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Judgment
This order will dispose of W.P.No.3428/18 and 7395/18. Facts are taken from W.P.No.3428/18.
The admitted facts between the parties are that in view of N.I.T, the petitioner, respondent No.2 and other persons submitted their bid for allotment
of fair price shop. The process of tender required to qualify the technical bid. The contention of petitioner is that respondent No.2 was not qualified in
the technical bid yet his final bid has been considered.
To elaborate, Shri Ashok Lalwani, learned counsel for the petitioner submits that the bids were invited for a period between 1.07.2017 to
30.06.2019. As per clause 7.3, the technical bid was first required to be opened as per Annexure/03. As per clause 4, four categories of persons,
institutions/ organizations were eligible to participate in the bid process. The opening date of technical bid was 22.11.2017 at 4 P.M. In the present
case, the parties are concerned with Umaria (Karkeli) sector where number of shops were 115. The sector code number is 204. The candidate must
possess three small and three big vehicles as per Annx.P/3. Clause 4.3.1 is relied upon to contend that the candidate must have three loaded vehicles
of his own and three loaded vehicles (truck) on contract basis. In total six loaded vehicles must be there with the candidate. The loading capacity of
these vehicles must be three ton or above with proper certification by the concerned Regional Transport Officer (RTO). In addition, at the time of
submitting the bid, the candidate was required to submit the registration certificate by RTO.
Shri Lalwani submits that as per clause-4(b), the bidder at the time of submitting Online application, is required to submit the relevant documents
mentioned in the said clause. Reliance is placed on Annexure P/5 to show that name of the Firm is M/s Shahbaz Alam. Six vehicles are shown in
column-5 of Annexure P/5, out of which three are shown as ""own vehicle"" whereas remaining three were shown as ""on contract basis"". The
registration number of vehicles are also shown at page-2. Learned counsel for the petitioner placed reliance on Ex.10 (page-30) and contended that
this is part and parcel of the bidding document which contains number of only two vehicles. So far vehicle owned by Shebaz Alam are concerned,
there is no dispute because certificate of registration (page No.32,33 and 34) are already placed on record. The stand of the petitioner is that in
Ex.P/10, which is part of tender document is final and if it suffers from any infirmity, the technical bid cannot be accepted. Ex.4 was also pointed out
wherein signature of respondent No.2 is on the left side whereas as per contention of Shri Lalwani it should have been on the right side. During the
course of arguments, Shri Lalwani placed reliance on para 3 and 11 of the reply of the corporation and argued that the corporation is trying to support
respondent No.2. Ex.P/10 was a material document which shows ineligibility of respondent No.2. The corporation cannot say that the said document
was erroneously submitted by respondent No.2. Lastly it is submitted that certain documents showing registration of vehicle shows that the name of
owner is Shehbad Alam whereas in certain documents the registration of vehicle is in the name of Shahenshah Alam. This shown manipulation on the
part of respondents.
Per contra, Shri Shobhitaditya contended that respondent No.2 duly submitted the details of total six vehicles by mentioning three vehicles to be
owned by respondent No.2 and other three vehicles available with respondent No.2. Accordingly, as per clause-5 of the tender form, the respondent
No.2 uploaded documents regarding registration of the aforesaid vehicles which duly matches with the requirement. In Appendix- 10 on which heavy
reliance is placed, only two vehicles are mentioned but this document is an extra document submitted by respondent No.2. This document was neither
required to be submitted before sanction of contract nor the same has any relevance with the N.I.T in question. The said document has not been taken
into account while considering the technical bid of respondent No.2. The said bid of respondent No.2 was complete in all respect. He urged that for
hyper technical reasons, no interference can be made on a government contract. In support of this contention, he placed reliance on certain judgments.
Shri H.S.Chhabra, learned counsel for respondent No.2 borrowed the contentions advanced by Shri Shobhitaditya. He placed reliance on the return
filed by respondent No.2 and contended that the actual Ex./10 is filed with the return of respondent No.2 (page-18).
No other point is pressed by learned counsel for the parties.
I have heard the counsel for the parties at length and perused the record.
