Case: M/S N RAMACHANDRA REDDY Vs. THE STATE OF TELANGANA

of the tender conditions, in view of the dispute raised by the fourth respondent/writ petitioner and the report dated 30.05.2018, the Chief Engineer got re-verified from an independent authority by addressing to Superintendent Engineer, Karimnagar. 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. 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. The Division Bench 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. 34. Having regard to the nature of dispute, it was always open for the Chief Engineer to call for a report from an independent authority i.e. Superintending Engineer, Karimnagar. Such a procedure adopted by the Chief Engineer was fair and cannot be said to be either illegal or arbitrary. Such a report is made basis in the decision-making process, to open the bid of the appellant in Part-II. 35. In the case of Tata Cellular v. Union of India 1994(6) SCC 651, while considering the scope of judicial review, in matters relating to Government contracts-tenders, this Court has held that the States decision/action must be in consonance of Article 14 of the Constitution of India. The scope is confined to examine only the decision-making process and not the merits of the decision itself. It is specifically held that courts cannot sit as appellate court while exercising power of review in matters relating to contracts and tenders. 36. In the case of Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited and Another 2016(16) SCC 818, this Court found fault in the High Court, in interfering with the decision of the authority in a matter relating to contracts and tenders, without there being any mala fides or irrationality or perversity in the procedure adopted by the authorities. 37. In the case of Consortium of Titagarh Firema Adler v. Nagpur Metro Rail Corporation Ltd. 2017(7) SCC 486, while considering the scope of judicial review, in matters relating to power of contracts, this Court has held that 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. 38. Further, in the case of Municipal Corporation, Ujjain and Anr. v. BVG India Ltd. & Ors. 2018(5) SCC 462, this Court has held that, while considering the scope of judicial review, in matters relating to contracts, it is held that the same is restricted to decision-making process but not the decision itself. It is held that the High Court cannot act as appellate court to review tender evaluation and set aside the award of tender. 39. All the judgments referred above, support the case of the appellant, as much as, we are of the view that the procedure adopted by the tendering authority 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. 40. The learned senior counsel, Sri Basant, appearing for the fourth respondent/writ petitioner, has relied on the judgments in the case of Poddar Steel Corporation v. Ganesh Engineering Works (1991)3 SCC 273 , BSN Joshi & SWons Ltd. v. Nmair Coal Services Ltd. and Ors (2006)11 SCC 548 Bakshi Security and Personnel Services Pvt. Ltd. v. Devkishan Computed Private Limited and Ors.(2016)8 SCC 446 Central Coalfields Limited and others v. SLL-SML and others (2016)8 SCC 622 , in support of his arguments that the essential clauses of a tender should be enforced strictly and no deviation is permissible under law. 41. We are of the view that the above said judgments have no application to the facts of this case, for the reason that, it is not a case of violation of any tender conditions. Further, pleading that no case is made out by the appellant for interference under Article 136 of the Constitution of India, learned counsel, in support of his argument, has relied on judgment in the case of Pritam Singh v. State AIR 1950 SC 169 ; Penu Balakrishna Iyer & Ors. v. Ariya M. Ramaswamy Iyer & Ors. AIR 1965 SC 195 ; Shaikh Ali Hossain & Ors. v. Shaikh Showkat Ali & Anr. (2008)8 SCC 180 . 42. With reference to the same, it is to be noticed that the power conferred on this Court, under Article 136 of the Constitution of India, is the corrective jurisdiction to settle the law. Further, it is to be noticed that when the learned Single Judge of the High Court has found that the process of re-verification done by the Chief Engineer, on the dispute in question, is fair and acceptable for arriving at a decision, but the Division Bench has set aside such order, only on the ground that the report is called for from the Superintending Engineer, Karimnagar, who is not the concerned Engineer, as per the procedure. In absence of any prescribed procedure to deal with complaints, it was fair on the part of the Chief Engineer, in calling a report from the independent authority, other than the jurisdictional officers. As the issue 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. 