Shri Balaji Think Media Pvt. Limited A Company v. Municipal Corporation Raipur Through Its Commissioner

: Ms. Aditi Singhvi, Advocate For Respondent Nos. 1 & 2 For Respondent No.3/State : : Mr. Pankaj Agrawal, Advocate Mr. Praveen Das, Dy. Adv. General Hon'ble Shri Hon'ble Shri Ramesh Sinha, Bibhu Datta Guru Chief Justice , Judge Order on Board Per Ramesh Sinha , Chief Justice 2 03 . 12 .202 5

#1. Heard Ms. Aditi Singhvi, learned counsel for the petitioner. Also heard Mr. Pankaj Agrawal, learned counsel, appearing for respondent Nos. 1 & 2 / Municipal Corporation, Raipur and Mr.Praveen Das, learned Deputy Advocate General, appearing for the State/respondent No.3.

#2. The present writ petition has been filed by the petitioner under Article 226 of the Constitution of India seeking following reliefs : “1] That, this Hon'ble Court may kindly be pleased to quash and cancel the tender process in NIT bearing No. 1782/RMC/2025 dated 10.10.2025 (3rd Call) issued by the Respondent Municipal Corporation for system Tender No. 177533 issued through e-procurement portal of the State of Chhattisgarh for works pertaining to Operation, Maintenance, Redevelopment and Utilisation of Installed Gantry at Telibandha Expressway Double Face, Gaurav Path and Anand Nagar Turn Double Face and in Front of Pandri Bus Stand Double Face for Advertising Purposes on Annual License Fee Basis" and direct the respondent Corporation to initiate Fresh Tendering process, in accordance with law. 2] That, alternatively, this Hon'ble Court may kindly be pleased to direct the respondent Corporation to reopen tender rocess in NIT bearing No. 1782/RMC/2025 dated

10.10.2025 (3rd Call) issued by the Respondent Municipal Corporation for system Tender No. 177533 issued through e-procurement portal of the State of Chhattisgarh for works pertaining to Operation, Maintenance, Redevelopment and Utilisation of Installed 3 Gantry at Telibandha Expressway Double Face, Gaurav Path and Anand Nagar Turn Double Face and in Front of Pandri Bus Stand Double Face for Advertising Purposes on Annual License Fee Basis" and permit the petitioner to participate in the aforesaid Tender Process.”

#3. Learned counsel for the petitioner submitted that a Request for Proposal (RFP) was issued by the Municipal Corporation Raipur for "Operation, Maintenance, Redevelopment and Utilisation of Installed Gantry at Telibandha Expressway Double Face, Gaurav Path and Anand Nagar Turn Double Face and in Front of Pandri Bus Stand Double Face for Advertising Purposes on Annual License Fee Basis" pursuant to which NIT dated 15.01.2025 was issued bearing No. 2665/RMC/2025. The last date for submission of bid was 05.02.2025 which was extended till 10.03.2025. However, vide email dated 15.07.2025, it was informed that the aforesaid tender has been cancelled without assigning any reason. She further submitted that thereafter, NIT No. 748/RMC/2025 Raipur dated 01.07.2025, the second call for the same work was issued by the respondent Municipal Corporation wherein the bid start dated was 01.07.2025 and last date for bid was 21.07.2025 and the last date for submission of bid was extended till 28.07.2025. The petitioner had participated in both the rounds of the tender process. However, surprisingly vide email dated 14.10.2025, it was again informed that the aforesaid tender (second round) has also been cancelled. Again, no reason was assigned for cancellation of the tender. She also submitted that in the meanwhile, without any intimation of cancellation of earlier 4 tender, a new NIT bearing No. 1782/RMC/2025 was issued on

10.10.2025, wherein the bid start date was 13.10.2025 and last date of bid was 23.10.2025. The aforesaid NIT was the Third Call for the same work wherein the petitioner had intended to participate, but since only 10 days time was given for filing up the tender wherein around 3 days were holidays for Deepawali Festival and there were other Optional Holidays also, as such, there were only 7 working days during the 10 days tender period and the intimation of cancellation of tender was only given to the petitioner on 14.10.2025 at around 6.36 PM and as all the records of the petitioner including the Demand Draft were with the Municipal Corporation which the petitioner had not received back, furthermore as per the Request for Proposal (RFP), the petitioner had to submit documents such as GST clearance Certificate for last three months which requires time to be prepared, therefore, the petitioner could not participated in the tender process.

#4. Learned counsel for the petitioner contended that the arbitrariness, malafide and biasness is clear from the fact that there is only one participant in the present tender process who had not at all participated in the aforesaid tender in the First and Second call, which shows that the entire tender process was cancelled and 3rd call was immediately started to give benefit to some particular firm/Institution. Furthermore, hurried and rushed issuance of the tender raises concerns about the transparency and integrity of the tender process. She further contended that the respondent 5 Corporation had spent around 10 months in First Two calls wherein more than a month's time was given for submission of bid and the tender process was kept pending for around 4 months and 3 months before cancelling the same. However, sudden invitation of new bids with only a limited time period for calling of bid between Festival Season and subsequent participation of only one Firm/Company in the Third Call shows that there is arbitrariness and biasness in the tender process.

#5. On the other hand, learned counsel, appearing for respondent Nos. 1 & 2 / Municipal Corporation, Raipur opposed the aforesaid submission and submitted that in the first round of tender, when the technical bid of petitioner was opened, it was found that the petitioner was not having work experience and in the second round also, the bid of the petitioner was not submitted on time. He further submitted that the petitioner is presently also not having the requisite documents, which is evident from page No.4 of the writ petition, wherein it is submitted that ‘furthermore as per the Request for Propal (RFP), the petitioner had to submit documents such as GST Clearance Certificate for last three months which requires time to be prepared’.

