Serial No. 124

Supplementary-1 List

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

WP(C) No. 1602/2021; CM No. 5391/2021

Dated: 17^th of August, 2021.

Rural Contractors Welfare Association & Ors.

… Petitioner(s)

Through:

Mr Mohammad Ashraf Wani, Advocate.

Versus

Union Territory of JK & Ors.

… Respondent(s)

Through: -

Mr M. A. Chashoo, AAG.

CORAM:

Hon’ble Mr Justice Ali Mohammad Magrey, Judge.

(JUDGMENT)

01.

By medium of the instant Petition, the Petitioners have

challenged the NIT No. 59 of R&B/4727-37 of 2021-22 dated 28^th of July,

2021 and NIT No. 60 of R&B/4899-4908 of 2021-22 dated 29^th of July, 2021.

A direction is also sought in the name of the Respondents to allow all the

Contractors to participate in the bidding process for the works which have

been put to tender in terms of the aforesaid tender notices.

02.

Learned Counsel for the Petitioners submitted that the

Respondents, by incorporating the condition in the impugned NITs to the

effect that all the Contractors shall upload card verification certificate, has

deprived most of the Contractors in participating in the process, thereby

Page 2 of 8

WP(C) No. 1602/2021; CM No. 5391/2021

resulting in reduction of competition. It is further submitted that the aforesaid

condition has seriously prejudiced the rights and interests of the Petitioners

and that the same has been done only with a view to give benefit to some blue-

eyed Contractors.

03.

Heard the learned counsel for the parties, perused the pleadings

on record and considered the matter.

04.

At the very outset, what requires to be stated is that as per settled

legal position, the tender issuing authority is the best judge of its interests/

needs and that it is always open to the said authority to suitably prescribe the

eligibility criteria so as to best serve its purposes. Whenever a term/ condition

is prescribed in the eligibility criteria, it might hurt the interests of someone

or the other, but, for that reason, the said term/ condition in the eligibility

criteria cannot be labelled as malafide or arbitrary.

05.

Besides, 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

Page 3 of 8

WP(C) No. 1602/2021; CM No. 5391/2021

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, the decision of the Respondents in fixing the terms and

conditions in the impugned NITs 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. 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.

06.

Law on the subject of scope of judicial review in the matters of

Contract is no more res integra.

07.

In case titled 8Tata Cellular V. Union of India: (1994) 6

Supreme Court Cases 6519, at Paragra