M/S N RAMACHANDRA REDDY versus THE STATE OF TELANGANA & ORS on 28 August 2019

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SUPREME COURT REPORTS

[2019] 11 S.C.R.

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M/S N RAMACHANDRA REDDY

v.

THE STATE OF TELANGANA & ORS

(Civil Appeal No. 6673 of 2019)

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AUGUST 28, 2019

[S. ABDUL NAZEER AND R. SUBHASH REDDY, JJ.]

Tender:

Tender for construction of road – As per tender conditionC‘Batch Type Hot Mix Plant’ owned by the bidder was required to belocated within a distance of 100 kilometers from the last point ofworking reach – Letter of intent issued to the appellant – Complaintby another bidder (respondent No.4) disputing the correctness ofdistance in the case of the appellant – In verification reportSuperintending Engineer found the actual distance at 101.50 km.Dand from alternate route found the distance at 99.90 km. – Findingin the report again questioned by respondent No. 4 – By anotherverification report by another Superintending Engineer of anotherjurisdiction, the distance was found as 98.1 km. – Tender finalizedin favour of appellant – Writ petition – Single Judge of High courtEdismissed the petition – In writ appeal Division Bench of High Courtallowing the appeal found fault with the report of the superintendingEngineer in giving distance particulars from the alternate route andfound that subsequent report not being of jurisdictional engineercould not have been relied upon – Appeal to Supreme Court – Held:There is nothing wrong in the first report, mentioning the distanceFfrom alternate route – In the absence of any prescribed procedurefor verification, it was fair to call for report from an independentSuperintending Engineer of different jurisdiction – The procedureadopted by tendering authority is fair, just and reasonable.

Judicial Review:G

Scope of judicial review – In matter relating to contracts andtenders – Held: In matter relating to contracts/tenders, courts cannotsit as appellate court while exercising power of judicial review –Such power is called for only if the approach is arbitrary or malafide or procedure adopted is meant to favour someone.H

Letters Patent:

Intra-court appeal – Power of court – Scope of – Held:Appellate Bench not to disturb the finding of Single Judge unlesssuch finding is concluded as perverse.

Constitution of India:

Art. 136 – Jurisdiction under – Nature of – Held: Jurisdictionu/Art. 136 is corrective jurisdiction to settle the law.

Allowing the appeal, the Court

HELD: 1.1 It is clear from the condition relating to work inquestion, which is to be construed as essential, that the biddershall own a ‘Hot Mix Plant’ within a distance of 100 kilometersfrom the last point of working reach. As per clause 22.6 of thetender conditions, the result of evaluation of Part-I of the bidsshall be made public on e-procurement systems, following which,there shall be a period of five working days, during which, anybidder may submit complaint, which shall be considered, beforeopening Part-II of the bid. Once a complaint is filed, there is nodefinite procedure prescribed as to how such complaint is to bedealt. [Para 29][804-G; 805-A-B]

1.2 In the present case, it is clear from the material onrecord that, when a complaint is filed by the fourth respondent/writ petitioner, after evaluation of Part-I of the bids, at firstinstance, a report is prepared by the Superintending Engineer,Warangal dated 30.05.2018, stating that as per the route givenby the appellant, distance is 101.50 kilometers and if measuredfrom the alternate route it comes to 99.90 kilometers. It is thespecific case of the appellant that it has not made any request formeasuring the distance from the alternate route. In view of thevariation in distance, from its earlier report, it appears, the ChiefEngineer has requested the Superintending Engineer,Karimnagar, to verify and report. The Superintending Engineer,vide his report dated 04.07.2018, informed the Chief Engineerthat he has measured the distance from the ‘odometer’ and thedistance between the Hot Mix Plant and the last point of workingreach was 98.1 kilometers. Accepting the said report, bid of the A

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Aappellant was opened and it is clear from the record that the offerof the appellant is nearly Rupees Twenty Lakh less than the ratequoted by the fourth respondent/writ petitioner. [Para 29][805-B-E]

