Serial No. 216

Supplementary-1 Cause List

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

WP(C) No. 2437/2021

CM No. 7784/2021

Dated: 29^th of November, 2021.

Fayaz Ahmad Dar

… Petitioner(s)

Through:

Mr Bhat Fayaz Ahmad, Advocate.

Versus

Union Territory of JK & Ors.

… Respondent(s)

CORAM:

Hon’ble Mr Justice Ali Mohammad Magrey, Judge.

(JUDGMENT)

(Oral):

01.

In this Petition, filed under Article 226 of the Constitution of

India, the Petitioner is seeking quashing of E-NIT No. 36 of 2021-22 dated

11^th of November, 2021 issued by the Respondents insofar as it pertains to

8Water Supply Scheme, Weaven, Bandipora9. A direction is also sought in the

name of the Respondents to issue formal allotment order in favour of the

Petitioner for execution of work in terms of fresh E-NIT No. 19/PHE/Hyd/Bpr

of 2021-22 dated 4^th of June, 2021 with regard to 8Water Supply Scheme,

Weaven, Bandipora9.

Page 2 of 8

WP(C) No. 2437/2021; CM No. 7784/2021

02.

Learned Counsel for the Petitioner submitted that the impugned

NIT issued by the Respondents with regard to 8Water Supply Scheme,

Weaven, Bandipora9, is bad in law inasmuch as the work in question has been

already put to tender by the Respondents in terms of E-NIT dated 4^th of June,

2021, in which process the Petitioner emerged as the lowest bidder, thus,

entitled for allotment of said work. It is contended that the Respondents, by

initiating the entire process afresh with regard to the aforesaid work, have

seriously prejudiced the rights and interests of the Petitioner. It is alleged that

the aforesaid exercise is undertaken by the Respondents 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, herein this case, 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

put the work required to be completed to tender as per the relevant terms and

conditions so as to best serve its purposes. Whenever a particular work is put

to tender, it might hurt the interests of someone or the other, but, for that

reason, the said tendering process cannot be labelled as malafide or arbitrary.

Besides, the Courts are expected to exercise judicial restraint in interfering

with the administrative action, particularly in the matter of tender or contract.

Page 3 of 8

WP(C) No. 2437/2021; CM No. 7784/2021

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 mala fide or intended to favour

someone or; third, if the public interest is affected. In the case on hand, the

decision of the Respondents in issuing the impugned NIT 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 mala fide 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