The main legal point established in the judgment is the limited scope of judicial review in matters related to tender conditions and the awarding of contracts. The court emphasized the requirement of fairness and non-arbitrariness in tender conditions, and the need for the state to act validly and in public interest.

JUDGMENT :

Alok Aradhe, J.

In view of the submission made by learned counsel for petitioner, office objection is ignored.

Sri. Chandrashekar G. M., learned counsel for the petitioner.

Sri. Vijay Kumar A. Patil, learned counsel for the respondent.

2. Petition is admitted for hearing. With consent of the parties, same is heard finally.

3. In this petition, the petitioner inter alia has prayed for a writ in the nature of certiorari to quash the tender notification dated 21.05.2019 issued by respondent No.2 and for a writ of mandamus directing the respondent No.2 to call for fresh tender notification after curing the defects in the tender notification dated 21.05.2019.

4. Facts giving rise to filing of this petition briefly stated are that on 21.05.2019 the respondent No.2 floated a tender for supply of perishable and nonperishable food materials to residential schools/colleges in Chikkamagalur District. On 29.06.2019 a pre-bid meeting was held. As per the schedule, the last date for submission of bid was 25.07.2019 and on 27.07.2019 the technical bid shall be opened.

5. The petitioner is a registered firm and deals with supply of perishable and non-perishable food materials. It is the case of the petitioner that even though the last date for submission of income-tax returns is on 30.09.2019, however the bidders are being asked to submit the income-tax returns in respect of the current financial year also which is per se arbitrary. It is also averred that bidder is being asked to furnish the bank guarantee, which is arbitrary. It is also averred that the condition with regard to performance capability is also arbitrary, which requires that the bidder should have supplied all similar materials such as perishable and non-perishable food materials to the extent of average value amounting to 80% of the value of the bid amount put to tender during preceding three years i.e., 2016-17 to 2018-19.

6. Learned counsel for petitioner submitted that the impugned tender conditions are per se arbitrary and the petitioner is being deprived of his right to participate in the tender as the petitioner has not yet filed the income-tax returns and is at liberty to file the returns upto 30.09.2019. Therefore, the impugned tender conditions be quashed.

7. On the other hand, learned counsel for respondent No.1 has submitted that the scope of judicial review with regard to the tender conditions is extremely limited and the tender conditions are neither arbitrary nor can be said to be perverse.

8. The Hon'ble Supreme Court in MICHIGAN RUBBER (INDIA) LIMITED, supra, after taking note of decisions of the Hon'ble Supreme Court in TATA CELLULAR VS. UNION OF INDIA, (1994) 6 SCC 651, RAUNAQ INTERNATIONAL LTD. VS. IVR CONSTRUCTION LTD, (1999) 1 SCC 492 and ASSOCIATION OF REGISTRATION PLATES VS. UNION OF INDIA, (2005) 1 SCC 679, culled out the legal principles and held that basic requirement of Article 14 is fairness in action by the State and non-arbitrariness in essence and substance is the heart beat of fairplay and these actions are amenable to judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. It was further held that in the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of tendering authorities is found to be malicious and a misuse of statutory powers, interference by the Courts is not warranted. It is also held that if the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, interference by Court is very restrictive since no person can claim a fundamental right to carry on the business. The Hon'ble Supreme Court formulated the following two questions which the Court should pose itself before invoking the power of judicial review, namely:

(i) Whether the process adopted or decision made by the authority is mala fide or i