# M/S Jai Hanuman Construction Jagdish Saran v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 912
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-12
- **Case number:** Writ-C No.15519 of 2023
- **Bench:** Mahesh Chandra Tripathi, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-jai-hanuman-construction-jagdish-saran-v-state-of-u-p-ors-49442
- **Pages:** 12

## Headnote

Civil Law - Constitution of India - Article 14,
Article 226 - Tender Process - Judicial Review -
Arbitrariness - Mala Fide - Wednesbury Principle - Uttar
Pradesh Essential Commodities (Regulation of Sale and
Distribution Control) Order, 2016 - Prahari Software -
Technical Bid Evaluation
The petitioner, M/S Jai Hanuman Construction Jagdish
Saran, challenged the orders dated 24.04.2023 and
25.04.2023 passed by respondent no. 6, declaring the
petitioner's technical bid as "non-responsive" and
awarding the tender for the expansion and beautification
of Ahraura Madihan Lalganj Road (St. Highway No. 150,
Mirzapur) to respondent no. 10. The tender, invited on
15.12.2022, required bids to be submitted via the
Prahari Software and e-tender portal. The petitioner's
technical bid was initially deemed "responsive" but was
later declared "non-responsive" on twelve counts by the
Tender Evaluating Committee due to discrepancies in
invoices and documents, while respondent no. 10's bid
was found "responsive" and most suitable. The
petitioner alleged mala fide actions by respondent no. 9
(Superintending Engineer) for continuing tender
evaluation despite being transferred, deletion of
documents from the Prahari portal, and favoritism
towards respondent no. 10. The respondents countered
that the evaluation was transparent, the petitioner's bid
failed to meet mandatory technical conditions, and
allegations of mala fide and document tampering were
baseless. Held: (1) The writ petition was dismissed. (2)
The petitioner's bid was rightly declared "nonresponsive" on eleven counts after re-evaluation by the
District Level Committee, as it failed to meet mandatory
technical conditions, including discrepancies in invoices,
ownership
documents,
and
equipment
specifications. (3) Allegations of document
deletion from the Prahari portal were baseless,
as the E-1 Sheet remained intact, and the portal
was tamper-proof after the submission window
closed. (4) Allegations of mala fide against
respondent no. 9 were unfounded, as the
tender evaluation was finalized by Yogendra
Singh, who replaced respondent no. 9, and no
evidence supported claims of favoritism. (5)
Judicial review of tender processes is limited to
examining arbitrariness, mala fide, or violations
of natural justice, as per Tata Cellular Vs U.O.I.,
National High Speed Rail Corporation Ltd. Vs
Montecarlo Limited, and Afcons Infrastructure
Ltd. Vs Nagpur Metro Rail Corporation Limited.
The court cannot substitute its decision for that
of technical experts or interfere unless the
decision is perverse, arbitrary, or biased. (6)
The tender process was transparent, complied
with
the
Wednesbury
principle
of
reasonableness, and showed no procedural
errors, jurisdictional overreach, or violations of
natural justice. (7) The petitioner failed to
establish arbitrariness, mala fide, or perversity,
and the award of the contract to respondent no.
11 All. M/S Jai Hanuman Construction Jagdish Saran Vs. State of U.P. & Ors.
913
10, who had completed substantial work, was
valid.

Case Law Cited:

## Text

912 INDIAN LAW REPORTS ALLAHABAD SERIES
directing
the
District
Magistrate
to
ascertain the wishes of the Members of the
Gram Panchayat before nominating any
person on officiating basis to discharge the
duties and functions of the Gram Pradhan."

13. In view of above and considering
over all facts and circumstances of the case,
this court is of the view that submissions
advanced by learned counsel for the
petitioner are totally misconceived and
liable to be repelled and repelled.

14. This petition is, accordingly,
dismissed. No order as to costs.
----------
(2023) 11 ILRA 912
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2023

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Writ-C No.15519 of 2023

M/S Jai Hanuman Construction Jagdish
Saran ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhinav Gaur,Sri Sanjay Dwivedi (Sr.
Adv.)

