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TMI Blog2023 (6) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... on 05.08.2022, without getting such clearance from the respective departments and getting confirmation from the respective authority, as was observed, the authority could not have proceeded with the matter and finalize the tender in favour of opposite party no. 4 on the very same day, i.e., 05.08.2022. Thereby, the entire decision making process of the tendering authority is arbitrary, unreasonable and contrary to the provisions of law. Under these circumstances, this Court, in exercise of the powers conferred under the judicial review, has got jurisdiction to interfere with the decision making process of the tendering authority. In TATA CELLULAR VERSUS UNION OF INDIA [ 1994 (7) TMI 307 - SUPREME COURT] , the apex Court, referring to the limitations relating to the scope of judicial review of administrative decisions and exercise of powers in awarding contracts, noted that there are inherent limitations in the exercise of power of judicial review in contractual matter. As such, it was observed that the duty to act fairly will vary in extent, depending upon the nature of cases, to which the said principle is sought to be applied. It was further held that the State has the rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B.R. SARANGI, J. M/s P.K. Minerals Private Ltd., a company registered under the Companies Act, 1956, has filed this writ petition seeking to set aside the order dated 20.10.2022 passed in OMMC Appeal No. 33 of 2022 by the Appellate Authority-cum-Sub-Collector, Keonjhar, as well as the order dated 05.08.2022 passed by the Competent Authority-cum-Tahasildar, Banspal in Sand Stone Quarry Case No. 4/2020-21, and to issue direction to the opposite parties to settle the Karangadihi Stone Quarry in its favour in accordance with law. 2. The factual matrix of the case, in a nutshell, is that the Tahasildar, Banspal, on 18.07.2022, floated an auction notice for long term lease of Karangadihi Stone Quarry for a period of five years, i.e., from the financial year 202-23 to 2026-27. The last date of submission of bid was fixed to 04.08.2022 and the date of opening of bid was fixed to 05.08.2022. The auction notice also specified the list of documents to be enclosed by the bidders along with the bid application. Duly complying with the conditions of the auction notice, the petitioner submitted its bid incorporating the documents as required. The tender drop box was opened, on 05.08.202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST dues. 2.3 The opposite party no. 4 had enclosed a check list along with its bid application and vide sl.no. 5 though it had enlisted income tax return of FY 2021-22 , but in effect it had enclosed the income tax return for the assessment year 2021-22 for the financial year 2020-21. The tender notification was issued on 18.07.2022 and, therefore, the bidder was required to submit the income tax return for the financial year 2021-22 ending 31.03.2022. Therefore, the bid submitted by opposite party no. 4 was without the income tax return of the financial year 2021-22. Apart from the same, opposite party no. 4 at sl. no. 8 of the check list had described as GST no dues certificate . But it was not a statutory certificate and the same was issued before his submission of income tax return of financial year 2021-2022 and, as such, the same was issued on the request made by the assessee, as a conditional and not absolute. As such, the GST authorities had made it clear that the certificate is not valid in case of any liability arises for the said period and at the time of scrutiny of the details. Meaning thereby, the authority reserved the right to cancel and declare the certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t price, it was not called upon by the opposite parties, although the bid of the petitioner was in order. It is further contended that the competent authority had shown undue haste in settling the source in favour of opposite party no. 4, inasmuch as, though decision was taken on 05.08.2022 by the selection committee to take confirmation from the respective department, but on the same day the source was settled in favour of opposite party no. 4, which shows that the action of the competent authority is arbitrary and unreasonable. As such, the decision making process by settling the source in favour of opposite party no. 4 cannot be sustained in the eye of law. Thus, it is contended that in exercise of power under judicial review, this Court can interfere with the same and pass appropriate order in accordance with law. 3.2 To substantiate his contention, learned counsel appearing for the petitioner has relied upon the judgments of the apex Court as well this Court in the cases of Vidarbha Irrigation Development Corporation and others v. Anoj Kumar Agarwala, (2020) 17 SCC 577; Sachin Kumar Agrawal v. State of Odisha [W.P.