Petitioner challenged rejection of his technical bid in a transport tender, alleging discrimination as other bidders' similar errors were condoned. Relying on Supreme Court precedent limiting judicial intervention in tenders, and noting tampering in documents and opening of financial bids, the High Court dismissed the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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2024:CGHC:44017-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPC No. 3598 of 2024
M/s Santosh Kumar Yadav Through Its Sole Proprietor Mr. Santosh Kumar Yadav S/o Shri Ram Sanehi Yadav, Aged About 49 Years, R/o Netaji Chowk, Akaltara Road, Janjgeer, Tahsil Janjgeer And District Janjgeer-Champa, (C.G.)
... Petitioner
versus
1 - State Of Chhattisgarh Through Its Principal Secretary, Department Of Food, Civil Supplies And Consumer Protection, Govt. Of Chhattisgarh, Mantralaya, Naya Raipur Capital Complex, Tahsil Raipur, District Raipur, (C.G.)
2 - Chhattisgarh State Civil Supplies Corporation Limited Through Its Managing Director, Cgscscl Head Quarter, Block No. 07 A, OfÏce Complex, Second Floor, Sector-24, Atal Nagar, Raipur, Tahsil Raipur, Dist. Raipur, (C.G.) 492 002
3 - District Manager Chhattisgarh State Civil Supplies Corporation Limited, Janjgeer, District Janjgeer-Champa, (C.G.)
4 - Tender Evaluation Committee Through District Manager, Chhattisgarh State Civil Supplies Corporation Limited, Janjgeer, District Janjgeer-Champa (C.G.)
5 - M/s Shambhu Paliwal Through Its Sole Proprietor, Mr. Shambhu Paliwal S/o Fakir Chand Agrawal, R/o Gandhi Chowk, Ward No. 3, Naila, Janjgeer, District Janjgeer-Champa (C.G.)
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6 - M/s Yantra Kumar Jain Through Its Sole Proprietor Mr. Yantra Kumar Jain S/o Shri Laxmi Narayan Jain, Ward No. 5, In front Of Anand Auto Agency, Station Road, Naila, Janjgeer, Tahsil Janjgeer, District Janjgeer-Champa (C.G.)
7 - M/s Rajendra Kumar Agrawal Through Its Sole Proprietor Mr. Rajendra Kumar Agrawal S/o Late Baijnath Agrawal, R/o Main Road, Janjgeer, Tahsil Janjgeer, District Janjgeer-Champa (C.G.)
8 - M/s Dinesh Mishra Through Its Sole Proprietor Mr. Dinesh Mishra S/o Shri Nandram Mishra, R/o Ward No. 17, Link Road Janjgeer, Tahsil Janjgeer, District Janjgeer-Champa (C.G.)
... Respondents For Petitioners : Mr. Rajkamal Singh (through Video Conferencing) as well as Mr. Suryapratap Yuddhveer Singh, Advocates. For Respondent No. 1 / State : Mr. Sangharsh Pandey, Government Advocate For Respondents No. 2 to 4 : Mr. Kashif Shakeel, Advocate. For Respondent No. 5 & 8 : Mr. Shyam Kumar, Advocate. For Respondents No. 6 & 7 : Mr. Vivek Shrivastava, Advocate.
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Amitendra Kishore Prasad , Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
12.11.2024
1. Heard Mr. Rajkamal Singh as well as Mr. Suryapratap Yuddhveer Singh, learned counsel for the petitioner, Mr. Sangharsh Pandey, learned Government Advocate appearing for the State/respondent No. 1, Mr. Kashif Shakeel, learned counsel appearing for the respondents No. 2 to 4, Mr. Shyam Kumar, learned counsel appearing for the respondents No. 5 and 8, as well as Mr. Vivek Shrivastava, learned counsel appearing for the respondents No. 6 and 7.