Counsel for the Respondents:
C.S.C, Sri J.P. Singh, Sri Pushkar Mehrotra,
Sri V.K. Singh

Civil Law - Constitution of India - Article 14,
Article 226 - Tender Process - Judicial Review -
Arbitrariness - Mala Fide - Wednesbury Principle - Uttar
Pradesh Essential Commodities (Regulation of Sale and
Distribution Control) Order, 2016 - Prahari Software -
Technical Bid Evaluation
The petitioner, M/S Jai Hanuman Construction Jagdish
Saran, challenged the orders dated 24.04.2023 and
25.04.2023 passed by respondent no. 6, declaring the
petitioner's technical bid as "non-responsive" and
awarding the tender for the expansion and beautification
of Ahraura Madihan Lalganj Road (St. Highway No. 150,
Mirzapur) to respondent no. 10. The tender, invited on
15.12.2022, required bids to be submitted via the
Prahari Software and e-tender portal. The petitioner's
technical bid was initially deemed "responsive" but was
later declared "non-responsive" on twelve counts by the
Tender Evaluating Committee due to discrepancies in
invoices and documents, while respondent no. 10's bid
was found "responsive" and most suitable. The
petitioner alleged mala fide actions by respondent no. 9
(Superintending Engineer) for continuing tender
evaluation despite being transferred, deletion of
documents from the Prahari portal, and favoritism
towards respondent no. 10. The respondents countered
that the evaluation was transparent, the petitioner's bid
failed to meet mandatory technical conditions, and
allegations of mala fide and document tampering were
baseless. Held: (1) The writ petition was dismissed. (2)
The petitioner's bid was rightly declared "nonresponsive" on eleven counts after re-evaluation by the
District Level Committee, as it failed to meet mandatory
technical conditions, including discrepancies in invoices,
ownership
documents,
and
equipment
specifications. (3) Allegations of document
deletion from the Prahari portal were baseless,
as the E-1 Sheet remained intact, and the portal
was tamper-proof after the submission window
closed. (4) Allegations of mala fide against
respondent no. 9 were unfounded, as the
tender evaluation was finalized by Yogendra
Singh, who replaced respondent no. 9, and no
evidence supported claims of favoritism. (5)
Judicial review of tender processes is limited to
examining arbitrariness, mala fide, or violations
of natural justice, as per Tata Cellular Vs U.O.I.,
National High Speed Rail Corporation Ltd. Vs
Montecarlo Limited, and Afcons Infrastructure
Ltd. Vs Nagpur Metro Rail Corporation Limited.
The court cannot substitute its decision for that
of technical experts or interfere unless the
decision is perverse, arbitrary, or biased. (6)
The tender process was transparent, complied
with
the
Wednesbury
principle
of
reasonableness, and showed no procedural
errors, jurisdictional overreach, or violations of
natural justice. (7) The petitioner failed to
establish arbitrariness, mala fide, or perversity,
and the award of the contract to respondent no.
11 All. M/S Jai Hanuman Construction Jagdish Saran Vs. State of U.P. & Ors.
913
10, who had completed substantial work, was
valid.

Case Law Cited:

1. M.P. Power Management Company Limited,
Jabalpur Vs Sky Power South-East Solar India
Pvt. Ltd., (not fully cited in judgment)

2. Tata Cellular Vs U.O.I., (1994) 6 SCC 651

3. National High Speed Rail Corporation Ltd. Vs
Montecarlo Limited & anr., (2022) 6 SCC 401

4. Afcons Infrastructure Ltd. Vs Nagpur Metro
Rail Corporation Limited & anr., (2016) 16 SCC
818

5. N.G. Projects Ltd. Vs Vinod Kumar Jain &
anr., (2022) 6 SCC 127

(Delivered by Hon'ble Prashant Kumar, J.)

1. Heard Shri Anoop Trivedi, learned
Senior Advocate assisted by Shri Vibhu
Rai, Abhinav Gaur and Ami Tandon,
learned counsel appearing for the petitioner
and Shri Manish Goel, learned Additional
Advocate General assisted by Mr. Ajit
Sinha along w

2. By means of the instant petition,
the petitioner has prayed for the following
reliefs :-

"(i) issue an appropriate writ,
order or direction quashing the order dated
24.04.2023 passed by respondent no. 6
declaring the responsive bids in the tender.

(ii) issue an appropriate writ,
order or direction quashing the decision
dated 25.04.2023 passed by respondent no.
6 declaring the result of financial bids.

(iii) issue an appropriate writ,
order
or
direction
commanding
the
respondents concerned to constituted a
High Level Committee to enquire into the
fraud committed anyhow to get the contract
awarded
to
respondent
no.
10
by
manipulating the data on Prahari website."

3. The respondent no. 5 had issued an
advertisement/notice inviting tenders on
15.12.2022
for
expansion
and
beautification of Ahraura Madihan Lalganj
Road which is a State Highway No. 150 in
District-Mirzapur. This project was to be
completed within a period of 18 months.
The bids so invited were to be submitted on
the official website between 31.01.2023 to
19.01.2023. It was provided in the Notice
Inviting
Tender1
that
the
technical
evaluation of bids will be done using
"Prahari"
Software
having
URLhttp://wms.uppwd.gov.in/prahari/.
The
bidders were supposed to upload all kinds
of information and documents at Prahari
Software. After uploading all kinds of
information
and
documents
on
the
http://etender.up.nic.in website, the bidders
were supposed to download the technical
sheet and uploaded the scanned copy of the
technical sheet on e-tender portal i.e.
http://etender.up.nic.in.

