WP(C) 5649/2007 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER 1. All the writ petitions by and between the same parties pertaining to the same matter impugning the action consequential to one another, have been heard together and are being disposed of by this common judgment and order. 2. For convenience sake, the three writ petitions are described as first, second and third writ petition. The first writ petition was filed making a griev ance against the cancellation of the tender process initiated for ’supply and ap plication of paints’ initiated by the respondent Corporation. In response to An nexure-I NIT dated 09.12.06, the petitioner offered its bid. Being technically f it, it was invited for price negotiation and even after two rounds of negotiatio ns when the desired result was not obtained, the respondent corporation by its i mpugned Annexure-3 letter dated 18.04.07 intimated the petitioner about the fail ure of the negotiation and as to how the rates offered by it were in the higher side. Upon such failure, the tender process was cancelled. After such cancellati on, the respondent Corporation initiated limited tender process for supply and a pply of paints vide Annexure-7 limited tender dated 04.08.07. Being aggrieved, t he petitioner filed the first writ petition. 3. While entertaining the writ petition by order dated 17.08.07 this Court directed to maintain the status quo with regard to the fresh tender process. How ever, the interim order passed was vacated by order dated 14.09.07 noticing that the tender process initiated vide Annexure-7 limited tender dated 04.08.07 was in respect of a different job. While vacating the interim order, it was, however , observed that the plea of the petitioner with regard to the validity of the im pugned order of cancellation would be considered at the time of final hearing of the writ petition. 4. During the pendency of the first writ petition, occasion for the petitio ner to file the second writ petition arose when the respondent Corporation float ed Annexure-10 NIT dated 25.09.07 inviting the bids for the job application of paints . Occasion for the petitioner to file third writ petition arose when the respondent Corporation floated Annexure-11 NIT dated 05.11.07 for the work supp ly of various types of paints . In both the writ petitions the plea of the petit ioner is that when the matter relating to cancellation of the earlier NIT was su b-judice in the first writ petition, the respondent Corporation could not have i ssued the impugned NITs frustrating the first writ petition. In both the writ p etitions this Court passed interim order to the effect that while the respondent Corporation would be at liberty to proceed with the tender process pursuant to the impugned NITs, but would not finalise the same without the leave of the Cour t. 5. The respondent Corporation has filed their affidavits in opposition in a ll the three writ petitions. In the first writ petition their plea is that since the rates offered by the petitioner were in the higher side, its representative was called for negotiation and even after two rounds of negotiations when the p etitioner failed to reduce the rates reasonably, the respondent Corporation had no option than to cancel the NIT. It has been stated in the affidavit that the r ates offered by the petitioner was found to be higher side by 18.90% than the es timated rates and even after negotiation same remained in the higher side althou gh there was some reduction on the part of the petitioner pursuant to the negoti ation. The variation is stated to be between 15% to 16% . 6. In the other two writ petitions, the plea of the respondent Corporation is that after cancellation of the NIT in the first writ petition, the Corporatio n reverted back to its earlier policy of procuring the materials directly from t he manufacturers and to get the job of application of paints done through the c ontractors unlike the NIT in the first writ petition by which both the jobs were sought to be done through tender process confining the same to contractors with out involving the manufacturers. In this connection, learned counsel appearing f or the Corporation has produced the records. 7. I have heard Mr. K.K. Mahanta, learned Sr. counsel for the petitioner as well as Mr. J. Roy, learned representing the respondent Corporation. Mr. Mahant a submits that the decision of the authority to cancel the first NIT is the refl ection of arbitrary and colourable exercise of power. He submits that when on t he basis of the negotiations the petitioner had reduced its rate by 6%, it was i ncumbent on the part of the respondent Corporation to award the contract to it. As regards the impugned NITs in the second and third writ petition, he submits that the decision to issue fresh NITs on the purported revival of the old pract ice of procuring the materials directly from the manufacturers and to get the jo b done through tender process is nothing but a device to frustrate the legitimat e claim of the petitioner. He has referred to the following decisions: 1) (1992) 4 SCC 477 (Navjyoti Coop. Group Housing Society and others vs. Un ion of India and others) 2) (1997) 1 SCC 53 (Dutta Associates Pvt. Ltd. vs. Indo Merchantiles Pvt. L td. and others) 3) 2004 (2) GLR 283 (Sargous Tours & Travels and another vs. Union of Indi a and others) 8. Countering the above arguments of Mr. Mahanta, learned Sr. counsel for the petitioner, Mr. J. Roy, learned counsel representing the Corporation submits that the Corporation was within its competence and jurisdiction to cancel the t ender process upon failure of the negotiation with the petitioner. He submits th at it is for the Corporation to decide as to on which rate the contract should b e awarded to the contractor. According to him when it was found that the rates o ffered by the petitioner was much on the higher side and even after negotiations with the petitioner, it did not lower its rate to the Corporation’s expectation , there was no option left than to cancel the entire tender process. According t o him, the issue raised in the first writ petition has really become redundant i n view of the subsequent NITs issued which are challenged in the second and thi rd writ petitions. He submits that having faced with the practical realities and difficulties in getting the job relating to procurement and application of pain ts done through the contractors, the Corporation decided to revert back to its o riginal policy of procuring the materials directly from the manufacturer and to get the job relating to application of paints done through the contractors. 9. Mr. J. Roy, learned counsel for the Corporation referred to certain dec isions which are as follows: 1) (2000) 2 SCC 617 (Air India Ltd. vs. Cochin International Airport Ltd. a nd others) 2) (2005) 4 SCC 435 (Global Energy Ltd. and another vs. Adani Exports Ltd. and others) 3) (2004) 4 SCC 19 (Directorate of Education and others vs. Educomp Datamat ics Ltd. and others) 10. I have considered the submissions made by the learned counsel for the pa rties and the materials on record. I have also gone through the records produced by the learned counsel for the Corporation. 