Petitioner's argument is based on the alleged improper submission of bid by respondent No.2. As noticed, the petitioner has made an effort to show
the discrepancy in number of vehicles mentioned in Ex./10 and regarding signature of the document Ex./4. So far the question of signature on Ex./4 is
concerned, Shri Lalwani, during the course of the argument fairly admitted that the signature of respondent No.2 is very much there on the left side of
this document whereas it should have been on the right side of the said document. I do not see any merit in the said contention. If the document
contains the signature of respondent No.2, it is sufficient. No provision is shown to this court wherein it was obligatory on the part of respondent No.2
to put his signature at a particular place of the document.
On Ex.P/10, the parties are at loggerheads. The petitioner contended that all the vehicle numbers are not mentioned and Ex.P/10 filed with the
petition falls short of one vehicle as per the requirement whereas the other side filed another Ex.P/10 and contended that number of vehicles are
available with the respondent No.2. The defect, in my view, is minor in nature. Moreso, when in the form (page-26 of W.P), the respondent No.2 has
given the description of six vehicles alongwith its registration number and loading capacity. Thus, it is to be seen whether on the basis of alleged
discrepancy in Ex./10, this court can interfere with the matter. Before dealing with this aspect, it is apposite to examine the legal position on this
aspect. In Tata Cellular Vs. Union of India-(1994) 6 SCC-651, the Apex Court broadly laid down the principle of judicial review on a administrative
action. The court concluded as follows :-
(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.
(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 and the decision should 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.â€
The principle laid down in Tata Cellular (supra) were followed in Raunaq International Ltd. Vs. I.V.R.Construction Ltd. and others(AIR 1999 SC-
393) and it was held that when a writ petition is filed challenging the award of contract by a public authority or state, the court must be satisfied that
there is some element of public interest involved in entertaining such petition. If, for example, the dispute is purely between two tenderers, the court
must be very careful to see if there is any element of public interest involved in the litigation.
In Jagdish Mandal Vs. State of Orissa and others-(2017) 14 SCC-517, the Apex Court held that if decision relating to award of contract is
bonafide and is in public interest, the 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 private interest at the cost of
public interest, or to decide contractual disputes. It was clearly held that in exercise of power of judicial review, the court should pose to itself the
following questions :-
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;
OR
Whether the process adopted or decision made is so arbitrary and irrational that the court can say; ""the decision is such that no responsible authority
acting reasonably and in accordance with relevant law could have reached"";
(ii) Whether public interest is affected.
It was poignantly held that if answers are in negative, there should not be any interference under Article 226 of the Constitution. This ratio
decidendi was recently followed by the Supreme Court in Bakshi Security and Personnel Services Private Ltd. Vs. Devkishan Computed Private Ltd
and others-(2016) 8 SCC-446.
In a recent judgment reported in (2017) 4 SCC-170 (JSW Infrastructure Ltd and another Vs. Kakinada Seaports Ltd. and others) the Apex Court
followed the ratio decidendi of Tata Cellular, Jagdish Mandal and Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corp. Ltd. and another-(2016) 16
SCC-818. In Afcons Infrastructure (supra), the Apex Court came to hold that :-
13... 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.
In the present case, the petitioner has not made any allegations of malafide or favoritism against respondent No.1 or any authority of the
corporation. Nobody has been impleaded eo nomine. In State of Punjab and others Vs. Chamanlal Goyal (1995) 2 SCC-570, Medley Minerals India
Ltd. Vs. State of Orissa and others-(2004) 12 SCC-390 and Rajendra Kumar Agarwal Vs. State of Uttar Pradesh and others (2015) 1 SCC-642, the
Supreme Court laid down that in absence of impleading a person by name, the allegations of malafide cannot be accepted. Pertinently, in the present
cases, there is no allegations of favoritism/ nepotism or malafide on the part of the respondent/ corporation.
The respondent No.2 has shown the number of vehicles in his main application. If there was any discrepancy in number of vehicles/ details as per
Ex./10, it is immaterial and liable to be ignored. The procedural aberration or error of this nature will not make the tender process as illegal.
In view of foregoing discussion, it is clear that there is no such flaw in the tendering process on which interference can be made by this court
under Article 226 of the Constitution. No Public interest is involved in the present case. Resultantly, the both the petitions fail and are hereby
dismissed.