B. Manohar ORDER
B. Manohar, J.
1. The petitioner in this writ petition sought for writ of certiorari quashing the corrigendum dated 14.05.2015 and corrigendum dated 19.05.2015 issued by Hubli-Dharwad Municipal Corporation (hereinafter referred to as 'HDMC' for short) as per Annexures-C and D and to proceed with the tender notification dated 15.12.2014 and also sought for writ of mandamus directing the second respondent to proceed with e-tender without insisting for the conditions imposed in the corrigendum dated 14.05.2015.
2. The grievance of the petitioner in the writ petition is that the petitioner is a civil contractor and supplier of manpower to the State Government. He also supplies gardeners and other skilled labourers to maintain the garden in the Hubli City. The petitioners for so many years maintained the garden in Hubli City. As per the said notification, it was condition precedent that the contractor must possess licence from the HDMC; must have experience/qualification/training in Horticulture or agriculture from the University or from the Government Establishment; three years minimum experience in maintaining gardens and the last date for receipt of tender was fixed on 30.12.2014. In pursuance of the tender notification dated 15.12.2014 for protection and maintenance of the garden in Hubli City Limits, the petitioner applied for the same under e-procurement portal. He paid the earnest money deposit (for short 'EMD'). Instead of proceeding with the tender, the respondents issued Board letter with regard to the very same work on 30.04.2015 fixing the last date for receipt of tender on 15.05.2015. However, the last date was extended by corrigendum dated 14.05.2015 and once again it was extended as per corrigendum dated 19.05.2015 fixing the last date of receipt of tender as 25.06.2015 and opening of the tender of the technical bid on 27.06.2015.
3. The main grievance of the petitioner with regard to the retender is that in the retender notification eligibility criteria prescribed was modified. As per the modified eligibility criteria it was stipulated that-
"(1) the contractor himself or person working under the contractor should have the qualification as prescribed and the contractor must be available on all the working days;
(2) at least 1 person possessing B.Sc. (Agri OR Horti OR Forestry) Degree holder having minimum 5 years experience in garden maintenance;
(3) The contractor shall have the minimum experience of not less than 10 years in the field of garden development and maintenance in the previous 10 years in Government or semi Government garden works. (All relevant documents issued by competent authority to be attached);
(4) the Contractor shall produce the relevant document for the owned/hired equipment for the purpose of maintenance of the garden.
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4. The petitioner has contended that except the qualification prescribed in clause 3 and 4, he possess all the eligibility criteria sought by the HDMC in the re-tender notification. Apart from that, the petitioner has got experience of maintaining the garden of the HDMC for the last 5 years. The technical eligibility criteria stipulated in the retender notification is only with an intention to disqualify the petitioner from applying the tender/retender. Hence, he sought for quashing the corrigendum dated 14.05.2015.
5. Sri F.V. Patil, learned counsel appearing for the petitioner contended that pursuant to the tender notification dated 15.12.2014 three persons had applied. Without opening the said tender, the HDMC issued retender on 30.04.2015 in order to disqualify the petitioner by knowing fully well that the petitioner herein does not possess B.Sc. (Agri/Horti/Forestry). Further, the petitioner does not have the minimum experience often years as sought in the retender notification. Fixing the aforesaid two eligibility criteria is contrary to law and the same is prescribed only with the intention to disqualify the petitioner.
6. In support of his contention he relied upon the judgment of the Hon'ble Supreme Court in the case of Ramana Dayaram Shetty V. The International Airport Authority of India and Others (MANU/SC/0048/1979 : AIR 1979 SUPREME COURT 1628).
7. On the other hand, Sri G.K. Hiregoudar, learned Advocate appearing for respondent Nos. 1 and 2 filed statement of objections and contended that the writ petition filed by the petitioner is not maintainable. Pursuant to the tender notification dated 30.04.2015 the petitioner has not made any application. Hence, he cannot file the writ petition and stall the tender proceedings. The HDMC owns 35 acres of garden in the city. For maintenance of the entire garden experienced and technical persons are required. For the last 5 years the petitioner herein is maintaining the garden of the HDMC. The petitioner is only a civil contractor and manpower supplier and he do not possess technical experience in maintaining the garden. In view of the same, the HDMC felt the necessity to appoint qualified persons. Accordingly, the HDMC issued fresh tender notification on 30.04.2015 fixing the last date on 25.06.2015. Fixing of the qualification/requirements/conditions is the discretion of the employer.
8. It is further contended that, after coming to know that the petitioner herein does not possess the minimum qualification stipulated in the retender notification, the EMD amount of Rs. 1,80,000/- was refunded to the petitioner's account on 08.05.2015.
9. He relied upon the judgments of the Supreme Court reported in MANU/SC/0210/2004 : (2004) 4 SCC 19; (2012) 8 SCC 216; (2008) 16 SCC 215; (2014) 3 SCC 760, to contend that judicial review in exercise of jurisdiction under Article 226 of the Constitution of India, is very less to the terms of tender prescribing eligibility criteria. It is further contended that, the Court can scrutinize the award of contract by the Government or its agency in exercise of power of judicial review to prevent arbitrariness and favoritism, however, there is inherent limitation in exercise of power of judicial review in such matters. Fixing higher qualification cannot be termed as arbitrary. Hence, he sought for dismissal of the writ petition.
