High Court
Legal Reasoning
WP 8525 24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 8525 OF 2024M/s. Surendra Infrastructure (P) Ltd.,Through its Authorized Signatory,Shri. Liyakhat Ahmed Shaikh,Age 48 years, Occ. Service,R/o. Office No. 502, Block No. III,Near Ambedkar Bhavan, LLYODS Chamber,Mangalwar Peth, Pune-411 011.…PetitionerVERSUS1)The State of Maharashtra,Through its Secretary,Department of Water Resources& Command Area Development,Mantralaya, Mumbai-32.2)The Chief Engineer & Chief Administrator,Command Area Development Authority,(Water Conservation Department),Chh. Sambhajinagar.3)The Superintending Engineer & Administrator,Command Area Development Authority,Chh. Sambhajinagar.4)The Executive Engineer,Jayakwadi Irrigation Department,Nathnagar (North), Paithan,Dist. Chh. Sambhajinagar.5)Mahalaxmi Infra,Through its Proprietor,Indiranagar, New Baijipura,Meerai Sadan,Chh. Sambhajinagar.…Respondents.…Advocate for Petitioner : Mr. A.P. Bhandari h/f Mr. Chaitanya S. DeshmukhAddl. G.P. for Respondent No. 1 : Mr. A.R. KaleAdvocate for Respondent No. 4 : Mr. S.G. BhaleraoAdvocate for Respondent No. 5 : Mr. V.D. Salunke1/17 WP 8525 24.odtCORAM: MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ON PRONOUNCED ON :: 28.08.2024 06.09.2024JUDGMENT : ( MANGESH S. PATIL, J.)Heard. Rule. Rule is made returnable forthwith. The learned A.G.Pwaives service for respondent no. 1. Respondent nos. 2 and 3 have beenserved but have not caused appearance. Learned advocate Mr. Bhaleraowaives service for respondent no. 4 and the learned advocate Mr. Salunkewaives service for respondent no. 5. At the joint request of the parties, thematter is heard finally at the stage of admission. 2.The petitioner is challenging his disqualification at the technicalevaluation of the offer submitted by him in respect of the E-tender notice no.22/2023-24, floated by the respondent nos. 2 to 4 for the work ‘Restorationof canal section and lining in 47 km to 48 km of Paithan Left Bank Canal’. Itis also challenging qualification of respondent no. 5 at the technicalevaluation. It is seeking writ of mandamus against respondent no. 4directing him to qualify it and to open its financial bid.3. Mr. Bhandari would submit that the petitioner was disqualifiedprimarily for two reasons; (1) absence of digital signature, and (2) failure tosubmit proof of I.P. address of the device from which the tender is uploaded.He would submit that both these shortcomings were easily curable. Hewould submits that the technical bids were to be opened on 28.03.2024. Thefinancial bids were to be opened on 30.07.2024. Even if there were someshortcomings and defects, those were to be notified and the period ofaround three months between the date of opening of the technical bid andthe financial bid was supposed to be used for getting such curable defectsrectified. He would also advert our attention to the government resolutions2/17 WP 8525 24.odtdated 27.09.2018 and 17.09.2019, issued by the Public Works Departmentin this regard. According to him when it was a matter of public work, anopportunity ought to have been extended to the petitioner to cure both thesedefects. It is only for that purpose the period of 3 months intervening thedate of opening of the technical bids and that of financial bids was kept.The approach of disqualifying the petitioner in a hurried manner, withoutgiving him any intimation about it is clearly demonstrative of arbitrariness inthe decision making process. The decision was taken objectively to eliminateit and to favour respondent no. 5.4.Mr. Bhandari would submit that as per Clause 4.1, it was expectedthat after opening of the technical bid and after scrutiny of the documents ofthe bidders, a list of qualification/disqualification would be prepared andcommunicated to the bidders and also would be published on the web portalthrough which ‘E’ tender process was being undertaken. It expresslystipulated intimation to be given together with reasons to the bidders, whowere held to be disqualified. Even there was a stipulation for providing anopportunity to the disqualified bidder to approach the authorities andexpecting the authorities to extend an opportunity of personal hearing.However, these requirements were not followed by respondent nos.2 to 4and demonstrates arbitrariness in undertaking the tender process.5.Mr. Bhandari would then submit that the offer of respondent no. 5was suffering from several shortcomings and was not compatible with theterms and conditions of the tender notice. However, the authorities haveconveniently ignored the shortcomings and it was allowed to clear thetechnical bid successfully. He would submit that as per clause 2.2.A (V) ofthe tender document, the