Point of Law : Tender - Non-completion of contract - Courts would interfere with administrative policy decision only if it is arbitrary, discriminatory, malafide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by particular circumstances - Courts cannot strike down terms of tender prescribed by Government because it feels that some other terms in tender would have been fair, wise or logical - Courts can interfere only if policy decision is arbitrary, discretionary or malafide.”

JUDGMENT :

1. In the instant Petition, the Petitioner is aggrieved of Notice No. 6 (6) 58 EE/DIV/SGR/350 dated 5th of July, 2021 as well as the impugned tender Notice bearing NIT No.12/EE/DIV/SGR/2021-22 dated 7th of July, 2021 issued by the Respondent No.3.

2. Mr A. H. Naik, the learned Senior Counsel representing the Petitioner, submitted that the action and inaction on the part of the Respondents in determining the contract between the parties and changing the site, that too, without negotiating with the Petitioner amounts to arbitrary exercise of power, aimed at giving undue benefit to some other blue-eyed contractor(s). It is submitted that there was no agreement executed between the parties, therefore, there was no question of invoking any clause of the agreement which was not in existence.

3. Objections stand filed on behalf of Respondents 2 and 3. It is stated that the BSNL, Civil wing, was assigned the responsibility of execution of NFS project by the Department of Telecommunication (Government of India). The Project, as stated, is meant for enhancing the communication system of the Army and is of national importance as the project site is located at a highly sensitive strategic area of LOC. It is pleaded that the Petitioner was awarded the contract for timely execution, but he, despite repeated reminders, did not execute the same on time, constraining the Respondents to take the impugned action against the Petitioner and re-tender the work, therefore, no interference is warranted in the said process from this Court.

4. Heard the learned counsel for the parties, perused the pleadings on record and considered the matter. I have also gone through the relevant records made available by the learned Senior Counsel representing the Respondents 2 and 3.

5. At the very outset, what requires to be stated is that the Courts are expected to exercise judicial restraint in interfering with the administrative action, particularly in the matter of tender or contract. Ordinarily, the soundness of the decision taken by the tender issuing authority ought not to be questioned, but the decision-making process can certainly be subject to judicial review. The soundness of the decision may be questioned, firstly, if the decision made is so arbitrary and irrational that the Court can say that the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached or; second, if the process adopted or decision made by the authority is malafide or intended to favour someone or; third, if the public interest is affected. In the case on hand, when the Petitioner-firm did not fulfil all the terms and conditions prescribed by the Respondents with regard to completion of the project on time, despite repeated reminders, in such eventuality, the decision of the Respondents in issuing the impugned communication and putting the work to fresh tender cannot be said to be one where they have acted in a manner in which no responsible authority acting reasonably and in accordance with the relevant law would have acted. Furthermore, a bare perusal of the pleadings on record, does not indicate that the decision made by the authority is malafide or intended to favour someone. In fact, the decision of the Respondents was the result of non-completion of the Contract on time on part of the Petitioner, more so when the entire project was located at a highly sensitive and strategic area of LOC. Likewise, the third ground of public interest is also not affected in the present case because while it may be in public interest to have greater competition, it is also in public interest that all the tender conditions are complied with as prescribed by the tender issuing authority and that there is no uncertainty in that area.

6. Law on the subject of scope of judicial review in the matters of Contract is no more res integra.

7. In case titled ‘Tata Cellular V. Union of India: (1994) 6 Supreme Court Cases 651’, at Paragraph No.9