# Moksh Innovations Inc v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 81
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-01
- **Case number:** Misc. Bench No. 14199 of 2020
- **Bench:** Devendra Kumar Upadhyaya, Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/moksh-innovations-inc-v-state-of-u-p-ors-46962
- **Pages:** 6

## Headnote

C.S.C.,
Brijesh
Kumar
Tiwari,
Gaurav
Dhama, Naresh Chandra Mehrotra, R.P.
Singh

(A) Constitution of India,1950 - Article
226 - Rejection of technical bid - in
regard to allotment of contract the action
of the Government or its instrumentality
are subject to judicial review - a tender
submitted in response to a NIT(Notice
Inviting Tender) is only an offer which the
Government or its instrumentality are
under no obligation to accept - a party
having participated in the tender knowing
that it was unsuccessful ordinarily, cannot
be permitted to challenge the conditions
of tender, as such afterthought action on
the part of the unsuccessful bidder is
impermissible to be entertained by the
Courts - a tenderer having accepted the
tender conditions and submitted the
tender does not have locus to challenge
the conditions of tender for the reason
that
in
such
a
situation
any
party
aggrieved by the conditions of tender
ought to have challenged the NIT before
submitting its tender pursuant to such
notice.(Para -10)

Proceedings instituted by the petitioner-firm - to
judicially scrutinize the action on the part of the
respondent-corporation
-
in
rejecting
the
82 INDIAN LAW REPORTS ALLAHABAD SERIES
technical bid offered by it - after having failed in
its bid to get the contract for the work of Supply
and Installation of Way Finding and Traffic
Enforcement Solution. (Para -1)

HELD: - A person who participated in the
tender process cannot be permitted to challenge
the tender condition for the reason that if any
such condition in the views of the tenderer
suffers from any vice, the same must be raised
at the first instance and unsuccessful tenderer
cannot raise a ground that tender condition was
in any manner unlawful so as to vitiate the
decision. In this view of the matter, the
petitioner-firm has completely failed in its
attempt to challenge the decision rejecting its
technical bid on the ground that the petitionerfirm was not registered with the Corporation.
The grounds taken by the petitioner-firm
assailing the reasons (B), (C) and (D) given by
the respondent-corporation-firm not accepting
the technical bid also fail. (Para -13,15)

Writ Petition dismissed. (E-6)

List of Cases cited: -

## Text

3 All. Moksh Innovations Inc. Vs. State of U.P. & Ors.
81
of U.P. (Supra), which is reproduced as
under :-

"The submission made by learned
counsel for the petitioner is that the
impugned sanctioned order has been passed
by
the
competent
authority
without
application his mind, rather under the
pressure of the higher authority, the same is
illegal and arbitrary in nature. The validity
of the sanction order is perfectly valid as
per law laid down by Hon'ble the Apex
Court in the case of Mansukhlal
Vitthaldas (Supra) in which it has been
observed that "Sanction lifts the bar for
prosecution. The grant of sanction is not
an idle formality or an acrimonious
exercise but a solemn and sacrosanct act
which affords protection to the government
servants against frivolous prosecution.
Sanction
is
a
weapon
to
ensure
discouragement of frivolous and vexatious
prosecutions and is a safeguard for
innocent but not a shield for the guilty as
the validity of sanction depends on the
applicability of mind by the sanctioning
authority to the facts of the case and also
the material and evidence collected during
investigation. Sanctioning authority has to
apply its own independent mind for
generation of genuine satisfaction whether
prosecution has to be sanctioned or not."

46. For the aforesaid reasons, there is
no merit in the writ petition, which is,
accordingly, dismissed.

47. It is needless to say that the
petitioner is at liberty to seek remedy under
Section 438/439 Cr.P.C., as the case may
be, if so advised.
----------
(2021)03ILR A81
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.03.2021

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE MANISH KUMAR, J.