bidder was expected to submit a list of machineryand plants for their use in the proposed work. It required documentaryproof in respect of the machinery owned by the bidder in the form of R.T.O.registration, certificate of taxation, goods carriage permit in Form P-Gd (Rule72 (i)(v) of the Motor Vehicles Rules and certificate of fitness in Form 38 as3/17 WP 8525 24.odtper Rule 62(i)(7). He would submit that the respondent no. 5 had notfurnished any certificate of fitness of the plant and machinery as per thisstipulation.6.Mr. Bhandari would also submit that as per the tender document, thebidder should have annual turnover in any one year during the last fiveyears of not less than Rs. 154 lakhs, for the years 2018-2019 to 2022-2023.A specific certificate in the form provided for in Appendix ‘N’ regarding bidcapacity duly signed by the Chartered Accountant with certificate to supportturnover of civil engineering works was essential. Thus, both the conditions,regarding availability of machinery and certification regarding annualturnover were essential and integral part of the tender document. The offerof respondent no. 5 was deficient in both these respects and he could nothave been treated as compliant with the terms and conditions.7.Mr. Bhandari would submit that the certificate of the CharteredAccountant furnished by respondent no. 5, as was required by the tenderdocument to demonstrate turnover, was not having any Unique DocumentIdentification Number (UDIN). The documents, which were furnished byrespondent no. 5 were having UDIN number on other documents but not thecertificate of the Chartered Accountant (Page 271). He would refer to thedivision bench judgments of the Jammu & Kashmir and Ladakh High Courtand that of Allahabad High Court:(1) M/s. Arth Enterprises and another Vs. State of U.P. andothers (Writ Petition -Civil No. 41989/2023) decided on16.01.2024, and;(2) M/s. TRG Industries Private Limited Vs. U.T. of Jammuand Kashmir and others in Writ Petition (C) No. 2910/2022dated 22.03.2024.4/17 WP 8525 24.odt8.He would submit that in similar set of facts, wherein requirement offurnishing a certificate of Chartered Accountant in respect of turnover forfive financial years requiring UDIN number was held to be an essentialcondition of the tender documents and for want of which, the offer was heldto be non responsive. He would submit that absence of UDIN number andeven the fact that the certificate also was merely for four years and not fiveyears, should have been enough for disqualifying respondent no. 5 at thetechnical evaluation. It has been conveniently ignored by respondent nos. 2to 4 and demonstrates arbitrariness and mala fides in undertaking thetender process. He would cite the decision in the matter of RamanaDayaram Shetty Vs. The International Airport Authority of India and others;A.I.R. 1979 Supreme Court 1628. He would thus submit that the decision indisqualifying the petitioner at the technical evaluation and allowingrespondent no. 5 to get through it, in spite of serious defects, demonstratesthe arbitrary manner in which the entire exercise was done and therespondent nos. 2 to 4 be directed to revive the tender process from thestage of technical evaluation.9.The learned advocate Mr. Bhalerao for respondent no. 4, by referringto the affidavit in reply, would submit that both the stipulations regardingproviding I.P. address and the documents to be digitally signed were theessential conditions of the tender document. The petitioner is not disputingfactually that both these defects were writ large in its offer. It cannot beallowed to question the disqualification. The very fact that the I.P. address isrequired for avoiding cartel formation being the object, it should be left forrespondent nos. 2 to 4 to decide essentiality of that condition as laid downin the matter of N.G. Projects Limited Vs. Vinod Kumar Jain and others;(2022) 6 SCC 127. He would submit that presence of digital signature onthe documents is also an essential term and the petitioner having notcomplied with cannot be allowed to make any grievance regarding hisdisqualification.5/17 WP 8525 24.odt10.Mr. Bhalerao would submit that the entire tender process was beingundertaken through ‘E’ procurement system of the Government ofMaharashtra. Every bidder could monitor the process online by theautomated system generated mail/message. The petitioner was informedabout his disqualification on 24.06.2024. Even the result was availableonline. The petitioner is not entitled to be heard on the ground oftransparency. The tender process being undertaken by respondent nos. 2 to4 is in accordance with the government policy set out in the governmentresolution dated 18.10.2023, issued