10. I have carefully considered the arguments addressed by the Advocates for the parties and perused the tender notification, retender notification and other relevant records.
11. Records clearly disclose that, for maintenance of garden in Hubli City limits for a period of one year, tender was called for on 15.12.2014. The minimum requirement prescribed was that, the contractor must possess licence from the HDMC, must have experience/qualification/training in Horticulture or Agriculture from the University or from the Government establishment, must have minimum of three years' experience of supervising the garden. Subsequently, the HDMC realized the necessity of appointing qualified persons and accordingly issued retender notification on 30.04.2015.
12. Petitioner has contended that he has been maintaining the garden in HDMC limits for the last five years. The conditions imposing higher qualification in the retender notification is contrary to law and the same is done in order to deny tender to the petitioner.
13. Admittedly, the petitioner is a civil contractor and manpower supplier to the Corporation. Though, he was maintaining the garden for the last five years, fixing of higher qualification by the HDMC cannot be treated as arbitrary.
14. The judgment relied upon by the petitioner in MANU/SC/0048/1979 : AIR 1979 SC 1628 it was clearly held that the employer can maintain higher norms and standards but it should not be arbitrary. Further, the various judgments of the Hon'ble Supreme Court cited by the respondents support the case of the respondents.
The Hon'ble Supreme Court in a judgment reported in the case of Directorate of Education and Others v. Educomp Datamatics Ltd., and Others reported in MANU/SC/0210/2004 : (2004) 4 Supreme Court Cases 19, while examining the terms/eligibility criteria of tender has held at paragraph No. 9 as under-
"9. 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 favoritism. 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 in depth by this Court in Tata Cellular v. Union of India [MANU/SC/0002/1996 : 1994 (6) SCC 651]. After examining the entire case law the following principles have been deduced.
"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 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."
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Further, the Hon'ble Supreme Court in a judgment in the case of Michigan Rubber (India) Limited v. State of Karnataka and Others reported in MANU/SC/0662/2012 : (2012) 8 Supreme Court Cases 216 at paragraph No. 23 has held as under:
"23. From the above decisions, the following principles emerge:
a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrationess 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) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonble. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very Hagaratagi Village limited;
c) 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 the tendering authority is found to be malicious and misuse of its statutory powers, interference by courts is not warranted;
d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and
e) 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 a fundamental right to carry on business with the Government."
Further, the Hon'ble Supreme Court in a judgment in the case of Maa Binda Express Carrier and Another v. North-East Frontier Railway and Others reported in (2012) 3 Supreme Court Cases 760 at paragraph No. 8 has held as under:
"The scope of judicial review in matters relating to award of contracts by the State and its instrumentalities is settled by a long line of decisions of this Court. While these decisions clearly recognise that power exercised by the Government and its instrumentalities in regard to allotment of contract is subject to judicial review at the instance of an aggrieved party, submission of a tender in response to a notice inviting such tenders is no more than making an offer which the State or its agencies are under no obligation to accept. The bidders participating in the tender process cannot, therefore, insist that their tenders should be accepted simply because a given tender is the highest or lowest depending upon whether the contract is for sale of public property or for execution of works on behalf of the Government. All that participating bidders are entitled to is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. It is also fairly well settled that award of a contract is essentially a commercial transaction which must be determined on the basis of consideration that are relevant to such commercial decision. This implies that terms subject to which tenders are invited are not open to the judicial scrutiny unless it is found that the same have been tailor-made to benefit any particular tenderer or class of tenderers. So also, the authority inviting tenders can enter into negotiations or grant relaxation for bona fide and cogent reasons provided such relaxation is permissible under the terms governing the tender process."
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Reading of the above judgments make it clear that in the matter of formulating the condition of tender and awarding a contract, a greater latitude is required to be considered to the State authorities unless action of the tender authority is found to be malafide and misuse of its territorial power, interference by the Courts is not warranted.
Further, the Hon'ble Supreme Court in a judgment in the case of Siemens Public Communication Networks Private Limited and Another v. Union of India and Others reported in MANU/SC/8245/2008 : (2008) 16 Supreme Court Cases 215 at paragraph No. 40 has held as under:
"40. On examining the facts and circumstances of the present case, we are of the view that none of the criteria has been satisfied justifying Court's interference in the grant of contract in favour of the appellants. When the power of judicial review is invoked in the matters relating to tenders or award of contracts, certain special features have to be considered. A contract is a commercial transaction and evaluating tenders and awarding contracts are essentially commercial functions. In such cases principles of equity and natural justice stay at a distance. If the decision relating to award of contracts is bona fide and is in public interest, courts will not exercise the power of judicial review and interfere even if it is accepted for the sake of argument that there is a procedural lacuna."
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In view of the law laid down by the Hon'ble Supreme Court, discretion is vested with the Corporation to prescribe the qualification for tender. In the instant case, to maintain garden the Corporation imposed conditions fixing qualification, experience, etc., which cannot be said to be illegal or arbitrary. The petitioner has not made out a case to interfere with the same. Accordingly, the writ petition is dismissed.
In view of dismissal of the writ petition, I.A. No. 2/2015 for vacating stay is disposed of.
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