4. The petitioner claims that he had
duly submitted its technical bid online on
21.01.2023 on Prahari website and the
technical sheet was then downloaded and
re-uploaded on the e-tender website i.e.
http://etender.up.nic.in.

5. The result of the analysis of
technical bids and documents in the said
bid on the Prahari website were declared
online on 23.01.2023 in which, the
technical bid of the petitioner was declared
as "responsive" in all respects.

6. Thereafter, all of the bidders were
granted 72 hours to submit their objections,
914 INDIAN LAW REPORTS ALLAHABAD SERIES
if any, on the technical bids and documents
submitted on Prahari website by other
bidders. Various objections were raised by
the other bidders on the veracity &
authenticity of documents uploaded by the
petitioner.

7. The Tender Evaluating Committee
after evaluating the objections, declared the
bid of of respondent no. 10 as "responsive"
and the bid of the petitioner as "nonresponsive" on the ground that there were
certain discrepancies in respect of the
invoices provided by the petitioner. It is
worthwhile to mention that out of eight
bidders, only bid of two bidders were found
to be "responsive". The petitioner objected
to the decision of the Tender Evaluating
Committee. He submitted that earlier his
bid was "responsive" on the Prahari App
but the Tender Evaluating Committee had
malafidely declared as "non-responsive".

8. An allegation of mala fide was
made by the petitioner on the ground that,
in the Tender Evaluating Committee,
respondent
no.
9
who
was
the
Superintending Engineer and was handling
the tender evaluation, had been promoted,
so the Engineer-in-Chief vide letter dated
01.03.2023 requested respondent no. 9 to
handover the entire tender evaluating
work to Shri Yogendra Singh who was
then supposed to complete the tender
process on his behalf. It is further alleged
that in spite of the direction of the
Engineer-in-Chief to hand over the tender
process to Yogendra Singh, respondent
no.
9
continued
with
the
tender
evaluation and took decision which was
illegal and mala fide. The learned counsel
for the petitioner further made an
allegation that certain documents which
were uploaded by him, had been deleted
from the Prahari Website.

9. On the representation of the
petitioner,
the
State
Level
Tender
Committee gave an opportunity to the
petitioner to get verified the original
invoices/agreement of certain machineries
which was submitted by him on which the
other bidders had objection. The State
Level Committee relegated vide its order
dated 26th March, 2023 and asked the
District Level Committee to look into the
matter. The petitioner appeared before the
District Level Committee and gave all
information sought by the Committee.

10. The District Level Committee, in
response to the directions of the State Level
Committee, had taken a view to open the
financial bid of the companies, which were
responsive. Since, the technical bid of the
petitioner was not "responsive", hence, the
bid of the petitioner was not opened. The
bid of the other bidders who were
technically "responsive" were opened. The
bid of the respondent no. 10 was found to
be "responsive" and most suitable and
accordingly, the contract was awarded to
him.

Learned counsel for the petitioner
further relied on the judgement passed by
the Hon'ble Supreme Court in the matter of
M.P. Power Management Company
Limited, Jabalpur v. Sky Power SouthEast Solar India Pvt. Ltd.2, wherein, the
Hon'ble Apex Court has defined the scope
of judicial review of an action by the State
in matter arising from a contract. The court
held that, to find out whether an act is
arbitrary or not, the Court must carefully
attend to the facts and the circumstances of
the case. The duty of the Court is to
ascertain whether the impugned decision is
based on any principle. If not, it may
unerringly point to arbitrariness. If the act
betrays caprice or the mere exhibition of
11 All. M/S Jai Hanuman Construction Jagdish Saran Vs. State of U.P. & Ors.
915
the whim of the authority it would
sufficiently
bear
the
insignia
of
arbitrariness. In this regard supporting an
order with a rationale which in the
circumstances is found to be reasonable
will go a long way to repel a challenge to
State action. No doubt the reasons need not
in every case be part of the order as such. If
there is an absence of good faith and the
action is actuated with an oblique motive, it
could be characterised as being arbitrary. A
total non- application of mind without due
regard to the rights of the parties and public
interest may be a clear indicator of arbitrary
action. A wholly unreasonable decision
which is little different from a perverse
decision under the 'Wednesbury' doctrine
would qualify as an arbitrary decision
under Article 14 of the Constitution of
India. Ordinarily visiting a part with the
consequences of its breach under a contract
may not be an arbitrary decision.