by Water Resource Department, and itwas expressly mentioned in the tender document itself. He would,therefore, submit that the petitioner cannot legally insist for intimation ofdisqualification to be given to him by referring to the government resolutiondated 17.07.2019, which is basically a government resolution in respect ofthe works to be undertaken by the P.W.D.11.Lastly, Mr. Bhalerao would submit that the petitioner, who has beendisqualified, does not have any locus standi to obstruct the tender process byquestioning eligibility of respondent no. 5. Even if respondent no. 5 is heldto be disqualified, the petitioner is not going to get the contract and it wouldmerely lead to delay in the project, which cannot be allowed to happen inexercise of the writ jurisdiction. Small aberrations here and there, may beignored by the employer, cannot be a ground for invoking power of judicialreview in tender matters. He would submit that already the work order hasbeen issued to respondent no. 5, and no order stalling the work be passed.He would place reliance on following decisions:(1)Jagdish Mandal v. State of Orissa and others;(2007) 14 SCC 517.(2)Tata Motors Ltd. Vs. The Brihan Mumbai ElectricSupply & Transport Undertaking (BEST) and others; 2023SCC OnLine SC 671.6/17 WP 8525 24.odt12.The learned advocate Mr. Salunke for respondent no. 5 would equallyplace reliance on the decisions cited by Mr. Bhalerao. He would submit thatmentioning of UDIN on the Chartered Accountant’s certificate was not anessential condition. The account statements annexed thereto were havingUDIN numbers. That was reasonable compliance and even if it is treated asnot in strict compliance with the condition of the tender document, withoutthere being anything to demonstrate and attribute mala fides, arbitrarinessand unreasonableness on the part of the employer, the eligibility ofrespondent no.5 need not be interfered with.13.Mr. Salunke would also endeavour to demonstrate that the fitnesscertificate contemplated in 2.2.A(V) was in respect of the vehicles, whichwere registered with the Road Transport Authorities. The self-samestipulation indicated that in case of a new machinery purchased, thevouchers would suffice. He would, therefore, pray to dismiss the petition.14.We have considered the rival submissions and perused the papers.15.As can be gathered, the petitioner is fighting the battle on two fronts.It is challenging its disqualification and is simultaneously challengingeligibility of respondent no. 5 as well. Obviously, both these things will haveto be examined independently and there cannot be simultaneousconsideration of both these grounds.16.Starting with the disqualification of the petitioner, as is mentionedearlier, it has been disqualified essentially on two counts; (1) absence ofdigital signature on the documents and (2) failure to submit proof of I.P.address of the device from which the tender is uploaded.17.Taking up the first ground, there cannot be a dispute that there is anexpress stipulation in the tender document in clause No. 2.1.A mandatingthe bidders to upload all the documents with a digital signature. Thestipulation reads as under:7/17 WP 8525 24.odt“The Bids required to be submitted online should be signedelectronically with a Class II-Digital Signature Certificate toestablish the identity of the Bidder bidding online. TheseDigital Certificates are issued by an approved CertifyingAuthority, authorized by the Controller of CertifyingAuthorities, and Government of India.”A bare reading of this stipulation indicates that its purpose is to establishidentity of the bidder, who is bidding online. The very fact that it is a ‘E’tender process undertaken online, in our considered view, it is indeed anessential condition to pin down the identity of the bidder. When thepetitioner had, admittedly, failed to conform to it, no fault can be found inthe decision to disqualify it. 18.Anticipating this, Mr. Bhandari tried to bank upon the fact that therewas a period of three months between opening of the technical bid and thefinancial bid, which according to him, was designedly kept to enable thebidders in complying with the shortcomings, pointed out to them. He wouldalso refer to the government resolutions in the Department of Public Worksof the Government of Maharashtra of 27.09.2018 and 17.09.2019, whichcontemplate extending opportunity to the bidders to overcome theshortcomings and minor deficiencies.19.So far as essentiality of the condition is concerned, Mr. Bhandariwould not argue that the stipulation/condition of uploading the documentsbearing digital signatures cannot be regarded as an essential condition. Thewhole thrust of his argument is on the fact that