1.3 There is no dispute that appellant owns a ‘Hot MixBPlant’, as required in the tender conditions. It is his specific casethat the location of such Hot Mix Plant is within 100 kilometers,as required. It is true that when a complaint is made by the fourthrespondent/writ petitioner, it was found that the distance is 101.50kilometers from one route and 99.90 kilometers from the otherroute. From the alternate route, shown in the report datedC30.05.2018, submitted by the Superintending Engineer, Warangal,it is at a distance less than 100 kilometers. There is nothing wrongin the first report, mentioning the distance from the alternateroute. In view of such discrepancy in the report, the ChiefEngineer has further called for a report from the SuperintendingEngineer, Karimnagar, an independent authority, who has further,Dafter re-verification, submitted a report dated 04.07.2018, statingthat the distance is only 98.1 kilometers. [Paras 32, 33] [806-B-D]

1.4 There is no definite procedure for verification, in theevent of any complaint filed by any of the bidders, as contemplatedEunder clause 22.6 of the tender conditions. In absence of anyprescribed procedure for verification, it was fair on the part ofthe Chief Engineer to call for a report from an independentSuperintending Engineer i.e. the Superintending Engineer,Karimnagar. Such a procedure adopted by the Chief EngineerFwas fair and cannot be said to be either illegal or arbitrary. TheDivision Bench of High Court has committed an error, inrecording a finding that, calling for a report from theSuperintending Engineer, Karimnagar, by the Chief Engineer, isnot in accordance with the procedure. [Paras 29, 32, 33, 34][806-E-G]GPoddar Steel Corporation v. Ganesh Engineering Works(1991) 3 SCC 273 : [1991] 2 SCR 696; BSN Joshi &SWons Ltd. v. Nmair Coal Services Ltd. and Ors (2006)11SCC 548 : [2006] 8 Suppl. SCR 11; Bakshi Security H

and Personnel Services Pvt. Ltd. v. Devkishan ComputedPrivate Limited and others (2016) 8 SCC 446 : [2016]3 SCR 310; Central Coalfields Limited and others v.SLL-SML and others (2016) 8 SCC 622 : [2016] 4 SCR890 – distinguished.

2.1 The State’s decision/action must be in consonance ofArticle 14 of the Constitution of India. It is specifically held thatcourts cannot sit as appellate court while exercising power ofreview in matters relating to contracts and tenders. Exercise ofpower of judicial review is called for, if the approach is arbitraryor mala fide or procedure adopted is meant to favour someone.The scope is confined to examine only the decision-makingprocess and not the merits of the decision itself. [Paras 35, 37][807-A-B, D]

2.2 The procedure adopted by the tendering authority inthe present case is fair, just and reasonable. In absence of anyspecific mala fides and grant of exemption from any essentialconditions of tender, authorities have acted within their authority,as such, it cannot be construed either as a relaxation or violationof tender conditions. [Para 39][807-F]

Tata Cellular v. Union of India (1994) (6) SCC 651 :[1994] 2 Suppl. SCR 122; Afcons Infrastructure Limitedv. Nagpur Metro Rail Corporation Limited (2016) (16)SCC 818 : [2016] 3 SCR 551; Consortium of TitagarhFirema Adler v. Nagpur Metro Rail Corporation Ltd.(NMRCL) (2017) (7) SCC 486 : [2017] 5 SCR 337;Municipal Corporation, Ujjain and Anr. v. BVG IndiaLtd. & Ors (2018) (5) SCC 462 : [2018] 6 SCR 861 –relied on.

Raunaq International Ltd. v. I.V.R Constructions Ltd(1999) (1) SCC 492 : [1998] 3 Suppl. SCR 421; TheSilppi Constructions Contractors v. Union of India andAnr. Etc. Etc. (2019) (11) SCALE 592 – referred to.

3. In the intra court appeal unless Appellate Benchconcludes that findings of the Single Judge are perverse, it shallnot disturb the same. [Para 43] [808-F]

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796SUPREME COURT REPORTS

AManagement of Narendra & Company Pvt. Ltd. v.Workmen of Narendra & Company (2016) 3 SCC 340 :[2016] 1 SCR 597 – relied on.

