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TMI Blog2011 (1) TMI 1599X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was filed against the respondent No. 1 to 6. Later on, the respondent Nos. 7 to 9 were brought on record in pursuance of the order of this court dated 23.11.2010. 4. Heard Mr. S.K. Kapoor, learned senior Counsel assisted by Mr. K.R. Surana, learned Counsel appearing for the petitioners. Also heard Mr. K.M. Mazumder, learned Counsel for the Respondent Nos. 1 and 2, Mr. N. Dutta and Mrs. M. Hazarika, learned senior Counsel assisted by Ms. A. Ajitsaria, learned Counsel for the respondents 3 to 6, Mr. Jayanta Mitra, learned senior Counsel assisted by Mr. Padam Khaitan, Mr. K.K. Dutta, Mr. Sanjib Roy, learned Counsel for the respondent No.7, Mr. U. Bhuyan, learned senior counsel assisted by Mrs. A. Verma and Mr. A. Hazarika and Mr. Uday Shekhar Roy Choudhury, learned Counsel for the respondent No.8. and Mr. A.K. Bhattacharjee, learned senior Counsel assisted by Mr. A.K. Choudhury, learned Counsel and Mr. Diganta Lahkar for the respondent No. 9. Pleaded case of the parties 5. The brief facts of the case needed to be discussed are as under: Notices inviting tender dated 2.9.2010 for biding for Package 8a and 8b respectively were issued by the Respondent No.5, the Chief Executive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast three years stipulated by the guidelines, they became absolutely ineligible, disqualified and excluded from participating in the tender process. 6. The petitioner in Para-14 of the writ petition pleaded, inter alia, that if every public institution in the world were to stipulate the existence of five years of supply and certification history as a qualifying criterion for a market player, no new market player would be able to forge any ground in the domestic or international market and axiomatically no new market player would ever be born. Accordingly, for the sake of healthy competition, it is necessary that only relevant criteria are engrafted into the roster of qualifying conditions for participation in a tender involving mere supply of material, more so when India is presently reeling under a huge supply-demand gap of ductile iron pipes. 7. In Paragraph- 19 of the writ petition, the petitioner pleaded that similar tender floated by diverse public authorities involving supply of D.I pipes of stipulated quality and specifications clearly show that eligibility conditions pertaining to antiquity of manufacturing process or antiquity of subsistence of standard organizations lic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e- 8a and 8b were prepared in terms of the JICA sample documents and guidelines as contended in the affidavit in opposition. Further contention therein is that in view of the objection raised by the petitioner regarding the vagueness in the clauses relating to type test, cement lining smoothness test and portability test etc., the respondents GMDA subsequently deleted all these three clauses and those deletion were done without prior consent of the JICA and unilaterally. Not only that, apart from the aforesaid deletion, the GMDA also without prior consent of JICA, unilaterally reduced the eligibility clause relating to average turn over as well as qualifying length. In writ petition, though there was no pleading regarding to Competitive Law, but in Paragraph-10 of the affidavit in reply, a new plea has been taken for guiding condition made in the writ petition, inter alia, that in pursuit of globalization, it is always necessary that a particular market should be geared to face the steepest competition from within the country and outside. The State and/or any authority under article 12 of the Constitution of India is under an obligation to ensure that there is free and fair competi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation. As estimated, the current population is expected to be more than double and triple by 2025 and 2040, respectively and due to rapid growth of urban population and economy, the gap between water demand and water supply has been widening. On the contrary, the city being situated on the bank of Brahmaputra river, which is one of the major rivers in India, has advantage of having huge water sources available. Therefore, providing treated surface water to every citizen is a long due and very much essential. Keeping in mind the next twenty years, a master plan for Guwahati Metropolitan Area 2025 sets the target that the 100% houses will be supplied with piped filtered water by the year 2025. In this back ground, the water supply scheme has been conceived and it has assumed immense importance in the very survival of the citizens of Guwahati and a project is being prepared for the said purpose. Any delay for implementation of the project would cause untold and irreparable harm to the lives of the citizens which will get compounded with each passing day. 12. For fulfilment of the project as aforesaid, there was exchange of note between the Government of India and the Government of J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st for review has to be submitted to JICA and JICA shall inform of concurrence by means of a notice regarding procurement methods. In terms of the Schedule 4 aforementioned, for pre-qualification in case of contract, the estimated value of which is not less than 500 million Japanese yen, after the pre-qualified firms have been selected, the same has to be submitted to JICA for its review and concurrence with a report on the selection process supported by reasons thereon for the choice made, attaching all relevant documents together with a request for a review of the results of the pre-qualification. The borrower is also to submit to JICA for JICA's reference such other documents which the JICA may request. When JICA has no objection to the said documents, JICA shall inform the borrower accordingly by means of a Notice regarding result of pre-qualification. 15. Before sending a notice of award to the successful bidder, the borrower shall submit to JICA, for their review and concurrence, the analysis of bids and proposal for award, together with a request for review of analysis of bids and proposal for award and further submit for JICA's reference, such other documents relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and such relevant documents as JICA may request. When JICA has no objection, JICA shall inform the borrower regarding analysis of technical proposals. 18. It is further pleaded in the affidavit in opposition submitted by the respondent No. 3, 4 and 6 that the entire water supply project is divided into nine contract package. The summary of the contract package and the contract-wise progress of the main water supply facility are as under: Contract Package No. Scope Original Actual/Planned Remarks/Status Start Completion Start Completion C#01 North Zone Intake facilities, Raw Water Pumps & Rising Mains, WTP (38MLD), Clear Water Pumps & Rising Main, & Service Reservoir (1 No.) including setting of water Testing Laboratory Jan-2012 Mar-2014 Jan-2011 May-2013 Bid documents issued to 9 pre-qualified bidders on 20 August 2010 Bids are due on 08 November 2010 C#02 North Zone-Installation of Distribution network except procurement of DI pipes Jan-2012 Mar-2015 Apr-2011 Apr-2013 PQ notice issued on 13 October 2010 Bid document is expected to be issued to pre-qualified bidders on 18 December 2010 C#03 South Central Intake facilities, Raw Water Pumps & Rising Mains, WTP (200 MLD) & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er alia, the analysis on compliance with JICA procurement guidelines and analysis on evaluation criteria and submit a compliance report along with a revised bid documents to the said Chief Representative of JICA. 21. In response to the aforesaid letter dated 18.8.2010, the OSD & Contract Manager, PIU for JICA funded Guwahati Water Supply Project, submitted the draft bid documents vide his letter dated 27.8.2010, Annexure-D to the affidavit in opposition. Thereafter, the concurrence of the bid documents was granted by the JICA vide its letter dated 1.9.2010 wherein it is mentioned, inter