Misc. Bench No. 14199 of 2020

Moksh Innovations Inc. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Desh Mitra Anand, Ashish Bhatt, Rajendra
Kumar

Counsel for the Respondents:
C.S.C.,
Brijesh
Kumar
Tiwari,
Gaurav
Dhama, Naresh Chandra Mehrotra, R.P.
Singh

(A) Constitution of India,1950 - Article
226 - Rejection of technical bid - in
regard to allotment of contract the action
of the Government or its instrumentality
are subject to judicial review - a tender
submitted in response to a NIT(Notice
Inviting Tender) is only an offer which the
Government or its instrumentality are
under no obligation to accept - a party
having participated in the tender knowing
that it was unsuccessful ordinarily, cannot
be permitted to challenge the conditions
of tender, as such afterthought action on
the part of the unsuccessful bidder is
impermissible to be entertained by the
Courts - a tenderer having accepted the
tender conditions and submitted the
tender does not have locus to challenge
the conditions of tender for the reason
that
in
such
a
situation
any
party
aggrieved by the conditions of tender
ought to have challenged the NIT before
submitting its tender pursuant to such
notice.(Para -10)

Proceedings instituted by the petitioner-firm - to
judicially scrutinize the action on the part of the
respondent-corporation
-
in
rejecting
the
82 INDIAN LAW REPORTS ALLAHABAD SERIES
technical bid offered by it - after having failed in
its bid to get the contract for the work of Supply
and Installation of Way Finding and Traffic
Enforcement Solution. (Para -1)

HELD: - A person who participated in the
tender process cannot be permitted to challenge
the tender condition for the reason that if any
such condition in the views of the tenderer
suffers from any vice, the same must be raised
at the first instance and unsuccessful tenderer
cannot raise a ground that tender condition was
in any manner unlawful so as to vitiate the
decision. In this view of the matter, the
petitioner-firm has completely failed in its
attempt to challenge the decision rejecting its
technical bid on the ground that the petitionerfirm was not registered with the Corporation.
The grounds taken by the petitioner-firm
assailing the reasons (B), (C) and (D) given by
the respondent-corporation-firm not accepting
the technical bid also fail. (Para -13,15)

Writ Petition dismissed. (E-6)

List of Cases cited: -

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

2. Municipal Corporation, Ujjain & anr. Vs BVG
India Ltd. & ors., (2018) 5 SCC 462

3. AFCONS Infrastructure Ltd. Vs Nagpur Metro
Rail Corporation Ltd. & anr., (2016) 16 SCC 818

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.
&
Hon'ble Manish Kumar, J.)

1. Having failed in its bid to get the
contract for the work of Supply and
Installation of Way Finding and Traffic
Enforcement Solution at Naimisharanya,
District-Sitapur, these proceedings under
Article 226 of the Constitution of India
have been instituted by the petitioner-firm
impressing upon the Court to judicially
scrutinize the action on the part of the
respondent-corporation in rejecting the
technical bid offered by it.

2. Heard Shri Desh Mitra Anand,
learned
counsel
appearing
for
the
petitioner, Shri N. C. Mehrotra, learned
counsel
representing
the
U.P.
State
Construction
and
Infrastructure
Development Corporation Ltd. (hereinafter
referred to as "the Corporation") and Shri
R. P. Singh, learned counsel representing
the respondent no.8-firm in whose favour
the contract in question has been awarded.

3. The petitioner has prayed that the
award of contract dated 18.08.2020 in
favour of respondent no.8 be quashed and it
be declared that technical bid offered by the
petitioner-firm was fit and accordingly the
petitioner-firm be also declared to be
successful bidder in the financial bid as
well.