11. Per contra, Shri Manish Goel,
learned
Additional
Advocate
General
appearing on behalf of respondent nos. 1 to
8 submitted that the allegations levelled by
the petitioner in this writ petition is
absolutely baseless. The petitioner was not
technically qualified as per the tender
conditions, and after the bid was evaluated
by the Tender Evaluating Committee, his
bid was found "non-responsive" on several
counts. The relevant part of the Tender
Evaluating Committee by which the bid of
the petitioner held to be "non-responsive"
are enumerated herein under :-

Sl.
No.
Conclusion on the
objections
of
the
other bidders against
the petitioner

1.
Character Certificate
Responsive
2.
Experience Certificate Responsive
3.
Eight
water-tankers
have
been
shown,
whose invoices/lease
agreement are false
Nonresponsive
4.
The name shown of
the lease agreement of
the tractor was of
Rajesh Kumar Singh
whereas
in
the
registration certificate,
name
was
shown
Navdeep.
Nonresponsive
5.
R.C. of the same water
tankers
have
been
shown at Sl. Nos. 5 &
2.
Nonresponsive
6.
The notary affidavit of
lease of water tanker.
Responsive
7.
The
invoices
dated
27.04.2012
of
Vibrator
Soil
Compactor is of more
than ten years
Nonresponsive
8.
The notary affidavit
dated
06.01.2023
shows that the truck
was taken on rent
Responsive
9.
Bidder has uploaded
the same invoices at
two places at Sl. No. 1
and 4.
Nonresponsive
10. The invoices of the
same
machine
has
been
uploaded
as
water tankers
Nonresponsive
11. The
bidder
has
submitted the receipt
of
the
lease
of
machines
for
road
Responsive
916 INDIAN LAW REPORTS ALLAHABAD SERIES
marking
12. Bidder has uploaded
the invoice and leasedeed of Mini Tandem
Roller
Responsive
13. The
bidder
has
uploaded the Gen. Set
of 120 KVA and 40
KVA,
though
the
Prahari App is asked
for 62.5 KVA
Nonresponsive
14. The
name
in
the
invoice of front end
loader is shown as Jai
Hanuman
Industries
but the bidder is M/s
Jai
Hanuman
Construction.
Nonresponsive
15. The invoice of the
front end loader is not
uploaded

Nonresponsive
16. The invoice of Dozer
is not uploaded
Nonresponsive
17. The
invoice
of
bitumen sprayer is not
uploaded
Nonresponsive
18. In the invoice of Bar
Bending & Cutting
machines, the name of
owner is shown as Jai
Hanuman
Industries
whereas, the bidder is
Jai
Hanuman
Construction
Company.
Nonresponsive
19. The
lease
of
Bar
Bending & Cutting
machines
was
uploaded
Responsive
20. Pan Card and MarkSheet
of
technical
persons was uploaded.
Responsive
21. The Mark-Sheet and
C.V.
of
technical
person Kripal Singh
was uploaded but his
Pan Card was not
uploaded.
Responsive

12. In altogether, the bid of the
petitioner were held to be "non-responsive"
on twelve counts. The petitioner never had
the requisite technical capabilities to carry
out the contract which were the prerequisite as per the conditions of the notice
inviting tender. The counsel for the State
further submits that, on the representation
made by the petitioner, the State Level
Committee gave a chance to the petitioner
to give a reply on the points, by which, his
bid was held to be "non-responsive"
(though the same, was not required) and
after considering the representations, out of
the twelve counts of "non-responsive",
only one count of "non-responsive" for the
front end loader and bar bending machine
was
changed
into
as
"responsive",
however, still on eleven counts, the bid of
the petitioner remained to be "nonresponsive". Since, the bid of the petitioner
remained "non-responsive" so the financial
bid of the petitioner was not opened.

13. Learned counsel for the State
submits that the allegation levelled by the
petitioner in the instant petition is devoid of
any merit though, he has alleged mala fide
but there was nothing on record to prove
the same. In fact, the bid of the petitioner
was found to be "non-responsive" as he did
not qualify the mandatory conditions. The
entire tender process was done in the most
transparent manner, wherein, all the bidders
11 All. M/S Jai Hanuman Construction Jagdish Saran Vs. State of U.P. & Ors.
917
were asked to put the details on the website
and other bidder was given an opportunity
to object on the same. The action of the
respondents was absolutely above board.
Once the financial bids were opened, the
bid of the respondent no. 10 was found to
be most suitable and responsive and
accordingly, the tender was awarded to
him. After awarding the tender respondent
no. 10 has proceeded with the work and has
already completed a substantial portion of
work. Hence, it will be in no one's interest
to entertain the writ petition of the
petitioner who is technically not qualified
and has no ground to challenge the tender
proceedings. The State has the power to
frame qualifying conditions. Further, the
tender procedure are not opened to the
judicial scrutiny.

