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Airport Authority Of India vs. Centre For Aviation Policy, Safety & Research (CAPSR) & Others - (Supreme Court) (30 Sep 2022)

Terms of the Invitation to Tender, being in the realm of contract, are not open to judicial scrutiny



The Airport Authority of India ( ‘AAI’) has preferred Civil Appeal against the judgment and order passed by the High Court, by which the High Court has struck down the decision to carry out region-wise sub-categorisation of the 49 airports falling under Group D-1; the stipulation that only previous work experience in respect of providing GHS to scheduled aircrafts shall be considered acceptable for the purpose of the impugned tender/RFP and the revised minimum Annual Turnover criteria of INR 18 crores as discriminatory and arbitrary.

Respondent No.1 claiming to be a non-profit organisation carrying out research, advisory and advocacy in the field of civil aviation had filed a writ petition challenging the tender conditions in the respective RFPs. It is required to be noted that none of the GHAs who participated in the tender process and/or could have participated in the tender process have challenged the tender conditions. It is required to be noted that the writ petition before the High Court was not in the nature of Public Interest Litigation. Respondent No.1 cannot be said to be an” aggrieved party”. The High Court ought to have dismissed the writ petition on the ground of locus standi of respondent No.1 – original writ petitioner to maintain the writ petition.

The High Court has erred in quashing and setting aside the eligibility criteria/tender conditions mentioned in the respective RFPs, while exercising the powers under Article 226 of the Constitution of India. As per the settled position of law, the terms and conditions of the Invitation to Tender are within the domain of the tenderer/tender making authority and are not open to judicial scrutiny, unless they are arbitrary, discriminatory or mala fide. As per the settled position of law, the terms of the Invitation to Tender are not open to judicial scrutiny, the same being in the realm of contract. The Government/tenderer/tender making authority must have a free hand in setting the terms of the tender.

Further, selecting GHS for providing GHS cannot be equated with the procurement of any goods and services that form the crux of the MSME orders. The impugned judgment passed by the High Court are unsustainable and the same are quashed and set aside. Appeals allowed.


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