4. The power conferred on this Court, under Article 136 ofthe Constitution of India, is the corrective jurisdiction to settleBthe law. As the issue in the present case does not relate to strictconstruction of territorial jurisdiction, it is always open for thedecision-making authority, to have a report from the independentauthority, to arrive at the just decision. [Para 42][808-C, E]

Pritam Singh v. State AIR 1950 SC 169 : [1950] SCRC453; Penu Balakrishna Iyer & Ors. v. Ariya M.Ramaswamy Iyer & Ors. AIR 1965 SC 195 : [1964]SCR 49; Shaikh Ali Hossain & Ors. v. Shaikh ShowkatAli & Anr. (2008) 8 SCC 180 : [2008] 8 SCR 867 –referred to.D

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6673of 2019.

From the Judgment and Order dated 13.03.2019 of the HighCourt for the State of Telangana at Hyderabad in Writ Appeal No. 153of 2019.

B. Adinarayana Rao, Sr. Adv., Sumanth Nookala, Praveen Reddy,Advs. for the Appellant.

R. Basant, Sr. Adv., S. Udaya Kumar Sagar, Ms. Swati Bhardwaj,Sadineni Ravi Kumar, M. Sudheer Kumar, Advs. for the Respondents The Judgment of the Court was delivered by

R. SUBHASH REDDY, J.

1. Leave granted.

2. This civil appeal is filed by the fourth respondent in Writ AppealNo. 153 of 2019, aggrieved by the order dated 13.03.2019, passed bythe High Court for the State of Telangana at Hyderabad, allowing intracourt appeal, filed under clause 15 of the Letters Patent.

3. The fourth respondent herein was the writ petitioner in WritPetition No. 23501 of 2018, on the file of High Court of Judicature forthe State of Telangana at Hyderabad, wherein it has challenged theaward of work of “construction of BT Road from Gujed to Buddaguda,in Mahabubabad District of Telangana State”. Writ Petition filed underArticle 226 of the Constitution of India was dismissed by the learnedSingle Judge, vide order dated 25.02.2019, against which, Letters PatentAppeal was preferred under clause 15 of the Letters Patent. The DivisionBench of the High Court by order dated 13.03.2019 allowed the intracourt appeal, which order is impugned in this appeal.

4. Necessary facts in nutshell, for disposal of this appeal are asunder:

The Roads and Buildings Department of the First Respondent-State of Telangana, floated a tender notice dated 21.04.2018, invitingbids for construction of “BT Road from Gujed to Buddaguda, inMahabubabad District of Telangana State”. Tender is floated by StandardBidding Document for Road Connectivity Project for Left WingExtremism Affected Areas (RCPLWEA) for construction and A

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AMaintenance - issued by the National Rural Roads Development Agency,Ministry of Rural Development, Government of India. The appellantand the fourth respondent participated in the tender process by submittingthe requisite documents. As per the tender conditions, there is arequirement to furnish necessary certificates from the District OfficersBof R & B Department to exhibit proof of owning “Batch Type Hot MixPlant” of capacity 100-120 TPH and that such “Batch Type Hot MixPlant” shall be located within a distance of 100 kilometers from the lastpoint of working reach, for which, bids are invited. The relevant clausein the tender document under Clause 4.4 B(b) reads as under:- “Each bidder must demonstrate:C

(i) “availability for construction work, either owned, or on lease oron hire, of the key equipment (except Batch Type Hot MixPlant) stated in the Appendix to ITB including equipments requiredfor establishing field laboratory to perform mandatory tests, andDthose stated in the Appendix to ITB; Note: For Batch Type Hot Mix Plant, as per G.O.Rt. No.211,T.R&B(R.1)Dept., Dt.21-04-2018

(a) The bidders shall exhibit proof of owning “Batch Type HotMix Plant” of capacity 100-120 TPH and such Batch TypeEHot Mix Plant shall be located within a distance of 100Kms from the last point of working reach for which bidsare invited.

(b) The bidders to furnish necessary certificates from theconcerned District Officers of R & B where such plantsFhave been located and the District Officers of R & B shallinspect and certify with route maps on the (1) location (2)distance from last point of work reach and (3) ownershipof such plants for which the bidders are intending to bid.

