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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 ..... lusion 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)]. 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) of condition (i) have been inserted as part of “Technical Bid”. No doubt clauses (g) & (h) of condition (i) also seek to safeguard the interest of respondent No.1 but then it cannot be said that respondent No.1 is devoid of the authority of creating additional assurances to safeguard its commercial interests as is sought to be done by clauses (a) to (d) of condition (i). There is also force in the contention of respondents 1 to 5 that petitioner No.1 cannot really make a grievance as a seller as it is the buyers who can be aggrieved by the terms & conditions. It cannot be that a proxy battle can be fought by petitioner No.1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction 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/2012-13/CR/7554 20th July, 2012 To, Shri S.K. Jain, Director, M/s. Misrilal Mines Pvt. Ltd., MINERAL HOUSE 27 A, Camac Street KOLKATA-700016. Sub: Global E tender for export of Chrome ore/Concentrate Dear Sir, During the Chrome Producers Meet held on 10th July, 2012, the selling mechanism of chrome ore and chrome concentrate was discussed. Besides in the pre bid conference held on 15th June, 2012 the prospective bidders had also suggested for adoption of global tender for exports of chrome ore/concentrate. Now it has been decided that MMTC shall invite global E tender for sale of chrome ore/concentrate offered quantity by the suppliers. There shall be two bid systems (Part I: Technical Bid and Part II: Price Bid) in the tender. The brief details of Global tender are as under: i) TECHNICAL BID Bidder shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess 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 want of compliance of clauses (a) to (d) of condition (i). 6. We have noticed the contentions aforesaid of learned counsel for the petitioners on 12.9.2012 while issuing notice and had directed by an interim order that, in the mean time, offer made by the petitioners vide annexure P-6 be examined by respondents 1 to 5. This annexure P-6 was qua the interest expressed by one of the foreign buyers Avani Resources of Singapore made through their letter dated 26.6.2012 showing interest for purchasing the material of the petitioners. 7. We are informed that insofar as this communication is concerned, Avani Resources satisfied clauses (a) to (d) of condition (i) and the exports were made. 8. The writ petition has been contested by the respondents on various accounts including of misleading the Court, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 discrimination or unreasonable. We are satisfied that to have the best of the equipment for the vehicles, which ply on road carrying passengers, the 2nd respondent thought it fit that the criteria for applying for tender for procuring tyres should be at a high standard and thought it fit that only those manufacturers who satisfy the eligibility criteria should be permitted to participate in the tender. As noted in various decisions, the Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the courts would interfere. The courts cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) of condition (i) have been inserted as part of Technical Bid . No doubt clauses (g) (h) of condition (i) also seek to safeguard the interest of respondent No.1 but then it cannot be said that respondent No.1 is devoid of the authority of creating additional assurances to safeguard its commercial interests as is sought to be done by clauses (a) to (d) of condition (i). 13. There is also force in the contention of the learned senior counsel for respondents 1 to 5 that petitioner No.1 cannot really make a grievance as a seller as it is the buyers who can be aggrieved by the terms conditions. It cannot be that a proxy battle can be fought by petitioner No.1. Of course interest of petitioner No.1 is to safeguard its economic interest but that cannot be at the cost of compromising the financial inter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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