11. As noted above, the interim order passed in the first writ was subsequen tly vacated enabling the respondent Corporation to go ahead with the impugned te nder process. It was noted that the impugned NIT in the first writ petition was in respect of different job unconnected with the one for which the petitioner wa s interested. In view of such vacation of interim order, there was no bar on the part of the respondent Corporation to initiate fresh tender process. However, i t is not the case of the respondent Corporation that such tender process is simi lar to that of the earlier tender process which was subsequently cancelled. If i t is held that the subsequent tender process impugned in the second and the thir d writ petitions is because of the change of the policy decision of the Corporat ion, the matter will have to be decided in the touchtone of such policy decision . Irrespective of upholding or otherwise of the policy decision, the ground on w hich the first writ petition is projected, will naturally fall through. 12. Even otherwise also the ground of cancellation of the first tender proce ss cannot be said to be arbitrary, illogical and illegal. From the materials on record, it appears that the petitioner was invited for negotiation which resulte d in failure. The authorities of the Corporation was within its domain, competen ce and jurisdiction to arrive at particular deal applying various yardsticks an d parameters. In the affidavit in opposition it has been reflected that even aft er negotiations the rates offered by the petitioner remained much on the higher side. Upon such finding arrived at by the authorities of the Corporation, it was decided to cancel the tender process. Such cancellation of tender process cann ot be said to be illegal. The writ Court cannot issue any mandamus to the respon dent Corporation to act in a particular manner unless it is shown that their act ion towards cancellation of the tender process was in fact, founded on malafide and colourable exercise of power. The records produced by the Corporation do not indicate any such exercise of power. Consequently, I do not find any infirmity in the decision towards canceling the tender process. Situated thus, the first w rit petition must fail. Consequently, the writ petition is dismissed. 13. This now leads us to the second and third writ petitions. Once it is hel d that the decision to cancel the first NIT does not suffer from any infirmity, it will have to be held that the subsequent action on the part of the Corporatio n towards inviting fresh tenders is legally valid. However, the matter is on a d ifferent footing. The competent authority of the Corporation having regard to th e facts and circumstances involved in the matter, made a suggestion to revert ba ck to the original procedure of procuring the materials (paints) from the manufa cturers instead of procuring through the contractors. So far as the application of paints is concerned, same was to be done through contractors for which the i mpugned NIT was issued. It s on record that prior to 2005 the respondent Corpora tion used to procure the materials inviting bids from the manufacturer. Once the materials were procured, the application part was materialized through the cont ractors. This is precisely the reasons as to why the impugned NITs were issued o ne after another. 14. The impugned NIT in the third writ petition is confined to the reputed a nd experienced manufacturers unlike the earlier practice of inviting tenders fro m the contractors. Such practice was prevalent prior to 2005. After having exper ienced the difficulties in getting the job done after procuring the materials, a suggestion was made by the competent authority of the Corporation to revert bac k to the original system. Such a suggestion was accepted and consequent thereto the impugned NITs involved in the second and the third writ petition were issue d. This Court permitted the respondent Corporation to proceed with the tender pr ocess but restricted issuance of final order. 15. The decision on which Mr. Mahanta, learned Sr. counsel for the petitione r has placed reliance are on the principles relating to primary requirement of the tender process such as intending tenderers must be notified of the procedure that the authorities propose to follow in accepting the tender, transparency, fairness and openness in Govt. contract and legitimate expectation. The ratio in any decision will have to be understood in the background of the fact situatio n involved in the case. In the instant case, it is not the case of arbitrary rej ection of the tender of the petitioner. In fact, its the technical bid was acce pted and it was invited for negotiation as regards the price bids. Even after ne gotiating twice the respondent Corporation found that the rates offered by the p etitioner were on the higher side. Situated thus, the Corporation decided to can cel the NIT. The principles enunciated in the said decision will have to be und erstood and applied in that context. 16. On the other hand, the decision on which Mr. Roy, learned counsel for th e Corporation emphasized are on the scope and ambit of the judicial review in the matter of tender process and awarding of contract. The State is empowered to choose its one method in the realm of awarding contract, subject, however, to t he compliance with the norms, standard and procedure. Unless it is shown that th e action taken by the authority is wholly arbitrary, discriminatory or actuated by malice, the parameters of tender notice and/or the process of tender cannot b e faulted with. It is not for the writ Court to interfere with the tender proces s even if it is found that some other parameters would have been more preferable . 17. In the instant case, the Corporation decided to revert back to its origi nal method of procuring materials directly from the manufacturers and to award t he contract of application of paint through tender system. Such policy decision adopted by the respondent Corporation and/or reversion to its earlier policy dec ision abandoning the present system of procuring and application of paints thro ugh tender process cannot be said to be arbitrary exercise of power warranting i nterference of this Court exercising the power of judicial review under Article 226 of the Constitution of India. 18. For the aforesaid reasons, I am of the considered opinion that no interf erence is called for to the impugned NITS. Consequently, the second and third wr it petitions are also dismissed. The respondent Corporation will no proceed with the tender process towards its logical end. 19. All the writ petition are dismissed leaving the parties to bear their ow n costs.