TMI Blog2024 (2) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... somersault by challenging the condition of NIT - Under these circumstances, it is held that the petitioner is estopped from challenging the conditions of NIT. So far as the judgment relied upon by petitioner passed by Rajasthan High Court in the case of M/S RAM KHILADI GURJAR VERSUS RAJASTHAN STATE COOPERATIVE MARKETING FEDERATION LTD. (RAJFED) , REGISTRAR COOPERATIVE SOCIETIES, COOPERATIVE DEPARTMENT, SAHKAR BHAWAN, JAIPUR. [ 2018 (11) TMI 1954 - RAJASTHAN HIGH COURT] is concerned, this Court with all humility at its command is not inclined to rely on the same - In the case of M/s Ram Khiladi Gurjar, doctrine of estoppel, jurisdiction of Court under Article 226 of Constitution of India in respect of contractual matter and the jurisdiction of this Court to modify the condition of NIT has not been taken into consideration at all. Whether the respondent/ Department is entitled to incorporate the condition in NIT as per their requirement or not and what is the scope of interference under Article 226 of Constitution of India? - HELD THAT:- It is well established principle of law that a writ petition for enforcement of contract is not maintainable. The Supreme Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... five completed financial years duly audited by the Chartered Accountant. Note-1 :- Turnover of any two years out of last 05 Financial years i.e. 2017-18, 2018-19, 2019-20, 2020-21 2021-22 will be considered for calculations of average turnover as desired above and will also be considered to establish that firm is having minimum two years experience in the field of catering/ hospitality in India. 3. By referring to the certificate of break-up of sales turnover, it is submitted by Shri Verma that for financial year 2021-22, annual turnover of petitioner was Rs. 79.97 Lakhs. For financial year 2020-21, his annual turnover was Rs. 60.11 Lakhs. For financial year 2019-20, his annual turnover was Rs. 139.44 Lakhs. For financial year 2018-19, his annual turnover was Rs. 100.42 Lakhs and for financial year 2017-18, his annual turnover was Rs. 32.25 Lakhs. It is submitted that as per the eligibility criteria for 'A' category of stations, the average annual sales turnover of One Crore in any two years out of last five financial years was required. Since petitioner had annual turnover of more than Rupees One Crore in financial year 2019-20 and 2018-19, therefore he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, Sikshak Sangh and Others reported in (2006) 2 SCC 545. 6. Per contra, petition is vehemently opposed by counsel for the respondents. It is submitted that once the petitioner had participated in the NIT by submitting his bid, then he is estopped from challenging the conditions of the bid. Furthermore, it is the prerogative of the respondents to fix the conditions. The condition of enclosing audited balance sheet and profit loss account for the last five financial years was in order to avoid filing of any bogus document. 7. Heard learned counsel for the parties. 8. The undisputed fact is that the petitioner had participated in the NIT without any objection and only after his bid was declared disqualified, petitioner has filed this petition thereby directly / indirectly challenging the mandatory criteria of enclosing balance sheet and profit loss account of last five completed financial years duly audited by the Chartered Accountant. 9. Thus the first question for consideration is as to whether petitioner after having failed in the NIT can challenge the conditions of NIT? 10. The Supreme Court in the case of D. Sarojakumari Vs. R. Helen Thilakom and Others re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. 8. In Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309 : (2013) 3 SCC (L S) 129 the petitioners took part in the process of selection made under the general rules. Having appeared in the interview and not being successful they challenged the method of recruitment itself. They were not permitted to raise such an objection. This Court held as follows: (SCC p. 320, para 24) 24. In view of the propositions laid down in the above-noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents. 11. The Supreme Court in the case of Ashok Kumar and Another Vs. State of Bihar and Others reported in (2017) 4 SCC 357 has held as under:- 12. The appellants participated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J K, (1995) 3 SCC 486 : 1995 SCC (L S) 712, Marripati Nagaraja v. State of A.P., (2007) 11 SCC 522 : (2008) 1 SCC (L S) 68, Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC 171 : (2008) 1 SCC (L S) 1005 : (2008) 3 PLJR 271, Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC 227 : (2009) 1 SCC (L S) 627 and K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515 : (2009) 2 SCC (L S) 57. 