(c) The Superintendent Engineer of R & B concerned shallGensure the veracity of such certificate/documents uploadedby the bidders in support of the eligibility criteria onmachinery before finalizing the technical evaluation of thebids.”

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5. The Bid Document consists of two parts, Part-I & Part-II i.etechnical bid and price bid respectively.

6. Pursuant to tender notice, there were two offers by the biddersi.e the fourth respondent as well as the appellant herein. The technicalbids were opened on 18.05.2018 at 04:00 P.M. and as the fourthrespondent as well as the appellant were qualified in the technical bid,the Part-II bid i.e the price bid was opened on 31.05.2018 at 03:00 P.M.

7. In the price bid, the fourth respondent herein, offered to executethe work at the cost of Rs.31,51,27,865.82 whereas, the appellant offeredthe cost of Rs.31,31,69,427.04 for executing the work. As much as theoffer made by the appellant was lowest, the Letter of Intent was issuedto the appellant.

8. As per the tender conditions, the appellant herein has producedthe document issued by the Executive Engineer, Roads and BuildingsDepartment, Mahabubabad Division, showing distance from the “BatchType Hot Mix Plant” to that of the site at 99.05 kilometers. Disputingcorrectness of such distance, the fourth respondent/writ petitioner hason 18.05.2018, filed a complaint before the concerned authority i.e. theChief Engineer. On such complaint, the Chief Engineer, called for averification report from the Superintending Engineer, R & B Circle,Warangal. As per the report dated 30.05.2018 submitted by theSuperintending Engineer, the actual distance between the Hot Mix Plantand the last point of working reach was shown at 101.50 kilometers. Inthe same report, the Superintending Engineer, Warangal, has alsomentioned that the distance when measured from an alternate route, theactual distance from the Hot Mix Plant to the last point of working reachcomes to 99.90 kilometers.

9. In view of the dispute raised by the fourth respondent again,about the correctness of distances mentioned in the report submitted bythe Superintending Engineer, Warangal, the Chief Engineer vide his letterdated 11.06.2018, requested the Superintending Engineer, Karimnagar,to verify the distance between the location from the point of Hot MixPlant, owned by the appellant, to that of the last point of working reachof the site in question.

10. Vide report dated 04.07.2018, the Superintending Engineer,Karimnagar informed the Chief Engineer that the distance between the A

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AHot Mix Plant, owned by the appellant and the last point of workingreach is 98.1 kilometers.

11. In the report dated 04.07.2018, filed by the SuperintendingEngineer, Karimnagar, addressed to the Chief Engineer, as the distancebetween Hot Mix Plant owned by the appellant and the last point ofBworking reach was shown at 98.1 kilometers, same was accepted bythe authorities and tender was finalized in favour of the appellant. Thefourth respondent has questioned the same by way of Writ Petition filedunder Article 226 of the Constitution of India.

12. The learned Single Judge of the High Court has held that inCabsence of any specific mala fides against any individual, the re-verification undertaken, about the distance, by the Chief Engineer, is notillegal. Learned Single Judge has observed that when the tender conditionspermit the tenderer to make objection, which obviously, requireconsideration, by necessary implication, permit the tendering authorityto re-verify and re-consider the material submitted before him. It isDobserved that when the fourth respondent has raised an objection againstthe certificate issued in favour of the appellant, no fault can be attributedto the authorities in getting the re-verification done and obtaining a reportfrom an independent authority. Having found that there is no illegality orarbitrariness on the part of the authorities, in decision-making process,Elearned Single Judge dismissed the Writ Petition vide order dated25.02.2019.

13. When the said order is questioned by way of intra court appealunder clause 15 of the Letters Patent, the Division Bench of the HighCourt has found fault with the report of the Superintending Engineer,FWarangal, to the extent in giving distance particulars from the alternateroute. Further, it is observed that when the report of the SuperintendingEngineer, Warangal, was not accepted, the Chief Engineer should nothave sought a second report from the Superintending Engineer,Karimnagar. In the order it is stated that the jurisdictional Engineer isSuperintending Engineer, Warangal but not Superintending Engineer,GKarimnagar. It is stated in the order that since the report submitted bythe Superintending Engineer, Karimnagar was not legally justified, assuch, it could not have been relied on to finalize tender in favour of theappellant.