alia, in accordance with Schedule 4, Section 3(2)(b) of the Loan Agreement No. ID-P 201 dated March 31, 2009 between Japan International Cooperation Agency and the President of India that they have no objection to the bid documents as proposed by GMDA for the contract package mentioned therein subject to GMDA allowing for sixty days time for submission of bids. 22. It has been further stated that in accordance with the Loan Agreement, prior to opening of the price proposals, GMDA was requested to submit the results of the evaluation of the Initial filter and technical bids to JICA for concurrence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Consultant, the analysis of technical proposals by the Project Management Consultant, together with a request for review of the Analysis of Technical Proposals have been forwarded to JICA for its perusal and concurrence. Only after receiving concurrence of JICA on the initial filter and technical bids, the financial bids would be open. 27. The further case of the respondents 3, 4 and 6 is that the present writ petition is not maintainable and the same is bad for non-joinder of necessary parties, like the JICA, which funded for the Guwahati Water Project on certain terms and conditions and no steps whatsoever can be taken without the concurrence of JICA and the said project is to be implemented solely on terms of JICA. 28. In order to avail the loans, terms and conditions provided for in the Loan Agreement and the procurement guidelines of JICA has to be followed in letter and spirit. The JICA is not only the mere provider of funds, but it has most important role to play as one of the player in the implementation of the project and selection of bidders and the JICA exercises close watch over the entire project including the procurement process and if the same is not in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o manufacture/produce DI pipes of diameter 100 mm to 600 mm class K as per ISI 8329.2000 or equivalent international standard. The order dated 30.10.2009 read with this Clause would clearly show that any international bidder with a valid international and subsisting certificate can bid, provided he obtains a BIS certificate from the BIS prior to bidding. Therefore, the contention of the petitioner, inter alia, that the impugned Clauses of tender a primary disqualifying factor both in the domestic as well as the international market are incorrect. 33. The respondents 3, 4 and 6 further stated in their affidavit that the writ petitioners tried to canvass their private interest over the greater public interest by contending that the requirement of five years experience is irrelevant and is used only as a mechanism to disqualify the players like the petitioners from the tender process which are not correct. But the fact remains that the past experience in production of DI pipes is essential to ensure that the prospective bidders have proven track record and capability to manufacture quality pipe consistently in the past and also capable to ensure proper, smooth and timely delivery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonable and irrational; whether the aforesaid conditions are unwarranted and/or illegal and for creating monopoly in favour of any particular bidder in view of the provisions of Section 3 and Section 4 of the Competition Act ? Submission of the Counsel of the rival parties 36. Mr. Kapoor at the beginning of his argument would contend that though the tender in question is global in nature, but no players from the outside country participated in the game and only nine national players obtained the bid documents and out of them, six players including the petitioners admittedly participated in the pre-bid discussion and after the said discussion, the purchaser GMDA amended the clauses in the bid documents, inter alia, reduced the annual production turnover of INR 3000 million or equivalent in Japanese Yen calculated to INR 1900 million and the qualifying length of 10 lacs m to 5 lacs m, but the production period with last five years and performance experience as mentioned in Clause 2.4.2 wherein it is mentioned that bidder should demonstrate to have proven track record of good performance of D.I. pipes for last three years as per IS 8329:2000 or equivalent international standards, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which notice has been invited. 41. He further contended that Clause 2.4.1(a)(c) is also not clear whether a player having BIS license require minimum five years experience for manufacturing/producing DI pipes of diameter 100mm to 600mm class K9 as per IS 8329:2000 or equivalent international standards, at least 5 years from date of issue of such license. 42. According to the learned Counsel, such clause creates confusion amongst the players who intended to participate in the bid in question. Not only that, in Clause 2.4.1, the purchasers intended to get a player having experience of five years license issued by BIS or as per IS 8329:2000 standard and in Clause-2.4.2, it is stated that the bidders should demonstrate to have a proven track record of good performance of DI pipes for last three years as per IS 8329:2000 or equivalent international standard. Therefore, issuance authority of NIT also were not clear what is the actual requirement and thus those clauses are also ambiguous. He further contended that GMDA require for the water project in question about 5 lacs DI pipes within two months and the petitioners are in a position to supply that quantity of pipes before the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts may vary from case to case, but the right to judicial review of tender conditions relating to a contract has been applied and is undeniable. 46. He further contended that GMDA being an 'enterprise' while acquiring DI pipes through a contract having dominant position indirectly imposing unfair and discriminatory conditions in purchase proceeding excluded the petitioner and similarly situated players from the competition in the market area of DI pipes and thus the said contract of the GMDA is nothing but an abuse of dominant position for which itself the impugned clauses are liable to be struck down and the petitioners should be allowed to participate in the tender process. More so, due to exclusion of the petitioner as a player from the game, the respondent GMDA authority deprived the petitioners and persons working under the petitioner No.1, their right to life as laid down by the Constitution makers under Article 21 of the Constitution as right to life includes also right to equal opportunity. Not only that the Apex Court also in I.R Coelho v. State of Tamil Nadu [2007] 2 SCC 1 noted that Article 21 and 14 are heart of the chapter of fundamental rights and they cover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2007] 8 SCC 1, particularly para-36, 37 and 38 of the said report. According to him, this is the only case where the Apex Court discussed about the Competition Law. It would be useful for this Court if the aforesaid Para-36 to 38 of the said reports are reproduced herein. Accordingly, the same is reproduced hereunder: "36. We find merit in this civil appeal. Standards applied by courts in judicial review must be justified by constitutional principles which govern the proper exercise of public power in a democracy Article 14 of the Constitution embodies the principle of "non-discrimination". However, it is not a free-standing provision. It has to be read in conjunction with rights conferred by other articles like Article 21 of the Constitution. The said Article 21 refers to "right to life". It includes "opportunity". In our view, as held in the latest judgment of the Constitution Bench of nine Judges in I.R. Coelho (supra), Articles 21/14 are the heart of the chapter on fundamental rights. They cover various aspects of life, "Level playing field" is an important concept while construing Article 19(1)(g) of the Constitution. It is this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wife sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basis requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness." 38. When tenders are i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position which are equivalent to personal right vested in individual which can be enforced and also are in the public interest or for the common good and are to be considered for the general economic prosperity of the public the same being now law in India and the Government and its instrumentalities which are enterprises are bound to apply for complying the same uniformly in all their transactions. 