14. Mr. Ajit Sinha, Senior Advocate
along with Mr. Anurag Khanna, Senior
Advocate assisted by Ms. Devika Kapoor,
appeared on behalf of respondent no. 10.
Mr. Sinha submitted that the writ petition
filed by the petitioner is not maintainable,
as he had not come to the Court with clean
hands. He could not prove any of the
allegations levelled by him, especially the
allegation that the documents were deleted
from the Prahari App. Mr. Sinha submits
that as per Clause 3.1 of the G.O. dated
25.08.2020, the objections to the bids of the
bidders can be uploaded on Prahari App
within 72 hours. The committee would be
responsible
for
the
disposal
of
the
objections to the bids. The petitioner had
raised five objections against respondent
no. 10 whereas, respondent no. 10 had
raised 23 objections against the petitioner
within the stipulated time. It was on
01.03.2023
that
the
District
Level
Committee after considering the objections,
took a decision which was uploaded on
04.03.2023 wherein, six bidders were
declared "non-responsive" and two were
declared "responsive".

15. The petitioner was found to be
"non-responsive" on twelve counts. On the
representation of the petitioner, the State
Level Committee had referred the matter
back to the District Level Committee to reexamine the objections with regard to the
invoices of the machinery of the petitioner
and to take decision after re-evaluation of
the original invoices. The District Level
Committee sought original invoices and
other documents to verify the ownership.
The documents produced by the petitioner
were without GST invoices and the
machines were not in the name of the
petitioner-company. On 14.04.2023, an
internal departmental communication was
issued wherein, the petitioner was declared
"responsive". A disciplinary proceeding
was
initiated
against
the
Executive
Engineer who has issued the letter, and
later he was found to be guilty of the same.

16. The allegations of certain
documents being deleted from the website,
is completely baseless as the copy of the E1 Sheet uploaded by the petitioner was
found to be intact. The allegation of the
petitioner
that
he
was
declared
"responsive" on all grounds, is completely
baseless and contrary to records.

17. The allegation of mala fide
against respondent no. 5 as alleged by the
petitioner was also baseless as it was not
respondent no. 9 who had finalised the
tender proceedings but the same was done
by Mr. Yogendra Singh, Superintending
Engineer, Mirzapur who took charge on the
post, re-evaluated the tender and after reevaluation it was he who found the bid of
the petitioner to be "non-responsive" on
eleven counts.
918 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Mr. Sinha and Mr. Khanna further
placed reliance on the judgement passed by
the Hon'ble Supreme Court in the matter of
Tata Cellular v. Union of India3, and
submitted that the terms of the invitation to
tender, is not open for judicial scrutiny as
these decisions are made qualitatively by
experts. It is further submitted that the
decision of the tender committee can only
be tested by the application of Wednesbury
Principle of reasonableness.

19. Mr. Sinha further relied on the
judgement passed by the Hon'ble Supreme
Court in the matter of National High
Speed
Rail
Corporation
Ltd.
v.
Montecarlo
Limited
&
Another4,
wherein, the Hon'ble Supreme Court has
held that the court should be extremely
careful in exercising the powers in the
tender matters. He has also placed reliance
on the judgements passed the Hon'ble
Supreme Court in Afcons Infrastructure
Ltd v. Nagpur Metro Rail Corporation
Limited & Anr5., and N.G. Projects Ltd.
v. Vinod Kumar Jain & Anr6. and
MaaBinda Express Carrier and Anr v.
North-East Frontier Railway and Ors7.
The other judgements cited by Mr. Sinha
also follows the same ratio.

20. Heard learned counsel for the
parties and perused the records.

21. In the instant petition, the
petitioner
has
challenged
the
tender
proceedings primarily on three grounds,
which are being dealt below :-

(A) That the petitioner was
declared "responsive" but was later, held to
be "non-responsive". This averment made
by the petitioner is not correct as in the
beginning, when the petitioner uploaded
the bid in the Prahari App initially, the bid
was
"responsive"
believing
all
the
documents uploaded by the petitioner to be
true. However, as per Clause 3 of NIT, an
opportunity was given to all the bidders to
raise objections on the bids of their
competitors. Objections were raised against
the technical bids of the petitioner, after the
scrutiny of the objections, the Tender
Evaluating Committee found the bid of the
petitioner to be "non-responsive" on twelve
counts. On the representation of the
petitioner, the State Level Committee
relegated it back to the District Level
Committee to look into the grievance of the
petitioner on one of the issues. After
considering the representation of the
petitioner, the District Level Committee
found the bid to be "responsive" on one
count only, however, on the remaining
eleven counts, the bid of the petitioner
remained "non-responsive". It seems that
the petitioner in connivance with the
Executive Engineer got the "responsive"
certificate. On inquiry being made, it was
found that the Executive Engineer has
unauthorisedly and illegally issued a letter
on 15.04.2023. Against this Executive
Engineer, a disciplinary proceeding was
initiated and he was found to be guilty. The
petitioner cannot take advantage of the
fraud which has been perpetuated by the
Executive Engineer and of course, for the
benefit of the petitioner. Hence, the bid of
the petitioner was rightly declared as "nonresponsive" and the allegations of the
petitioner that his bid was "responsive", is
not correct. The bid still remained "nonresponsive" on eleven counts.

