Not for courts to interfere with tenders: HC dismisses plea alleging ‘blue-eyed contractors’ favoured

Not for courts to interfere with tenders: HC dismisses plea alleging ‘blue-eyed contractors’ favoured

Srinagar: Dismissing a plea seeking quashment of a tender notice, the High Court of Jammu and Kashmir and Ladakh said on Thursday that courts are expected to exercise judicial restraint in interfering with administrative action, particularly in the matter of tender or contract.
The court said that as per settled legal position, the tender issuing authority is the best judge of its interests/ needs and that it is always open to the said authority to suitably put the work required to be completed to tender as per the relevant terms and conditions so as to best serve its purposes.
“Whenever a particular work is put to tender, it might hurt the interests of someone or the other, but, for that reason, the said tendering process cannot be labelled as malafide or arbitrary,” the court recorded.
A single bench of Justice Ali Mohammad Magrey noted that ordinarily, the soundness of the decision taken by the tender issuing authority ought not to be questioned, but “the decision-making process can certainly be subject to judicial review.”
It was pointed out by the court that the soundness of the decision may be questioned, firstly, if the decision made is arbitrary and irrational or if the process adopted or decision made by the authority is malafide or intended to favour someone or if the public interest is affected.
The court recorded that in the case on hand, the decision of the respondents in issuing the tender notice for water supply scheme, Weaven Bandipora, cannot be said to be one where they have acted in a manner in which no responsible authority acting reasonably and in accordance with the relevant law would have acted.
Furthermore, the court said, a bare perusal of the pleadings on record does not indicate that the decision made by the authority is malafide or intended to favour someone.
Likewise, the court also said that public interest is not affected in the present case because while it may be in public interest to have greater competition, it is also in public interest that all the tender conditions are complied with as prescribed by the tender issuing authority and that there is no uncertainty in that area.
The petitioner, Fayaz Ahmad Dar, had filed a plea before court seeking quashment of tender notice dated 11 November, 2021, based on the allegation that the aforesaid exercise was undertaken by the respondents with a view to give benefit to some blue-eyed contractors.
Justice Magrey while perusing the case recorded that it was not possible for courts to question and adjudicate every decision taken by an authority.
The court noted that under some special circumstances, discretion has to be conceded to the authorities who have to enter into contract by giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms.
“If the decisions have been taken in bonafide manner, although not strictly following the norms laid down by the Courts, such decisions are upheld on the principle laid down by Justice Holmes that Courts, while judging the constitutional validity of executive decisions, must grant certain measure of freedom of ‘play in the joints’ to the executive,” the judge said.
Justice Magrey said looking at the instant case in the above perspective, the petitioner firm has not been able to establish before the court that the decision taken by the respondents in issuing the tender was an arbitrary exercise of power or that the same was/ is malafide in nature.
“For the foregoing reasons, I do not find any merit in this Petition. It entails dismissal and is, accordingly, dismissed, along with the connected CM(s),” the judge said and directed.

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