54. He further contended that on repealing the Monopolies and Restrictive Trade Practices Act, 1969 which contained some provisions regarding monopolistic trade practices and restrictive trade practices the Legislature enacted the Competition Act. According to him, the restrictive trade practice was defined, inter alia, as a practice which may have the effect of restricting competition in any manner. His further contention is that while dealing with the definition in the context of MRTP Act, the Supreme Court in Mahindra & Mahindra Ltd. v. Union of India AIR 1979 SC 798 held that in such case, the enquiry has to be made whether the practice has the effect of preventing distorting or restricting competition. The Supreme Court further said that the enquiry must depend on the existing co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t arbitrary, irrational, irrelevant or discriminatory, then obviously the petitioners have no case. If the action of the respondents authority is violative of principle of reasonableness and contrary to the provisions of Section 3 and 4 of the Act, then the petitioners are entitled to get relief as sought for. 58. Mr. Dutta, learned Counsel for the respondents 3 to 6 while countering the contention of Mr. Kapoor at the very first instance tried to oust the petitioners from the arena of the Court raising the question of maintainability of the writ petition on the ground that the writ petitioners knows well that JICA is one of the principal necessary party in the game of contract as it is financing the Guwahati Water Supply Project on the basis of an Agreement between the Union of India through the President of India and unless the terms approved by JICA would remain in the bid documents, the JICA would stop financing the said project and consequent thereto GMDA shall not be able to execute the said project and as a result there would be no other alternative before the GMDA authority except to annul/cancel the NIT, the terms of which is under challenge. More so, the people residing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a reference made to it by the Central Government or a State Government or statutory authority. He further stated that the statute not only provided original jurisdiction, but also provided an appellate jurisdiction under Section 53(A) of the Act wherein it is suggested for establishment of an appellate Tribunal to be known as Competition Appellate Tribunal. According to the learned Counsel, in view of the above prescription of the statute also the present writ petition is not maintainable. 60. He further urges that if the petitioners are of the opinion that the action of the GMDA causes an appreciable adverse affect on competition between the petitioners and the private respondents due to alleged anti-competition terms in the bid document and/or abused dominant position which affects the right of the petitioner, then they can approach the statutory authority under the Competition Act. 61. He again urges that when self-contained statute prescribes specific forum and procedure for a dispute relating to contravention of the provisions therein, then Writ Court should be restrained from exercising its jurisdiction of judicial review under Article 226 of the Constitution. The Court c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is relating to water project for supplying pure hygienic water to the citizen residing within the jurisdiction of the Guwahati Municipal Corporation and by this time in a catena of decisions, the Apex Court held that contract being essential commercial transaction and terms incorporated in the bid documents being within the domain of the notice inviting authority i.e. the purchaser like petitioner, the Court should not interfere with and struck down the terms contained therein exercising its jurisdiction of judicial review as prescribed under Article 226 of the Constitution. The Apex Court also in its various decision stated that the Court is not the authority to set the terms of the tender as it thinks for it is the purchaser who is the best judge to decide as to how and in what manner they will set out the terms of the tender documents, he contended. He further contended that terms of the tender are not open to the judicial scrutiny, the same being administrative policy decision of the notice inviting authority and in the realm of the contract. In support of his contention, he relied upon the decisions of the Apex Court in the case of (1) AIR India Ltd v. Cochin International ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to interfere at the time of making bid documents and put their own conditions for protecting the financial interest of them. 66. While referring the aforesaid law report, Mr. Dutta also contends that contract with JICA has to be given importance on the ground that if its conditions are not accepted, then they would not finance. Consequent thereto, the GMDA cannot be in a position to execute the project in question. In the result, the people at large will suffer and the Court cannot allow the writ petition of the petitioners for their personal interest at the cost of public interest. 67. The learned Counsel for the respondents while countering the contention of Mr. Kapoor, that putting clauses in the bid documents by GMDA, due to which the petitioner players are going to be excluded from the game, is not only unreasonable and unfair, rather they are anti-competitive clauses and abusing dominant position in contravention of Sub-Section (1) of Section 3 and Sub-Section (1) of Section 4 of the Act, would contend that none of these provisions are applicable in the case in hand as the respondents GMDA has not yet entered into any agreement in respect of production, supply and distribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the bid documents, admittedly, participated in the pre-bid discussion knowing consequence of terms and conditions in the bid documents and now cannot question the legality of those clauses on the ground of alleged unreasonableness, arbitrariness and illegality. He further contends that the petitioners have understood the condition of experience for a minimum period of five years to manufacture/produce DI pipes of the diameter as mentioned in the tender documents. As the same do not suit to them, even after reducement of average turnover of INR-3000 million to INR 1900 million and the qualifying length of 10 lakh meter to 5 lakh meter, they challenge those clauses which is not permissible under law. Once a person participated in the pre-bid discussion and after discussion, the authority somehow reduced the conditions which are not only reasonable and bona fide, but also for public interest, the same is not open to challenge. 