TMI Blog2022 (10) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... ner being an NGO would have any locus standi to maintain the writ petition challenging the tender conditions in the respective RFPs. Respondent No.1 cannot be said to be an aggrieved party . Therefore, in the present case, the High Court has erred in entertaining the writ petition at the instance of respondent No.1, challenging the eligibility criteria/tender conditions mentioned in the respective RFPs. The High Court ought to have dismissed the writ petition on the ground of locus standi of respondent No.1 original writ petitioner to maintain the writ petition - Even otherwise, even on merits also, the High Court has erred in quashing and setting aside the eligibility criteria/tender conditions mentioned in the respective RFPs, while exercising the powers under Article 226 of the Constitution of India. The impugned judgment and order(s) passed by the High Court are unsustainable and the same deserve to be quashed and set aside and are accordingly hereby quashed and set aside - Appeal allowed. - CIVIL APPEAL NOS. 6615 - 6616 OF 2022 - - - Dated:- 30-9-2022 - M. R. SHAH And KRISHNA MURARI , JJ. For the Appellant : Sonal Singh , Adv. Mr. Shubham Seth, Adv. Mrinal C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pulate onerous technical and financial qualifications, thereby rendering most of the extant Ground Handling Agencies (for short, GHAs ) ineligible to participate in the tender process, especially those which have been providing Ground Handling Services (for short, GHS ) at the smaller airports of the country, that fall under the categories of Groups C , D1 and D2 airports, for the last many years. It was also the case on behalf of the original writ petitioner that the prescribed technical and financial qualifications have no corelation with the GHS that the service providers are expected to provide at the Groups C , D1 and D2 airports and that the same have been arbitrarily and whimsically tailored with a view to oust the existing GHS providers, who have been providing these services for years, without any complaint. 2.2 The writ petition was opposed by the AAI by filing a counter affidavit. It was the case on behalf of the AAI that the objective of the tenders for Group C , D1 and D2 airports was not to oust small players but sought to exclude GHAs, which lack expertise and infrastructure and used casual and unskilled labour in workforce which allowed them to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not applicable in the facts of the present case 3.1 Elaborating the aforesaid grounds, it is vehemently submitted by Shri K.M. Nataraj, learned ASG that the original writ petitioner claims to be a non-profit organisation carrying out independent research, advisory and advocacy in the field of civil aviation. It is submitted that as per the settled position, NGOs have no locus standi to maintain a writ petition challenging the tender conditions especially when the same is not in the nature of a Public Interest Litigation. It is submitted that an NGO has no business to enter into tender disputes as the same falls in the realm of contract. It is submitted that the original writ petitioner cannot be said to be an affected and/or aggrieved party and therefore at the instance of the original writ petitioner, a writ petition was not maintainable assailing the tender process. Reliance is placed upon the decision of this Court in the case of Anand Sharadchandra Oka v. University of Mumbai, (2008) 5 SCC 217 (para 12). 3.2 It is submitted by the learned ASG that the original writ petitioner mainly challenged three terms/conditions of the tender in question, namely, I. Clustering of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 760 (para 8); Directorate of Education v. Educomp Datamatics Limited, (2004) 4 SCC 19 (para 12); Meerut Development Authority v. Assn. of Management Studies, (2009) 6 SCC 171 (paras 26 27); and Michigan Rubber (India) Limited v. State of Karnataka, (2012) 8 SCC 216 (paras 23 35). 3.7 Making the above submissions and relying upon the aforesaid decisions, it is vehemently submitted that in the present case, the High Court has erred in interfering with the administration/policy decision of the tender making authority in exercise of powers under Article 226 of the Constitution of India. 3.8 Now so far as the reliance placed upon MSME orders of 2012 and 2018 by the High Court is concerned, it is submitted that the reliance placed by respondent No.1 on the aforesaid orders is misplaced as the tenders in question have been issued with the purpose of selecting GHS for providing GHS, which service is in fact akin to grant of a license to the GHA, as opposed to procurement of any goo0ds and services that form the crux of the MSME orders. 3.9 It is submitted that even otherwise it is evident from sub-clause (1) of clause 3 of the MSME order of 2012, the minimum threshold presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory Public Procurement Policy of the Government wherein it is mandated that the AAI must procure 25% of services from MSME sector along with giving other benefits such as free of cost tender and exemptions to be granted from payment of Earnest Money Deposit (EMD) to register small and medium enterprises. It is submitted that in the present case the AAI artificially introduced differentiation in technical eligibility criteria, specifying experience in providing GHS to scheduled airlines flights only even there is no differentiation between GHS provided to non-scheduled or scheduled airlines in the AAI (GHS) Regulations, 2018. 4.4 It is further submitted that as rightly observed and held by the High Court the terms and conditions set forth in the tenders are discriminatory, restrictive, and exclusionary. It is submitted that clustering of small airports of different sizes, different capacity to handle aircrafts, different financial viabilities, different locations into regions etc. is not based on intelligible differentia nor does it have any rational nexus to the avowed objective of the respondent of security. It is submitted that as the relevant eligibility criteria and the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot open to judicial scrutiny, unless they are arbitrary, discriminatory or mala fide. As per the settled position of law, the terms of the Invitation to Tender are not open to judicial scrutiny, the same being in the realm of contract. The Government/tenderer/tender making authority must have a free hand in setting the terms of the tender. 7. While considering the scope and ambit of the High Court under Article 226 of the Constitution of India with respect to judicial scrutiny of the eligibility criteria/tender conditions, few decisions of this Court are required to be referred to, which are as under: In the case of Maa Binda Express Carrier (supra), in paragraph 8, this Court observed and held as under: 8. The scope of judicial review in matters relating to award of contracts by the State and its instrumentalities is settled by a long line of decisions of this Court. While these decisions clearly recognise that power exercised by the Government and its instrumentalities in regard to allotment of contract is subject to judicial review at the instance of an aggrieved party, submission of a tender in response to a notice inviting such tenders is no more than making an offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government. In the aforesaid decision, it is further observed that the Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the courts would interfere. It is further observed that the courts cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. Similar views have been expressed in the case of Educomp Datamatics Ltd. (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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