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TMI Blog2020 (4) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... by the private entities/persons after obtaining yearly contract for sale of country made liquor and foreign liquor separately. The explanation offered by learned counsel for the Respondent-CSMCL that the reason for inserting Clause 2.1 in the tender notification on account of the new tax system has been brought into effect by introducing a new Act known as Central Goods and Services Tax Act, 2017 cannot be ignored - The submission of learned counsel for the Petitioner that Clause 2.1 has been inserted only to extend benefit to the Chartered Accountants Firms already engaged by Respondent-CSMCL in the previous years also do not appear to be correct when the pleading made by Respondent-CSMCL in its reply to the writ petition and application for grant of interim relief that out of five zones, in three zones, new Chartered Accountants Firms participated and this pleading has not been reverted by learned counsel for the Petitioner. As the submission of learned counsel for the Respondent has not been controverted by the learned counsel for the Petitioner that in three zones, new Firms of Chartered Accountants have participated and out of which, one of the Firm is outside of the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed in the tender notification is violative to the directions issued by the Central Vigilance Commission. It is further pointed that the tender notification, in which, the Petitioner became successful was cancelled and thereafter, insertion of clause in eligibility criteria i.e. Clause 2.1 is an arbitrary exercise by Respondent-CSMCL to oust the tenderer like Petitioner from the competition. The date of publication of the notification is in a planed way during the period of Diwali festival, therefore, the action on the part of Respondent-CSMCL is arbitrary with foul play and an eye wash. 4. Learned counsel for the Respondent-CSMCL submitted return and denied all the adverse pleadings and allegations made in the writ petition. It is pointed out that the experience clause as mentioned in Clause 2.1 of the tender notification is only on account of fact that the Respondent-CSMCL was borne in the year 2017 itself, earlier the liquors are being sold by qualified liquor contractors who become successful in the bid proceedings. In the year 2017, a new taxation law has been incorporated and came into force known as 'Central Goods and Services Tax Act, 2017, which made the taxation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate to extract Clause 2.1 of the tender notification, which reads as under : 2.1 The firm of Chartered Accountants who have experience of audit for at least 2 years in last 3 financial years, of Government Organization/Govt. PSU in Liquor business are only eligible to apply as Internal Auditors of Shops. 7. In view of the pleadings and submissions made by learned counsel for the Petitioner, the question for consideration before this Court is whether Clause 2.1 is arbitrary or it is inserted to extend undue benefit to any specific Firm of Chartered Accountants? 8. Undisputedly, the tender notification is for engagement of the professionals i.e. Firm of Chartered Accountants for the purpose of internal audit of retail vending liquor shops. It is also not in dispute that prior to year 2017, the retail sale of liquor was not managed by the Respondent-CSMCL, but it is managed by the private entities/persons after obtaining yearly contract for sale of country made liquor and foreign liquor separately. The explanation offered by learned counsel for the Respondent-CSMCL that the reason for inserting Clause 2.1 in the tender notification on account of the new tax sys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Court of appeal but merely reviews the manner in which the decision was made. The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. The Government must have freedom of contract. In other words, fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasiadministrative sphere. However, the decision must not only be tested by the application of Wednesbury principles of reasonableness but also must be free from arbitrariness not affected by bias or actuated by mala fides. It was also pointed out that quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. (See para 113 of the Report, SCC para 94). 12. Again, in the matter of Michigan Rubber (India) Limited v. State of Karnataka and Others reported in (2012) 8 SCC 216, the Hon'ble Supreme Court had considered that what action can be made to judicial review and held as under :- 23. From the above d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents is arbitrary and therefore the entire proceeding is liable to be interdicted by issuing appropriate writ, as prayed for, is concerned, action on the part of the employer/authority floating tender is to be assessed only on the ground whether the decision making process of the concerned authority is proper or suffers from some infirmity. Hon'ble Supreme Court in the matter of Sterling Computers Ltd. v. M N Publications Ltd. reported in (1993) 1 SCC 445 has held in Para-18 thus;- 18. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the 'decision making process'. By way of judicial review the Court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such enquiry. But the Courts can certainly examine whether 'decision making process' was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution. 17. Hon'ble Supreme Court in the matter of Central Coalfields ..... X X X X Extracts X X X X X X X X Extracts X X X X
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