70. He further contended that selection of one manufacturer through a process of competition is not creation of any monopoly in violation of Article 19(1)(g) of the Constitution read with Clause- 6. He again submitted that when a huge investment is involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly stated therein that in the name of mere competition, the contract cannot be made open to all and sundry and in the contract of such nature which is time bound and involved procurement of huge quantity of pipes, it is necessary to have such eligibility criteria so that only those capable of delivering DI pipes are brought into fray of competition as larger competition always does not ensure lower costs. He further contended that whether the tendering authority wants quality products in a reduced rate or higher rate is with them as they are the best judge to decide what quality of materials they will purchase and intending tenderer has no right to raise those question regarding the applicability of Section 3 and 4 of the Act. While adopting the submissions of Mr. Dutta, he contended that the Competition Act, 2002 has been enacted by the Legislature to provide more benefit to the purchaser and further to ensure fair competition in the country by prohibiting trade practices which cause adverse affect on the competition in the market and while any personal company like the petitioners is aggrieved due to anti-competitive agreement or abuse of dominant position, then the remedy is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent No.8 adopting the submission of Mr. Dutta, learned Counsel for the respondent-GMDA and Mr. Mitra, learned senior Counsel for the respondent No.7 would contend that Article -14 of the Constitution can be applicable between the equals, not in case of unequal and the present petitioner is in no way equal to the private respondents being the petitioner has got license and started its business in producing the D.I pipes in the month of September, 2010 whereas the private respondents are in the field of game for many years past. 76. He further contended that though the petitioners have no capability to play in the game for supply of DI pipes, they are still arguing for lifting the conditions prescribed for participation in the game. Mr. Bhattacharjee also submits that the same reliefs which have been sought for in the present writ petition, had also been sought for in a public interest litigation being W.P (C) 89 of 2000 (Principal Bench) and the Division Bench of this Court did not interfere with the terms and contract as mentioned in the bid documents. Referring to Annexure-H to the affidavit in opposition filed by the respondent-GMDA, he contended that JICA through its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been repeatedly laid down by the Apex Court and taking this Court in Directorate of Education (supra), Mr. Kapoor contended that though the terms of invitation of the tender are not open to the judicial scrutiny as the same being in the realm of contract, but it was held that that the Court can interfere with the administration policy decision only if the said decision is arbitrary, discriminatory or mala fide. Therefore, it would be proper for this Court if, while going through the terms and conditions, this Court finds the same are arbitrary, unreasonable and discriminatory and mala fide, and also contrary to the provisions of Section 3(1) and Section 4 of the Competition Act, then the Court should exercise its power of judicial review for striking down the clauses impugned in this writ petition. 79. While asking for striking down the impugned clauses of the bid document he also relied upon the case of Association of Registration Plates v. Union of India [2004] 5 SCC 364, Association of Registration Plates (supra) and Shimnit Utsch India (P.) Ltd. (supra), wherein the Apex Court examined the terms of the tender whether they were invalid or not and also noted that opinion on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prepared to do. We did not think it proper to use materials behind the back of one of the parties we thought that would be clearly contrary to the rules of natural justice." 81. The reference of Mr. Kapoor in Hindustan Motors Ltd. (supra) has no application in the instant case so far looking of the documents are concerned. In the said case their lordships considered relating to conduct of search in various premises of the petitioner-company by the enforcement authority, particularly the Assistant Director of Enforcement in the Ministry of Finance, Government of India issued various search warrants and on his authorization the respondents-enforcement officers and also considered the Section 19(d) of the Foreign Exchange Act, 1947 which gives power to the enforcement authority to search any secret place where the searching authority has a reason to belief that the documents is necessary for his opinion will be useful for any relevant proceeding, and while examining the facts and issues involved in that case their Lordships rightly did not allow to see the documents as that would be adverse to the petitioner therein. More so, that was a case relating to search and seizures of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on turnover as well as qualifying length of 10 lac meters to 5 lac meters. To appreciate the submission of the learned Counsel of the rival parties, it would be proper to reproduce the experience clauses impugned in the writ petition. Accordingly the same is reproduced hereunder: 2.3.2 Average Annual Production turnover (1) Minimum average annual production turnover as prime Bidder of INR 3000 (three thousands) Million, or equivalent in Japanese Yen calculated as total certified payments received for supplies and Contracts in progress or completed, supplied and/or installed (as per IS 8329:2000 or equivalent international standards Ductile Iron pipes) within the last 5 (five) years and (2) Minimum annual production turnover of Ductile Iron K9 Pipes in terms of length of 1000000 (Ten lakh) meters of all sizes from 100 to 600mm in any one of last 5 (five) years as per IS 8329:2000 or equivalent international standards. 2.4.1 General Production Experience (a) Should demonstrate to have a license issued by Bureau of Indian Standards (BIS) or equivalent International Standard operating for a minimum 5 years to manufacture/produce DI Pipes of diameter 100mm to 600mm class K9 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar trade of goods or provision of services, which- (a) Directly or indirectly determines purchase or sale prices; (b) Limits or controls production, supply, markets, technical development, investment or provision of services; (c) Shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way; (d) Directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition: Provided that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services. Explanation - For the purposes of this sub-section, "bid rigging" means any agreement, between enterprises or persons referred to in sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2000 (37 of 2000) (ii) the right of any person to export goods from India to the ext to which the agreement relates exclusives to the production, supply, distribution or control of goods or provision of services for such export. Prohibition of abuse of dominant position. 4. Abuse of dominant position-(1) No enterprise shall abuse its dominant position". (2) There shall be an abuse of dominant position under sub-section (1), if an enterprise,- (a) directly or indirectly, imposes unfair or discriminatory- (i) condition in purchase or sale of goods or services; or (ii) price in purchase or sale (including predatory price) of goods or service; or Explanation. - For the purpose of this clause, the unfair or discriminatory condition in purchase or sale of goods or services referred to in sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in sub-clause (ii) shall not include such discriminatory conditions or prices which may be adopted to meet the competition; or (b) limits or restricts- (i) production of goods or provision of services or market therefor; Or (ii) technical or scientif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round of reasonableness or unreasonableness or relating to provisions of Competition Act. 87. In Tata Cellular (Supra) when the Apex Court considered what are the requirements of tender and the principles of judicial review in a contractual matter also took note of the fact that on examination of the entire case law cited before their lordships of the Apex Court, their Lordships laid down the following principles which are as follows: - "94. The principles deducible from the above are: (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely review the manner in which the decision was made. (3) 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. