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TMI Blog2007 (9) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a different eligibility criteria. 2. The facts that are relevant for the purpose of disposing of this writ petition can be summarized as follows: The petitioner-company claims that it is engaged in the manufacturing of Tyre and Tube business. It is a reputed manufacturer and for over a period of time has earned good will in the said Industry and also with the industries in which its goods are used. The petitioner would state that it has been supplying Tyres, Tubes and Flaps to several State Transport Corporations apart from Karnataka State Road Transport Corporation. It is also stated that for the year 2005-06 the petitioner was supplying the tyres of required statistics to the 2nd respondent-Corporation. 3. The 2nd respondent is a public undertaking and is plying buses through out the State of Karnataka and its neighbouring States. Having regard to Karnataka Transparency in Public Procurement Act, 1999, the 2nd respondent invited tenders for supplying of 5,000 sets of Tyres, Tubes and Flaps. It is not in dispute that the said tender was an E-tender. The two conditions/criteria for applying for the tender are: (a) Only the tyre manufacturers who have supplied a minim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modified pursuant to a corrigendum. Consequently, an application is filed for amendment of the pleadings so as to incorporate that the said subsequent corrigendum, a copy of which is produced at Annexure 'H' is also vague and does not convey any meaning enabling the eligible participants to quote their quotations inasmuch as it is bereft of any reasoning. They would also contend that there is serious lacuna in the tender notification inasmuch as it is in violation of Rule 17 of the Transparency Rules. 6. On this petition, the respondents were notified and they have entered appearance and have filed their Statement of objections inter alia denying all the contentions. They would specifically contend that the goods, which were supplied by the petitioners on an earlier occasion, were found to be of poor quality and did not confirm to high standards laid by the respondents. The main contention is that the tyres, which were supplied on earlier two occasions did not give enough mileage and most of the time, were defective in nature. They would also contend that there were several other complaints, which would disclose that the (i) expected tyre mileage is not achieved as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oration and Anr . reported in AIR2001SC3887 . 8. Mr. Ashok Haranahalli, learned Counsel appearing for the respondents 2 and 3 would submit that the scope of this writ petition would fall in the realm of contractual obligation. He would also submit that this being a Government Contract inasmuch as the 2nd respondent is the Government of Karnataka undertaking, the challenge by unsuccessful bidder, who does not qualify the requirements of the condition cannot question the same, on the ground that the said conditions are oppressive. He would also rely on two rulings of the Apex Court to buttress his contention. 9. Having heard the learned Counsel appearing for the parties, the moot question, which would fall for consideration is, formulated at the beginning of this order. The scope of judicial review in respect of tenders has been set at rest by the Apex Court in several decisions. In first of the cases, in the case of Directorate of Education and Ors. v. Educomp Datamatics Ltd., and Ors . reported in AIR2004SC1962 , the Apex Court while dealing with the scope of judicial review under Article 226 in respect of the terms of the tender has observed thus: It has clearly been he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said decision of incorporating these two conditions could be classified as arbitrary, discriminatory or malafide. 11. In so far as the contention of Mr. K. Suman, learned Counsel appearing for the petitioner, in respect of the infraction of Rule 17 of the Transparency Rules is concerned, it is to be noticed that the said tender notification was published in the newspaper requesting the participants to go to the website. Indeed the terms and conditions were down loaded by the petitioner and he has given his tender application. The records, which are made available would clearly disclose that the Competent Authority has taken a decision that the Tyres are required by all the four corporations. They may have to reduce the period from 60 days to 45 days and that has been sent for approval of the Managing Director and the Vice Chairman who has approved it Indeed Mr. K. Suman learned Counsel appearing for the petitioner has taken a contention that Rule 17(2) of the Rules would contemplate that the Appellate Authority should accord reasons for approval. Apparently, in item No. 167, the reasons are forthcoming and the same has been approved by the Managing Director. It is useful to extr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s name and had confined it only to supplies of 5,000/- Tyres, Tubes and Flaps in the preceding three years to any of the chassis manufacturers. Hence, I am of the view that the terms and conditions cannot be said to be oppressive, arbitrary or malafide. They would also satisfy the requirement of Rule 17 of the Rules. 15. Before concluding, it is necessary to refer to a ruling of the Apex Court in the case of Association of Registration Plates v. Union of India and Ors . reported in 2004 AIR SCW 7074 wherein the Apex Court has observed thus: In the matter of formulating conditions of a tender document and awarding a contract of the nature of ensuring supply of high security registration plates, greater latitude is required to be conceded to the State authorities. Unless the action of tendering Authority is found to be malicious and misuse of its statutory powers, tender conditions are unassailable. On intensive examination of tender conditions, 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 . Article 14 of the Constitution prohibits the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than any saving which the Court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the Court is satisfied that there is a substantial amount of public interest or the transaction is entered into mala fide, the Court should not intervene under Article 226 in disputes between two rival tenderers. (emphasis by me) 17. In so far as the decision, which is cited at the bar by Mr. Suman, learned Counsel for the petitioner in, it is to be noticed that the Apex Court, while considering the scope of interference has observed thus: There is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and Courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the Courts have to abdicate their right to scrutinize whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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