4. The respondent-corporation issued
Notice Inviting Tender (hereinafter referred
to as "NIT" ) on 14.07.2020 for the work of
Supply and Installation of Sinage Board at
various locations for Naimisharanya Dham,
District-Sitapur. The NIT was, however,
cancelled and a fresh NIT was issued for
the work of Supply and Installation of Way
Finding and Traffic Enforcement Solution
at
Naimisharanya,
District-Sitapur
on
17.07.2020. Pursuant to the said NIT the
petitioner-firm submitted its bid, however,
the
technical
bit
submitted
by
the
petitioner-firm was rejected vide Technical
Evaluation Report on 16.08.2020. The
financial
bid
was
thus
opened
on
16.08.2020 and after preparation of tender
summary report the final outcome of bid
evaluation was declared on 18.08.2020
whereby the contract for the work has been
awarded to the respondent no.8.
3 All. Moksh Innovations Inc. Vs. State of U.P. & Ors.
83

5. The reasons indicated in the
Technical
Evaluation
Report
dated
16.08.2020 whereby the technical bid
submitted by the petitioner-firm was
rejected are as follows:

"
Not
qualified,
reasons
mentioned below

(A) Not registered in Nigam.

(B) As per clause no.2 of page
no.4 bidder has not submitted the 3 years
outdoor weathering test report of retro
reflective sheeting from an Indian Lab
from the manufacturers. Although clause
no.3 page no.4 allows the bidders to
submit alternate certificate conforming to
ASTM
(D4956-09)
on
artificial
accelerated weathering from an Indian
Lab in lieu of above outdoor weathering
test report from Indian Lab along with the
performance
guarantee
issued
from
nationalized bank given by retro reflective
sheeting manufacturer. But bidders has
not submitted these documents as well.

Apart from it other certificate as
asked mentioned in clause under AFP and
flexible median marker in NIT page no.5
are also not submitted by bidder. Hence
this bid is not found suitable for this
tender.

(C) Test report by Indian Govt.
Lab for Rebound Ability not found.

(D) Test sample physically not
submitted"

6. Challenging the said rejection of
technical bid, it has been stated by the
learned counsel for the petitioner that
rejection of the technical bid of the
petitioner was made on untenable grounds.
In respect of reason (A) "not registered in
Nigam", it has been submitted by the
learned counsel for the petitioner that this
condition of registration of a contractor
intending to participate in bid process is
contrary to the aim and objective of global
tender. It has further been argued that in
view of general principle a selected firm is
required to get it registered within 30 days.
The reason for disqualifying the petitioner
is against the natural law of justice and
hence it is not sustainable in the eyes of
law.

7. Regarding reason (B), it has been
submitted by learned counsel for the
petitioner that the requisite report was
submitted by the petitioner online by
uploading the same. Regarding reason (C),
it has been stated that none of the
participants had submitted Rebound Ability
Test Report, however, it is only the
petitioner
who
has
been
declared
disqualified. It has also been stated that
Rebound Ability Test Report is not
required in respect of nature of work.

8. As regards reason (D), the
submission made on behalf of the petitioner
is that the petitioner was unable to upload
the sample for testing online and further
that no opportunity was offered at any point
of time to submit the sample physically for
testing as no date, time, place or mode is
mentioned for the said purpose in NIT.

9. In respect of reason (A), further
argument has been made on behalf of the
petitioner that the Registration Certificate
of respondent no.9 was renewed on
21.07.2020 i.e. after the NIT was issued.
Yet another argument has been made by the
learned counsel for the petitioner that
atleast three terms and conditions out of
thirteen as mentioned in NIT dated
14.07.2020 were reduced in the subsequent
NIT dated 17.07.2020 only with a view to
make respondent nos.8 and 9 eligible for
the tender. It has further been argued that
the petitioner is a registered firm with the
84 INDIAN LAW REPORTS ALLAHABAD SERIES
Public Works Department of Uttar Pradesh
as ''A' Grade Contractor under Sinage
category and since as a general practice a
selected firm is required to get registered
within 30 days, hence rejecting the
technical bid on the ground of nonregistration with the corporation is not
tenable.