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to the tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be granted against the College of Physicians. He expressed the relevant principles in two eloquent sentences. They gained greater value two centuries later: "It is true, that the judgment and discretion of determining upon this skill, ability, learning and sufficiency to exercise and practice this profession is trusted to the College of Physicians and this Court will not take it from them, nor interrupt them in the due and proper exercise of it. But their conduct in the exercise of this trust thus committed to them ought to be fair, candid and unprejudiced; not arbitrary, capricious, or biased; must less, warped by resentment, or personal dislike." 79. To quote again, Michael Supperstone and James Goudie; in their work Judicial Review (1992 Edn.) it is observed at PP. 119 to 121 as under: "The assertion of a claim to examine the reasonableness been done by a public authority inevitably led to differences of judicial opinion as to the circumstances in which the court should intervene. These differences in opinion were resolved in two landmark cases which confined the circumstances for intervention to narrow limits. In Kruse v. Johnson a specially constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority had kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could even have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, an concerned only, to see whether the local authority has contravened the law by acting in excess of the power which parliament has confided in them.' This summary by Lord Greene has been applied in countless subsequent cases. "The modern statement of the principle is found in a passage in the speech of Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service: 'By "irrationality" I mean what can now be succinctly referred to as "Wednesbury unreasonableness". (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn.) It applies to a decision which is so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d quality; (5) Past experience of the tenderer and whether he has successfully completed similar work earlier; (6) Time which will be taken to deliver the goods or services; and often (7) The ability of the tenderer to take follow-up action, rectify defects or to give post-contract services. Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, as there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction." (Emphasis supplied) 91. In para 10 of the said judgment the Apex Court also discussed about the elements of public interest. According to the Apex Court, 1. public money which would be expanded for the purposes of the contract, 2. The acts or services which are being commissioned could be for a public purpose such as construction of roads, public buildings, power plants or other public utilities. 3. The public would be directly interested in the timely fulfilment of the contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Prof. MV Nayudu [2001] 2 SCC 62 wherein the Apex Court held that the right of access to drinking water is fundamental to life and there is a duty on the state under Article 21 to provide clean drinking water to its citizen. 94. In Air India Ltd. (supra) the Apex Court taking note of Tata Cellular (Supra) and Raunaq International (Supra) as well as other decisions rendered by the Apex Court prior to Tata Cellular noted "In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it." (Emphasis supplied) 95. No doubt in the said decision also the Court held that the decision of the tender authority is not amenable to judicial review but the court can examine the decision making process and interfere if it is found vitiated by mala fide, unreasonableness and arbitrariness and even when some defect is found in the decision making process, the Court must exercise its discretionary power un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex Court categorically stated that "the terms provide for modification or corrections even after a specified date and further coming to the conclusion that the respondent No. 1 being the lowest bidder there was no reason for the Port Trust to award the contract in favour of the appellant. We cannot lose sight of the fact of escalation of cost in such project on account of delay and the time involved and further in a coordinated project like this, if one component is not worked out the entire project gets delayed and the enormous cost on that score if rebidding is done. The High Court has totally lost sight of this fact while directing the rebidding. In our considered opinion, the direction of rebidding in the facts and circumstances of the present case instead of being in the public interest would be grossly detrimental to the public interest." (Emphasis Supplied) 101. In the instant case also, it is the admitted position even from the bid documents as well as the affidavit in opposition of the respondent-State and GMDA that the water project in question is taken over by those respondents taking financial assistance from the JICA on certain condition including the condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admittedly appeared in the pre-bid discussion and while participating there insisted for relaxation of the conditions as stated in the original bid documents and when the result of the previous discussion does not suits the petitioner company they impugned the clauses as stated supra on the grounds of arbitrariness and mala fide as alleged in the petition and though not stated in the writ petition but for the first time subsequently in the rejoinder raised the question regarding the legality of the terms and conditions as the same is allegedly in violation of provisions of Section 3 and 4 of the Competition Act. From the pleadings and the submission of the learned counsel for the petitioner again a question arises whether the tender in question is a statutory tender or a mere contract in public realm and whether the respondent-GMDA is a mere purchaser/consumer or an enterprise as stated in the Competition Act which this Court would discuss later on after reference of relevant paragraphs of the remaining law reports cited by the parties. 104. In para 57 of BSN Joshi & Sons Ltd. (supra) while the Apex Court noted "the contract need not be given to the lowest tenderer but it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est tenderer, public interest would be given priority. (vii) Where a decision has been taken purely on public interest, the Court ordinarily should exercise judicial restraint. (emphasis supplied) 105. In Rajasthan Housing Board (supra) the Apex Court taking note of the decision in Master Marine Services (P.) Ltd. (supra) where in the case of Tata Cellular (supra) has also been taken note of, stated in para 11 that even if some defect was found in the ultimate decision resulting in cancellation of the auction, the Court should exercise its discretionary power under Article 226 of the Constitution with great care and caution and should exercise it only in furtherance of public interest. The court should always keep the larger public interest in mind in order to decide whether it should interfere with the decision of the authority" (emphasis supplied). 106. In Association of Registration Plates (supra) the writ petitioners therein challenged the condition imposed in the Notice Inviting Tenders issued by various State Governments for supply of High Security Registration Plates and while deciding the said issue, His Lordship GP Mathur J, as he then was, in para 16 of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of completely ousting Indian companies. The Government of India, Ministry of Road Transport and Highways had sent a letter dated 13-11-2002 to the Secretaries/Commissioners (transport) of all States wherein it was clearly mentioned that earlier guidelines circulated on 06.03.2002 and 14.06.2002 were merely suggestive in nature and they did not stipulate details about experience/capacity of bidders/collaborators. It was also mentioned therein that experience in 5 countries in not a mandatory requirement. This letter has been completely ignored while laying down the eligibility criteria". Ultimately His Lordship quashed the eligibility criteria mentioned in the NIT issued by the various State governments regarding turnover of Rs. 50 Crores in the immediately preceding last year and at least 25 per cent of this turnover must be from the licence plates business. 