(B) The petitioner had alleged in
the writ petition that the department, in
collusion with the respondent no. 10 have
deleted
some
documents
which
was
uploaded by the petitioner in the Prahari
App. This allegation made by the petitioner
11 All. M/S Jai Hanuman Construction Jagdish Saran Vs. State of U.P. & Ors.
919
is absolutely frivolous and baseless. The E1 Sheet which is being annexed with the
writ petition demonstrates that the number
of documents uploaded by the petitioner
are exactly the same and nothing has been
deleted. The petitioner has failed to
demonstrate that any tampering with the
Prahari Portal has been done in the instant
matter. In fact, the counsel for the State had
stated that use of Prahari App is absolutely
transparent and tamper-proof. Once the
portal closes its windows to upload any
documents by the bidders, no one can add
or delete any documents from the portal
and the same remains open to all for "read
only" purposes.

(C) The petitioner, in the instant
petition, has also alleged mala fide against
respondent no. 9 suggesting that he was
promoted and transferred out, still he
continued
with
the
bid
evaluation
procedure and had illegally granted benefit
to the respondent no. 10. This allegation
again is patently illegal and contrary to the
records. The record shows that it was Mr.
Yogendra Singh who was in the Tender
Evaluating Committee and it was he who
had evaluated the technical bid of the
petitioner and found him to be "nonresponsive". Even the allegation of mala
fide made by the petitioner is devoid of any
merit and is completely baseless.

22. It is worthwhile to mention here
that the bid submitted by the petitioner was
technically "non-responsive" on twelve
counts. However, on the representation of
the petitioner and reconsideration of his
documents,
only
one
of
the
"nonresponsive" bid turned into "responsive"
bid but still on eleven counts, the bid of the
petitioner was "non-responsive". Hence,
the financial bid of the petitioner was not
opened and the financial bids of only the
bidders
who
were
technically
qualified/responsive, were opened. After
opening the financial bid, the bid of the
respondent no. 10 was found to be most
suitable and responsive, hence, the tender
has been awarded to the respondent no. 10.

23. The petitioner herein has filed the
instant petition seeking a direction to
declare the bid of the petitioner as
"responsive" and further sought a direction
to open the financial bid of the petitioner.

24. We are aware that the tender
conditions made in the Notice Inviting
Tenders is a policy decision which cannot
be interfered with by any court of law
unless
the
conditions
are
absolutely
arbitrary whimsically and be made for
ulterior purposes. The tender matters are
normally not amenable to judicial review, if
the State acts within the bound of
reasonableness.
The
State
and
State
instrumentalities are free to draw out any
conditions for qualifications for tenders to
ensure that the contractor has a capacity
and resources to successfully execute the
work.

25. If the State or its instrumentalities
acts fairly in the tenders proceedings and
thereafter award the contract, in that case,
interference by the Court is very restrictive
as no bidder can claim fundamental right to
carry on business with the Government.

26. Wherever, there is a challenge of
award of the tender, the Court only has to
see whether the decision making process
had any error or the authorities have
exceeded their jurisdiction or has violated
the principles of natural justice. In this
case, there is nothing on record to show
that the State or its instrumentalities have
acted unreasonably, whimsically or with
920 INDIAN LAW REPORTS ALLAHABAD SERIES
ulterior motive. There was no error in the
decision
making
process
neither
the
authorities have exceeded the jurisdiction
nor there was any violation of natural
justice.

27. The Hon'ble Supreme Court in
the matter of Tata Cellular v. Union of
India8, has held as under :-

"(a) It cannot be denied that the
principles of judicial review would apply to
the exercise of contractual powers by
Government bodies in order to prevent
arbitrariness or favoritism.

(b) There can be no question of
infringement
of
Article
14
if
the
Government tries to get the best person or
the best quotation. The right to choose
cannot be considered to be an arbitrary
power.

94. The principles deducible from
the above are : (1) The modem trend points
to judicial restraint in administrative
action.

(2) The court does not sit as a
court of appeal but merely reviews 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 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 several tiers. 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."