43. Further, in the case of Management of Narendra & Company Pvt. Ltd. v. Workmen of Narendra & Company (2016) 3 SCC 340 , while considering the scope of the intra court appeal, this Court has held that, unless Appellate Bench concludes that findings of the learned Single Judge are perverse, it shall not disturb the same.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]31. From a reading of the impugned order, it appears that the Division Bench has reversed the order of the learned Single Judge, only on the ground that the report received from the Superintending Engineer, Karimnagar, is not in accordance with the procedure. The Division Bench of the High Court has also held that the Chief Engineer had stepped out of his jurisdiction, when he called a report from the Superintending Engineer, Karimnagar32. We are not convinced, with such a view, as expressed above, by the Division Bench of the High Court. First of all, it is to be noticed that 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 kilometers33. We find 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. To make sure whether the plant of the appellant is within the distance of 100 kilometers or not, in compliance of the tender conditions, in view of the dispute raised by the fourth respondent/writ petitioner and the report dated 30.05.2018, the Chief Engineer got re-verified from an independent authority by addressing to Superintendent Engineer, Karimnagar. 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. 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. The Division Bench 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 procedure34. Having regard to the nature of dispute, it was always open for the Chief Engineer to call for a report from an independent authority i.e. Superintending Engineer, Karimnagar. Such a procedure adopted by the Chief Engineer was fair and cannot be said to be either illegal or arbitrary. Such a report is made basis in the decision-making process, to open the bid of the appellant in Part-II39. All the judgments referred above, support the case of the appellant, as much as, we are of the view that the procedure adopted by the tendering authority 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 conditions40. The learned senior counsel, Sri Basant, appearing for the fourth respondent/writ petitioner, has relied on the judgments in the case of Poddar Steel Corporation v. Ganesh Engineering Works (1991)3 SCC 273  , BSN Joshi & SWons Ltd. v. Nmair Coal Services Ltd. and Ors (2006)11 SCC 548   Bakshi Security and Personnel Services Pvt. Ltd. v. Devkishan Computed Private Limited and Ors.(2016)8 SCC 446   Central Coalfields Limited and others v. SLL-SML and others (2016)8 SCC 622  , in support of his arguments that the essential clauses of a tender should be enforced strictly and no deviation is permissible under law41. We are of the view that the above said judgments have no application to the facts of this case, for the reason that, it is not a case of violation of any tender conditions. Further, pleading that no case is made out by the appellant for interference under Article 136 of the Constitution of India, learned counsel, in support of his argument, has relied on judgment in the case of Pritam Singh v. State AIR 1950 SC 169  ; Penu Balakrishna Iyer & Ors. v. Ariya M. Ramaswamy Iyer & Ors. AIR 1965 SC 195  ; Shaikh Ali Hossain & Ors. v. Shaikh Showkat Ali & Anr. (2008)8 SCC 180  42. With reference to the same, it is to be noticed that the power conferred on this Court, under Article 136 of the Constitution of India, is the corrective jurisdiction to settle the law. Further, it is to be noticed that when the learned Single Judge of the High Court has found that the process of re-verification done by the Chief Engineer, on the dispute in question, is fair and acceptable for arriving at a decision, but the Division Bench has set aside such order, only on the ground that the report is called for from the Superintending Engineer, Karimnagar, who is not the concerned Engineer, as per the procedure. In absence of any prescribed procedure to deal with complaints, it was fair on the part of the Chief Engineer, in calling a report from the independent authority, other than the jurisdictional officers. As the issue 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 decision43. Further, in the case of Management of Narendra & Company Pvt. Ltd. v. Workmen of Narendra & Company (2016) 3 SCC 340   , while considering the scope of the intra court appeal, this Court has held that, unless Appellate Bench concludes that findings of the learned Single Judge are perverse, it shall not disturb the same.