109. But His Lordship, Chief Justice S Rajendrababu, the presiding judge of the Bench, disagreed with the views of His Lordship Justice Mathur and ultimately on reference the matter was placed before the larger Bench consisting of their Lordships Mr. Justice YK Sabarwal, Mr. Justice DN Dharmadhikari and Mr. Justice Tar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed in NIT of that case were upheld. 110. In Shimnit Utsch India (P.) Ltd. (supra) as referred and relied on by Mr. Kapoor, it is nowhere stated that the notice inviting authority has no right to include a clause in the bid documents like past experience, turn over of production to see the capability of the intended bidder; rather the Apex Court in para 53 of the said judgment while referring to the case of Association of Registration Plates (Supra) noted that "while maintaining the State Government's right to get the right and most competent person, it was held that in the matter of formulating conditions of a tender document and awarding a contract of the nature of ensuring the supply of HSRP, greater latitude is required to be conceded to the State authorities and unless the action of the tendering authority is found to be malicious and a misuse of statutory powers, tender conditions are unassailable." The aforesaid case came up before the Apex Court to consider the common question that arose for consideration, inter alia, that whether after decision of the Apex Court in Association of Registration Plates (supra) wherein the conditions provide for experience in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roached the Calcutta High Court and obtained an interim order from the Single Judge that tender process shall not be finalized. As a matter of fact, due to litigation no substantial progress took place for two years in finalization of process for which NIT was issued in July, 2003 and practically two bidders in the entire tender process remained in fray. In interregnum, considerable number of indigenous manufacturers obtained the requisite TAC from the approved institutions as per the provisions of the 1988 Act and thereby acquired capacity and ability to manufacture HSRP." Keeping in mind the aforesaid facts, the Apex Court allowed the State to change the conditions as imposed by it earlier so that more competitors could participate and supply of HSRP should not be delayed. The facts of the case in hand are totally different from the case of Shimnit Utsch India Private Limited (supra). 111. From the fact of Shimnit Utsch India (P.) Ltd. (supra) it would also be evident that it was the State who wanted to change the terms and conditions as put by them earlier considering the fact that in duration of time who were not competent earlier to participate in the tender due to the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking process to see whether it is afflicted by arbitrariness, discrimination, violation of norms, standards and procedures laid down in this regard with a view to eliminate one against the other. If the power has been exercised for collateral purpose, it can be annulled since all State actions must conform to Art. 14 of the Constitution of India by which non-arbitrariness is a fundamental facet. State is expected to exercise the powers vested in it fairly, reasonably and for public good though some discretion "play in the joints" have to be given to it. However, where decision has been taken on legitimate considerations and not arbitrarily, there is little scope for interference by Court. There may be a case of overwhelming public interest where Court may think to intervene but where decision has been taken for bona fide considerations, Court may not interfere even if the same does not strictly answer the requirement of procedure provided the changed criteria is uniformly applied to all." In the said case also, like the case in hand, amendment of bid documents was held before any of the bidders had submitted the bid documents. It was uniformly applicable to all bidd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iting Authority has the inherent power to amend the bid documents prior to submission of bid documents by the intending bidders subject to that such amendment is applicable uniformly to all the bidders and not to eliminate any particular intending bidder. It appears from the record that in the instant case the notice inviting authority amended the bid documents after pre-bid discussion of the intending bidders wherein the petitioner company also participated. Amendment of bid documents is not permissible after the submission of the bids by the intending bidders as that would prejudice the stand taken by them in their bids. Whether the tendering authority would further amend the bid documents subsequent to the earlier amendment to provide an opportunity to the petitioner-company for participating in the bid is up to the notice inviting authority, they being the purchaser of the materials like DI Pipes for the purpose of the water project. Court cannot direct the respondent-tendering authority to amend its bid documents for providing opportunity to any of the intending bidders including the petitioner-company as that is within their domain. The power of Court is very limited in a con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t money and the performance of bank guarantee are insisted upon; collection of octroi has to be made on day-to-day basis and payment must be made on a weekly basis entailing, in case of default, cancellation of the contract. We cannot say whether these conditions are better than what were prescribed earlier for in such matters the authority calling for tenders is the best judge." 118. Therefore, from the aforementioned statements of the Apex Court this Court has no hesitation to hold that it is the authority calling for tenders is the best judge to decide whether they would amend the bid documents either for their own interest or for the public interest and it appears from the record that in the instant case the authority calling for tenders, i.e. GMDA has amended the tender documents not for eliminating the petitioner-company but for public interest. In view of the above, the case of Monarch Infrastructure (P) Ltd. has no application in the instant case. 119. In Meerut Development Authority (supra) while their lordships considering the issues, inter alia, (i) what is the nature of rights of a bidder participating in the tender process; (ii) the scope of judicial review in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered by the Apex Court in Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar [1987] 4 SCC 497 wherein it is stated that "it would be unreasonable to expect an exact definition of the word "reasonable". Reasons varies in its conclusion according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which build up the old scholastic logic sounds now like the jingling of a child's toy. But mankind must be satisfied with the reasonableness within reach; and in cases not covered by authority, the verdict of a jury or the decision of a judge sitting as a jury usually determines what is "reasonable" in each particular case. The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. Again the Apex Court in Collector v. P. Mangamma [2003] 4 SCC 488, restated the word "reasonable" and while restating the same, in addition stated that "it is impossible a priori to state what is reasonable as such in all cases. You must have the particular facts of each case established bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Enterprises Act, 1986 … ", the Privy Council ultimately held that "it was for the defendant to determine whether its principle objective would be best served by allowed the contractual arrangements to continue or by terminating the contractual agreements. The general and vague assertion of impropriety in paragraph 32 is not supported by any reference to a single alleged fact." It is also noted by the Privy Council, that "it does not seem likely that a decision by a State Enterprise to enter into or determine a commercial contract to supply goods or services would ever be the subject of judicial review in the absence of fraud, corruption or bad faith. Bad faith increases in prices whether by State owned or Private Monopolies or by powerful traders may be subjected to voluntary or common law or legislative control or may be uncontrolled. Where a State Enterprise is concerned, the shareholding ministers may exercise powers to ensure directly or indirectly that there are not price increases which the ministers regard as excessive. In the instant case also, the present petitioners challenge the clauses in the bid document relating to past experience of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power." The Apex Court also in the said judgment stated, inter alia, that action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. 