Tender:
Tender for construction of road – As per tender condition ‘Batch Type Hot Mix Plant’ owned by the bidder was required to be located within a distance of 100 kilometers from the last point of working reach – Letter of intent issued to the appellant – Complaint by another bidder (respondent No.4) disputing the correctness of distance in the case of the appellant – In verification report Superintending Engineer found the actual distance at 101.50 km. and from alternate route found the distance at 99.90 km. – Finding in the report again questioned by respondent No. 4 – By another verification report by another Superintending Engineer of another jurisdiction, the distance was found as 98.1 km. – Tender finalized in favour of appellant – Writ petition – Single Judge of High court dismissed the petition – In writ appeal Division Bench of High Court allowing the appeal found fault with the report of the superintending Engineer in giving distance particulars from the alternate route and found that subsequent report not being of jurisdictional engineer could not have been relied upon – Appeal to Supreme Court – Held: There is nothing wrong in the first report, mentioning the distance from alternate route – In the absence of any prescribed procedure for verification, it was fair to call for report from an independent Superintending Engineer of different jurisdiction – The procedure adopted by tendering authority is fair, just and reasonable. Judicial Review:
Scope of judicial review – In matter relating to contracts and tenders – Held: In matter relating to contracts/tenders, courts cannot sit as appellate court while exercising power of judicial review – Such power is called for only if the approach is arbitrary or mala fide or procedure adopted is meant to favour someone. Letters Patent:
Intra-court appeal – Power of court – Scope of – Held: Appellate Bench not to disturb the finding of Single Judge unless such finding is concluded as perverse.
Constitution of India:
Art. 136 – Jurisdiction under – Nature of – Held: Jurisdiction u/Art. 136 is corrective jurisdiction to settle the law.
Allowing the appeal, the Court
HELD: 1.1 It is clear from the condition relating to work in question, which is to be construed as essential, that the bidder shall own a ‘Hot Mix Plant’ within a distance of 100 kilometers from the last point of working reach. As per clause 22.6 of the tender conditions, the result of evaluation of Part-I of the bids shall be made public on e-procurement systems, following which, there shall be a period of five working days, during which, any bidder may submit complaint, which shall be considered, before opening Part-II of the bid. Once a complaint is filed, there is no definite procedure prescribed as to how such complaint is to be dealt. [Para 29][804-G; 805-A-B]
1.2 In the present case, it is clear from the material on record that, when a complaint is filed by the fourth respondent/writ petitioner, after evaluation of Part-I of the bids, at first instance, a report is prepared by the Superintending Engineer, Warangal dated 30.05.2018, stating that as per the route given by the appellant, distance is 101.50 kilometers and if measured from the alternate route it comes to 99.90 kilometers. It is the specific case of the appellant that it has not made any request for measuring the distance from the alternate route. In view of the variation in distance, from its earlier report, it appears, the Chief Engineer has requested the Superintending Engineer, Karimnagar, to verify and report. The Superintending Engineer, vide his report dated 04.07.2018, informed the Chief Engineer that he has measured the distance from the ‘odometer’ and the distance between the Hot Mix Plant and the last point of working reach was 98.1 kilometers. Accepting the said report, bid of the appellant was opened and it is clear from the record that the offer of the appellant is nearly Rupees Twenty Lakh less than the rate quoted by the fourth respondent/writ petitioner. [Para 29][805B-E]