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2. The petitioner has filed this petition seeking for the following relief(s):
3. The facts, in brief, as projected by the petitioner are that the petitioner firm is a sole proprietorship firm. The petitioner participated in an e- Tender (Annexure P- 1) floated by the respondents on 11.01.2024 through newspaper advertisement for the "Transportation & Porterage Work" at Naila, Janjgeer/ Champa and as the petitioner fulfilled the eligibility criteria for the said Tender. In the e-Tender Notice/ NIT, it was required by the respondents from bidders to submit all the required document. According to the learned counsel for the petitioner, the petitioner has already submitted the documents as per the guideline of the Department. The petitioner has come to know that there is a cartel formed by transporters the respondents No. 5 to 7 those participated in tender through their cartel arrangements, quoting the adjusted rates so that only any one of them gets the work. They make complaints against the other contractors and then with the help of Department's ofÏcials get their technical bids cancelled and thus any one of them succeeds.
4. According to Mr. Rajkamal Singh, learned counsel for the petitioner, the petitioner came to know that vague complaints have been made by the aforesaid cartel partners; respondent No.5 to 7 against the
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petitioner that the documents filed by the petitioner relating to the vehicle particulars are false. On 06.03.2024, the petitioner submitted representation regarding the said complaint that the validity of tax fitness and insurance is given in the particular which can be verified online from the Transport Department and same as above a false complaint is also made regarding Appendix-7 that the notarized date has been trimmed or corrected whereas the notarized date has not been overwritten or corrected. Whereas in the tender document clause 4 its clearly written that (Notary is not necessary for the tender document and the receipt of earnest money) it will be mandatory to upload them online as per the check list.
5. It is further submitted by Mr. Singh that the petitioner has followed all the rules and submitted documents as per the guidelines of the Department but his price bid is not being opened therefore the petitioner, on 20.03.2024 represented before the respondent No.3 as to why his price bid was not being opened but they have not informed him anything and are proceeding with the bid of the other bidders. In such circumstances, the petitioner made a detailed representation on dated 12.04.2024 and 15.05.2024 but neither they have informed the petitioner that his tender was rejected nor they have sent any written information regarding the rejection of the petitioner's bid. According to Mr. Singh, the fitness papers of the petitioner's vehicle are all correct and is verifiable from the website of the Transport Department and there was no correction or overwriting made in any documents whereas the petitioner have pointed out the mistakes found in the technical documents of other bidder but the Department simply ignored the defects of the others bidder. The respondent Department, without asking any explanation and without verifying the fact from the
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Transport Department is treating the petitioner as not eligible which is not only arbitrary but is also malafide thus deserves to be deprecated. In such circumstances, the petitioner earlier preferred WPC No.3025/2024 before this Hon’ble Court and this Hon’ble Court vide order dated 21.06.2024 directed them to consider and decide the petitioner's representations Annexure P-2 & P-3 but the respondent was bias even in deciding the petitioner's representation and thus they have completed the formality of considering the representations Annexure P-2 & P-3 in a biased manner but have actually not decided the representations of the petitioner on merits. The considerations made by the respondent authorities in the consideration of the document No./ SaViPr/ 2024-25/191 Janjgeer, dated 26.06.2024 and in the consideration of document No./ SaViPr/ 2024-25/192 Janjgeer, dated 26.06.2024 they have clearly not examined the true facts but have tried to suppress the material facts by just daubing the real facts.
6. Mr. Singh further submits that the documents Annexure P/5 and P/6 would reveal that, the respondent authorities have adopted dual standards while deciding the petitioner's representation Annexure P-2 and P-3 as they have termed the errors of the other bidder respondents as mere clerical errors whereas disallowed the petitioner's bid for the similar issue which was actually no material defect as per bidding documents. The purpose for public tenders is to achieve best possible rate quotations that is possible only through fair and larger competition. The petitioner's bid is admittedly the lowest but the respondents are trying to hijack the competition by rejecting petitioner's technical bid on the basis of alleged error in afÏdavit whereas accepting the similar errors caused by other bidders as
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clerical errors that is totally unfair and malafide. Hence, this petition for the reliefs as prayed above.
7. On the other hand, Mr. Sangharsh Pandey, learned counsel appearing for the State/respondent No. 1 submits that since the tender has been floated by the respondent No. 2 and even otherwise, no substantial relief has been claimed against the State, it would be respondent No. 2 who can have a say in this matter.
