The person claiming justice and equity must come with clean hands.

JUDGMENT :

S.G. Dige, J.

The petitioner, a sole proprietorship firm, is essentially objecting to rejection of its tender at technical bid level and allotment of tenders to the respondent No. 3-Guruji Infrastructure Private Limited and respondent No. 4-Ajit Swayam Rozgar Seva Sahakari Sanstha Maryadit by respondent No. 2 as successful bidders.

2. The present Petition relates to the Tender floated by respondent No. 2-Pimpri Chinchwad Municipal Corporation (for short, “respondent No. 2”) in August, 2019 for maintenance and protection of the gardens (for short, “the said Tender”) situated within the jurisdiction of the respondent No. 2.

3. Accordingly, the petitioner submitted its technical bid as well as financial bid along with all requisite documents for garden works of Serial Nos. 10 to 14 of said Tender. Out of these works, the petitioner is objecting to allotment of work of two gardens to respondent Nos. 3 and 4. The petitioner is also challenging the validity of tender condition No. 3 of said Tender. During pendency of this Petition, the petitioner has amended the Petition and sought some additional reliefs.

4. The scope of judicial review in the tender matters have been considered by the Hon’ble Apex Court in the matter of Tata Cellular vs. Union of India, (1994) 6 SCC 651. It is held that judicial review of Government contracts was permissible in order to prevent arbitrariness or favoritism. In paragraph Nos. 77 and 94 of the said judgment, the Apex Court has observed as under :

“77. The duty of the Court is to confine itself to the question of legality. Its concern should be :

1. Whether a decision-making authority exceeded its powers?

2. Committed an error of law,

3. committed a breach of the rules of natural justice,

4. reached a decision which no reasonable tribunal would have reached or,

5. abused its powers.

Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under :

(i) Illegality : This means the decision- maker must understand correctly the law that regulates his decision-making power and must give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety.

The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. V. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the Court should, “consider whether something has gone wrong of a nature and degree which requires its intervention”.

“94. The principles deducible from the above are

(1) The modem trend points to judicial restraint in administrative action.

(2) The Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made.

(3) The Court 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.

(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.

(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-adminis