IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 3950 of 2011. Judgment reserved on : 31.5.2011 Date of Decision : June _21_, 2011 Saroj Garg … Petitioner Versus State of H.P. and others … Respondents. Coram: The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the petitioner: Mr. Rajesh Verma, Advocate. For the respondents: Mr. R. K. Bawa, Advocate General with Mr. J.K. Verma, Dy.A.G. for respondents No. 1 to 3. Justice Sanjay Karol, J. The writ petition is filed with the following reliefs:- “ i) That the respondents-department may kindly be directed to cancel the tender process dated 2.4.2011 (annexure P-4) and grant the tender in favour of the petitioner being lowest bidder. ii) That the tender process dated 2.4.2011 with amended conditions may kindly be quashed and set- aside. iii) That the record pertaining to this case may kindly be called for, for the kind perusal of this Hon’ble Court. Whether reports of Local Papers may be allowed to see the judgment? 2 iv) That the writ petition may kindly be allowed with cost. v) That any other reliefs, which Hon’ble Court deem just and proper in the facts and circumstances of the case may also be passed in favour of the petitioners and against the respondents.” 2. On 14.3.2011 the District Ayurvedic Officer, District Sirmaur at Nahan, H.P. issued notice inviting tenders (Annexure P-3) for the supply of “cooked/prepared diet to the indoor patients of District Ayurvedic Hospital, Nahan for the year 2011-12”. Amongst others, petitioner submitted his offer in terms thereof. Names were short listed but however before the work could be awarded to the successful tenderer a decision was taken not to complete the process and return the earnest money of the tenderers. It was desired to have a re-look into the terms and conditions of the tender. The terms were modified and on 2.4.2011 a fresh process was initiated by inviting tenders (Annexure P-4) on the modified terms and conditions. 3. According to the petitioner condition No. 11 was modified only to give benefit to the private respondent. 4. Clause 11 of both the tenders reads as under:- Clause 11 of Annexure P-3: It is mandatory for the person submitting tender to annex with the tender a license of selling prepared food or a certificate of experience regarding work/business of supplying prepared food items in the hospital. 3 Clause 11 of Annexure P-4: A registration certificate regarding running a restaurant/hotel, issued by the Department of Tourism, is required from the person submitting the tender. A photo copy of such certificate has to be annexed with the tender. If any such certificate is not found to be annexed with the tender, such tender/tenders would straightaway be rejected by the Committee. 5. Significantly in the present petition, petitioner has only challenged the tender process initiated on 2.4.2011. There is no challenge to the order dated 1.4.2011 whereby Government took decision to cancel the process initiated in terms of Annexure P-3. Also there is no protest to the refund of the earnest money. 6. In Tata Cellular vs. Union of India, (1994) 6 SCC 651, the Court while deducing certain principles on which the tendering process can be challenged has held that the terms of invitation to tender are not open to judicial scrutiny for the reason that the same is in the realm of a contract. The Government must have freedom of contract. Fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. The decision, however, must be free from arbitrariness, not affected by bias or actuated by mala fides. 7. The principle was further reiterated in Association of Registration Plates vs. Union of India and others, (2005) 1 SCC 679, wherein the Apex Court held that certain preconditions or pre- qualifications for tenders have to be laid down to ensure the 4 capacity and the resources of the contractor to successfully execute the work and unless the action of the tendering authority is found to be malicious and misuse of statutory powers, tender conditions are unassailable. It further held that merely because a party, for want of fulfillment of tender conditions is disqualified, tender conditions cannot be said to be discriminatory. 8. In Shmnit Utsch India Pvt. Limited and another vs. West Bengal Transport Infrastructure Development Corporation Limited and others, (2010) 6 SCC 303, the Apex Court further held that tendering authority is well within its right to exercise its administrative discretion to cancel the entire tender process in public interest, provided such action is not actuated with ulterior motive or is otherwise not vitiated by any vice of arbitrariness or irrationality or in violation of provisions of law. It is open for the State to give effect to new policy to pursue Public Interest subject to the same complying with the principles of Wednesbury reasonableness. 9. In Bharat Sanchar Nigam Limited vs. Telephoen Cables Limited, (2010) 5 SCC 213, the apex Court has further held that where the terms of the bid documents barred any claim being made on account of the rejection or non-acceptance of any bid, the bid inviter would not incur any liability to any aggrieved bidder, and the bidder would not have any cause of action in private law. 10. In the instant case the submission that the tender condition was modified only to give benefit to the private respondent is based more on assumption rather than factual matrix. It is not the case of 5 the petitioner that private respondent alone possesses the certificate issued by the Tourism Department to run a restaurant/hotel. There may be several other persons in the State who may be fulfilling the said eligibility criteria. The tender is for supply of packed food meant to be eaten by the patients in the hospital. Certain degree of quality, standard and hygiene is required to be maintained. Registration of a person with the Tourism Department would only help ensure compliance thereof up to certain minimum level. There is nothing arbitrary or irrational about the same. 11. The scope of interference by the Court in tender/contractual matters in exercise of powers of judicial review is now well settled. The Court is obliged to pose itself the following questions:- (i) Whether the process adopted or decision made by 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, the Court would refrain from granting indulgence of interference in the matter. [Jagdish Mandal vs. State of Orissa, (2007) 14 SCC 517]. 12. In the instant case, as has been noticed hereinabove, the tender condition is sought to be imposed in public interest to ensure that food which is to be used by the patients is cooked and served 6 by such people who maintain basic infrastructure as is required of institutions approved by and registered with Tourism Department. In the instant case, there is nothing to show, substantiate/establish that tender condition was tailor made to suit a particular individual. Petitioner has failed to plead and disclose ingredients so as to make out a case of malice in law or fact. 13. In view of the aforesaid observations present petition is dismissed. (Justice Kurian Joseph), Chief Justice. (Justice Sanjay Karol), Judge. June _21_, 2011 (PK)