28. The Hon'ble Supreme Court in
the matter of Directorate of Education &
Ors v. Educomp Datamatics Ltd. & Ors9
has held as under :-

"It is well settled now that the
courts can scrutinise the award of the
contracts by the government or its agencies
in exercise of its powers of judicial review
to prevent arbitrariness or favouritism.
However, there are inherent limitations in
the exercise of the power of judicial
review in such matters. The point as to
the extent of judicial review permissible
in contractual matters while inviting
bids by issuing tenders has been
examined by the Hon'ble Supreme
Court in the number of decisions like
Tata Cellular (supra)."

29. In Global Energy Ltd &
Another v. M/s Adani Exports Ltd. &
11 All. M/S Jai Hanuman Construction Jagdish Saran Vs. State of U.P. & Ors.
921
Ors10, the Hon'ble Supreme Court has
held as under :-

"10. The principle is, therefore,
well settled that the terms of the invitation
to tender are not open to judicial scrutiny
and the Courts cannot whittle down the
terms of the tender as they are in the realm
of
contract
unless
they
are
wholly
arbitrary, discriminatory or actuated by
malice. This being the position of law,
settled by a catena of decisions of this
Court, it is rather surprising that the
learned Single Judge passed an interim
direction on the very first day of admission
hearing of the writ petition and allowed the
appellants to deposit the earnest money by
furnishing a bank guarantee or a bankers'
cheque till three days after the actual date
of opening of the tender. The order of the
learned Single Judge being wholly illegal,
was, therefore, rightly set aside by the
Division Bench."

30. The Hon'ble Supreme Court in
the matter of Michigan Rubber (India)
Ltd. v. State of Karnataka11 has held as
under :-

"(a) the basic requirement of
Article 14 is fairness in action by the State,
and non-arbitrariness in essence and
substance is the heartbeat of fair play.
These actions are amenable to the judicial
review only to the extent that the State must
act validly for a discernible reason and not
whimsically for any ulterior purpose. If the
State
acts
within
the
bounds
of
reasonableness, it would be legitimate to
take
into
consideration
the
national
priorities;

(b) In the matter of formulating
conditions of a tender document and
awarding a contract, greater latitude is
required to be conceded to the State
authorities unless the action of tendering
authority is found to be malicious and a
misuse of its statutory powers. The State
and the State instrumentalities are free to
make any conditions or qualifications for
tenders to ensure that the contractor has
the
capacity
and
the
resources
to
successfully execute the work.

(c)
If
the
State
or
its
instrumentalities act reasonably, fairly and
in public interest in awarding contract,
here again, interference by Court is very
restrictive since no person can claim
fundamental right to carry on business with
the Government."

31. The Hon'ble Supreme Court in
the matter of Afcons Infrastructure Ltd v.
Nagpur
Metro
Rail
Corporation
Limited12, has held that the decision
making process in accepting or rejecting
the bid should not be interfered with unless
it suffers from mala fide or is intended to
favour someone, or there is perversity in
the decision making process.

32. The Hon'ble Supreme Court in
the matter of National High Speed Rail
Corporation
Ltd.
v.
Montecarlo
Limited13, has held that the Court should
be extremely careful in exercising its
powers in the tender matters.

"48. Therefore, whether a term of
NIT is essential or not is a decision taken
by the employer which should be respected.
Even if the term is essential, the employer
has the inherent authority to deviate from it
provided the deviation is made applicable
to all bidders and potential bidders as held
in Ramana Dayaram Shetty. However, if
the term is held by the employer to be
ancillary or subsidiary, even that decision
922 INDIAN LAW REPORTS ALLAHABAD SERIES
should be respected. The lawfulness of that
decision can be questioned on very limited
grounds, as mentioned in the various
decisions
discussed
above,
but
the
soundness of the decision cannot be
questioned, otherwise this Court would be
taking over the function of the tender
issuing authority, which it cannot."

33. The Hon'ble Supreme Court in
the number of judgements has held that
writ court should refrain itself from
imposing its decision over the decision of
the employer as to, whether or not, to
accept a bid of the bidder. The court does
not have expertise to the terms &
conditions. The Hon'ble Supreme Court
should be more reluctant in interfering any
contract involving technical issue as it has
no expertise to adjudicate upon such issue.
The Court should leave the technical issues
to be dealt by the technical experts or by
the State.

