HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

WP(C) No. 1330/2021 c/w

CCP(S) No. 356/2021

Dated: 24^th of September, 2021.

Firdous Kamran Shora

… Petitioner(s)

Through:

Mr A. H. Naik, Senior Advocate with

Mr Tawheed Ahmad, Advocate.

Versus

Union of India & Ors.

… Respondent(s)

Through: -

Mr Tahir Majid Shamsi, ASGI for R-1; and

Mr N. A. Beig, Senior Advocate with

Mr Sofi Manzoor, Advocate for R-2 & 3.

CORAM:

Hon’ble Mr Justice Ali Mohammad Magrey, Judge.

(JUDGMENT)

01.

In the instant Petition, the Petitioner is aggrieved of Notice No.

6 (6) 58 EE/DIV/SGR/350 dated 5^th of July, 2021 as well as the impugned

tender Notice bearing NIT No.12/EE/DIV/SGR/2021-22 dated 7^th of July,

2021 issued by the Respondent No.3.

02.

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

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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.

03.

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.

04.

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.

05.

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

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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 t