Serial No. 03

Regular Cause List

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

WP(C) No. 1745/2021; CM No. 5821/2021

Dated: 6^th of September, 2021.

M/S Ashwath Infratech Pvt. Ltd.

… Petitioner(s)

Through:

Mr F. A. Wani, Advocate.

Versus

JK Lakes and Waterways Development Authority & Ors.

… Respondent(s)

Through: -

Ms Asifa Padroo, AAG.

CORAM:

Hon’ble Mr Justice Ali Mohammad Magrey, Judge

Hon’ble Mr Justice Vinod Chatterji Koul, Judge

(JUDGMENT)

Per Magrey, J (Oral):

01.

By medium of the instant Petition, the Petitioner has challenged

the validity of communication bearing No. LD-1/4530-36 dated 31^st of

August, 2021, issued by the Respondent No.3, in terms whereof the Petitioner

has been directed to stop the trial run of the Skimmers and remove them from

the Lake body immediately.

02.

Learned Counsel for the Petitioner submitted that the action of

the Respondents in issuing the impugned communication has seriously

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WP(C) No. 1745/2021; CM No. 5821/2021

prejudiced the rights and interests of the Petitioner and that the same has been

done only with a view to give benefit to some blue-eyed Persons/ Contractors.

03.

We 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

reasonably and in accordance with relevant law could have reached or;

second, if the process adopted or decision made by the authority is malafide

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WP(C) No. 1745/2021; CM No. 5821/2021

or intended to favour someone or; third, if the public interest is affected. In

the case on hand, the decision of the Respondents in stopping the Petitioner

from trial running of the Skimmers and removing them from the Lake body

has resulted due to non-compliance with certain specifications laid down in

the NIT on part of the Petitioner and same 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 ‘Tata Cellular V. Union of India: (1994) 6

Supreme Court Cases 651’, at Paragraph No.94, Hon’ble the Supreme Court

of the country, while dealing with the issue similar to the one sub