H.S. Thangkhiew, J.
1. By the instant petition, the writ petitioner seeks to challenge the settlement of contract by the respondents 1 and 2 with the respondent No. 5, to collect parking fees at the Cantonment Bazaar Road by work order dated 01.04.2021, on the ground that the respondent No. 5 did not satisfy the technical criteria of the Tender conditions.
2. The case as projected by the writ petitioner is that, pursuant to a notice inviting tender dated 11.01.2021 the writ petitioner along with the respondent No. 5, and another bidder had tendered their bids which were in two parts that is, Technical Bid and Financial Bid. The respondent No. 5 was declared the successful bidder as he put up the highest financial bid at Rs. 35,25,000/- (Rupees Thirty Five Lakhs Twenty-Five Thousand only) and the respondent Cantonment Board also deemed that he had the technical expertise and experience to execute the contract on the certificates furnished by the respondent No. 5, in spite of the same being questionable.
3. Mr. S. Dey, learned counsel for the petitioner submits that the award of contract to respondent No. 5 is vitiated, arbitrary and in violation of the Tender conditions, inasmuch as, the respondent No. 5 did not possess the requisite experience to be eligible to bid for the contract. Learned counsel submits that as per the 'General Instructions to Bidders and Tenderers' in the tender document at clause 3.1(6), it has been stipulated that the agency/contractor must have a minimum one year experience in executing/providing similar services/works to Central Governments/State Governments/Cantonment Boards/Offices etc., for the last financial year upto March, 2020 and that copy of the work orders and documents were to be attached. It is the pointed contention of the learned counsel, that the respondent No. 5 did not meet this requirement and as such, his bid should have been rejected at the technical stage itself. To substantiate this contention, learned counsel submits that the acceptance by the respondent Cantonment Board of the experience certificate dated 19.10.2020 granted to the respondent No. 5, which was issued by the respondents No. 3 and 4 (Shillong Municipal Board) is erroneous, as on verification before the respondents No. 3 and 4 by way of an RTI application filed by the petitioner, it was revealed that he was not the principal contractor in the said work but perhaps, was just assisting the contractor.
4. It is further submitted by the learned counsel that, the respondent No. 5 on an earlier occasion, had been disqualified from the tender process as he had submitted a work experience certificate of work done in collection of parking fees under the office of the Syiem of Mylliem Syiemship, which on verification by the petitioner by way of an RTI application revealed that the work order was not issued to the respondent No. 5, but to one Myntri Mylliemumlong. He strongly contends that, similarly the work experience certificate issued by respondents No. 3 and 4 cannot be relied upon and will not suffice to make the respondent No. 5 an eligible bidder. In support of his submissions, learned counsel has relied upon the judgment in the case of Ramana Dayaram Shetty versus International Airport Authority of India and Others reported in (1979) 3 Supreme Court Cases 489, where he submits that, the Hon'ble Supreme Court has held that the standard of eligibility laid down in the notice for tenders cannot be departed from arbitrarily. He concludes his submission by submitting that, the action of the respondent Cantonment Board is arbitrary and illegal and as such, the impugned settlement should be set aside and quashed.
5. In reply to the submissions advanced by the learned counsel for the petitioner, Mr. S.P. Mahanta, learned senior counsel assisted by Ms. L.D.N. Thangkhiew, learned counsel for the respondents No. 1 and 2 Cantonment Board, submits that the bid of respondent No. 5, was found to be in order by the duly appointed Technical Committee as the certificate furnished by the respondents No. 3 and 4, Shillong Municipal Board was accepted, wherein it was certified that the respondent No. 5 had successfully executed the contract work for management of collection of fees from parking lots under the Shillong Municipal Board for the years 2008-2010. Learned senior counsel submitted that, along with respondent No. 5, the writ petitioner and one Prince Leo Kharmalki, were also found to be eligible and as such, the financial bids were then opened and the Financial Committee by its report dated 10.03.2021, recommended that the highest rate of Rs. 35,25,000/- (Rupees Thirty Five Lakhs Twenty-Five Thousand only) offered by respondent No. 5 be accepted. Learned senior counsel submits that the entire process was conducted in a transparent manner and even on an issue, that the quoted rate was abnormally high, the Cantonment Board took the matter up for consideration and resolved and approved the highest bid for the contract by the Cantonment Board Resolution No. 04 dated 22.03.2020. He therefore submits that the allegation of arbitrariness is without any basis and the writ petition is liable to be dismissed as being without merit.