16. In Vijendra Kumar Verma v. Public Service Commission, (2011) 1 SCC 150 : (2011) 1 SCC (L S) 21, candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 SCC (L S) 164 : 7 SCEC 462. 12. It is submitted by counsel for petitioner that it is well established principle of law that there cannot be estoppel against a statute. Since Income Tax Act does not require filing of audited balance sheet if annual turnover is less than Rupees One Crore, then making it mandatory by the respondents is contrary to the provisions of Income Tax Act. 13. Considered the submissions. 14. Income Tax Act operates in a different field. Whatever is required under the Income Tax Act has to be interpreted for the purposes of said Act only. 15. Counsel for petitioner could not point out any clause from the NIT which provided that the provisions of Income Tax Act would apply. 16. Accordingly, counsel for petitioner was asked to point out as to whether there is a bar under Income Tax Act providing that if the annual turnover is less than Rupees One Crore, then audited balance sheet cannot be filed. 17. It is fairly conceded by counsel for petitioner that there is no such bar. Furthermore, it is clear from the NIT that it was no where required that the audited balance sheet and profit loss account must have been filed before the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tations. It is in this context of judicial review of administrative actions that this Court has opined that it is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. The purpose is to check whether the choice of decision is made lawfully and not to check whether the choice of decision is sound. In evaluating tenders and awarding contracts, the parties are to be governed by principles of commercial prudence. To that extent, principles of equity and natural justice have to stay at a distance. [ Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517]. 3. We cannot lose sight of the fact that a tenderer or contractor with a grievance can always seek damages in a civil court and thus, attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted . [ Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517] 26. The Supreme Court in the case of Caretel Infotech Ltd. Vs. Hindustan Petroleum Corporation Limited and others ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eciate its requirements. In the facts of the present case, the view, on interpreting the tender documents, of Respondent 1 must prevail. Respondent 1 itself, appreciative of the wording of Clause 20 and the format, has taken a considered view. Respondent 3 cannot compel its own interpretation of the contract to be thrust on Respondent 1, or ask the Court to compel Respondent 1 to accept that interpretation. In fact, the Court went on to observe in the aforesaid judgment that it is possible that the author of the tender may give an interpretation that is not acceptable to the constitutional court, but that itself would not be a reason for interfering with the interpretation given. We reproduce the observations in this behalf as under: (Afcons Infrastructure Ltd. case [ Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818] , SCC p. 825, para 15) 15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been more suitable. An unexpressed term can be implied if and only if the court finds that the parties must have intended that term to form part of their contract: it is not enough for the court to find that such a term would have been adopted by the parties as reasonable men if it had been suggested to them: it must have been a term that went without saying, a term necessary to give business efficacy to the contract, a term which, though tacit, formed part of the contract which the parties made for themselves. (Attorney General of Belize case [ Attorney General of Belize v. Belize Telecom Ltd., (2009) 1 WLR 1988 : 2009 Bus LR 1316 (PC)] , WLR pp. 1993 A-B, F-H 1994 A, paras 16 19) (emphasis in original) 41. Nabha Power Ltd. [Nabha Power Ltd. v. Punjab State Power Corpn. Ltd., (2018) 11 SCC 508 : (2018) 5 SCC (Civ) 1] also took note of the earlier judgment of this Court in Satya Jain v. Anis Ahmed Rushdie [Satya Jain v. Anis Ahmed Rushdie, (2013) 8 SCC 131 : (2013) 3 SCC (Civ) 738], which discussed the principle of business efficacy as proposed by Bowen, L.J. in The Moorcock [The Moorcock, (1889) LR 14 PD 64 (CA)]. It has been elucidated that this test req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 arbitrar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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