8. Mr. Kashif Shakeel, learned counsel for the respondents No. 2 to 4 submits that the minimum requirement and necessary document required to qualify the technical bid is mentioned in clause 4 of the tender. It has been specifically mentioned that the bidder has to upload online copies of the prescribed documents as per check list after self attestation which should be duly notarised and in absence of any of the prescribed document the bid would be rejected. The respondent-Corporation had invited objectctions from the intending bidders upon which respondent No. 7- M/s. Rajendra Kumar Agrawal made an objection on 289.02.2024 making certain allegations against the petitioner. When the complaint with respect to the document of the petitioner was received the respondent Corporation sent a letter to the Notary Public, Janjgeer, Mr. Ameer Singh Patel, vide Annexure R/2-4 on 08.04.2024 seeking clarification on four points which was duly responded to by the Notary vide his letter dated 12.04.2024 wherein he has clearly stated that some manipulations / tampering has been done by the petitioner himself. The respondent-Corporation had also sought a legal opinion on 15.04.2024 from a Government Advocate of District Janjgir, wherein it has been opined by the said Government Advocate vide his communication dated 29.04.2024 that after a document is notarised, no manipulation / tampering can be
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done and if it is done, the same would amount to be a forged document and would not continue to be a legal document. Not only the petitioner, but two other bidders have also been disqualified on having found discrepancies in the bid documents and hence, it cannot be said that any discrimination has been meted out to the petitioner.
9. Mr. Shyam Kumar and Mr. Vivek Shrivastava, learned counsel appearing for the respondents No. 5 and 8 as well as 6 and 7, respectively, support the learned counsel for the respondent No. 2 to 4 and make submission in similar lines.
10. We have heard learned counsel for the parties, perused the pleadings and documents appended thereto.
11. This Court, vide order dated 19.07.2024, had granted interim relief to the petitioner to the effect that the further proceedings in relation to the subject tender (Annexure P/1) dated 15.01.2024 shall remained stayed till the next date of hearing. Thereafter, the matter was listed on 05.09.2024, 24.09.2024 and 15.10.2024 and the interim relief granted earlier continued. Today, learned counsel for the respondent No. 2 to 4 submit that though the financial bids have already been opened, work order has not been issued to any party.
12. In nutshell, the grievance of the petitioner is that his tender form has been rejected on the ground that there are certain discrepancies / overwritings / manipulations as stated above, and in the documents of some other tenderers, similar errors/ discrepancies were found, they have been considered and thus, there has been discrimination. As stated by learned counsel for the respondent/Corporation, it is not only the petitioner but the bids of two other tenderers have also not
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been considered when the Committee found that there were certain defects / lacunas in their tender document. Even otherwise, it is well settled that there is no concept of negative equality under Article 14 of the Constitution of India. If a party has received some benefit out of some mistake / error of the State / its agencies, the same benefit cannot be extended to other undeserving candidate. Further, it is well settled that there is least scope of judicial intervention in tender matters.
13. Recently, the Apex Court, in the matter of Banshidhar Construction Pvt. Ltd. v. Bharat Coking Coal Ltd. & Others , {Civil Appeal No. 11005 OF 2024, decided on 04.10.2024}, taking note of the decisions rendered in various other celebrated judgments, observed as under:
“21. There cannot be any disagreement to the legal proposition propounded in catena of decisions of this Court relied upon by the learned counsels for the Respondents to the effect that the Court does not sit as a Court of Appeal in the matter of award of contracts and it merely reviews the manner in which the decision was made; and that the Government and its instrumentalities must have a freedom of entering into the contracts. However, it is equally well settled that the decision of the government/ its instrumentalities must be free from arbitrariness and must not be affected by any bias or actuated by malafides. Government bodies being public authorities are expected to uphold fairness, equality and public interest even while dealing with contractual matters. Right to equality under Article 14 abhors arbitrariness. Public authorities have to ensure that no bias, favouritism or arbitrariness are shown during the bidding process and that the entire bidding process is carried out in absolutely transparent manner.
22. At this juncture, we may reiterate the well-established tenets of law pertaining to the scope of judicial intervention in Government Contracts.
23. In Sterling Computers Limited vs. M/s. M & N Publications Limited and Others1 , this Court while dealing with the scope of judicial review of award of contracts held: -
1 (1993) 1 SCC 445
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“18. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the “decision making process”. In this connection reference may be made to the case of Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141] where it was said that: (p. 144a)
“The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court.”
By way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such enquiry. But at the same time as was said by the House of Lords in the aforesaid case, Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141] the courts can certainly examine whether “decision-making process” was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution.”
