M/S. GALAXY TRANSPORT AGENCIES, CONTRACTORS, TRADERS, TRANSPORTS AND SUPPLIERS versus M/S. NEW J.K. ROADWAYS, FLEET OWNERS AND TRANSPORT CONTRACTORS & ORS.
[2020] 12 S.C.R. 1090, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Facts
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SUPREME COURT REPORTS
[2020] 12 S.C.R.
M/S. GALAXY TRANSPORT AGENCIES, CONTRACTORS,
TRADERS, TRANSPORTS AND SUPPLIERS
v.
M/S. NEW J.K. ROADWAYS, FLEET OWNERS AND
TRANSPORT CONTRACTORS & ORS.
(Civil Appeal No. 4107 of 2020)
DECEMBER 18, 2020
[ROHINTON FALI NARIMAN, NAVIN SINHA AND
K. M. JOSEPH, JJ.]
Tenders – Inspector General of Police, Kashmir Zone invited
online tenders from reputed transporters, registered firms/
associations for the supply of various types of commercial vehicles
(without fuel) for the carriage of troops and equipment for the
Financial Year 2020-2021 – Four parties submitted their bids –
The Tender Opening Committee found that respondent no. 1 did not
meet the qualifying requirements of the technical bid – The appellant
fulfilling the requirements and being the lowest bidder, was allotted
the contract for the supply of commercial vehicles – Writ petition by
respondent no. 1 – The Single Judge of the High Court found that
the appellant fulfilled the eligibility condition of holding a valid
service licence; 31 vehicles were owned by the appellant, another
eligibility condition was satisfied – Insofar, eligibility criteria of
having work experience was concerned, the Single Judge of the
High Court held that since the tendering authority was the best
judge as to whether such eligibility condition had in fact been
satisfied, a judicial hands-off was mandated – Thus, all the three
contentions of respondent no. 1 raised against the appellant
were
rejected by the Single Judge of the High Court – However, the
Division Bench of the High Court held that the respondent no. 1
having satisfied condition no. 31 of  N.I.T was wrongly disqualified
by the tendering authority – The Division Bench of the High Court
held that the expression ‘HMV/ LMV’ meant that there was an option
of furnishing the particulars of either HMVs or LMVs or both types
of vehicles and the respondent no. 1 had submitted bid accordingly
– The action of the officials in rejecting the bid of respondent no. 1
on the ground of non-furnishing of list of both types of vehicles is
irrational, arbitrary and perverse – On appeal, held: A cursory
[2020] 12 S.C.R. 1090
1090
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glance at Condition No. 31 of N.I.T would show that the 30 vehicles
referred to, are ‘both HMV/LMV’ – The tendering authority has
construed this condition to mean that both types of vehicles, i.e.
HMV and LMV, need to be included in the list of 30 vehicles
submitted by each bidder – In a series of judgments, the Supreme
Court has held that authority that authors the tender document is
the best person to understand and appreciate its requirements, and
thus, its interpretation should not be second-guessed by a Court in
judicial review proceedings – In accordance with the settled law
and noting the interpretation of the tendering authority, it cannot
be said that the interpretation done by the authority was a perverse
one – The Division Bench of the High Court ought not to have
interfered with it by giving its own interpretation and not giving
proper credence to the word ‘both’ appearing in Condition No. 31
of the N.I.T – Therefore, the Division Bench decision is set aside
and the Single Judge’s judgment is restored.
Disposing of the appeal, the Court
HELD:1. A cursory glance at Condition No. 31 of the N.I.T.
would show that the 30 vehicles referred to, are “both HMV/
LMV”. The tendering authority has construed this condition to
mean that both types of vehicles, i.e., HMV and LMV, need to be
included in the list of the 30 vehicles submitted by each bidder.
