A two-judge bench dismissed an appeal against the dismissal of a writ petition filed by a bidder who did not participate in the tender process. The Court held that terms of the tender are not subject to judicial review absent mala fides and found no lack of opportunity.
The writ appeal was dismissed with no relief granted to the appellant.
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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GAHC010060362018
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA 95/2018
1:M/S RADHIKA TRADERS
A PROPRIETORSHIP FIRM HAVING ITS REGISTERED OFFICE AT GNB ROAD,
GUWAHATI -781003 DIST. KAMRUP(M) ASSAM REPRESENTED BY ITS SOLE PROPRIETOR SRI NARENDRA GAYARY RESIDENT OF G N B ROAD ,AMBARI , GUWAHATI -3 DIST . KAMRUP (M) ASSAM
VERSUS
1:THE STATE OF ASSAM AND 8 ORS
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM, ASSAM SECRETARIAT DISPUR, GUWAHATI-6
2:THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM VETERINARY DEPARTMENT
ASSAM SECRETARIAT DISPUR
GUWAHATI -6
ASSAM SECRETARIAT DISPUR
GUWAHATI -6
PANJABARI GUWAHATI
CHENIKUTHI GUWAHATI -3
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6:THE DIRECTOR INFORMATION AND PUBLIC RELATION ASSAM DISPUR GUWAHATI -6
7:THE JOINT DIRECTOR OF TSP UNIT A.H AND VETERINARY DEPARTMENT CHENIKUTHI GUWAHATI -3
8:THE FINANCIAL ADVISER A. H AND VETERINARY DEPARTMENT CHENIKUTHI GUWAHATI-3
9:THE TENDER EVALUATION COMMITTEE CHENIKUTHI GUWAHATI-
Advocate for the Petitioner : MR. M CHOUDHURY
Advocate for the Respondent : GA, ASSAM
BEFORE
HONBLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE NELSON SAILO
JUDGMENT
Date : 27-04-2018
(Nelson Sailo, J.)
Heard Mr. M Choudhury, learned senior counsel assisted by Mr. S Bora, learned counsel for the appellant. Also heard Mr. R Dhar, learned Government Advocate, Assam.
This writ appeal is directed against the order dated 27.02.2018 passed by the learned Single Judge in WP (C) No. 1009 of 2018 dismissing the writ petition filed by the appellant.
The case of the appellant may be noted at the outset.
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Appellant is a proprietorship firm and is aggrieved by the NIT dated 01.02.2018 issued by the Director of Animal Husbandry and Veterinary Department, Government of Assam (respondent No.5) whereby bids were invited for awarding various works towards implementation of schemes under the Veterinary Department. Tender was to be opened on 09.02.2018 and the intending bidders were to submit their bids on or before 15:00 hrs on 09.02.2018. Appellant as the writ petitioner challenged the NIT dated 01.02.2018 on the ground that it was ab-initio illegal, vague, ambiguous, tainted and without any specification as to the requirement of goods which was otherwise required for quoting meaningful bids. Appellant also contended that the NIT was issued in contravention of the provisions of the General Financial Rules, 2017 as well as the Central Vigilance Commission Guidelines, applicable to Government tenders.
Learned Single Judge by taking the view that the terms of contract cannot be made a subject matter of judicial review as was held by the Supreme Court in the case of Tata Cellular –vs- Union of India reported in (1994) 6 SCC 651 dismissed the writ petition vide the impugned order dated 27.02.2018. Learned Single Judge also took the view that the petitioner had no locus standi to challenge the NIT dated 01.02.2018 when it had not even participated in the tender process. Relevant portion of the impugned order may be abstracted as below:
01.02.2018 fixing 09.02.2018 as the last date of submission of the bids. It is the admitted position of fact that the writ petitioner did not submit its bid in response to the NIT dated 01.02.2018. Instead, it has approached this Court by filing the present writ petition on 20.02.2018 which was also after the expiry of the last date of submission of bids.
After the decision of the Supreme Court in Tata Cellular vs. Union of India & others, reported in (1994) 6 SCC 651it is no more res integra that the terms and conditions of a tender cannot be made the subject matter of judicial review. It has been held by the Supreme Court that the public authorities must be given the freedom to decide the terms of the tender and as long as the decision making process is found to be
inconsonance with the principles of Article 14 of the Constitution of India, there would
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be no scope for judicial review in such matters.
In the present case, I find that although the petitioner has challenged the terms and conditions of the tender, it has not even made any attempt to participate in the tender process. In view of the above, I am not inclined to recognize any locus in favour of the petitioner to maintain this writ petition. Moreover, the petitioner has also failed to explain as to why it could not approach this Court before the last date of submission of the tender. Under the circumstances, I am of the view that this writ petition cannot be entertained at the instance of the petitioner.
Consequently, the same stands dismissed.”
This writ appeal was moved on 23.04.2018 wherein the following order was passed:
“ We have heard learned counsel for the parties at some length. Before we pass appropriate order(s), we would like to know from the learned State Counsel as to how many bidders have responded to the NIT dated 01.02.2018 for Group-A to Group-F, along with the present status of the tender process.
List on 27.04.2018.”
The appeal thereafter has been listed today i.e. 27.04.2018 as was directed. Learned Government Advocate on instructions submits that pursuant to the NIT dated 01.02.2018, 437 bidders had participated. The NIT was published in two local dailies i.e. ‘Sentinal’ as well as ‘Agradoot’ on 02.02.2018. After the tender documents were opened on 09.02.2018 as per schedule, successful bidders were shortlisted and thereafter, work orders were issued on 23.04.2018. He has also produced the record.
Mr. M Choudhury, learned senior counsel for the appellant submits that the NIT was issued on 01.02.2018 and the intending bidders were to submit their tenders within seven days i.e. by 09.02.2018. Therefore it was too short a time for submitting any meaningful bids. Moreover, NIT itself was without specification for quoting a meaningful price and the manner in which the NIT was floated indicated lack of transparency and was meant to favour the blue eyed persons.
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We have heard learned counsel for the parties and have perused the materials available on record, including the record produced by the learned Government Advocate.
As can be noticed, pursuant to the NIT, there were as many as 437 bidders who had participated in the tender process. It only goes to show that there was adequate time for the intending bidders to participate in the tender including the appellant. NIT was published in two local dailies on 02.02.2018 and after the opening of the tender documents on 09.02.2018, work orders have already been issued to the successful bidders on 23.04.2018. The appellant did not participate in the tender process.
It is well settled position in law that unless there is arbitrariness or unfairness or malafides vitiating the decision making process, Court would refrain from interfering especially in the realm of contract. As rightly observed by the learned Single Judge, the scope of judicial review in matters relating to tender is limited and the public authorities should be given the freedom to decide the terms of the tender so long as these are found to be in consonance with Article 14 of the Constitution of India.
Upon giving due consideration to the facts and circumstances of the case, we do not find any merit in the appeal.
Writ appeal is accordingly dismissed.
JUDGE JUDGE
Comparing Assistant
2 issues framed by the court
Whether the writ appeal filed by a non-participating bidder challenging the term sheet of a government tender has merit.
Whether the Court can interfere with the terms and conditions of a tender in the absence of arbitrariness or mala fides.
Colour shows how this judgement treated each authority
Tata Cellular vs Union of IndiaRelied on¶38
Tata Cellular –vs- Union of India (1994) 6 SCC 651 · Who else cites this
2 provisions across 2 enactments
M/S Radiki Traders
The State of Assam and Ors
Ujjal Bhuyan
Nelson Sailo
As recorded by the court registry
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