10. The first and foremost question
which falls for our consideration is as to
what is the scope of judicial scrutiny in
relation to a challenge made by an
unsuccessful bidder, to a tender condition.
There is no doubt that in regard to
allotment of contract the action of the
Government or its instrumentality are
subject to judicial review, however, it is
also equally well settled that a tender
submitted in response to a NIT is only an
offer
which
the
Government or
its
instrumentality are under no obligation to
accept. It is only that the participating
tenderer should be dealt with in a fair and
non-discriminatory manner in the matter of
evaluation of tenders. Ordinarily scope of
judicial scrutiny of a tender matter implies
that terms of tender are not open to judicial
scrutiny unless it is found that the same
have
been
tailor-made
to
benefit
a
particular party or class of tenderers. It is
also equally settled by a long line decisions
by Hon'ble Supreme Court that a party
having participated in the tender knowing
that it was unsuccessful ordinarily, cannot
be permitted to challenge the conditions of
tender, as such after thought action on the
part
of
the
unsuccessful
bidder
is
impermissible to be entertained by the
Courts. It is trite law that a tenderer having
accepted
the
tender
conditions
and
submitted the tender does not have locus to
challenge the conditions of tender for the
reason that in such a situation any party
aggrieved by the conditions of tender ought
to have challenged the NIT before
submitting its tender pursuant to such
notice.
In
the
case
of
AFCONS
Infrastructure Ltd. vs. Nagpur Metro Rail
Corporation Ltd. and Another, reported in
[(2016) 16 SCC 818], Hon'ble Supreme
Court has laid down clear parameters as to
when the decision making process in case
of a tender can be interfered with. Relevant
portion of the said judgment in the case of
AFCONS Infrastructure Ltd. (supra) is
quoted hereunder:

"Recently, in Central Coalfields
Ltd.
v.
SLL-SML
(Joint
Venture
Consortium)[2] it was held by this Court,
relying on a host of decisions that the
decision making process of the employer
or owner of the project in accepting or
rejecting the bid of a tenderer should not
be
interfered
with.
Interference
is
permissible only if the decision making
process is mala fide or is intended to
favour someone. Similarly, the decision
should not be interfered with unless the
decision is so arbitrary or irrational that
the Court could say that the decision is
one which no responsible authority acting
reasonably and in accordance with law
could have reached. In other words, the
decision making process or the decision
should be perverse and not merely faulty
or incorrect or erroneous. No such
extreme case was made out by GYT-TPL
JV in the High Court or before us."

11. In the case of Tata Cellular vs.
Union of India, reported in [(1994) 6 SCC
651], Hon'ble Supreme Court has though
observed that principles of judicial review
would apply to exercise of contractual
powers by the Government bodies in order
to prevent arbitrariness or favouritism,
however, there are inherent limitations in
exercise of power of judicial review in such
3 All. Moksh Innovations Inc. Vs. State of U.P. & Ors.
85
matters. The questions usually raised in a
challenge in relation to tender process
adopted by the Government and its
agencies have been answered by Hon'ble
Supreme Court in the case of Municipal
Corporation, Ujjain and another vs. BVG
India Ltd. And Ors, reported in [(2018) 5
SCC 462]. In paragraph 64 in the said case
of Municipal Corporation, Ujjain and
another (supra) such questions have been
answered by Hon'ble Apex Court as
follows:

64.1 Under the scope of judicial
review, the High Court could not ordinarily
interfere with the judgment of the expert
consultant on the issues of technical
qualifications of a bidder when the
consultant takes into consideration various
factors
including
the basis
of
nonperformance of the bidder;

64.2 A bidder who submits a bid
expressly declaring that it is submitting the
same independently and without any
partners, consortium or joint venture,
cannot
rely
upon
the
technical
qualifications of any 3rd Party for its
qualification.

64.3 It is not open to the Court to
independently evaluate the technical bids
and financial bids of the parties as an
appellate authority for coming to its
conclusion
inasmuch
as
unless
the
thresholds of mala fides, intention to favour
someone or bias, arbitrariness, irrationality
or perversity are met, where a decision is
taken purely on public interest, the Court
ordinarily should exercise judicial restraint.

12. Thus, in para 64.3 of the aforesaid
judgment, Hon'ble Apex Court has stated
that it will be impossible for the Court to
independently evaluate the technical bids
and financial bids of the parties as an
appellate authority to come to its own
conclusion
unless
the
action
under
challenge suffers from the vice of mala
fides, intention to favour someone or bias,
arbitrariness, irrationality or perversity.