[Para 13][1098-E-F]
2. In a series of judgments, this Court has held that the
authority that authors
the tender document is the best person to
understand and appreciate its requirements, and thus, its
interpretation should not be second-guessed by a court in judicial
review proceedings. [Para 14][10968-F-G]
3. In accordance with these Supreme Court judgments and
noting that the interpretation of the tendering authority in this
case cannot be said to be a perverse one, the Division Bench
ought not to have interfered with it by giving its own interpretation
and not giving proper credence to the word “both’” appearing in
Condition No. 31 of the N.I.T. For this reason, the Division
Bench’s conclusion that respondent no.1 was wrongly declared
to be ineligible, is set aside. [Para 17][1100-D-F]
M/S. GALAXY TRANSPORT AGENCIES, CONTRACTORS, TRADERS,
TRANSPORTS AND SUPPLIERS v. M/S. NEW J.K. ROADWAYS, FLEET
OWNERS AND TRANSPORT CONTRACTORS
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SUPREME COURT REPORTS
[2020] 12 S.C.R.
4. Insofar as Condition No. 27 of the N.I.T. prescribing work
experience of at least 5 years of not less than the value of Rs. 2
crores is concerned, suffice it to say that the expert body, being
the Tender Opening Committee, consisting of four members,
clearly found that this eligibility condition had been satisfied by
the Appellant. Without therefore going into the assessment of
the documents that have been supplied to this Court, it is well
settled that unless arbitrariness or mala fide on the part of the
tendering authority is alleged, the expert evaluation of a particular
tender, particularly when it comes to technical evaluation, is not
to be second-guessed by a writ court. [Para 18][1100-F-G]
5. This being the case, this Court is unable to fathom how
the Division Bench, on its own appraisal, arrived at the conclusion
that the Appellant held work experience of only 1 year, substituting
the appraisal of the expert four-member Tender Opening
Committee with its own. [Para 20][1103-B-C]
Afcons Infrastructure Ltd. v. Nagpur Metro Rail
Corporation Ltd., (2016) 16 SCC 818 : [2016] 3 SCR
551; Bharat Coking Coal Ltd. v. AMR Dev Prabha
(2020) SCC OnLine SC 335; Silppi Constructions
Contractors v. Union of India, (2019) SCC OnLine SC
1133; Jagdish Mandal v. State of Orissa (2007) 14 SCC
517; Montecarlo Ltd. v. NTPC Ltd., (2016) 15 SCC 272 :
[2016] 8 SCR 224 – relied on.
Case Law Reference
[2016] 3 SCR 551
relied on
Para
14
(2007) 14 SCC 517
relied on
Para 18
[2016] 8 SCR 224
relied on
Para 19
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4107
of 2020.
From the Judgment and Order dated 16.10.2020 of the High Court
of Jammu and Kashmir at Srinagar in LPA No. 78 of 2020.
Rana Mukherjee, Altaf H. Naik, Sr. Advs., Adeel Ahmed,
Ms. Kanika Sharma, Atif Suhrawardy, Syed Mehdi Imam, Yagyawalkya
Singh, Ms. Shashi Juneja, Satish Pandey, Advs. for the appearing parties.
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The Judgment of the Court was delivered by
R. F. NARIMAN, J.
1. Leave granted.
2. In this appeal, the Inspector General of Police, Kashmir Zone,
Zonal Police HQR’s Kashmir, Srinagar [“ZPHS”], being Respondent
No. 4 before us, invited online tenders (e-tenders) vide e-N.I.T. No. 01
of 2020 dated 18.02.2020 [“N.I.T.”] from reputed transporters,
registered firms/associations for the supply of various types of commercial
vehicles (without fuel) for the carriage of troops and equipment for the
Financial Year 2020-2021. Pursuant to the N.I.T., 4 parties, namely,
M/s Associated Contractors; M/s Quareshi Transport Co.; M/s Galaxy
Transport Agencies, Contractors, Traders, Transports and Suppliers
[“Appellant”]; and M/s New J.K. Roadways, Fleet Owners and
Transport Contractors [“JK Roadways”] submitted their bids for
consideration and the same were uploaded through an e-tendering system.