125. The word "fraud" in Black's Legal Dictionary is defined as an international perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegation or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bad faith and these are hit by the provisions of Article 14 of the Constitution. On applicability of the provisions of Competition Act:- 128. As one of the main contentions of the petitioner, inter alia, that the conditions put in the clauses of the bid documents are unreasonable, irrational and hit by Article 14 of the Constitution fails, only remains the question as to whether the terms included in the bid documents are suffering from illegality as alleged to be contrary to the provisions of Section 3 and 4 of the competition Act. Therefore, it would be injustice to the petitioners to send them back to the forum prescribed in the Competition Act, for deciding the dispute relating to sub- section (1) of Section 3 as well as sub-section (1) of Section 4 of the Competition Act without answering the question raised by them. As Mr. Kapoor alleges inter alia, that the terms and conditions as provided in the bid documents, which are under challenge, are hit by the provisions of sub-section (1) of Section 3 and sub-section (1) of Section 4 of the Competition Act and the terms are alleged to be illegal being contrary to the provisions of the Competition Act, hence such question require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rden Cottage Foods Ltd. (supra), the plaintiffs of that case brought an action claiming, inter alia, an injunction restraining the defendants from withholding supplies of butter from the plaintiffs or other vise refusing to maintain normal business relations with them, contrary to Article 86 of the EEC Treaty wherein they applied for an interlocutory injunction in the same terms and their lordships of the House of Lords tired a question regarding dominant position in a substantial part of a common market. Article 86 of the EEC is almost pari materia to the Section 4 of the Competition Act. Parker J. when considering the action claimed by the plaintiffs in Garden Cottage Foods Ltd. (supra), held that there was a serious question to be tried on whether the defendants had a dominant position in a substantial part of common market which they are abusing but refused the application on the ground, inter alia, that the plaintiffs would be adequately compensated by the damages if they succeeded in the action. On appeal by the plaintiffs, the Court of appeal, expressed doubts whether the damages would be recoverable by the plaintiffs in the event of their success and allowed the appeal gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the products or services, their prices and intended use. The word enterprise is defined in clause (h) of Section 2 of the Competition Act, which is as under:- "(h) "enterprise" means a person or a department of the Government, who or which is, or has been engaged in any activity, relating to the production, storage, supply, distribution, acquisition or control or articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, whether such unit or division or subsidiary is located at the same place where the enterprise is located or at a different place or at different places, but does not include any activity of the government relatable to the sovereign functions of the Government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space. Explanation.-For the purposes of this clause,- (a) "activity" includes profession or occupation; (b) " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imilar job. (ii) Certificate regarding financial capacity from Bank concerned. (iii) Drug License issued by the competent authority. 19. That the tenderer will be required to quote the minimum percentage of profits on distributor's price of medicine and other items to be charged separately for (a) Chemotherapy Medicines, (b) General Medicines, and (c) other medical items (like surgical items etc.). However, allotment of the work will be determined mainly on the basis of the prices of Chemotherapy Medicines (Oncology Products)." Some of the petitioners therein challenged the terms of the tender being violative of Competition Act, 2002. While deciding that issue this Court taking into consideration the process on the ground that the NIT neither suffers from vagueness as the institute has not disclosed the size or area of the pharmacy and the stipulation fixing rent at Rs. 30,000/- p.m. without mentioning the area to be given to the successful tenderer and being the NIT was vague and uncertain and also raised the question of abuse of dominant position which will be violative of the provisions of the Competition Act, 2002. A coordinate Bench of this Court while decidin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 69 (SC) while dealing with various provisions of the Competition Act including the object and reasons also dealt with establishment of powers and functions of the CCI and to the extent also discussed regarding provision of Section 3 and 4 read with Section 16 and Section 19 of the Act. Therefore the said decision will be helpful though in the said decision their lordships did not go for any detailed discussion on Section 3 and 4 as that was not the subject matter for consideration before the Court. Subject matter for consideration before their lordships was that one Jindal Steel & Powers Ltd. being the 'informant' invoked the provisions of Section 19 read with Section 26(1) of the Act by providing information to the CCI alleging that M.S Steel Authority of India ltd. (for short, 'SAIL') had, inter alia, entered into an exclusive supply agreement with Indian Railways for supply of rails. SAIL, thus, was alleged to have abused its dominant position in the market and deprived others of fair competition and therefore, acted contrary to sub-section (1) of Section 3 and sub-section (1) of Section 4 i.e. anticompetitive agreement and abuse of dominant position, respectivel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our of SAIL staying the further proceedings before the Director General in furtherance of the direction of the Commission dated 08.12.2009. The tribunal in its order dated 15.02.2010 dismissed the application of the CCI for impleadment being the Commission was neither a necessary nor a proper party in the appellate proceedings before the Tribunal and resultantly the application for vacation of stay was also dismissed and also held that the appeal preferred by SAIL is maintainable and ultimately set aside the order of the Commission and recorded the finding that there was violation of the principles of natural justice. The order of the Tribunal dated 15.02.2010 was impugned by the Commission before the Apex Court in the appeal wherein the Apex Court dealt with the provisions of the Competitive Act as sated supra and ultimately, allowed the appeal of the CCI wherein the Apex Court also noted inter alia, that "the scheme of the Act and the Regulations framed there under clearly demonstrate the legislative intent that the investigations and inquires under the provisions of the Act should be concluded as expeditiously as possible. The various provisions and the Regulations, particu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction. 