13. We have, thus, to examine the
submissions made in support of the petition
in the light of the law laid down by Hon'ble
Supreme Court, as discussed above. The
petitioner-firm admittedly is not registered
with
the
Corporation
as
Class
''A'
Contractor. One of the conditions in the
NIT was only Class ''A' or above class
Contractors or firms which are registered
with the Corporation can participate in the
tender process. The petitioner at the time of
issuance of NIT was aware about this
tender
condition.
The
petitioner-firm
accepted the conditions stipulated in the
tender
notification
and
accordingly
submitted its bid before the last date.
Having participated in the tender, when the
petitioner came to know that it is
unsuccessful, the petitioner cannot be
permitted to say that condition is void or
mala fide. As a matter of fact, pre-bid
meeting held on 27.07.2020 in which the
petitioner-firm had also participated, issue
of registration with the Corporation was not
raised though certain other issues were
raised
which
led
to
issuance
of
corrigendum
dated
20.07.2020.
Accordingly, in our considered opinion a
person who participated in the tender
process cannot be permitted to challenge
the tender condition for the reason that if
any such condition in the views of the
tenderer suffers from any vice, the same
must be raised at the first instance and
unsuccessful tenderer cannot raise a ground
that tender condition was in any manner
unlawful so as to vitiate the decision. In
this view of the matter, the petitioner-firm
has completely failed in its attempt to
challenge
the
decision
rejecting
its
86 INDIAN LAW REPORTS ALLAHABAD SERIES
technical bid on the ground that the
petitioner-firm was not registered with the
Corporation.

14. So far as the submission of the
learned counsel for the petitioner that
certain
favours
were
extended
to
respondent
nos.8
and
9
in
their
registration, we may only note, as can be
deduced from the averments made in the
counter affidavit filed by the Corporation,
that registration of respondent no.8 was
renewed on 26.06.2020 as is apparent
from a perusal of the document annexed at
page 71 of the writ petition. Thus, the
renewal was prior to issuance of the NIT.
So far as renewal of the registration of
respondent no.9 is concerned, we may
notice that firstly, the contract has not
been awarded to the respondent no.9 and
secondly, the registration was renewed on
21.07.2020 pursuant to a letter requesting
for renewal of registration submitted on
26.05.2020. So far as the other reasons,
namely, reasons (B), (C) and (D) are
concerned, the respondent-corporation in
its counter affidavit has denied that the
petitioner-firm
submitted
three
years
outdoor weathering test report of retro
reflective sheeting from an Indian Lab
from the manufacturers. The respondentcorporation has further stated that though
in lieu of outdoor weathering test report
from
Indian Lab
the bidders were
permitted to submit a tender certificate
conforming
to
ASTM
(D4956-09),
however, the petitioner-firm did not
submit this document as well. It has been
denied in the counter affidavit that none of
the
participants
submitted
Rebound
Ability
Report;
rather
it
has
been
submitted that all other tenderers had
uploaded their reports as per the terms and
conditions and this report to be submitted,
was an essential feature. The respondents
have also stated that the petitioner did not
submit the sample for testing. In respect of
reasons (B), (C) and (D) as given for not
accepting the technical bid submitted by
the petitioner-firm, we only observe that
this Court while exercising its jurisdiction
of judicial review cannot sit in appeal over
the decision of the experts. The reasons
(B), (C) and (D) clearly lie in technical
realm and such technical issues and
subjects can be better analyzed by the
persons with the technical knowledge.

15. For the said reasons, the grounds
taken by the petitioner-firm assailing the
reasons (B), (C) and (D) given by the
respondent-corporation-firm not accepting
the technical bid also fail.

16. In view of the discussions made
above, we find the writ petition is devoid of
merit which is hereby dismissed.

17. Interim order, if any, shall stand
discharged.

18. In the facts of the case, the parties
to bear their own costs.
----------
(2021)03ILR A86
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.03.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJEEV SINGH, J.

Misc. Bench No. 22682 of 2017

Prakashvati Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ishan Baghel, Parikshit Singh