The tender process consisted of a technical bid and a financial bid. The
Tender Opening Committee met on 11.03.2020 and found that JK
Roadways, Respondent No. 1 herein, and Associated Contractors did
not meet the qualifying requirements of the technical bid, leaving Quareshi
Transport Co. and the Appellant, who were considered technically eligible
for the allotment of the contract. The Appellant’s financial bid being the
lowest, vide an order dated 30.03.2020, the Appellant was allotted the
contract for the supply of commercial vehicles for the Financial Year
2020-2021.
3. A writ
petition was filed by JK Roadways seeking the quashing
of the allotment of the contract in favour of the Appellant. Before the
learned Single Judge of the High Court of Jammu and Kashmir at
Srinagar [“Single Judge”], three contentions qua the Appellant’s
technical eligibility were made by JK Roadways, which were decided in
the following manner, by a judgment dated 30.06.2020:
3a. Firstly, the learned Single Judge found that though the service
licence of the Appellant was only valid upto 31.03.2020, it
had sought an extension of its service licence prior to its expiry.
Since a lockdown was imposed on account of the outbreak of
COVID-19, a General Order dated 30.03.2020 [“General
Order”] was issued, through which the validity of all
documents relating to transportation services were deemed
M/S. GALAXY TRANSPORT AGENCIES, CONTRACTORS, TRADERS,
TRANSPORTS AND SUPPLIERS v. M/S. NEW J.K. ROADWAYS, FLEET
OWNERS AND TRANSPORT CONTRACTORS
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[2020] 12 S.C.R.
to be extended till 30.06.2020. This being the case, this
contention was decided against JK Roadways, and it was
held that the Appellant fulfilled the eligibility condition of holding
a valid service licence.
3b. Secondly, it was found that the Appellant did in fact own 30
vehicles including heavy motor vehicles [“HMV”] and light
motor vehicles [“LMV”], as a list of 36 vehicles was furnished
to ZPHS, the tendering authority. Since a complaint in this
regard had been made by the unsuccessful bidders, the same
was forwarded to the Senior Superintendent of Police, Srinagar
[“SSP”] to ascertain the veracity of the documents furnished.
The SSP submitted a report finding that though 5 vehicles
were found to be owned by individuals other than the Appellant,
31 vehicles were still owned by the Appellant, as a result of
which the eligibility condition was satisfied. It was also found
that insofar as 1 vehicle was concerned, it was indeed owned
by the Appellant as there existed a typographical error in the
registration number of the vehicle.
3c. Thirdly, as far as the eligibility criteria of having work
experience of at least 5 years, not being less than Rs. 2 crores
was concerned, the learned Single Judge found that work
experience certificates from 2014 to 2018 were submitted
and since the tendering authority was the best judge as to
whether such eligibility condition had in fact been satisfied, a
judicial hands-off was
mandated.
3d. Finally, the learned Single Judge concluded:
“16. Considering the submissions of the parties and in view of
the law laid down by the Supreme Court and also the fact that
the contract is for the year 2020-21, which has already
commenced w.e.f. 1st April, 2020, public interest would be
severely jeopardized if the respondents are not allowed to
execute the contract because the bid of respondent No. 5 was
the lowest. It is, therefore, in public interest not to interfere in
the allotment of contract in favour of respondent No. 5, who
satisfied the criteria as laid down in technical bid as he had
furnished list of HMV & LMV vehicles which was the most
essential condition of the tender. Thus, the petitioner having
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been found ineligible cannot now question allotment of contract
to respondent No. 5 because the petitioner is not similarly
situated.”
4. JK Roadways filed a letters patent appeal before the Division
Bench of the High Court of Jammu and Kashmir at Srinagar [“Division
Bench”]. By the impugned judgment dated 16.10.2020, the Division
Bench recorded:
“14) Though the appellant has raised a number of grounds in the
appeal yet during the course of arguments, the main thrust of
arguments advanced by the learned counsel for the appellant was
on the following grounds:
(I) That the official respondents were not justified in rejecting
bid of the appellant on the ground that it had submitted only the
list of heavy motor vehicles and that the list did not contain the
particulars of light motor vehicles;
(II) That the respondent No.5 despite lacking the requisite
experience in supply of vehicles, was awarded the contract,
which action has amounted to award of contract in favour of
an ineligible bidder to the exclusion of an eligible bidder.”
