ORDER :

1. The enlarged role of the Government in economic activity and its corresponding ability to give economic ‘largesse’ was the bedrock of creating what is commonly called the ‘tender jurisdiction’ with the objective of having greater transparency in the process was the observation of the Hon'ble Supreme Court in the decision in Uflex Ltd. vs. Government of T.N. and Others, 2021 SCC Online SC 738.

2. The present petition has been filed assailing the award of tender and placement of order on the 3rd respondent, as arbitrary, unjust, unreasonable, illegal and in stark violation of the tender conditions stipulated in the Notice Inviting Tender dated 21.09.2021, which is against the transparency, which is the bedrock of any tender process floated by the Government.

3. It is the case of the petitioner that pursuant to the Notice Inviting Tender (for short ‘NIT’) dated 21.09.2021, the petitioner had placed his bid for the supply of 354 sets of interior furnishing along with other persons. It is the case of the petitioner that bid documents were also submitted by respondents 3 to 5. It is the further averment of the petitioner that one of the main conditions of tender as found in Clause 10.11 of the NIT is that cartel formation is prohibited and in case of suspected cartel formation, as per clause 10.11.3, purchaser had reserved the right to place order on any firm/firms for any quantity without assigning reasons and as per clause 10.11.4, the firms, who quote in cartel, warning was issued that their names would be deleted from the list of approved sources.

4. It is the further averment of the petitioner that on opening of the bid document of the petitioner along with respondents 3 to 5, it was noticed that the bulk suppliers position was secured by respondents 3 to 5. It is the averment of the petitioner that respondents 3 to 5 are closely related and that they have formed a cartel and colluded with each other to manipulate the bids. Coming to know of the said fact of suspected cartel formation, the petitioner had addressed a communication to the 2nd respondent providing all the details and to take action to suspend the tender process. It is the further averment of the petitioner that without taking action on the said complaint dated 9.11.2021, reverse auction was conducted on 10.11.2021 in which respondents 3 to 5 have successfully lowered the level of competition as three out of the five participants were controlled through the cartel formation as it pertained to similar management/promoters/shareholders. Due to the inaction on the part of the 2nd respondent, which is in direct contravention of clause 10.11 of the Bid Document, and no enquiry having been conducted into the suspected cartel formation of respondents 3 to 5, left with no alternative the petitioner has come before this Court by filing the present petition.

5. Learned senior counsel appearing for the petitioner submitted that Clause 10.11 prohibits cartelisation and 10.11.3 and 10.11.4 deals about the action that would be taken by the 2nd respondent with regard to suspected cartelisation. It is the submission of the learned senior counsel for the petitioner that even according to respondents 1 and 2, cartelisation was suspected between respondents 3 to 5 by the Tender Committee, which has resulted in an action being initiated leading to enquiry to be conducted by the Vigilance Department of the Railways.

6. It is the further submission of the learned senior counsel for the petitioner that it is not only at the behest of the petitioner that vigilance enquiry has been undertaken by the Railways. Even prior to the complaint of the petitioner, at the instance of one All India Lokadhikar Sanghatan and few other few vendors, similar complaint was raised against respondents 3 to 5, in which action has been initiated and an enquiry has been directed to be undertaken by the vigilance cell of the Railways and pursuant to the said direction, the vigilance cell of the Railways has