Tender Rescission

JUDGMENT :

Prasanna B. Varale, J.

Appellant admittedly being an entity under Article 12 of the Constitution of India is invoking the appellate jurisdiction of the Writ Court for assailing a learned Single Judge’s order dated 16.3.2023 whereby, W.P.No.3813/2023 (GM-TEN) filed by respondents herein undertaking a fresh tender vide Notifications dated 4.12.2022 & 7.2.2023 having been set at naught, a Writ of Mandamus has been issued to the appellant-Corporation “to take the tender submitted by the consortium/petitioners to its logical conclusion within four weeks from the date of receipt of the copy of this order“.

2. Learned counsel appearing for the appellant seeks to falter the impugned order vociferously arguing that: the learned Single Judge has exceeded his jurisdiction; a tender floating entity as of necessity has the power to rescind floated tenders; rescinding decisions being administrative in character, need not be speaking orders in the traditional sense; in any event, reasons for rescinding can be ascertained from the File and thus, need not be contained in the decision itself; no case was made out by the Writ Petitioners who happen to be respondents herein, of the factual or legal malafide warranting indulgence in writ jurisdiction; the rescinding of tender is done inter alia after obtaining the considered opinion of Advocate General; the bid being lowest per se does not compel its acceptance; there is violation of tender condition. Matter essentially pertains to the domain of contract that abhors Judicial Review. These aspects, according to the learned counsel, having not been properly perspectived, there is error apparent on the face of the impugned order warranting its invalidation.

3. Learned Sr. Advocate appearing for the respondents opposes the appeal making submission in justification of the impugned order and the reasons on which it has been constructed, loudly reading out the decision of Apex Court in MOHINDER SINGH GILL vs. CHIEF COMMISSIONER, AIR 1978 SC 851. He also pressed into service the doctrine of fairness in the decision making process undertaken by Article 12 Entities as a constitutional imperative. He contends that the learned Single Judge having considered all aspects of the matter in the right perspective, the important order has been made and therefore, there is absolutely no warrant for undertaking a deeper examination of the same. So contending, he seeks dismissal of the appeal.

4. Having heard the learned counsel for the parties and having perused the Appeal Papers, we decline indulgence in the matter being broadly in agreement with the reasoning of the learned Single Judge, because of the following discussion:

5. FOUNDATIONAL FACTS OF THE CASE:

a) The appellant floated a tender for the selection of a Mine Operator in a particular Coal Block, for supply of coal for 15 years with an option for renewal for a further period of ten years. This tender was notified on 02.12.2020. Bids were directed to be submitted only in the year 2022 and accordingly, that was done on 18.01.2022. The Bid of respondents was at the rate of Rs.850/-per MT whereas, that of the L2 was Rs.1,150/-. On negotiation, the respondents’ Bid rate was scaled down to Rs.725/-. The Tender Scrutiny Committee accepted this Bid on 23.08.2022.

b) The matter was placed before the Board of Directors of the Appellant-Company for a decision on both the Evaluation Report and the Scrutiny of documents submitted by the tenderers. When this was the position, two Directors of second respondent-Company resigned from the Board on 22.07.2022. Subsequently, they were also convicted in C.C.Nos.319/2019 and 319/2022 by the Special Judge, Rouse Avenue District Court, New Delhi on 31.08.2022, for offences punishable under Sections 120B & 420 of IPC. This was apparently the post resignation scenario. The High Court of Delhi, vide orders dated 11.10.2022 & 14.10.2022 in Crl. Appeal Nos.506/2022 & 522/2022 suspended their sentence, in the criminal appeals. The B