5. After setting out Condition No. 31 of the N.I.T., the Division
Bench concluded:
“16) From a perusal of the aforesaid condition, it is clear that the
official respondents while formulating the tender notice have used
the expression “HMV/LMV” meaning thereby that a tenderer
had the option of furnishing the particulars of either HMVs or
LMVs or both types of vehicles. No other construction can be
given to the expression “HMV/LMV”.
If the official respondents
desired that a tenderer must own both types of vehicles i.e. HMVs
as well as LMVs, they could have easily used the word “and”
instead of “/” in between HMV and LMV in the tender notice,
use whereof refers to “or”. This is not the case over here. Thus,
if the appellant has furnished the list of Heavy Motor Vehicles
only, he has done what a reasonable and prudent person would do
upon going through the tender condition quoted hereinabove. The
action of the official respondents of rejection of technical bid of
the appellant on the ground of non-furnishing of list of both types
M/S. GALAXY TRANSPORT AGENCIES, CONTRACTORS, TRADERS,
TRANSPORTS AND SUPPLIERS v. M/S. NEW J.K. ROADWAYS, FLEET
OWNERS AND TRANSPORT CONTRACTORS [R. F. NARIMAN, J.]
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of vehicle is, therefore, irrational, arbitrary and perverse.
Therefore, the contention of the appellant in this regard is full of
substance and deserves to be accepted.
17) Mr. B. A. Dar, Sr. AAG, has submitted that the tender notice
condition stated “both HMV/LMV” which meant that the
tenderers had to provide details of both HMV and LMV vehicles.
Per contra learned Sr. counsel for the appellant has contended
that the very appellant was found eligible in respect of the same
condition and was awarded the same work for the previous five
years which was satisfactorily completed.
18) We are unable to agree with the submission of Sr. AAG. As
already noted, if the respondents required provision of details of
both HMV and LMV vehicles, they would have placed “and”
between them. This has not been done.”
6. As a result, the Division Bench found that JK Roadways, having
satisfied Condition No. 31 of the N.I.T., was wrongly disqualified by the
tendering authority. So far as the requirement under Condition No. 27 of
the N.I.T. of holding work experience of at least 5 years was concerned,
the Division Bench found that the Appellant had experience of supplying
vehicles only for a few months in the years 2014 and 2015 and therefore,
the Appellant could, at best, be said to hold work experience of supplying
vehicles for 1 year only. Thus, Condition No. 27 of the N.I.T., being an
essential condition, remained unfulfilled by the
Appellant. Resultantly,
the judgment of the Single Judge dated 30.06.2020 was set aside and the
contract awarded in favour of the Appellant was quashed. The official
respondents were directed to invite fresh tenders and complete the
process within a period of 1 month from the date of the order of the
Division Bench.
7. On 04.11.2020, this Court issued the following order:
“Issue notice.
There shall be an ad-interim stay of operation of the impugned
judgment and order of the High Court.
Counter affidavit within one week by Respondent No.1. Likewise,
counter affidavit to be filed by the State within two weeks.
Rejoinder affidavit within one week thereafter.”
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8. As a result of this Court’s order, the Appellant has continued
executing the awarded work till date, with roughly 3 months left for the
completion of the contract period.
9. Shri Rana Mukherjee, learned senior advocate appearing on
behalf of the Appellant, argued that the Division Bench was wrong on
both counts. According to him, a plain reading of Condition No. 31 of the
N.I.T. showed that “both HMV/LMV” had to be supplied, and as JK
Roadways only supplied a list of HMVs, it was obviously ineligible.