the petitioner ought to havebeen extended an opportunity to cure the shortcomings/defects.20.As far as the period of three months between the opening of thetechnical bid and the financial bid, there is nothing on the record todemonstrate that the period of three months was meant to providerespondent nos. 2 to 4 an opportunity to point out the defects to the biddersand to get those complied with. Though the argument of Mr. Bhandari is8/17 WP 8525 24.odtingenuous, in the absence of any other corroborating material it is difficultto reach a conclusion that the period of three months was kept designedly toget the defects cured from the bidders.21.So far as the government resolutions issued in the Public WorksDepartment of the State of Maharashtra, Mr. Bhalerao, on our query couldnot expressly deny the fact that these government resolutions being inrespect of the Public Works Department can be ignored by respondent nos. 2to 4. However, he would emphasize that it is an independent authority andit has its own regulations in place. According to him, the governmentresolution dated 18.10.2023, issued by the Water Resource Department, willhave to be resorted to and there is no such stipulation in that governmentresolution mandating respondent nos. 2 to 4 in seeking the defects in theoffers of the bidders to be got rectified.22.Taking up the second limb of the argument of Mr. Bhandari, advertingour attention to clause 4.1 of the tender document that it expresslystipulated that the list of disqualified bidders/disqualifications to becommunicated to the bidders and to be published on the web portal, and thedisqualification to be intimated to the individual contractor together withthe reasons for their disqualification and expecting the authorities to resortto personal hearing and to revisit the result of disqualification and again topublish it on the website. Indeed, the tender document contains such astipulation. However, as is being pointed out by Mr. Bhalerao, it is an Etender process, which was being undertaken online, and everything that wasuploaded on the portal was available to be seen by the bidders. There is nodenial about such a stand taken in the affidavit in reply filed by respondentno. 4. The petitioner has not filed any rejoinder. Meaning thereby, thoughthere is a stipulation in the tender document requiring the employer(respondent nos. 2 to 4) to extend personal hearing to the disqualifiedbidder and attend his grievance, it was for the petitioner to have objectivelydemonstrated about having approached respondent nos. 2 to 4 no sooner his9/17
Decision
WP 8525 24.odtdisqualification was uploaded or he became aware about it. In the absenceof which, the petitioner is not entitled to bank upon the stipulation in thetender document regarding the post disqualification steps to be taken byrespondent nos. 2 to 4. Therefore, the petitioner is not entitled to deriveany benefit from the stand it has been taking to question its disqualification.23.This takes us to the second ground for disqualification of thepetitioner, regarding non submission of proof of I.P. address of the devicethrough which the tender is uploaded. The petitioner is not disputing this asa fact. It is not its stand about having furnished proof of the I.P. addressfrom which he had submitted his bid.24.As far as essentiality of this condition is concerned, this Court hasinherent limitations in examining that aspect under Article 226 of theConstitution of India. If respondent nos. 2 to 4 have consciously treated thiscondition as an essential condition, we cannot substitute our views. It is inthis context, paragraph no. 22 of N.G. Projects (supra) guides us. It reads asunder:“22. The satisfaction whether a bidder satisfies the tendercondition is primarily upon the authority inviting the bids. Suchauthority is aware of expectations from the tenderers whileevaluating the consequences of non-performance. In the tenderin question, there were 15 bidders. Bids of 13 tenderers werefound to be unresponsive i.e., not satisfying the tenderconditions. The writ Petitioner was one of them. It is not thecase of the writ Petitioner that action of the Technical EvaluationCommittee was actuated by extraneous considerations or wasmala fide. Therefore, on the same set of facts, differentconclusions can be arrived at in a bona-fide manner by theTechnical Evaluation Committee. Since the view of the TechnicalEvaluation Committee was not to the liking of the writPetitioner, such decision does not warrant for interference in agrant of contract to a successful bidder.”25.Bearing in mind this proposition, when respondent no. 4 in his affidavit inreply has expressly mentioned that the stipulation regarding providing proof of I.P.10/17 WP 8525 24.odtaddress is resorted to, to avoid cartel formation, it will not be appropriate for us toquestion its stand. Since the petitioner failed to comply with and provide proofregarding the I.P. address of the device through which it had submitted its offer, noexception can be taken to the impugned decision holding it to be disqualified evenon this count. 