The main legal point established in the judgment is that the decision making process in contractual matters can be reviewed if it is shown to be arbitrary, unreasonable, or if it violates the Wednesbury principles.

ORDER SUJOY PAUL, J. – In these petitions, the parties are at loggerheads on the validity of decision of the respondents in accepting bid of private respondent after declaring him as disqualified. It is further prayed that since petitioners are the lowest bidders and qualified the technical bid, they may be awarded the tender. Since both the petitions are similar, on the joint request of the parties, the matters were analogously heard and decided by this common order.

2. Facts are taken from W. P. No. 17290/2020.

3. The respondent/department issued a notice inviting tender (NIT) on 26-6-2020 (Annexure P/5) for transport of posts on the route Indore to Burhanpur. It was pointed out that the only difference in the connected matter is that the route involved therein is different. The petitioners, respondent No. 4 and other persons submitted their tender submission form. The petitioners duly submitted their signed tender documents. Petitioners duly filled up all the relevant columns of the prescribed tender form. They furnished the necessary information against relevant columns and also filed supporting documents which is evident from a bare perusal of Annexure P/6, P/7 and P/8. It is pointed out that respondent No. 4 also submitted his signed tender document (Annexure P/10). However, he did not submit the details of proposed vehicles which was the heart and soul of the tender because tender was for transfer of posts. The relevant page of tender document (Page-113) was left blank and no vehicle details have been provided by respondent No. 4. In addition, respondent No. 4 submitted an affidavit stating that if his bid is accepted and in turn, tender is awarded to him, respondent No. 4 will provide a new vehicle for the purpose of fulfilling the mandatory requirement/eligibility criteria of the tender.

4. Shri Arjun Agrawal, learned counsel for petitioners submits that technical bids were opened on 28-7-2020 and respondent No. 4 was found to be disqualified in the technical bid because he did not provide details of vehicle and stated in the affidavit that new vehicle will be provided if contract is awarded to him. Criticising the impugned minutes dated 7-10-2020 (Annexure P/13), Shri Agrawal urged that the technical bid of private respondents were rejected on 28-7-2020, but for no valid reasons, the said decision was reviewed without there being any enabling provision for review and respondent No. 4 was permitted to participate in further tender process. In reply the respondents supported their action by contending that respondent No. 4 furnished vehicle details with the bid, but since documents were not legible, he produced legible copies of said documents and, therefore, on 7-10-2020, the technical bid was reviewed.

5. The petitioners raised their eyebrows on such review by contending that : –

i) there exists no enabling provision to review a decision and hence such review is impermissible and runs contrary to the judgments of Supreme Court reported in (1971) 3 SCC 844, Patel Narshi Thakershi and ors. vs. Shri Pradyuman Singhji Arjunsinghji. Reliance is placed on Division Bench judgment of Calcutta High Court in APOT No. 344/2013, Electrosteel Castings Ltd. vs. Kolkata Municipal Corporation and ors. decided on 7-8-2013. ii) In contract matters, interference can be made if the procedure of taking decision is arbitrary and faulty. The impugned decisions in these cases are irrational, arbitrary and malicious in nature. Reliance is placed on (2000) 2 SCC 617, Air India vs. Chochin International Airport Ltd. and (2001) 2 SCC 451, W. B. State Electricity Board vs. Patel Engineering Co. iii) If the impugned order/minutes do not contain the reason for review i.e. providing legible documents at subsequent stage, this defence taken for the first time by way of counter affidavit in the Court cannot be entertained as per Constitution Benc