Tender conditions are contractual terms, and the court would not interfere when the language of the tender document is unambiguous and clear. Bidders cannot claim parity with bidders in different zones or seek alteration of concluded contractual terms.

JUDGMENT

Sanjeev Sachdeva, J.:-- (Oral)

1. Appellant seeks quashing of letter dated 17.08.2021 whereby respondent has directed the petitioners to abide by the tender conditions. Petitioner further impugns letters dated 29.07.2021, 19.08.2021, 20.08.2021 and 22.08.2021 whereby full license fee has been demanded from the petitioner. Petitioner further seeks relaxation in license fee as well as other benefits granted to the newly allotted catering units by respondent in accordance with Clause 2.3.1 of the tender documents of the North Zone and South Zone.

2. E tenders were floated by the respondent in North, South, East and West zones for maintenance and provision of catering services in/through Jan Ahaars (kitchen unit) and refreshment room for a period of 5 years.

3. Tenders were floated on different dates and bids were submitted by the petitioners for several such units.

4. As per the two petitioners they have been successful in as many as 10 units (petitioner No.1 in 4 and petitioner No.2 in 6 units). It is contended that the tender submission dates were different and different letter of awards have been issued to the petitioners.

5. Petitioners have been found successful in bids submitted for the East and West zone.

6. Petitioners contend that they have been discriminated in so far as East and West zones are concerned. They submit that differential treatment is being given to the tenderers who have submitted bids in the North and South zones.

7. As per the petitioner, clause 2.3.1 of the tender document that talks of payment of license fee for refreshment room in East and West zone is discriminatory and it discriminates against the bidders for the East and West zone and preferential treatment is being given to persons who have submitted their bids for the North and South zones.

8. It is contended by learned senior counsel for the petitioner that petitioners who have submitted their bids for the East and West zones should be accorded the same benefit as has been granted to the bidders of North and South zone.

9. It is contended by learned senior counsel for the petitioner that though the tender conditions of East and West zone on the one side and North and South zone on the other are different, however, the prevailing Covid conditions are identical across the country and as such same benefit should be granted to the bidders who have submitted their bids for the East and West zone as those in the North and South Zone.

10. Learned senior counsel submits that in of North and South zone there is reduction in license fee on pro rata basis till normalisation and till date letter of normalisation has not been issued by the competent authority but there is no such reduction in the East and West Zone.

11. Learned senior counsel submits that even in the matter of award of contract through bidding process there is no waiver of fundamental right and bidders are entitled to enforce their fundamental rights even though they may be contrary to the tender conditions.

12. Reliance is placed on the judgment dated 03.11.2008 of the Division Bench of this Court in National Highways Builders Federation vs. The National Highways Authority of India & Ors in W.P(C) 566/2008 to contend that even though some bidders had participated in the tender they would still be entitled to challenge the constitutional validity of a tender condition on the ground that it violates Article 14 and 19(1)(g) of the Constitution of India.

13. Further reliance is placed on the decision of the Supreme Court in M/s. Icomm Tele Ltd vs. Punjab State Water Supply & Sewerage Board & Anr dated 11.03.2019 in Civil Appeal No.2713/2019.

14. At the outset it may be noticed that petitioner has not challenged any of the tender conditions of the tender or the bid document pursuant to which petitioners had submitted their bids.

15. Clause 2.3.1 which the petitioners contend is discriminatory is different in the Tender Documents for East and West Zone and the Tender Documents for the North and South Zo