26.The submission of Mr. Bhandari that no such proof of I.P. address isnecessary since the I.P. address would be visible to the recipient in such electroniccommunication through internet cannot be countenanced. To repeat, it is not forthe Court to examine the propriety or otherwise of any stipulation/condition of atender document. The Court cannot question the employer and call upon him tojustify a term or a condition of a tender document. It is left to the wisdom of theemployer since it is a commercial transaction albeit undertaken by a publicauthority like respondent nos. 2 to 4.27.The upshot, we find no merit in the petitioner’s stand to the extent it isquestioning the decision of respondent no. 4 to disqualify it in the technical bid.28.Before we proceed to examine the other relief being claimed by thepetitioner questioning eligibility and qualification of respondent no. 5, we need toemphasize that once having found that there was no error or illegality indisqualifying the petitioner, it would be a matter wherein the situation would belike a bidder, who has been disqualified is questioning the qualification of the otherbidders, who could get through the technical evaluation. It is in this context,following observations in paragraph no. 27 of the decision in the matter of RaunaqInternational Ltd. vs. I.V.R. Construction Ltd. and others; (1999) 1 SCC 492,particularly the portion emphasized by the Supreme Court in the matter of TataMotors (supra) is important. Para No. 27, with the emphasis supplied in TataMotors (supra) reads as under:"27.In the present case, however, the relaxation waspermissible under the terms of the tender. The relaxation whichthe Board has granted to M/s. Raunaq International Ltd. is onvalid principles looking to the expertise of the tenderer and hispast experience although it does not exactly tally with theprescribed criteria. What is more relevant, M/s I.V.R.11/17 WP 8525 24.odtConstruction Ltd. who have challenged this award of tenderthemselves do not fulfil the requisite criteria. They do notpossess the prescribed experience qualification. Therefore, anyjudicial relief at the instance of a party which does not fulfil therequisite criteria seems to be misplaced. Even if the criteria canbe relaxed both for M/s Raunaq International Ltd. and M/sI.V.R. Construction Ltd., it is clear that the offer of M/s RaunaqInternational Ltd. is lower and it is on this ground that theBoard has accepted the offer of M/s Raunaq International Ltd.We fail to see how the award of tender can be stayed at theinstance of a party which does not fulfil the requisite criteriaitself and whose offer is higher than the offer which has beenaccepted. It is also obvious that by stopping the performance ofthe contract so awarded, there is a major detriment to the publicbecause the construction of two thermal power units, each of210 MW, is held up on account of this dispute. Shortages ofpower have become notorious. They also seriously affectindustrial development and the resulting job opportunities for alarge number of people. In the present case, there is nooverwhelming public interest in stopping the project. There isno allegation whatsoever of any mala fides or collateral reasonsfor granting the contract to M/s. Raunaq International Ltd.(Emphasis supplied)”These observations more particularly emphasized in Tata Motors Limited(supra), would demonstrate that since the petitioner’s disqualification isbeing upheld by us, it would not be appropriate to undertake any scrutinyregarding challenge to the eligibility and qualification of respondent no. 5 atits instance. Therefore, even though the petition has been filed challengingpetitioner’s disqualification and simultaneously disputing qualification ofrespondent no. 5, the judicial enquiry into the latter would be contingentupon grant of relief to the petitioner in the former. Therefore, it would notbe necessary for us to undertake any scrutiny on merits in respect of the partof the petition putting up a challenge to the disqualification of respondentno. 5. 