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TMI Blog2020 (12) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... suant to the N.I.T., 4 parties, namely, M/s Associated Contractors; M/s Quareshi Transport Co.; M/s Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers ["Appellant"]; and M/s New J.K. Roadways, Fleet Owners and Transport Contractors ["JK Roadways"] submitted their bids for consideration and the same were uploaded through an e-tendering system. The tender process consisted of a technical bid and a financial bid. The Tender Opening Committee met on 11.03.2020 and found that JK Roadways, Respondent No. 1 herein, and Associated Contractors did not meet the qualifying requirements of the technical bid, leaving Quareshi Transport Co. and the Appellant, who were considered technically eligible for the allotment of the contract. The Appellant's financial bid being the lowest, vide an order dated 30.03.2020, the Appellant was allotted the contract for the supply of commercial vehicles for the Financial Year 2020-2021. 3. A writ petition was filed by JK Roadways seeking the quashing of the allotment of the contract in favour of the Appellant. Before the learned Single Judge of the High Court of Jammu and Kashmir at Srinagar ["Single Judge"], three contentions qua the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No. 5 was the lowest. It is, therefore, in public interest not to interfere in the allotment of contract in favour of respondent No. 5, who satisfied the criteria as laid down in technical bid as he had furnished list of HMV & LMV vehicles which was the most essential condition of the tender. Thus, the petitioner having been found ineligible cannot now question allotment of contract to respondent No. 5 because the petitioner is not similarly situated." 4. JK Roadways filed a letters patent appeal before the Division Bench of the High Court of Jammu and Kashmir at Srinagar ["DivisionBench"]. By the impugned judgment dated 16.10.2020, the Division Bench recorded: "14) Though the appellant has raised a number of grounds in the appeal yet during the course of arguments, the main thrust of arguments advanced by the learned counsel for the appellant was on the following grounds: (I) That the official respondents were not justified inrejecting bid of the appellant on the ground that it had submitted only the list of heavy motor vehicles and that the list did not contain the particulars of light motor vehicles; (II) That the respondent No.5 despite lacking therequisite exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es only for a few months in the years 2014 and 2015 and therefore, the Appellant could, at best, be said to hold work experience of supplying vehicles for 1 year only. Thus, Condition No. 27 of the N.I.T., being an essential condition, remained unfulfilled by the Appellant. Resultantly, the judgment of the Single Judge dated 30.06.2020 was set aside and the contract awarded in favour of the Appellant was quashed. The official respondents were directed to invite fresh tenders and complete the process within a period of 1 month from the date of the order of the Division Bench. 7. On 04.11.2020, this Court issued the following order: "Issue notice. There shall be an ad-interim stay of operation of the impugned judgment and order of the High Court. Counter affidavit within one week by Respondent No.1. Likewise, counter affidavit to be filed by the State within two weeks. Rejoinder affidavit within one week thereafter." 8. As a result of this Court's order, the Appellant has continued executing the awarded work till date, with roughly 3 months left for the completion of the contract period. 9. Shri Rana Mukherjee, learned senior advocate appearing on behalf of the Appellant, ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant and said that the Division Bench was incorrect in its construction of Condition No. 27 of the N.I.T. She also submitted that the Tender Opening Committee, being an expert body and having scrutinised the documents supplied by the Appellant, cannot now be second-guessed by the judgment of the High Court. 12. Having heard the learned counsel for the parties, it is first necessary to set out the N.I.T.'s "Terms and Conditions/Qualifying Criteria". Condition Nos. 27 and 31 of the N.I.T., which are material to this case, state as follows: "Terms and Conditions/Qualifying Criteria xxx xxx xxx 27. The firm/association shall have working experience of at least Five years with documentary proof and work should not [be] less [than] 2 Crores. xxx xxx xxx 31. The firm/tenderer should have owned at least 30 nos. of vehicles both HMV/LMV and attached 200 vehicles with the firm alongwith documentary proof." 13. Even a cursory glance at Condition No. 31 of the N.I.T. would show that the 30 vehicles referred to, are "both HMV/LMV". The tendering authority has construed this condition to mean that both types of vehicles, i.e., HMV and LMV, need to be included in the list of the 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought not to have been grounds for the High Court to come to a finding that the appellant committed illegality." (emphasis supplied) 16. Further, in the recent judgment in Silppi Constructions Contractors v. Union of India, 2019 SCC OnLine SC 1133, this Court held as follows: "20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grievance can always seek damages in a civil court. 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. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision madeby 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 impositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints." (page 288) 20. This being the case, we are unable to fathom how the Division Bench, on its own appraisal, arrived at the conclusion that the Appellant held work experience of only 1 year, substituting the appraisal of the expert four-member Tender Opening Committee with its own. 21. As was correctly pointed out by Shri Mukherjee, learned senior counsel appearing on behalf of the Appellant, the contention as to the invalidity of the Appellant's service licence for the requisite period does not appear to have been argued before the Division Bench, though argued before and rejected by the learned Single Judge. This being the case, we do not think that the scope of this appeal be enlarged to include any such point which appears to have been given up before the Division Bench. 22. Also, the argument that the Appellant has submitted work experience certificates in the name of "Galaxy Agencies", which is a s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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