1.3 There is no dispute that appellant owns a ‘Hot Mix Plant’, as required in the tender conditions. It is his specific case that the location of such Hot Mix Plant is within 100 kilometers, as required. It is true that when a complaint is made by the fourth respondent/writ petitioner, it was found that the distance is 101.50 kilometers from one route and 99.90 kilometers from the other route. From the alternate route, shown in the report dated 30.05.2018, submitted by the Superintending Engineer, Warangal, it is at a distance less than 100 kilometers. There is nothing wrong in the first report, mentioning the distance from the alternate route. In view of such discrepancy in the report, the Chief Engineer has further called for a report from the Superintending Engineer, Karimnagar, an independent authority, who has further, after re-verification, submitted a report dated 04.07.2018, stating that the distance is only 98.1 kilometers. [Paras 32, 33] [806-BD]
1.4 There is no definite procedure for verification, in the event of any complaint filed by any of the bidders, as contemplated under clause 22.6 of the tender conditions. In absence of any prescribed procedure for verification, it was fair on the part of the Chief Engineer to call for a report from an independent Superintending Engineer i.e. the Superintending Engineer, Karimnagar. Such a procedure adopted by the Chief Engineer was fair and cannot be said to be either illegal or arbitrary. The Division Bench of High Court has committed an error, in recording a finding that, calling for a report from the Superintending Engineer, Karimnagar, by the Chief Engineer, is not in accordance with the procedure. [Paras 29, 32, 33, 34] [806-E-G]
Poddar Steel Corporation v. Ganesh Engineering Works (1991) 3 SCC 273 : [1991] 2 SCR 696; BSN Joshi & SWons Ltd. v. Nmair Coal Services Ltd. and Ors (2006)11 SCC 548 : [2006] 8 Suppl. SCR 11; Bakshi Security and Personnel Services Pvt. Ltd. v. Devkishan Computed Private Limited and others (2016) 8 SCC 446 : [2016]
3 SCR 310; Central Coalfields Limited and others v. SLL-SML and others (2016) 8 SCC 622 : [2016] 4 SCR
890 – distinguished.
2.1 The State’s decision/action must be in consonance of Article 14 of the Constitution of India. It is specifically held that courts cannot sit as appellate court while exercising power of review in matters relating to contracts and tenders. Exercise of power of judicial review is called for, if the approach is arbitrary or mala fide or procedure adopted is meant to favour someone. The scope is confined to examine only the decision-making process and not the merits of the decision itself. [Paras 35, 37] [807-A-B, D]
2.2 The procedure adopted by the tendering authority in the present case is fair, just and reasonable. In absence of any specific mala fides and grant of exemption from any essential conditions of tender, authorities have acted within their authority, as such, it cannot be construed either as a relaxation or violation of tender conditions. [Para 39][807-F]
Tata Cellular v. Union of India (1994) (6) SCC 651 : [1994] 2 Suppl. SCR 122; Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited (2016) (16) SCC 818 : [2016] 3 SCR 551; Consortium of Titagarh Firema Adler v. Nagpur Metro Rail Corporation Ltd. (NMRCL) (2017) (7) SCC 486 : [2017] 5 SCR 337; Municipal Corporation, Ujjain and Anr. v. BVG India Ltd. & Ors (2018) (5) SCC 462 : [2018] 6 SCR 861 – relied on.
Raunaq International Ltd. v. I.V.R Constructions Ltd (1999) (1) SCC 492 : [1998] 3 Suppl. SCR 421; The Silppi Constructions Contractors v. Union of India and Anr. Etc. Etc. (2019) (11) SCALE 592 – referred to.
3. In the intra court appeal unless Appellate Bench concludes that findings of the Single Judge are perverse, it shall not disturb the same. [Para 43] [808-F]
Management of Narendra & Company Pvt. Ltd. v. Workmen of Narendra & Company (2016) 3 SCC 340 : [2016] 1 SCR 597 – relied on.
4. The power conferred on this Court, under Article 136 of the Constitution of India, is the corrective jurisdiction to settle the law. As the issue in the present case does not relate to strict construction of territorial jurisdiction, it is always open for the decision-making authority, to have a report from the independent authority, to arrive at the just decision. [Para 42][808-C, E] Pritam Singh v. State AIR 1950 SC 169 : [1950] SCR 453; Penu Balakrishna Iyer & Ors. v. Ariya M. Ramaswamy Iyer & Ors. AIR 1965 SC 195 : [1964] SCR 49; Shaikh Ali Hossain & Ors. v. Shaikh Showkat Ali & Anr. (2008) 8 SCC 180 : [2008] 8 SCR 867 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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