6. Mr. K. Ch. Gautam, learned counsel on behalf of the respondent No. 5 submits that the allegation that he does not possess the experience to execute the contract is misplaced inasmuch as, the respondent No. 5 has the experience of providing similar services as required by the Tender conditions. The counsel submits that, a plain reading of the general clause 3.1(6) reflects that what is required is minimum one year experience in executing similar services which the respondent No. 5 possessed by virtue of his services rendered in the management of the Shillong Municipal Board parking lot. Learned counsel also refers to Annexure-1 of his affidavit-in-opposition which is a document executed by the lessee showing that the respondent No. 5 had been entrusted with such work, and has also drawn the attention of this Court to Annexures-4 to 7 which shows that the respondent No. 5 has already deposited the entire lease amount upto 31.03.2022, the date on which the lease terminates to the respondents 1 and 2.
7. The maintainability question of the instant writ petition is also raised by the learned counsel who submits that, apart from being a challenge to a contract, the writ petitioner has sought to bring in disputed facts and is seeking an injunction against the respondent No. 5 and the other respondents, apart from other directions. To buttress his arguments, learned counsel has placed reliance on the judgment of Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers versus New J.K. Roadways, Fleet Owners and Transport Contractors and Others reported in 2020 SCC OnLine SC 1035, with regard to exercise of judicial review in the interpretation of the terms of contract and submits that it is not for the Court to interpret a clause particularly, when there was no perversity in the interpretation.
8. I have heard learned counsel for the parties. The short question that has arisen, apart from other aspects such as, maintainability which though has a bearing but will not be gone into for the purposes of disposal of the writ petition, is whether the acceptance of the Technical Bid of respondent No. 5 can be said to be arbitrary, illegal or visited by mala fides.
9. The respondents No. 1 and 2 as stated, had floated the tender calling for bids, technical and financial bids on 11.01.2021 and as per, the General Instructions to Bidders/Tenderers, the relevant clause in question being clause 3.1(6), is quoted hereinbelow:
"3.1 General
6. The Agency/Contractor must have minimum one year experience in executing/providing similar services/works to Central Government/State Government/Cantonment Boards/offices or reputed public/private sector organizations for the last financial year i.e. upto March, 2020. Copy of work order/documents are to be attached."
This clause is the only basis on which the writ petitioner's case is founded upon. A plain reading thereof, shows that the requirement for a bidder is to have a minimum one-year experience in executing or providing similar services of works and that copy of such work orders or documents were to be attached in the bid document. It is not disputed that a duly constituted Technical Committee of the Cantonment Board had scrutinized the bids and accepted the experience certificate furnished by the respondent No. 5, and held his technical bid to be eligible, thus paving the way for the opening of the financial bid of which he was found to be the highest bidder and consequently was awarded the contract.
10. The Hon'ble Supreme Court in a series of decisions, has outlined the scope of judicial review in such matters, and has settled the law in such matters of interpretation of contract. In the judgment cited by the learned counsel for the respondent No. 5 itself, i.e., Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers versus New J.K. Roadways, Fleet Owners and Transport Contractors and Others (supra) in Para-14 and 18, this position is clearly spelt out and the same is reproduced herein below:
"14. In a series of judgments, this Court has held that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-guessed by a court in judicial review proceedings. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818, this Court held:
"15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts, but that by itself is not a reason for interfering with the interpretation given.
18. Insofar as Condition No. 27 of the N.I.T. prescribing work experience of at least 5 years of not less than the value of Rs. 2 crores is concerned, suffice it to say that the expert body, being the Tender Opening Committee, consisting of four members, clearly found that this eligibility condition had been satisfied by the Appellant before us. Without therefore going into the assessment of the documents that have been supplied to this Court, it is well settled that unless arbitrariness or mala fide on the part of the tendering authority is alleged, the expert evaluation of a particular tender, particularly when it comes to technical evaluation, is not to be second-guessed by a writ court. Thus, in Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, this Court noted:
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;
or
Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached";
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."
11. The above quoted judgment in the considered view of this Court will be applicable, inasmuch as, the interpretation of the said clause 3.1(6) is well within the ambit of the Technical Committee, who found the certificate furnished by the respondent sufficient. It can also be added that this is not a case of arbitrary or whimsical grant of public largesse, or that public interest or revenue has suffered in any manner.
12. In the facts and circumstances of the case, wherein the only point as mentioned above is interpretation of the clause 3.1(6) which the respondents No. 1 and 2, found respondent No. 5 to be eligible in terms of the said clause, and in the backdrop of the rulings of the Hon'ble Supreme Court, no case has been made out for any interference by this Court.
13. For the reasons aforementioned, the writ petition being devoid of merit, is accordingly dismissed.
14. No order as to costs.