(C) No. 31112 of 2022 disposed of on 03.04.2023]; and Rahu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 is legally liable to submit its audit report up to 7th October 2022 and income tax returns attaching the said order on or before 31st October, 2022, for which the previous year return of the opposite party no. 4 is financial year 2020-21 relating to assessment year 2021-22, which was filed by opposite party no. 4 along with the bid documents. Thereby, no illegality or irregularity has been committed by opposite party no. 4 in submitting its bid and the same cannot be rejected. It is contended that opposite party no. 4, having quoted highest price of additional charges, has been granted with the lease to operate the stone quarry for a period of five years. Thereby, granting the said lease in favour of the petitioner with a low price does not arise, and that the same would be improper on the part of the authority. As a consequence thereof, dismissal of the writ petition is sought for. 6. This Court heard Mr. S.K. Dash, learned counsel for the petitioner; Mr. P.P. Mohanty, learned Addl. Government Advocate appearing for the State opposite parties no.1 to 3; and Mr. U.C. Beura, learned counsel appearing for opposite party no. 4 in hybrid mode and perused the record. Pleadings h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity had reserved the right to cancel and declare the certificate to be invalid. 9. So far as the petitioner is concerned, it had no dues of Goods and Service Tax (GST). On 28.07.2022, the petitioner had applied to the Superintendent, Central Excise (CGST, Keonjhar-I Range for issue of a No Dues Certificate to comply with Clause-7 of the auction notice. But the CGST Authorities advised the petitioner to download the information from their website. Accordingly, the petitioner had downloaded the information from their website, which contained the information that the petitioner had no outstanding GST dues. Thereby, the same is in compliance of Clause-7 of the auction notice. As a consequence thereof, the petitioner objected to the bid submitted by opposite party no. 4, but, without considering the same, the authorities proceeded with the decision making process of selection and allotment of the quarry. On the basis of the materials, which have been placed by the petitioner at page 182-183 of the writ petition as Annexure-5, on receipt of the same under the Right to Information Act, 2005, it would be evident that in the comparative statement prepared on opening of the bids on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso needs to be confirmed from concerned authority, if necessary. 2) M/s P.K. Minerals P.Ltd, Md.Soumyaranjan Pahi, kenonjhar has quoted Additional Charge @ 22% However the No dues obtained from GST portal needs to be confirmed from concerned department /Authority, if necessary. Hence, after receiving the above mentioned clarification and confirmation, the tender will be finalized. 10. On perusal of the endorsement of the committee, it is made clear that opposite party no. 4 had quoted additional charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative action. 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. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. The apex Court also noted that there are inherent limitations in the exercise of power of judicial review in contractual matter. As such, it was observed that the duty to act fairly will vary in exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in redoing the entire work thus involving larger outlays of public money and delaying the availability of services, facilities or goods, e.g. a delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation. 11. When a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene. 15. In B.S.N. Joshi Sons Ltd. v. Nair Coal Services Ltd. (2006) 11 SCC 548 : (2006) 11 Scale 526 , the apex Court observed as follows: 56. It may be true that a contract need not be given to the lowest tenderer but it is equally true that the employer is the best judge therefor; the same ordinarily being within its domain, court's interference in such matter should be minimal. The High Court's jurisdiction in such matters being limited in a case of this nature, the Court should normally exercise judicial restraint unless illegality or arbitrariness on the part of the employer is apparent on the face of the record. 16. The scope of judicial review has also been taken into consideration elaborately in Jagdish Mandal (supra). In paragraph-22 of the said judgment, the apex Court held as follows:- ..Therefore, a court before interfering in tender or contractual matters in exercise of power of judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined as per the tender notice. It was also clarified in the tender notice that in absence of any documents, as enumerated in clauses-1 to 14, the application submitted by the bidder would not be taken into consideration. Therefore, fully knowing the conditions stipulated in the tender notice, the petitioner should not have filed the writ petition for consideration of the bid on the ground that he had quoted higher price than opposite party no.5. If the bid submitted by the petitioner was absolutely void ab initio, in view of non-compliance of the tender conditions stipulated in the tender notice, he is estopped from claiming the benefit, as has been claimed in the writ petition. 19. In Rahul Mishra (supra), this Court in paragraph-24 of the said judgment held as under:- 24. Therefore, the application of the Petitioner, who is already a lessee, may be considered by putting the sairat source to auction. It is open for any category of applicant referred to in Rule 27 including the Petitioner to participate in public auction of minor mineral in case the Petitioner is not found to be the highest bidder, but agrees to match with the price at which the bid is knocked, preference ..... 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