24. In Tata Cellular vs. Union of India2 , this Court had laid down certain priniciples for the judicial review of administrative action.
“94. The principles deducible from the above are:
(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
2 (1994) 6 SCC 651
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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. Based on these principles we will examine the facts of this case since they commend to us as the correct principles.”
25. It has also been held in ABL International Limited and Another vs. Export Credit Guarantee Corporation of India Limited and Others3 , as under: -
“53. From the above, it is clear that when an instrumentality of the State acts contrary to public good and public interest, unfairly, unjustly and unreasonably, in its contractual, constitutional or statutory obligations, it really acts contrary to the constitutional guarantee found in Article 14 of the Constitution.”
26. In Jagdish Mandal vs. State of Orissa and Others4 , this Court after discussing number of judgments laid down two tests to determine the extent of judicial interference in tender matters. They are: -
“22. (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. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.”
27. In Mihan India Ltd. vs. GMR Airports Ltd. and Others5 , while observing that the government contracts granted by the government bodies must uphold fairness, equality and rule of
3 (2004) 3 SCC 553
4 (2007) 14 SCC 517
5 (2022) SCC OnLine SC 574
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law while dealing with the contractual matters, it was observed in Para 50 as under: -
“50. In view of the above, it is apparent that in government contracts, if granted by the government bodies, it is expected to uphold fairness, equality and rule of law while dealing with contractual matters. Right to equality under Article 14 of the Constitution of India abhors arbitrariness. The transparent bidding process is favoured by the Court to ensure that constitutional requirements are satisfied. It is said that the constitutional guarantee as provided under Article 14 of the Constitution of India demands the State to act in a fair and reasonable manner unless public interest demands otherwise. It is expedient that the degree of compromise of any private legitimate interest must correspond proportionately to the public interest.”
28. It was sought to be submitted by the learned Counsels for the Respondents relying upon the observations made in Central Coalfields Limited and Another vs. SLL-SML (Joint Venture Consortium) and Others6 , that whether a term of NIT is essential or not is a decision taken by the employer which should be respected. However, in the said judgment also it is observed that if the employer has exercised the inherent authority to deviate from the essential term, such deviation has to be made applicable to all the bidders and potential bidders. It was observed in Para 47 and 48 as under:-
“47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but alsofrom the point of view of the employer. As held in Ramana Dayaram Shetty [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] the terms of NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651] there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision-making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision “that no responsible authority acting reasonably and in accordance with relevant law could have reached” as held in Jagdish Mandal [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517] followed in Michigan Rubber
6 (2016) 8 SCC 622
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[Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216].
48. Therefore, whether a term of NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty [Ramana Dayaram Shetty v.International Airport Authority of India, (1979) 3 SCC 489] . However, if the term is held by the employer to be ancillary or subsidiary, even thatdecision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot.”
14. Admittedly, there appears to be some interpolation / tampering in the
15. Consequently, interim order passed earlier also stands discharged.
16. No order as to costs.
Sd/Sd/(Amitendra Kishore Prasad) (Ramesh Sinha) JUDGE CHIEF JUSTICE
Amit
AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2024.11.18 15:50:08 +0530
2 issues framed by the court
Whether the rejection of the petitioner's technical bid in a transportation e-tender, while other bidders' similar defects were treated as clerical errors, warranted judicial interference.
Whether the court should interfere in tender matters where interpolation/tampering was found and financial bids had already been opened.
Colour shows how this judgement treated each authority
Banshidhar Construction Pvt. Ltd. v. Bharat Coking Coal Ltd. & OthersApplied¶14
Civil Appeal No. 11005 OF 2024, decided on 04.10.2024
1 provisions across 1 enactments
M/s Santosh Kumar Yadav through its sole proprietor Mr. Santosh Kumar Yadav
State Of Chhattisgarh Through Its Principal Secretary, Department Of Food, Civil Supplies And Consumer Protection
Chhattisgarh State Civil Supplies Corporation Limited Through Its Managing Director
District Manager Chhattisgarh State Civil Supplies Corporation Limited, Janjgeer
Tender Evaluation Committee Through District Manager
M/s Shambhu Paliwal through its sole proprietor Mr. Shambhu Paliwal
Ramesh Sinha
Amitendra Kishore Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
