15/06/2021

Sujoy Paul J:-

In this petition filed under Article 226 of the Constitution of

India, the challenge is mounted to order dated 27.05.2011 (Annexure-

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P/9 and P/10), whereby the tender of petitioner has been cancelled.

The challenge is also made to the new N.I.T. issued on 27.05.2021.

2.

Shri Sethi, learned Senior Counsel urged that the pivotal

question in the case is whether the respondents are justified in

cancelling the tender of the petitioner when admittedly his bid was of

more than 75 crores, whereas the reserve price was only 72.6 crores.

His technical and financial bids were accepted. The reserve price fixed

was much above the price to be fixed as per Collector guidelines.

Petitioner's bid was shown to be accepted on 26.05.2021 on the portal

of the Government. The decision of cancellation of bid could have

been taken by Finance Committee and not by the Cabinet. The new

N.I.T. again quotes the same reserve price of rupees 72.61 crores.

Since the petitioner's bid was much above the reserve price aforesaid,

there was no justification in cancelling the bid.

3.

It is further submitted that although the petitioner was the

single bidder, there is no justification for cancelling his tender. The

decision to cancel the tender is arbitrary and runs contrary to the

judgment of Supreme Court reported in (2001) 8 SCC 491 (Union of

India & Others v/s Dinesh Engineering Corporation & Another).

4.

Lastly, learned Senior Counsel submits that the Supreme

Court by order dated 27.07.2019 issued directions to the Department

to undertake an exercise pursuant to which they were required to

initiate tender process within two years. The tender so cancelled was

issued in obedience of Apex Court's order. Cancellation thereof

violates Court order.

5.

Shri Pushyamitra Bhargav, learned Additional Advocate

General opposed the prayer by contending that various clauses of

N.I.T. namely 2.1.11, 3.3, 3.7 and 3.8 permit the respondents to cancel

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the tender at any stage. No right has been created in favour of the

petitioner. A conscious decision was taken at apex level which is

reflected in the letter dated 28.05.2021 to cancel the tender which

cannot said to be arbitrary, malicious and capricious in nature.

Moreso, when petitioner was admittedly the single person who

submitted his bid. Reliance is placed on certain judgments namely

(2012) 8 SCC 216 (Michigan Rubber (India) Limited v/s The State

of Karnataka, (2000) 5 SCC 287 (Monarch Infrastructure (P)

Limited v/s Commissioner Ulhasnagar Municipal Corporation &

Others) and MANU/KA80618/2009 (Mahendra Labs Pvt. Ltd. v/s

Principal Secretary to Government Animal Husbandry and Fishries

Department).

6.

In rejoinder submissions, Shri Sethi, learned Senior Counsel

submits that petitioner's tender was cancelled on 27.05.2021, whereas

document dated 28.05.2021 filed with the return shows that Cabinet

took decision on 28.05.2021. For this reasons also, impugned order is

arbitrary and bad in law.

7.

No other point is pressed by the learned counsel for the parties.

8.

We have heard learned counsel for the parties at length and

perused the record.

9.

This is trite that in matters of contract the scope of interference

by this Court is limited. This Court cannot sit in appeal on the

decision of the department unless such a decision is shown to be

arbitrary, capricious or malicious in nature or it attracts wednesbury

principles. (See:- Tata Cellular vs. Union of India, (1994) 6 SCC

651 and Elektron Lighting Systems (P) Ltd. vs. Shah Investments

Financial Developments & Consultants (P) Ltd., (2015) 15 SCC

137, Sterling Computers Ltd. v. M & N Publications Ltd., (1993) 1

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SCC 44, Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson

(P) Ltd., (2005) 6 SCC 138, Michigan Rubber (India) Ltd. v. State

of Karnataka, (2012) 8 SCC 216 )

10.

Interference can also be made if decision runs contrary to the

public interest. (See:- Raunaq International Ltd. v. I.V.R.

Construction Ltd., (1999) 1 SCC 492, Air India