29.There is one more appendage. With the disqualification of thepetitioner, respondent no. 5 and the other bidders would be in the fray.12/17 WP 8525 24.odtWith whatever demerit of respondent no. 5, the tender process hasprogressed and even a work order has been issued in its favour. Thechallenge to the qualification of respondent no. 5 is being put up by thepetitioner only. The other bidders are not before us and are not putting upany challenge to the qualification of respondent no. 5. Therefore, this wouldbe an additional reason for not to undertake any objective scrutiny of themerits of the petition to the extent of challenge to the qualification ofrespondent no. 5.30.Be that as it may, in order to make the judgment complete we still feelit appropriate to examine the aspect of qualification of respondent no. 5 onmerit as well.31.The petitioner is challenging qualification of respondent no.5 bypointing out that contrary to the stipulation in Clause no. 2.2.A(V) of thetender document it had not furnished certificate of fitness. The clause readsas under:“2.2.A(V)-List of machinery and plants immediatelyavailable with the tenderer for use on this work and list ofmachinery proposed to be utilized on this work but notimmediately available and the manner in which it is proposed tobe procured. (Proforma in Section VII of this tender form)The Contractor shall have to produce the documentary proof inrespect of machinery owned by him as below.i) R.T.O. Registrationii) Certificate of Taxationiii) Goods Carriage Permit in Form P- Gd [see Rule 72(i) v]iv) Certificate of fitness in form 38 [see Rule 62(i)7]In the case of Non- RTO machinery, if the machinery is new themanufacturer's sale certificate shall be produced. In case ofsecond hand machinery, the purchase document with proof ofpayment and Balance sheet certificate by the CharteredAccountant shall be produced. In lieu of the certificate of theChartered Accountant, a certificate from a Scheduled Bank/Nationalized Bank of having financed the machinery will beacceptable.It is the stand of respondent no. 4 in the affidavit in reply, in this contextthat so far as this clause regarding fitness certificate of the machinery is13/17 WP 8525 24.odtconcerned, will have to be read in conjunction with the machinery that wasrequired to be made available with the bidder as notified in clause no.2.2.A(V) of the tender document. It is the stand of respondent nos. 4 and 5that the clause is divided in two parts. It is only in respect of the vehicleswhich are required to be registered with Road Transport Authorities that thefirst portion is applicable inter alia requiring certificate of fitness in Form 38.The latter portion of the same clause mentions that in case of non R.T.O.machinery, the manufacturer's sale certificate was required to be producedand if it was a case of secondhand ownership of the machinery, the purchasedocument with proof of payment and balance-sheet certificate was required.Since the four machineries, which were notified as essential and required forundertaking the work were not the vehicles and were not registered with theR.T.O., respondent no. 5 having produced manufacturer's sale certificates/vouchers, was sufficient compliance made by respondent no. 5.Consequently, this ground being raised by the petitioner would not besustainable. 32.As far as post qualification criteria requiring submission of CharteredAccount’s certificate in respect of annual turnover for a period of five yearsfrom 2018-2019 to 2022-2023 and of having at least one year turnover ofnot less than Rs. 154 lakhs and precisely requiring UDIN, one need notoveremphasize the fact that mentioning of UDIN on the CharteredAccountant’s certificates was apparently a mandatory condition andrespondent no. 5 had not furnished such a certificate, albeit some profit andloss account statements were having UDIN. Again, even whatever certificaterespondent no. 5 had produced was merely of a period of four years asagainst the requirement of five years. However, admittedly, it is a matter ofpost qualification criteria to be applied. Once having found that thepetitioner stands disqualified, and legally, no enquiry into such eligibility ofrespondent no. 5 applying the post qualification criteria can be undertaken.33. Besides, as has been laid down in Jagdish Mandal (supra), as also the14/17 WP 8525 24.odtN.G. Projects (supra), it is not a matter to be gone into in exercise of thejurisdiction under Article 226 of the Constitution of India. Suffice for thepurpose to refer to paragraph no. 22 from Jagdish Mandal and paragraphno. 