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TMI Blog2024 (9) TMI 1585X X X X Extracts X X X X X X X X Extracts X X X X ..... for supply of 100 MT of wheat. 2. As per the facts projected, the petitioners which are 9 (nine) in numbers have their offices at Guwahati. The petitioners had participated in the said NIT by depositing an Earnest Money Deposit (EMD) of Rs. 1.10 lakhs each. Subsequent to such participation, the petitioners who claim to be eligible in all respects, were anticipating allotment of work order. It is the case of the petitioners that the terms and conditions for empanelment of technically qualified bulk consumer have been given in the NIT. It is submitted that so far as GST registration under clause A (i) (v) is concerned, the same is not a mandatory requirement. It is also the case of the petitioners that certain communications have been exchanged by email from which it can be deduced that submission of the GST details or registration is not mandatory. The petitioners have also cited similar allotment orders without GST for the State of Jharkhand. However, vide the impugned email dated 20.07.2023, the petitioners have been informed that their bid was cancelled as they did not have GST registration. It is also informed that the bidders having GST registration outside the State of Assam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the present impugned action is discriminatory as the FCI cannot have two different stands for two different States. 6. He has also referred to the aspect of maintaining fairness and transparency in the matters of distribution of State largesse. In this regard, he has relied upon the case of Ramana Dayaram Shetty Vs. International Airport Authority of India and Ors. reported in (1979) 3 SCC 489 and also the case of Air India Ltd. Vs. Cochin International Airport reported in (2000) 2 SCC 617 to buttress his submission that judicial review can be made on the decision making process. Reliance has also been placed upon the case of Proactive In & Out Advertising Pvt. Ltd. Vs. Pune Mahanagar Mahamandal Limited reported in (2018) 6 MAH LJ 561 wherein it has been held by the Hon'ble Bombay High Court that review is permissible in contractual matters. He has also raised the issue of there being a concluded contract and questioned the authority of the Additional General Manager to issue the impugned order. 7. Per contra, Shri B. K. Singh, the learned Standing Counsel, FCI has submitted that GST registration is a mandatory requirement. He clarifies that till the year 2022, there was no suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the petitioners, in his rejoinder, has submitted that the FCI cannot distance itself from the platform, namely, M. Junction. He has also submitted that acceptance of the offer being made, there was a concluded contract which could not have been cancelled without notice. On the aspect of concluded contract, the learned counsel has relied upon a decision of Har Shankar and Ors. Vs. Dy. Excise and Taxation Commissioner and Ors. reported in (1975) 1 SCC 737. It is submitted that cancellation of the contract has been done without affording any reason and without there being any provision in the contract and therefore, there is gross violation of the principles of natural justice. He has also submitted that the petitioners genuinely apprehend that their EMD would be forfeited, which is not authorized by law. 10. The rival submissions have been duly considered and the materials before this Court have been carefully perused. 11. The issue is with regard to the requirement of GST registration for a bidder in respect of the concerned NIT dated 07.07.2023. While, as per the petitioners, such registration is not required and could not be insisted upon, the stand of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch registration under the GST is not mandatory. It appears that such empanelment in the M. Junction is only to facilitate a bidder to participate in a tender process which is online. However, mere empanelment would not be conclusive on the eligibility aspect and such eligibility is necessarily to be examined from the conditions laid down in the tender notice. 16. A frail argument was made on behalf of the petitioner that wheat is an exempted item under the GST registration. However the same stands belied in view of the notification dated 17.07.2022 of the Ministry of Finance, Department of Revenue wherein it has been clearly laid down that wheat is covered under the GST. In this regard, specific pleading has been made in paragraph 10 of the affidavit-in-opposition of the respondent - Corporation dated 05.02.2024. 17. As regards the instance of the State of Jharkhand is cited, the respondent - Corporation has clarified that there has been an error in the said process. In any case, the right under Article 14 of the Constitution of India is a positive right and there is no concept of negative equality. It is also contended on behalf of the petitioners that there was a concluded cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject, 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 mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given." 19. In the case of Agmatel India Private Limited Vs. Resoursys Telecom and Ors. reported in (2022) 5 SCC 362, the Hon'ble Supreme Court after discussing the relevant case laws holding the field has summarized in the following manner: "17. The above-mentioned statements of law make it amply clear that the author of the tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with the language of the tender document or sub-serving the purchase of the tender, the Court would prefer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. State of Orissa reported in (2007) 14 SCC 517 as hereunder: "22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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