‘Judicial intervention in award of contracts ought to be limited’
*Modifies interim order in public interest
Excelsior Correspondent
JAMMU, May 13: High Court of Jammu & Kashmir and Ladakh has paved the way for start of work on the project involving national security by modifying the interim order with the observation that private interest must be subservient to larger public interest. Moreover, it has held that judicial intervention in decisions of the public authorities relating to the award of contracts ought to be limited.
In a case titled M/s A L Construction Versus Union Territory of Jammu and Kashmir, the respondents through Senior Additional Advocate General Monika Kohli prayed for vacation of interim order dated March 1, 2023 passed by the High Court.
It was submitted that interim order is operating harshly against the respondents as prestigious police project namely the construction of IRP Battalion Headquarters at Kishtwar, double storey sentry posts, Guard Rooms, GI wire crates and Anti Corruption Bureau Office, Doda at village Kathori, Patnitop approved by Ministry of Home Affairs, which is being monitored /supervised at the highest level of the Government, has been held to ransom with each passing day and the same is at the cost of pubic exchequer.
The Senior AAG further submitted that this project involves question of national security and withholding of the same would have deleterious consequences. She, finally, argued that the interim direction passed on 01.03.2023 be modified in the interest of public at large coupled with the security of the State.
On the other side, Advocate Manik Dutt appearing on behalf of M/s A L Construction submitted that court has rightly issued the interim directions by staying the Communication No. EE/R&B/K/11029 dated 20.02.2023 by virtue of which the work completion certificates issued to the petitioner were declared null and void, notwithstanding the fact that the petitioner was declared lowest bidder.
It was further submitted that the action of the respondents in declaring his work completion certificates as null and void is causing hindrance in the new contractual works for which the petitioner is being considered and it would have adverse impact on the integrity of the petitioner.
After hearing both the sides, Justice Wasim Sadiq Nargal observed, “there has been a significant increase in the scrutiny of tenders in writ proceedings under Article 226 of the Constitution of India and it appears that almost every tender, whether small or big is now routinely challenged through writ petitions”.
“However, the Apex Court has repeatedly held that the judicial review is equivalent to judicial restraint in these cases. The manner in which the decision was made is being scrutinized, not the decision itself, as the writ court lacks the expertise to correct such decisions by substituting its own decision for the authority’s decision”, High Court said, adding “Supreme Court has already held that the judicial intervention in the tender process should be kept to a bare minimum in order to preserve institutional autonomy”.
Referring various judgments of Supreme Court, Justice Nargal said, “the Apex Court has consistently opined that judicial intervention in the decisions of the public authorities relating to the award of contracts ought to be limited”, adding “the role of the court is minimal in contractual matters, unless there is a strong foundation of arbitrariness, mala fides or bias or irrationality. No such foundation has been laid down by the petitioner in both the petitions, thus, it is not a case where the court can perpetuate the damage already caused by virtue of continuing/extending the interim direction, which is against the public interest and national importance”.
“Since the respondents have interpreted the interim direction as a legal impediment in finalizing the tender, involving a sensitive question of national security as construction of Battalion headquarters and Anti Corruption Bureau Office, Doda and the other allied works, have been held at ransom, this court is required to consider not only the interest of the contesting parties, but also, the element of larger public interest”, Justice Nargal said, adding “the public interest, in the instant case, demands that project should not be stalled, thus, an interim order involving public interest must receive different consideration”.
Stating that private interest must be subservient to larger public interest, High Court modified the interim order dated 01.03.2023 by giving liberty to the respondents to proceed ahead with the tender issued vide E-NIT No.EE/PCD/ PHQ/82/2021-22 dated 06.08.2022, or else the respondents are at liberty to re-tender, if circumstances so warrant.
However, the decision, which the respondents may take, shall be subject to the final outcome of the writ petition466/2023, the High Court clarified.
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