23 from N.G. Projects:Paragraph no. 22 from Jagdish Mandal (supra):“22. Judicial review of administrative action is intended toprevent arbitrariness, irrationality, unreasonableness, bias andmala fides. Its purpose is to check whether choice or decision ismade “lawfully” and not to check whether choice or decision is“sound”. When the power of judicial review is invoked in mattersrelating to tenders or award of contracts, certain special featuresshould be borne in mind. A contract is a commercial transaction.Evaluating tenders and awarding contracts are essentiallycommercial functions. Principles of equity and natural justicestay at a distance. If the decision relating to award of contract isbona fide and is in public interest, courts will not, in exercise ofpower of judicial review, interfere even if a proceduralaberration or error in assessment or prejudice to a tenderer, ismade out. The power of judicial review will not be permitted tobe invoked to protect private interest at the cost of publicinterest, or to decide contractual disputes. The tenderer orcontractor with a grievance can always seek damages in a civilcourt. Attempts by unsuccessful tenderers with imaginarygrievances, wounded pride and business rivalry, to makemountains out of molehills of some technical/proceduralviolation or some prejudice to self, and persuade courts tointerfere by exercising power of judicial review, should beresisted. Such interferences, either interim or final, may hold uppublic works for years, or delay relief and succor to thousandsand millions and may increase the project cost manifold.Therefore, a court before interfering in tender or contractualmatters in exercise of power of judicial review, should pose toitself the following questions : i) Whether the process adopted or decision made by theauthority is mala fide or intended to favour someone.ORWhether the process adopted or decision made is so arbitraryand irrational that the court can say : ‘the decision is such thatno responsible authority acting reasonably and in accordance15/17 WP 8525 24.odtwith relevant law could have reached.’ ii) Whether public interest is affected.If the answers are in the negative, there should be no interferenceunder Article 226. Cases involving black-listing or imposition ofpenal consequences on a tenderer/contractor or distribution of statelargesse (allotment of sites/shops, grant of licences, dealerships andfranchises) stand on a different footing as they may require a higherdegree of fairness in action.” Paragraph no. 23 from N.G. Projects (Supra):“23. In view of the above judgments of this Court, the WritCourt should refrain itself from imposing its decision over thedecision of the employer as to whether or not to accept the bid of atenderer. The Court does not have the expertise to examine theterms and conditions of the present- day economic activities of theState and this limitation should be kept in view. Courts should beeven more reluctant in interfering with contracts involving technicalissues as there is a requirement of the necessary expertise toadjudicate upon such issues. The approach of the Court should benot to find fault with magnifying glass in its hands, rather the Courtshould examine as to whether the decision-making process is aftercomplying with the procedure contemplated by the tenderconditions. If the Court finds that there is total arbitrariness or thatthe tender has been granted in a mala fide manner, still the Courtshould refrain from interfering in the grant of tender but insteadrelegate the parties to seek damages for the wrongful exclusionrather than to injunct the execution of the contract. The injunctionor interference in the tender leads to additional costs on the Stateand is also against public interest. Therefore, the State and itscitizens suffer twice, firstly by paying escalation costs and secondly,by being deprived of the infrastructure for which the present-dayGovernments are expected to work.”These observations would certainly circumscribe the powers of this Court tobe exercised under Article 226 of the Constitution of India. Even if theCourts find that there is arbitrariness and even mala fides, the courts shouldrefrain from interfering in the grant of tender and instead relegate theparties to seek damages. 34.This being the law culled down by the Supreme Court over a period oftime, when respondent nos. 2 to 4 in their wisdom have chosen to ignore16/17 WP 8525 24.odtthe fact that respondent no. 5 had failed to furnish a certificate of CharteredAccountant in respect of the turnover for five years bearing UDIN, and evenif the petition contains allegation about the exercise has been undertaken tofavour respondent no. 5, this Court cannot interfere in the tender processbeing undertaken by respondent no. 4, which has now reached to a stagewhere a work order has already been issued to respondent no. 5 and moreso when no other bidder is objecting to the qualification of respondent no. 5.35.There is no merit in the petition.36.The Writ Petition is dismissed. ( SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)mkd/-17/17