Further, he placed reliance upon the judgments of this Court stating that
the authority that floats the tender is the best judge on how a tender
condition should be read. Accordingly, the Division Bench overstepped
its mark in construing the eligibility conditions of the N.I.T. contrary to
the tendering authority’s interpretation. Insofar as the work experience
condition was concerned, he adverted to the work experience certificates
from the Financial Years 2014-2015 to 2018-2019, which showed that
the Appellant possessed the necessary work experience, which had also
been demonstrated to the Tender Opening Committee, which had, in
turn, reflected the same in a tender scrutiny report, showing that it had
applied its mind in rendering the Appellant a technically qualified bidder.
With respect to the service licence, Shri Mukherjee relied upon the
conclusions of the Single Judge and stated that since this contention was
given up before the Division Bench,
this Court ought not to allow this
point to be re-agitated.
10. Shri Altaf H. Naik, learned senior advocate appearing on behalf
of JK Roadways, reiterated the three submissions made before the Single
Judge and also sought to argue that the work experience certificates
supplied by the Appellant were in the name of “Galaxy Agencies” and
therefore, could not be counted to the credit of the Appellant. He
vehemently argued that the Appellant did not possess a service licence
for the relevant period, the licence having expired on 31.03.2020 and not
having been renewed by the General Order, when properly read. Thus,
the eligibility conditions were not satisfied by the Appellant. Equally, the
Division Bench was right in saying that insofar as the work experience
requirement was concerned, the Appellant had only 1 year of experience,
which would not meet the essential requirement of the N.I.T. Finally, he
also advanced submissions on JK Roadways being qualified on a reading
of Condition No. 27 of the N.I.T.
M/S. GALAXY TRANSPORT AGENCIES, CONTRACTORS, TRADERS,
TRANSPORTS AND SUPPLIERS v. M/S. NEW J.K. ROADWAYS, FLEET
OWNERS AND TRANSPORT CONTRACTORS [R. F. NARIMAN, J.]
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11. Smt. Shashi Juneja, additional standing counsel appearing on
behalf of the Union Territory of Jammu & Kashmir, supported the grant
of the contract in favour of the Appellant and said that the Division
Bench was incorrect in its construction of Condition No. 27 of the N.I.T.
She also submitted that the Tender Opening Committee, being an expert
body and having scrutinised the documents supplied by the Appellant,
cannot now be second-guessed by the judgment of the High Court.
12. Having heard the learned counsel for the parties, it is first
necessary to set out the N.I.T.’s “Terms and Conditions/Qualifying
Criteria”. Condition Nos. 27 and 31 of the N.I.T., which are material to
this case, state as follows:
“Terms and Conditions/Qualifying Criteria
xxx xxx xxx
27. The firm/association shall have working experience of at least
Five years with documentary proof and work should not [be] less
[than] 2 Crores.
xxx xxx xxx
31. The firm/tenderer should have owned at least 30 nos. of vehicles
both HMV/LMV and attached 200 vehicles with the firm
alongwith documentary proof.”
13. Even a cursory glance at Condition No. 31 of the N.I.T. would
show that the 30 vehicles referred to, are “both HMV/LMV”. The
tendering authority has construed this condition to mean that both types
of vehicles, i.e., HMV and LMV, need to be included in the list of the 30
vehicles submitted by each bidder.
14. In a series of judgments, this Court has
held that the authority
that authors the tender document is the best person to understand and
appreciate its requirements, and thus, its interpretation should not be
second-guessed by a court in judicial review proceedings. In Afcons
Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., 2016
(16) SCC 818, this Court held:
“15. We may add that the owner or the employer of a project,
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
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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.”
(page 825)
(emphasis supplied)
15. In the judgment in Bharat Coking Coal Ltd. v. AMR Dev
Prabha 2020 SCC OnLine SC 335, under the heading “Deference to
authority’s interpretation”, this Court stated:
“51. Lastly, we deem it necessary to deal with another fundamental
problem. It is obvious that Respondent No. 1 seeks to only enforce
terms of the NIT. Inherent in such exercise is interpretation of
contractual terms. However, it must be noted that judicial
interpretation of contracts in the sphere of commerce stands on a
distinct footing than while interpreting statutes.
