Fayaz Bukhari
Srinagar, Mar 24: The High Court today directed that the State can fix its own terms of invitation to tenders and made it clear that it is not open to judicial scrutiny.
In an elaborated judgment, Court of Justice Tashi Rabstan said that the conditions laid down in the tender notice by the executing agency need not to be interfered and dismissed the petition of contractor and held that the NIT (tender notice) of Jammu and Kashmir Project Construction Corporation is immune from judicial review.
Court said that the State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it.
“Before adverting to case in hand, it is germane to say that the law relating to award of a contract by the State, its Corporations and bodies acting as instrumentalities and agencies of the Government, has been settled by the Supreme Court. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction”, read the judgment.
Court also said that the State and its Corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily.
Though that decision is not amenable to judicial review, the Court can examine decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness.
The State, its Corporations, instrumentalities and agencies, court said, have the public duty to be fair to all concerned. Even when some defect is found in the decision making process the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind with the aim to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene.
Court on settled law said the public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it and must act in good faith and it must act reasonably.
“Courts are not to interfere with economic policy which is the function of experts. It is not the function of the courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies”, it said adding “In such matters even expert can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts”.
Court on judicial review at Government decision said the principles of judicial review could apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism.
However, there are inherent limitations in the exercise of that power of judicial review.
However, court said, it 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.
The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract and the Government must have freedom of contract.
“In view of that, technical evaluation or comparison by this Court would be impermissible. The principle, which is applied to scan and understand an ordinary instrument relatable to contract in other spheres, has to be treated differently than interpreting and appreciating tender documents and conditions contained in tender inviting notice relating to technical works and projects requiring special skills”, court said.
Applying all the parameters to the case, the court dismissed the writ petition of contractor agency namely M/S A K Engineers & Contractors seeking nullity of tender notice issued by JKPCC Ltd.
“In view of aforesaid analysis, especially in absence of mala fide, prejudice, unreasonableness, arbitrariness, or impugned condition(s) being against public interest, the impugned condition(s) contained in notice inviting tenders issued by respondent JKPCCvide e-NIT No.JKPCC/U-4th/J/ 02 of 2016-17 dated 25th July 2015, need not be interfered with by this Court”, Justice Tashi said.
Court held that the conditions contained in NIT are immune from ‘judicial review’ in the given facts and circumstances and said the writ petition is devoid of any merit. “For all what has been discussed above, writ petition is dismissed. Interim direction(s) is/are vacated”, read the judgment.
Jammu and Kashmir Projects Construction Corporation Limited vide e-NIT No.JKPCC/U-4th/J/02 of 2016-17 dated 25th July 2015,invited E-Tenders from approved and eligible contractors/firms registered with J&K Government/ other State Governments /CPWD/ MES/ Railways/ BRO for design and construction of 1600 Metre span Composite Type (Partly Balanced) Cantilever/Partly Pressurised box girder) double lane Bridge with 1.5 Metre wide footpaths on both sides including approaches of length 2550 Meter (2250 Meter) (2250 Metre on Right Side & 300 Metre on Left Side) over River Chenab at Sajwal (Pargwal) – Indri Pattan (Jourian) District Jammu.
One of the conditions of NIT is that “Bids from Joint Venture are not allowed”. It is this condition, of which petitioner is aggrieved of and throws challenge the NIT by way of instant writ petition.
KPCC maintained that despite being fully aware about issuance of NIT, petitioner did not either submit his tender nor raised any objection, but chose to approach this Court at a stage when technical bid had since been opened and successful bidders are in the zone of consideration and that in view of the fact that petitioner has not submitted his bid in any format, at this stage it may not be permissible to treat petitioner at par with other bidders, when petitioner has no cause muchless a cause sustainable in law.
Contention of respondents is that the petitioner is not justified in law in invoking writ jurisdiction especially in matter relating to allotment of contracts vis-a-vis this Court and the Supreme Court have set at rest the controversy and has deliberately filed writ petition aiming at to vitiate the entire bidding process of the project, that having effect of jeopardizing its timely completion, which holds great public importance and utility.
JKPCC counsel stated that petitioner was fully aware and had knowledge of NIT and its terms and conditions and petitioner chose not to participate in bidding process,thus, there is no occasion for petitioner to challenge bidding process owing to settled position of law as enunciated by the Supreme Court and reiterated by various High Courts, that on account of non-participation in the tender process, a party shall have no locus for assailing the same as neither of its fundamental or legal rights can be infringed.
Trending Now
E-Paper
Follow our WhatsApp channel