14. On the aforesaid grounds, the Division Bench allowed theintra court appeal, by impugned order, with a direction to award thework in question, on the basis of a report submitted by the SuperintendingEngineer, Warangal.

15. Heard Sri B.Adinarayana Rao, learned senior counselappearing for the appellant, Sri R. Basant, learned senior counselappearing for the fourth respondent/ writ petitioner and Sri S.UdayaKumar Sagar, learned counsel appearing for the State.

16. It is contended by Sri B.Adinarayana Rao, learned seniorcounsel, appearing for the appellant that as per the tender conditions,bidder must demonstrate proof of owning ‘Batch Type Hot Mix Plant’of the capacity of 100-120 TPH, which shall be located within a distanceof 100 kilometers from the last point of working reach, for which, bidsare invited. As per the tender conditions, bidders are required to furnishnecessary certificates, issued by the District Officers of R & BDepartment.

17. It is not in dispute that the appellant owns a Hot Mix Plant andat the request of the appellant, the District Officers have issued acertificate. The said certificate was to be filed along with ‘Part A’ of thedocuments, relating to technical bid.

18. It is submitted that, as per the tender conditions, the result ofevaluation of Part-I of the bids shall be made public on e-procurementsystems, following which, there will be a period of five working days,during which any bidder may submit complaint which shall be consideredfor resolution before opening Part-II of the bid.

19. It is contended that in this case, initially a certificate wasfurnished by the concerned District Officer of R & B Department,showing the distance below 100 kilometers but when a complaint is filedby the fourth respondent/writ petitioner, verification was done by callinga report from the Superintending Engineer, Warangal.

20. It is submitted that Superintending Engineer, on its own, hascertified in his report dated 30.05.2018 that as per the original route, thedistance is 101.50 kilometers and by alternate route, the distance is 99.90kilometers, as per the Google map.

21. It is further submitted that apart from the said certification, anindependent report is also called for from the Superintending Engineer, A

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AKarimnagar, which is reported vide report dated 04.07.2018, showingthe distance between the ‘Hot Mix Plant’ owned by the appellant andthe ‘last point of working reach’ of the work in question, at 98.1 kilometers.It is submitted that when a complaint is filed by the fourth respondent interms of Para 22.6 of the Standard Bidding Document, it is always openfor the authorities to call for a report from the independent authorityBother than the officers concerned in the circle/division in question.

22. It is submitted by learned counsel that accepting the reportsubmitted by the Superintending Engineer, Karimnagar, the price bid wasopened and the appellant has offered to execute the work at a cost ofRs.31,31,69,427.04, as against the cost quoted by the fourth respondentCwhich is Rs.31,51,27,865.82. In view of dispute raised by the fourthrespondent, the Chief Engineer concerned has sought re-verification ofthe distance from the Superintending Engineer, R & B Circle, Karimnagar,who, vide report dated 04.07.2018, based on the Trip Meter of the vehicle,had categorically opined that the Hot Mix Plant of the appellant wasDlocated within 100 kilometers. It is submitted that there being no specificmala fides, tendering authority opened the price bid only after satisfyingthe distance being less than 100 kilometers.

23. It is submitted that as per the tender conditions, there is noprescribed procedure for verification, in the event of any complaint byEone of the bidders, in terms of Para 22.6 of the Standard BiddingDocument. It is submitted that the learned Single Judge has rightly refusedto exercise the jurisdiction under Article 226 of the Constitution of Indiaas much as there is no illegality or arbitrariness in the decision-makingprocess. It is submitted that the well reasoned order of the learned SingleJudge is interfered in the intra court appeal by impugned order, withoutFassigning valid reasons and findings recorded in the impugned order runcontrary to the tender conditions.

24. In support of his arguments, Sri B. Adinarayana Rao, learnedsenior counsel, has relied on the following judgments:

G1. Tata Cellular v. Union of India.[1]

2. Raunaq International Ltd. v. I.V.R Constructions Ltd.[2]

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1 1994(6) SCC 651.

