Point of Law: Contract – Tender - Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.

JUDGMENT :

CM Appl. 20975/2022 (for impleadment)

1. This application has been moved on behalf of Tata Motors an entity which had also participated in the Grant Challenge Tender for the selection of e-bus operators. The applicant asserts that despite a caveat having been lodged, a copy of the writ petition was neither served nor provided to it. It is further asserted that bearing in mind the challenge which is raised in the instant writ petition and the consequences that would ensue in case the reliefs as claimed were granted, it has a right to be impleaded as a party respondent. Dr. Singhvi, learned senior counsel appearing for Tata Motors, has contended that not only is the applicant a necessary and a proper party, the Court even otherwise has the jurisdiction to permit it to intervene and to address submissions in opposition to the writ petition.

2. The aforesaid submissions are countered by Mr. Dave, learned senior counsel appearing for the petitioner, who submits that undisputedly the contract has not been awarded to the applicant as yet and, therefore, it cannot be construed to be a necessary or proper party. The prayer for impleadment is opposed on the aforesaid grounds.

3. This Court is of the opinion that a party may be permitted to join in proceedings if it be found that its presence is necessary to effectively and completely adjudicate upon the dispute which falls for consideration. Notwithstanding the fact that the contract may not have been awarded to Tata Motors formally, if the tendering process were to be interdicted or the reliefs claimed granted, it would clearly have an impact on the interest of the applicant. It becomes pertinent to note that, although the petitioner asserts that based on the financial bids submitted in the tendering process, it is liable to be declared as L-1 in three out of the five categories, if the act of the respondents in debarring it from participating further were to be upheld, it would leave the applicant alone to be considered as eligible for the award of contract. It is important to bear in mind that in matters relating to tenders and award of contracts, the non-joinder of competing bidders may not be an issue of a mere technicality but would clearly be a matter of substance especially when the grant of reliefs as prayed for may result in the inclusion or exclusion of a particular bidder or impact the consideration of bids that may have been submitted.

4. Bearing in mind the aforesaid facts, the preferred impleadment application is allowed.

W.P.(C) 6708/2022, CM APPL. 20563/2022 (for Stay)

1. This writ petition has been preferred impugning the communication dated 26 April 2022 in terms of which the petitioner [hereinafter and for the sake of convenience to be referred to as “JBM Ecolife”], has been held to be ineligible to continue further in the tendering process consequent to M/s JBM Electric Vehicle Pvt. Ltd [to be referred to hereinafter as “JBM Electric”] having been debarred by the Ministry of Heavy Industries MHI. As a result of debarment of JBM Electric, the respondent No.2 acting upon the request and directive of MHI has proceeded to hold the petitioner ineligible to continue further in the “Grand Challenge Tender” for e-buses. When the writ petition was initially taken up for consideration, the Court had taken note of the submission addressed on behalf of the petitioner that JBM Electric which had been debarred and as a result of which the petitioner had been held to be disqualified, had been never placed on notice of the proposed action of debarment. It was further contended that prior to the receipt of the impugned communication of 26 April 2022, JBM Electric had not been served with any order of debarment. On 02 May 2022, the Court took note of the contention addressed on behalf of the petitioner that since it had chosen to participate in the bidding process individually and not as part of a consortium, it could not have been held to be ineligible or disqualified from proce