2021 Supreme(Guj) 835

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, Vaibhavi D. Nanavati, JJ.
Raja Bhailal Shah – Petitioner
Versus
Oil And Natural Gas Corporation Ltd. – Respondent
R/Special Civil Application No. 11514 of 2020
Decided On : 18-08-2021

Point of Law – The principles that emerge from the above precedents are, the writ court has limited jurisdiction in matters concerning contracts and invitation to bid for contract; Court must adopt restraint in contract matters; the Court does not sit as a Court of appeal in such matters; the State/its instrumentalities have to be given greater latitude in formulating tender conditions and awarding of contracts; In matters concerning financial implications it should be left to the concerned authority to decide the conditions of eligibility and the price at which contract can be awarded; Courts cannot interfere in terms of invitation to tender; No one has a right to insist that the contract to be awarded to him; Courts can interfere only if actions of tendering authority is found to be malicious or misused statutory powers; That the process adopted and decision made is so arbitrary and irrational that no authority acting reasonably and in accordance with relevant law could have reached and if public interest is affected.

Headnote:

Constitution of India, 1950 - Article 226, Article 19(1)(g), Article 14 - Doctrine of ‘level playing field’- Equality before law – Protection of certain rights regarding freedom of speech - Fundamental right to carry on business to a company or a proprietary concern, it is entitled to invoke said doctrine of ‘level playing field’ – Whether impugned eligibility criteria could be termed as one violative of Article 14 of Constitution or could be termed as arbitrary, unjust or prescribed only with a view to favour respondents - Whether a particular policy or particular decision taken in fulfilment of that policy is fair - Whether conditions prescribed in tender under consideration were better than ones prescribed in earlier tender invitations.

Findings of the Court - We have also seen that decision to implement “Retail Chain Pharmacy” is not a decision taken in a hurry, rather it is a well thought out decision, keeping best interests of employees of ONGC in mind - Further, it is also incorrect to hold that this new system was limited to metropolitan cities - Though initially it was introduced in metros but policy of ONGC was, as is clearly reflected from decisions of its Executive Committees to spread it to all work centres of ONGC - We are not impressed by submissions as regards doctrine of ‘level playing field’- In commerce, a ‘level playing field’ is a concept about fairness, not that each player has an equal chance to succeed, but they all play by same set of rules - We are not impressed by submissions canvassed on behalf of writ-applicants that onerous/stringent eligibility criteria of having five medical stores in City has led to frustrating doctrine of ‘level playing field’- Supreme Court, in Reliance Energy Limited [Supra] upon which strong reliance has been placed has said, in so many words, that doctrine of ‘level playing field’ is subject to public interest - Just because writ-applicants also happen to be running medical stores, same, by itself is not sufficient to invoke doctrine of ‘level playing field’- Doctrine provides space within which equally placed competitors are allowed to bid so as to subserve larger public interest - We are also not impressed by allegations of favouritism etc - In fact, there is no sound foundation to level such allegation - Mere pleadings in memo of writ-application as regards favouritism is not sufficient - There has to be something more on the basis of which Court can come to a definite conclusion that onerous/stringent eligibility criteria has been prescribed only with a view to eliminate others and favour only one particular party - As discussed above, there is a rational which has been explained by Corporation in providing such eligibility criteria - By no means, it can be termed as discriminatory or arbitrary.

Result - Writ petition disposed of