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IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH, J.
CWJC No. 8786 of 2020
(7.9.2021)
M/s. EMS Infracon Pvt. Ltd. ... Petitioner
vs.
State of Bihar & Ors. ... Respondents
Government Contract – Tender – There is no averment made in any of pleadings that petitioner downloaded bid documents during period when order of blacklisting was not in operation – Downloading of bid documents by petitioner would have given an indication of petitioner's willingness to participate in tender process – A person whose case is based on falsehood has no right to approach Court and he deserve to be summarily thrown out at any stage of litigation – Writ application deserves to be dismissed on the sole ground of petitioner making false statements on oath in present proceeding under Article 226 of Constitution of India – This Court exercising power of judicial review under Article 226 of Constitution of India cannot record a finding that petitioner was responsive in technical bid which could have been a condition precedent for this Court to grant third relief as sought in writ application – Writ application dismissed. (Paras 25, 26, 28, 40, 43 to 46)
Constitution of India – Article 32/226 – Under Constitutional scheme power of judicial review of administrative action vested under Articles 32 and 226 of Constitution of India is an important tool to check arbitrariness, irrationality, unreasonableness, bias and malafides in administrative action – However, Courts exercising such power maintain self imposed restraint while reviewing an administrative action – Courts do not sit as a Court of appeal over decision of executives rather, judicial scrutiny is normally applied to examine decision making process – More restraint is needed for Courts exercising their power of judicial review in contractual matters and it is normally required to be loathe in interfering in contractual matters unless the action of the State is found to be patently arbitrary, malafide tainted with bias or irrational – Court does not have expertise to correct administrative decision in such matters and there can be scope of fallibility in Court's decision if it decides to substitute its own decision in place of administrative decision – Fair play in joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere – Unless a clear case of malafide, irrationality is made out, Court should not interfere with decision of executives in contractual matters – Needless interference in commercial matters by Courts exercising powers of judicial review may cause havoc and for this reason also the judicial restraint is more desirable in such matter – Court should normally give weightage to opinion of experts unless decision suffers from vice of patent arbitrariness, irrationality and malafide. (Para 38)
Chakradhari Sharan Singh, J.—This matter has been taken up for hearing online because of COVID 19 pandemic restrictions.
2. The controversy in the present writ application arises out of a tender process undertaken by the respondent - Bihar Urban Infrastructure Development Corporation Limited (in short “BUIDCo”) in relation to sewerage and sewerage treatment at Hajipur for pollution abatement of river Ganga in Bihar under Namami Gange Programme at a sharing ratio of 70:30 between the Central and the State Government of Bihar with the following major components:—
(i) Construction of remaining Sewer network: 138.9 km. including 2.5 km. Using trenchless technology.
(ii) Sewage Pumping Station (SPS) – 4 no.
(iii) House Connections Chambers
(iv) Completion of construction of STP of 22 MLD capacity.
Relevant portion extracted from the guidelines issued by the Central Government for the National Mission for Clean Ganga (for short “NMCG”) has been brought on record by way of Annexure-1 to the writ application. From the said extract and the pleadings from the record, it is easily culled out that NMCG has been established as a registered society which is responsible for effective implementation of the overall National Ganga River Basin Authority (for short “NGRBA”) programme at the national level with well defined functions, powers, resources and autonomy. The State Programme Management Group (for short “SPMG”) under the said scheme is also a registered society to ensure effective implementation at State level. The SPMGs are the respective State level counterparts of the NMCG and have State level responsibilities for management and implementation of the NGRBA programme in accordance with the agreed NGRBA programme. These facts are being mentioned at the outset, regard being had to the reference which has been made to the abbreviations NMCG and SPMG etc. in present judgment at different places.
3. Admittedly, the first tender process initiated in respect of project in question was canceled by the BUIDCo which is the executing agency of the project for the State of Bihar. The work was again re-tendered second time, but, in the absence of any participation it could not materialize. With the lapse of time, the cost of the project got inflated which required fresh administrative approval/sanction of the NMCG, Government of India. Ultimately, after its approval, the NMCG came out with a communication dated 05.03.2018 addressed to the Principal Secretary (Urban Development Department)-cum-Project Director, Bihar State Ganga River Conservation Programme Management Society (BGCMS). Accordingly, approval of the project at the revised estimated cost of Rs. 305.19 crores was accorded. The said communication contains in detail the conditions for execution of the project which were binding on the executing agency i.e. SPMG and BUIDCo. Thereafter, another notice inviting tender dated 22.08.2019 was issued by the BUIDCo which was apparently the third attempt to award the contract by inviting bids from the eligible bidders.
4. The petitioner claims to be the joint venture of two private limited companies carrying on their commercial activities within the territorial jurisdiction of this Court (in short M/s. EMS infracon Private Limited). In response to the said third tender notice, the petitioner submitted its bid. The respondent no.11 namely, M/S Toshiba Water Solutions Private Limited in joint venture with Kevadiya Construction Private Limited, another joint venture between two private Limited Companies (hereinafter referred to as M/S Toshiba Water Solutions Private Limited) also submitted its bid. The technical bids of the bidders were opened on 25.10.2019 and the same were placed for technical evaluation before the technical bid evaluation committee. The committee found the technical bid of respondent no.11 to be responsive and that of the petitioner to be non-responsive. The petitioner represented before the Chief Engineer, BUIDCo, asserting that its techni
Judicial review in public procurement is limited; courts refrain from interference unless clear evidence of arbitrariness or bad faith is established.
The court upheld the principle of judicial restraint in administrative action and emphasized the need for the State to act within the bounds of reasonableness in tender matters.
Point of law: Court in exercising of its power of judicial review vested under Article 226 of the Constitution of India, would not like to interfere with the award of contract which has huge public i....
The judgment emphasizes the limited scope of judicial review in contractual matters and the importance of fair play in the decision-making process. It highlights the freedom of the respondents to awa....
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