52. In the present facts, it is clear that BCCL and India have laid
recourse to Clauses of the NIT, whether it be to justify condonation
of delay of Respondent No. 6 in submitting performance bank
guarantees or their decision to resume auction on grounds of
technical failure. BCCL having authored these documents, is better
placed to appreciate their requirements and interpret them. (Afcons
Infrastructure Ltd v. Nagpur Metro Rail Corporation Ltd,
(2016) 16 SCC 818
at para 15)
53. The High Court ought to have deferred to this understanding,
unless it was patently perverse or mala fide. Given how BCCL’s
interpretation of these clauses was plausible and not absurd, solely
differences in opinion of contractual interpretation ought not to
have been grounds for the High Court to come to a finding that
the appellant committed illegality.”
(emphasis supplied)
16. Further, in the recent judgment in Silppi Constructions
Contractors v. Union of India, 2019 SCC OnLine SC 1133, this
Court held as follows:
M/S. GALAXY TRANSPORT AGENCIES, CONTRACTORS, TRADERS,
TRANSPORTS AND SUPPLIERS v. M/S. NEW J.K. ROADWAYS, FLEET
OWNERS AND TRANSPORT CONTRACTORS [R. F. NARIMAN, J.]
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[2020] 12 S.C.R.
“20. The essence of the law laid down in the judgments referred
to above is the exercise of restraint and caution; the need for
overwhelming public interest to justify judicial intervention in
matters of contract involving the state instrumentalities; the courts
should give way to the opinion of the experts unless the decision
is totally arbitrary or unreasonable; the court does not sit like a
court of appeal over the appropriate authority; the court must
realise that the authority floating the tender is the best judge of its
requirements and, therefore, the court’s interference should be
minimal. The authority which floats the contract or tender, and
has authored the tender documents is the best judge as to how the
documents have to be interpreted. If two interpretations are
possible then the interpretation of the author must be accepted.
The courts will only interfere to prevent arbitrariness, irrationality,
bias, mala fides or perversity. With this approach in mind we shall
deal with the present case.”
(emphasis supplied)
17. In accordance with these judgments and noting that the
interpretation of the tendering authority in this case cannot be said to be
a perverse one, the Division Bench ought not to have interfered with it
by giving its own interpretation and not giving proper credence to the
word “both” appearing in Condition No. 31 of the N.I.T. For this reason,
the Division Bench’s conclusion that JK
Roadways was wrongly declared
to be ineligible, is set aside.
18. Insofar as Condition No. 27 of the N.I.T. prescribing work
experience of at least 5 years of not less than the value of Rs. 2 crores
is concerned, suffice it to say that the expert body, being the Tender
Opening Committee, consisting of four members, clearly found that this
eligibility condition had been satisfied by the Appellant before us. Without
therefore going into the assessment of the documents that have been
supplied to this Court, it is well settled that unless arbitrariness or mala
fide on the part of the tendering authority is alleged, the expert evaluation
of a particular tender, particularly when it comes to technical evaluation,
is not to be second-guessed by a writ court. Thus, in Jagdish Mandal
v. State of Orissa, (2007) 14 SCC 517, this Court noted:
“22. Judicial review of administrative action is intended to prevent
arbitrariness, irrationality, unreasonableness, bias and mala fides.
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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 imaginary grievances, wounded pride and business rivalry, to
make mountains out of molehills of some technical/procedural
violation or some prejudice to self, and persuade courts to interfere
by exercising power of judicial review, should be resisted. Such
interferences, either interim or final, may hold up public works for
years, or delay relief and succour to thousands and millions and
may increase the project cost manifold. Therefore, a court before
interfering in tender or
contractual matters in exercise of power
of judicial review, should pose to 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, there should be no interference
under Article 226. Cases involving blacklisting or imposition of
penal consequences on a tenderer/contractor or distribution of
State largesse (allotment of sites/shops, grant of licences,
M/S. GALAXY TRANSPORT AGENCIES, CONTRACTORS, TRADERS,
TRANSPORTS AND SUPPLIERS v. M/S. NEW J.K. ROADWAYS, FLEET
OWNERS AND TRANSPORT CONTRACTORS [R. F. NARIMAN, J.]