#6. We have heard learned counsel for the parties and perused the impugned orders and the material available on record.

#7. From perusal of the materials available on record it transpires that in the first round of tender, which was cancelled, though the petitioner had participated, but upon opening his tender, it was 6 found that he was not having work experience. Further in the second round tender for the same work, which was also cancelled, the tender submitted by the petitioner was not received by the respondent/ Corporation in time. It further transpires that the present tender, which is third round was issued on 10.10.2025 and intimation about cancellation of earlier tender and issuance of new tender has been recieved by the petitioner on 14.10.2025 and the last date of submission of bid was upto 23.10.2025, though in the meantime 3 days were holidays, but then also 7 working days are available to the petitioner, which is sufficient to participate in any tender, if the petitioner is having requisite documents available with him. It transpires that the petitioner is not having requisite documents, as such, he was not able to participate in the tender process.

#8. The law with respect to interference in tender matters is limited to certain extent as has been considered by the Hon'ble Supreme Court in large number of cases including in the case of Tata Motors Limited vs Brihan Mumbai Electric Supply & Transport Undertaking (BEST) and others1 wherein the Hon’ble Supreme Court has considered the factum of interference in the tender matters and has held as under: "48. This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual 1 2023 SCC OnLine SC 671 7 or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and ublic sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer."

#9. Recently, the Hon’ble Supreme Court, in the matter of Banshidhar Construction Pvt. Ltd. v. Bharat Coking Coal Ltd. & Others, {Civil Appeal No. 11005 of 2024, decided on

04.10.2024}, taking note of the decisions rendered in various other celebrated judgments, observed as under: “21. There cannot be any disagreement to the legal proposition propounded in catena of decisions of this Court relied upon by the learned counsels for the Respondents to the effect that the Court does not sit as a Court of Appeal in the matter of award of contracts and it merely reviews the manner in which the decision was made; and that the Government and its instrumentalities must have a freedom of entering into the contracts. 8 However, it is equally well settled that the decision of the government/ its instrumentalities must be free from arbitrariness and must not be affected by any bias or actuated by malafides. Government bodies being public authorities are expected to uphold fairness, equality and public interest even while dealing with contractual matters. Right to equality under Article 14 abhors arbitrariness. Public authorities have to ensure that no bias, favouritism or arbitrariness are shown during the bidding process and that the entire bidding process is carried out in absolutely transparent manner.

#22. At this juncture, we may reiterate the well-established tenets of law pertaining to the scope of judicial intervention in Government Contracts.

#23. In Sterling Computers Limited vs. M/s. M & N Publications Limited and Others2, this Court while dealing with the scope of judicial review of award of contracts held: - “18. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the “decision making process”. In this connection reference may be made to the case of Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141] where it was said that: (p. 144a) “The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court.” By way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such enquiry. But at the same time as was said by the House of Lords in the aforesaid case, Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141] the courts can certainly 2 (1993) 1 SCC 445 9 examine whether “decision-making process” was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution.”

#24. In Tata Cellular vs. Union of India3, this Court had laid down certain priniciples for the judicial review of administrative action. “94. The principles deducible from the above are: (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. Based on these principles we will examine the facts of this case since they commend to us as the correct principles.” 3 (1994) 6 SCC 651 10

#25. It has also been held in ABL International Limited and Another vs. Export Credit Guarantee Corporation of India Limited and Others4, as under: - “53. From the above, it is clear that when an instrumentality of the State acts contrary to public good and public interest, unfairly, unjustly and unreasonably, in its contractual, constitutional or statutory obligations, it really acts contrary to the constitutional guarantee found in Article 14 of the Constitution.”

#26. In Jagdish Mandal vs. State of Orissa and Others5, this Court after discussing number of judgments laid down two tests to determine the extent of judicial interference in tender matters. They are: - “22. (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or Whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached;” (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.”

#27. In Mihan India Ltd. vs. GMR Airports Ltd. and Others6, while observing that the government contracts granted by the government bodies must uphold fairness, equality and rule of law while dealing with the contractual matters, it was observed in Para 50 as under: - “50. In view of the above, it is apparent that in government contracts, if granted by the government bodies, it is expected to uphold fairness, equality and rule of law while dealing with contractual 4 5 6 (2004) 3 SCC 553 (2007) 14 SCC 517 (2022) SCC OnLine SC 574 11 matters. Right to equality under Article 14 of the Constitution of India abhors arbitrariness. The transparent bidding process is favoured by the Court to ensure that constitutional requirements are satisfied. It is said that the constitutional guarantee as provided under Article 14 of the Constitution of India demands the State to act in a fair and reasonable manner unless public interest demands otherwise. It is expedient that the degree of compromise of any private legitimate interest must correspond proportionately to the public interest.”

#28. It was sought to be submitted by the learned Counsels for the Respondents relying upon the observations made in Central Coalfields Limited and Another vs. SLL-SML (Joint Venture Consortium) and Others7, that whether a term of NIT is essential or not is a decision taken by the employer which should be respected. However, in the said judgment also it is observed that if the employer has exercised the inherent authority to deviate from the essential term, such deviation has to be made applicable to all the bidders and potential bidders. It was observed in Para 47 and 48 as under:- “47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but alsofrom the point of view of the employer. As held in Ramana Dayaram Shetty [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] the terms of NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651] there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer 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 if it is irrational or mala fide or intended to favour someone or a decision “that no responsible authority 7 (2016) 8 SCC 622 12