The main legal point established in the judgment is that in matters of tender, the State has the freedom to formulate conditions and the court should exercise judicial restraint, ensuring fairness and transparency while giving leverage to the State for making decisions to maximize revenue.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

The Hon'ble Supreme Court in the landmark cases of Michigan Rubber (India) Ltd. Vs. State of Karnataka and Ors., reported in (2012) 8 SCC 216 has laid down certain principles to be followed in matters pertaining to distribution of State largesse by way of tender. In paragraph 23 of the said judgment, the following has been stated:

"23. From the above decisions, the following principles emerge:

(a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;

(b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited;

(c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted;

(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and

(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government."

2. In another landmark case, namely, Caretel Infotech Ltd. Vs. Hindustan Petroleum Corporation Ltd. and Ors., reported in (2019) 14 SCC 81, the Hon'ble Supreme Court has laid down that the owner/maker of the contract is the best person whose interpretation is generally required to be accepted.

3. In fact the aforesaid principles were laid down by the Hon'ble Supreme Court about two decades earlier in the case of Tata Cellular which would be referred to later in this judgment. With that background, this Court is required to consider and determine the issue raised in this bunch of writ petitions. In these writ petitions, a common challenge has been made to a particular clause of the Notice Inviting Tender (NIT) floated by the Panchayat and Rural Development Department (P&RD) for settlement of various Markets, Ghats, Par Ghats, Meen Mahals etc. The settlements are pertaining to the district of Darrang. The principal contention of the petitioners is that the Clause, in question, is in the teeth of Article 14 as it gives an undue advantage to a class of bidders which is against the concept of maintaining fairness and transparency in tender system.

4. Before going to the issue, the facts of the case are required to be narrated in brief.

5. As indicated above, there are five writ petitioners in which a common question has been raised challenging the validity of the impugned Clause. The first writ petition, namely, WP(C)3320/2022 concerns two numbers of markets, viz, i) Tangny Weekly Cattle Market and ii) Tangny Open Market. In WP(C)/3656/2022, the concerned market is Ambachak Weekly Open Market. In WP(C)/3752/2022, two markets are involved, namely, i) Banglagarh Open Market and ii) Banglagarh Cattle Market.

6. In WP(C)/3996/2022, the concerned market is Ambachak Weekly Cattle Market and in WP(C)/4377/2022, the concerned markets are i) Bechimari Daily Vegetable Market and Bechimari Weekly Open Market. In the aforesa