34. The Hon'ble Supreme Court in
the matter of N.G. Projects Ltd. v. Vinod
Kumar Jain & Anr14. has held that the
construction of road is an infrastructure
project and the court should not interfere
unless the decision of the State was
manifestly arbitrary or unjust. The Court
does not have the expertise to examine the
terms and conditions of the present day
economic activities of the State and this
limitation should be kept in mind. Courts
should be reluctant in interfering with
contracts involving technical issues as there
is a requirement of the necessary expertise
to adjudicate upon such issues. The
approach of the Court should be not to find
fault with magnifying glass in its hands,
rather the Court should examine as to
whether the decision making process is
after
complying
with
the
procedure
contemplated by the tender conditions. If
the Court finds that there is total
arbitrariness or that the tender has been
granted in a mala fide manner, still the
Court should refrain from interfering in the
grant of tender but instead relegate the
parties to seek damages for the wrongful
exclusion rather than to injunct the
execution of the contract.

35. The Hon'ble Supreme Court in a
number of judgements has held that the
Court would not normally interfere with the
policy
decision
and
in
the
matters
challenging the award of contract by the
State or public authorities unless the
petitioner establishes that the action of the
State Authorities was contrary to public
interest
and
beyond
the
pale
of
discrimination or unreasonableness, the
petition cannot be entertained. The Court
further held that the Government or his
undertaking shall have a free hand in
setting up of the terms of the tender and
only if it is arbitrary, discriminatory, mala
fide or actuated with bias, the Court will
interfere in the tender matters.

36. While considering the dispute
wherein award of the tender has been
challenged, the Court only has to see
whether the decision making process had
any error or the authorities have exceeded
its jurisdiction or there was violation of
rules of natural justice.

37. The Hon'ble Supreme Court in
the number of decisions, has laid down
parameters wherein, the High Court should
not interfere in the tender matters unless the
same is absolutely mala fide and the
decision taken by the State is arbitrary. It
has also laid down that the terms of
invitation to the tender is not opened for
judicial scrutiny because the violation of
tender is in the realm of contract.
11 All. Dayaram Singh & Anr. Vs. State of U.P. & Ors.
923

38. In the instant case, since the
petitioner has utterly failed to make out a
case of arbitrariness, malafide or the
decision was intended to favour someone
or the decisions suffered from any
perversity, even the allegations made
against the State Authorities of favouring a
particular bidder has been found to be
baseless and contrary to record. Hence,
there is no merit in the writ petition.

39. Accordingly, the instant writ
petition is dismissed.
----------
(2023) 11 ILRA 923
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.10.2023

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-C No. 25986 of 2023

Dayaram Singh & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shreyas Srivastava

Counsel for the Respondents:
C.S.C, Sri Arun Kumar Pandey, Sri Krishna
Mohan

Civil Law - U.P. Revenue Code, 2006 -
Section 116 - Partition - Abadi land - Suit
for division of holdings - Jurisdiction -
Plaintiff (respondent no. 2) filed a suit for
division of holdings. Defendant-petitioners
filed a written statement specifically
contending that the revenue court had no
jurisdiction to try the suit under Section
116 of the U.P. Revenue Code, 2006, as
the property had been earmarked as
abadi. In C.H. Form 2A, 18, and C.H. Form
41, the plot in question was mentioned as
abadi, but in the final C.H. Form 45, plot
no. 1096 (area 0.1010 hectare) was
recorded as bhumidari plot of the tenure
holders (petitioners as well as respondent
no. 2). In the Khatauni also, the plot in
question was mentioned as bhumidari
land of the petitioners and respondent no.
2. Held: C.H. Form 45 being the final
document
prepared
under
the
U.P.
Consolidation of Holdings Act cannot be
ignored in subsequent proceedings. Since
the plot in dispute stands recorded as
bhumidari in C.H. Form 45 as well as in
the Khatauni prepared by the authorities,
no further investigation is required by the
Court to determine whether the plot is
agricultural or abadi.

Dismissed. (E-5)

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Mr. Shreyas Srivastava,
learned counsel for the petitioners, Mr.
Krishna Mohan, learned counsel appearing
for plaintiff-respondent no. 2, Mr. Arun
Kumar
Pandey,
learned
counsel
for
respondent no. 3 (Gaon Sahba) and Mr.
Abhishek Shukla, learned Additional Chief
Standing Counsel for the State-respondents.

2. Brief facts of the case are that
plaintiff respondent no.2 filed a suit
no.4625 of 2022 for division of holdings in
Khasra No.1096 (old no.714/4) area 0.1010
hectare situated in Village- Goharwar
Hallu, Pargana Boodpur, Tahsil- Chandpur,
District- Bijnor. Defendant- petitioners
filed a written statement stating specifically
that revenue Court had no jurisdiction to try
a suit under Section 116 of U.P. Revenue
Code, 2006 as the property had been
earmarked as abadi. Sub-Divisional Officer
/ respondent no.4 passed a preliminary
decree vide judgment dated 13.12.2022
declaring 1/3 share of plaintiff, 1/3 share
defendant no.1 and 1/3 share of defendant
no.2.
Against
the
judgment
dated