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[2020] 12 S.C.R.
dealerships and franchises) stand on a different footing as they
may require a higher degree of fairness in action.”
(pages 531-532)
(emphasis supplied)
19. Similarly, in Montecarlo Ltd. v. NTPC Ltd., 2016 (15)
SCC 272, this Court stated as follows:
“26. We respectfully concur with the aforesaid statement of law.
We have reasons to do so. In the present scenario, tenders are
floated and offers are invited for highly complex technical subjects.
It requires understanding and appreciation of the nature of work
and the purpose it is going to serve. It is common knowledge in
the competitive commercial field that technical bids pursuant to
the notice inviting tenders are scrutinised by the technical experts
and sometimes third-party assistance from those unconnected with
the owner’s organisation is taken. This ensures objectivity. Bidder’s
expertise and technical capability and capacity must be assessed
by the experts. In the matters of financial assessment, consultants
are appointed. It is because to check and ascertain that technical
ability and the financial feasibility have sanguinity and are workable
and realistic. There is a multi-prong complex approach; highly
technical in nature. The tenders where public largesse is put to
auction stand on a different compartment. Tender with which we
are concerned, is not comparable to any scheme for allotment.
This arena which we have referred requires technical expertise.
Parameters applied are different. Its aim is to achieve high degree
of perfection in execution and adherence to the time schedule.
But, that does not mean, these tenders will escape scrutiny of
judicial review. Exercise of power of judicial review would be
called for if the approach is arbitrary or mala fide or procedure
adopted is meant to favour one. The decision-making process
should clearly show that the said maladies are kept at bay. But
where a decision is taken that is manifestly in consonance with
the language of the tender document or subserves the purpose
for which the tender is floated, the court should follow the principle
of restraint. Technical evaluation or comparison by the court would
be impermissible. The principle that is applied to scan and
understand an ordinary instrument relatable to contract in other
A
B
C
D
E
F
G
H
1103
spheres has to be treated differently than interpreting and
appreciating tender documents relating to technical works and
projects requiring special skills. The owner should be allowed to
carry out the purpose and there has to be allowance of free play
in the joints.”
(page 288)
20. This being the case, we are unable to fathom how the Division
Bench, on its own appraisal, arrived at the conclusion that the Appellant
held work experience of only 1 year, substituting the appraisal of the
expert four-member Tender Opening Committee with its own.
21. As was correctly pointed out by Shri Mukherjee, learned senior
counsel appearing on behalf of the Appellant, the contention as to the
invalidity of the Appellant’s service licence for the requisite period does
not appear to have been argued before the Division Bench, though argued
before and rejected by the learned Single Judge. This being the case, we
do not think that the scope of this appeal be enlarged to include any such
point which appears to have been given up before the Division Bench.
22. Also, the argument that the Appellant has submitted work
experience certificates in the name of “Galaxy Agencies”, which  is a
separate entity from “Galaxy Transport Agency”, has not been argued
either before the Single Judge or before the Division Bench. In this
circumstance, we reject this point also.
23. The Division Bench’s judgment dated 16.10.2020 is therefore
set aside and the learned Single Judge’s judgment
dated 30.06.2020 is
restored. The appeal is disposed of in the aforesaid terms.
Ankit Gyan
Appeal disposed of.
M/S. GALAXY TRANSPORT AGENCIES, CONTRACTORS, TRADERS,
TRANSPORTS AND SUPPLIERS v. M/S. NEW J.K. ROADWAYS, FLEET
OWNERS AND TRANSPORT CONTRACTORS [R. F. NARIMAN, J.]