 9 quintals, therefore, the condition imposed that the transport vehicle should have load bearing capacity of 11 quintals, is unsustainable.

4. The submission made on behalf of the petitioner is bereft of merits. It is the employer, who has to decide the terms and conditions of contract.

Thus, there is nothing wrong, if the employer decided that the transport vehicle should have load bearing capacity of 11 quintals, even if the actual load, which is required to be transported, is slightly less.

5. Hon'ble Supreme Court in the case of Directorate of Education & others Vs. Educomp Datamatics Ltd. & others reported in (2004) 4 SCC 19 has held as under:

"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."

6. It has come on record that petitioner has participated in tender process pursuant to the impugned tender notice dated 08.12.2020.

7. In such view of the matter, no relief can be granted to the petitioner, as he is now barred by principle of Estoppel, to question the tender process.

8. Accordingly, writ petition fails and is dismissed.

(MANOJ KUMAR TIWARI, J.) Navin