2 1991(1) SCC 492.

3 2016(16) SCC 818.

M/S N RAMACHANDRA REDDY v. THE STATE OFTELANGANA & ORS [R. SUBHASH REDDY, J.]

3. Afcons Infrastructure Limited v. Nagpur Metro RailCorporation Limited.[3]

4. Consortium of Titagarh Firema Adler v. Nagpur Metro RailCorporation Ltd. (NMRCL).[4]

5. Municipal Corporation, Ujjain and Anr. v. BVG India Ltd.& Ors.[5]

and also judgment of this Court, in the case of The SilppiConstructions Contractors v. Union of India and Anr. Etc. Etc.[6]

25. On the other hand, Sri R.Basant, learned senior counsel,appearing for the fourth respondent/writ petitioner states that there areno grounds to interfere with the impugned order passed by the DivisionBench of the High Court. It is submitted that the Superintending Engineer,Warangal, in his report dated 30.05.2018, has shown the distance at101.50 kilometers, and at the same time, on his own, also mentioned thedistance to be at 99.90 kilometers measured from an alternate route. Itis further submitted that the Chief Engineer has committed error in callingthe report from the Superintending Engineer, Karimnagar, who is not theconcerned jurisdictional Superintending Engineer. When it is found that,as per the initial certificate submitted by the appellant, which shows thedistance to be more than 100 kilometers, there is no reason or justificationeither to go by the distance, as measured from the alternate route in thereport dated 30.05.2018, or to go by another report of the Chief Engineer,which is based on the information furnished by the SuperintendingEngineer, Karimnagar.

26. Finally, it is submitted by Sri R. Basant, learned senior counselthat there are no grounds to interfere in the impugned order in this appeal,filed under Article 136 of the Constitution of India.

27. In support of his arguments, Sri R.Basant, learned Seniorcounsel has also relied on the following judgments:

1. Poddar Steel Corporation v. Ganesh Engineering Works.[7]

5 2018(5) SCC 462.

6 SLP(c) Nos. 13802-13805 of 2019 decided on 21.06.2019.

7 (1991)3 SCC 273.

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A2. BSN Joshi & SWons Ltd. v. Nmair Coal Services Ltd. andOrs.[8]

3. Bakshi Security and Personnel Services Pvt. Ltd. v.Devkishan Computed Private Limited and others.[9]

4. Central Coalfields Limited and others v. SLL-SML andBothers.[10]

Further, he has also relied on the following judgments:

5. Pritam Singh v. State.[11]

6. Penu Balakrishna Iyer & Ors. v. Ariya M. RamaswamyIyer & Ors.[12]C

7. Shaikh Ali Hossain & Ors. v. Shaikh Showkat Ali & Anr.[13]

wherein, the scope of interference by this Court is discussed underArticle 136 of the Constitution of India.

28. Having heard the learned senior counsels on both sides, weDhave carefully perused the impugned order passed by the Division Benchof the High Court and the order passed by learned Single Judge andother material placed on record.

29. From a reading of the tender conditions relating to work inquestion, it is clear that the bidders shall exhibit proof of owning “BatchEType Hot Mix Plant” of capacity of 100-120 TPH and such plant shallbe located within a distance of 100 kilometers from the last point ofworking reach, for which, bids are invited. In proof of owning such aplant within 100 kilometers, bidders are required to obtain necessarycertificates from the concerned District Officers of R & B Department,where such plants have been located and the District Officers of R & BFDepartment shall inspect and certify with route maps on the location;distance from the last point of work reach; and ownership of such plants,for which, bidders are intending to bid. It is clear from the aforesaidcondition, which is to be construed as essential, that the bidder shall owna ‘Hot Mix Plant’ within a distance of 100 kilometers from the last pointof working reach. As per clause 22.6 of the tender conditions, the resultG

8 (2006)11 SCC 548.9 (2016)8 SCC 446.10 (2016)8 SCC 622.11 AIR 1950 SC 169.12 AIR 1965 SC 195.H13 (2008)8 SCC 180.

