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TMI Blog2013 (2) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... ore concentrates to seven enlisted empanelled buyers, the same was challenged by the petitioners by filing a writ petition before the High Court of Calcutta. The said writ petition is stated to be still pending though no interim orders were granted in those proceedings. Petitioner No.1 is stated to have sent communication to respondent No.1 suggesting that a global tender with certain conditions would be the appropriate methodology rather than having an empanelled list of buyers who would be entitled to purchase through the process of e-auction. The views expressed by the representatives of other sellers are also noticed in the said minutes. 3. Petitioner No.1 claims that though the e-tender system was introduced by respondent No.1, later on the said respondent exempted petitioner No.1 from reserve price fixation and also online forward auction with regard to the export of cargo of petitioner No.1. However, practically speaking petitioner No.1 was not permitted to make export on one pretext or the other. 4. The respondent No.1 sought to introduce global e-tender system for export vide communication dated 20.7.2012. The said letter reads as under: "MMTC LOGO By Courier No.MMTC/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sical mode in the drop box and price bid through electronic mode in our E portal. The successful bidder shall furnish PBG within 10 calendar days from the date of communication. In view of the above, we request you to kindly arrange to intimate us the following: 1. Quantity to be offered for export during the quarter. 2. Lotwise quantity details. 3. Complete physical and chemical specifications. 4. Shipment schedule. Kindly arrange to send your offer on or before 24th July, 2012. Thanking you, Yours faithfully, For MMTC Ltd. Sd/- (A Hembram) Dy. General Manager (Minerals)" 5. The petitioner is now aggrieved by the introduction of clauses (a) to (d) of condition (i) "Technical Bid", which are stated to be impeding competition. It is the say of the petitioners that the objective of any process for the benefit of respondent No.1 should be to get the best possible revenue and security for the said revenue, an aspect stated to be set out in clause (h) of condition (i). The petitioners want the right to locate its prospective foreign buyers at such price which may be mutually agreed to between the parties and not to disallow the petitioners from exporting their cargo for wan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Orissa & Ors. (2007) 14 SCC 517 as under: "21. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx "22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing tenders, in those circumstances, the interference by courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government." Lastly para 35 has been referred to which states as under: "35. As observed earlier, the Court would not normally interfere with the policy decision and in matters challenging the award of contract by the State or public authorities. In view of the above, the appellant has failed to establish that the same was contrary to public interest and beyond the pale of disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e part of the petitioners qua clauses (a) to (d) of condition (i) but what we have to consider is whether the conditions so imposed can be said to be so arbitrary or illegal that no reasonable person could come to the conclusion of framing such a policy (Wednesbury‟s principle) or that the terms & conditions have been tailor made to suit a particular person/entity [Decision Oriented Systematic Analysis (DOSA)]. 12. The averments made in the writ petition do not seek to even suggest the second one. It is within the parameters of the first that learned counsel for the petitioners has made an endeavour to bring his case in. It is also cannot be disputed that it is not the function of this Court to sit as an appellate court over policy decisions and it is within the domain of respondent No.1 to lay down the policies. It is true that respondent No.1 holds a dual obligation arising from the role it performs, i.e., the first one arising from the process culminating in the contract with the buyer and the second one when those offers are put to the sellers. In order to safeguard its commercial interests, insofar as the contract with the buyer is concerned, clauses (a) to (d) o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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