139. Now let us see whether the terms and conditions as impugned have come within the purview of sub-section (1) of Section 3 of the Competitive Act. The provisions of Section 3 impose a bar on enterprise or association of enterprises or person or association of persons from entering into an agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services which would obviously affect competition within India. Therefore, it can be easily said that to attract sub-section (1) of Section 3 the primary requirement is an agreement and in the instant case admittedly neither the respondent-GMDA nor the respondent-State entered into any agreement with anybody. Therefore, contraventions of sub-section (1) of Section 3 does not arise at all. The above views of this Court get support from the decision of Madras High Court in P.G. Narayanan (supra). Though when their lordships decided the matter the Competition Act was not in force but as the question came up before their lordships in a Public Interest Litigation, question arose regarding the applicability of the Competition Act, for the writ petitioner of that case questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be improper on the part of this Court not to answer the point raised by Mr. Kapoor on per incurium. On per incurium 141. Even in the case of Garden Cottage Foods Ltd. (supra) per incurium is discussed wherein it is held inter alia, that "difficulties of estimation, however, were not the ground on which the Court of Appeal overruled the judge's opinion that damages would be an adequate remedy. Neither Lord Denning M.R. nor Sir Sebag Shaw made any mention of this topic; nor does a passing reference by May L.J. at p. 1126 to possible difficulties of assessment of the proper measure of damages "in cases such as this," without any reference to the special characteristics of the company's business to which I have just drawn attention, appear to play a significant role in his ratio decidendi. It was for an entirely different reason that the Court of Appeal rejected the view of the learned judge that damages would provide an adequate remedy. 142. Therefore, it can be said that certain facts though available on record and required to be discussed but on ignorance or carelessness without discussing those issues the matter is decided or even when the law laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplance Col Ltd.) Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law." The aforesaid principle of doctrine of per incuriam has been again restated by the Apex Court in the case of Furest Day Lawson Ltd. v. Jindal Exports Ltd., [2001] 6 SCC 356. A coordinate Bench of this Court also took note of Synthetics and Chemicals Ltd. (supra) in the case of State of Manipur v. Arambam Kameshwar Singh 2004 (2) GLT 718, while discussing about per incurium. This Court again stops itself there so far rules of doctrine of per incurium is concerned as given in Nirmal Jeet Kaur v. State of MP [2004] 7 SCC 558. The Apex Court in paragraph 21 of the said decision restated the law relating to per incuriam taking note of Synthetics and Chemicals Ltd. (supra) which will be evident from paragraph 21 of the said decision. The Apex Court again restated the said doctrine in paragraph 11 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the principle of alternative remedy in details in Food Corporation of India v. State of Arunachal Pradesh 2009 (4) GLT 7 in paragraph 81, 82, 83 and 84, which are as follows:- "81. Having held that the powers of judicial review conferred on the High Court under Article 226 and of supervision under Article 227 form pat of basic structure of the Constitution, let me, now, turn to the question as to whether the existence of alternate remedy is an absolute bar to the exercise of the powers so conferred on the High Court. While dealing with their aspect of the matter, it is imperative to note that the proposition of law is well settled that where a particular statute provides a self-contained machinery for determination of questions arising under the enactment, the statutory remedies provided therein must be availed of and recourse should not be, ordinarily, allowed to be taken to writ jurisdiction. This rule was stated with great clarity by Willes, J, in Wolverhampton New Water Works Co. v. Hawkesfor [1859] 6 CBNS 336 at P. 356. The rule so laid down by Willes, J, was approved by the House of Lords in Neville v. London Express Newspaper Ltd., 1919, AC 368 and was reaffirmed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by a statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the matter provided by a statute, the High Court, normally, will not permit by entertaining under Article 226 of the Constitution the machinery created by the statute to be bypassed and leave the party applying to it to seek resort to that machinery so set up.' 84. The rule requiring exhaustion of statutory remedies before the grant of writ had nothing to do with the jurisdiction of the Court it was a rule of policy, convenience and discretion rather than a rule of law. Despite the existence of an alternative remedy, it is within the jurisdiction of and discretion of the High Court to grant, in an appropriate case, relief under this Article.(See Collector of Monghyr v. Keshav Prasad, AIR 1962 SC 1694: 1963 (1) SCR 98; Zila Parishad, Moradabad v. Kundan Sugar Mill, AIR 1968 SC 98, 1968 (1) SCR 1; Collector of Customs v. A.C. Vava, AIR 1968 SC 13: 1968 (1) SCR 82; Union of India v. T.R. Verma, AIR 1957 SC 882: 1958 SCR 499; N.T. Veluswami v. Raja Nainar, Air 1959 SC 422: 1959 Supp (1) SCR 623 and MGA Brothers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whom no order can be made effectively; a proper party is one in who absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding." 149. In the said judgment their lordships also said that there is another way to examine the matter relating to necessary party and noted inter alia, "if the proceeding cannot be concluded completely and effectively in absence of a party, that party should be normally impleaded as a party before the court, of course, subject to other restrictions in law. While non-joinder of necessary parties may prove fatal, the non-joinder of proper parties may not be fatal to the proceedings, but would certainly adversely affect interest of justice and complete adjudication of the proceedings before the appropriate forum." 150. In the said judgment the Apex Court again taking note of Ramesh Hirachand Kundanmal v. Municipal Corpn. of Greater Bombay [1992] 2 SCC 524 noted that, even if an applicant fails to join a party the court has the discretion to direct joining of such party as the question of impleadment has to be decided on the touchstone of Order 1 Rule 10 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial process in India? Does article 12 impose any limitation upon, or circumscribes the scope of, even the powers of the High Court under Article 226? Is the International Development Association, which is an organ of the World Bank amenable to writ jurisdiction under Article 226. 153. In the aforesaid case of Contractor and Farm Equipment Ltd. (supra) a writ petition was filed by the petitioner therein, which was dismissed by the learned Single Judge vide order dated 27.10.2003 passed in WP(C) 5620/2003 holding that the World Bank is a necessary party and since the writ petitioner has insisted on not making the World Bank a party to the petitioner, the writ petition cannot proceed and must fail. Against the said order of the learned Single Judge, the appeal came up before the Division Bench and the Division Bench in para 29 of the said report held that the concept of necessary parties in a purely civil suit and a writ petition cannot be one and the same. Rather the scope of necessary party in a writ petition will be much wider than in the civil suits. The Division Bench took pain of taking note of various decisions and ultimately dismissed the appeal holding that the Internati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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