of evaluation of Part-I of the bids shall be made public on e-procurementsystems, following which, there shall be a period of five working days,during which, any bidder may submit complaint, which shall be considered,before opening Part-II of the bid. It is clear from the aforesaid clauseunder tender document, if any of the bidder disputes the distance quotedby other bidder, it is open for such bidder to make a complaint, whichshall be considered, before opening of Part-II of the bid. Once a complaintis filed, there is no definite procedure prescribed as to how such complaintis to be dealt. In the case on hand, it is clear from the material on recordthat, when a complaint is filed by the fourth respondent/writ petitioner,after evaluation of Part-I of the bids, at first instance, a report is preparedby the Superintending Engineer, Warangal dated 30.05.2018, stating thatas per the route given by the appellant, distance is 101.50 kilometers andif measured from the alternate route it comes to 99.90 kilometers. Atthis stage, it is to be mentioned that, it is the specific case of the appellantthat it has not made any request for measuring the distance from thealternate route. In view of the variation in distance, from its earlier report,it appears, the Chief Engineer has requested the Superintending Engineer,Karimnagar, to verify and report. The Superintending Engineer, vide hisreport dated 04.07.2018, informed the Chief Engineer that he hasmeasured the distance from the ‘odometer’ and the distance betweenthe Hot Mix Plant and the last point of working reach was 98.1 kilometers.Accepting the said report, bid of the appellant was opened and it is clearfrom the record that the appellant has quoted offer to execute the workin question at Rs.31,31,69,427.04 whereas, the fourth respondent hasquoted at Rs.31,51,27,865.82 to execute the work. The offer of theappellant is nearly Rupees Twenty Lakh less than the rate quoted by thefourth respondent/writ petitioner.

30. The learned Single Judge, by observing that there being nospecific mala fides against any individual, has held that, no fault can beattributed to the Chief Engineer in getting the re-verification done, byobtaining a report from the independent authority. Further, by recordinga finding that the scope of interference in the matter relating to tenders,in exercise of power conferred under Article 226 of the Constitution ofIndia, is confined to decision-making process only, has dismissed theWrit Petition.

31. From a reading of the impugned order, it appears that theDivision Bench has reversed the order of the learned Single Judge, onlyon the ground that the report received from the Superintending Engineer, A

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AKarimnagar, is not in accordance with the procedure. The Division Benchof the High Court has also held that the Chief Engineer had stepped outof his jurisdiction, when he called a report from the SuperintendingEngineer, Karimnagar.

32. We are not convinced, with such a view, as expressed above,Bby the Division Bench of the High Court. First of all, it is to be noticedthat there is no dispute that appellant owns a ‘Hot Mix Plant’, as requiredin the tender conditions. It is his specific case that the location of suchHot Mix Plant is within 100 kilometers, as required. It is true that whena complaint is made by the fourth respondent/writ petitioner, it was foundthat the distance is 101.50 kilometers from one route and 99.90 kilometersCfrom the other route. From the alternate route, shown in the report dated30.05.2018, submitted by the Superintending Engineer, Warangal, it is ata distance less than 100 kilometers.

33. We find nothing wrong in the first report, mentioning thedistance from the alternate route. In view of such discrepancy in thereport, the Chief Engineer has further called for a report from theDSuperintending Engineer, Karimnagar, an independent authority, who hasfurther, after re-verification, submitted a report dated 04.07.2018, statingthat the distance is only 98.1 kilometers. To make sure whether the plantof the appellant is within the distance of 100 kilometers or not, incompliance of the tender conditions, in view of the dispute raised by theEfourth respondent/writ petitioner and the report dated 30.05.2018, theChief Engineer got re-verified from an independent authority by addressingto Superintendent Engineer, Karimnagar. In absence of any prescribedprocedure for verification, it was fair on the part of the Chief Engineerto call for a report from an independent Superintending Engineer i.e. theSuperintending Engineer, Karimnagar. There is no definite procedureFfor verification in the event of any complaint filed by any of the bidders,as contemplated under clause 22.6 of the tender conditions. The DivisionBench has committed an error, in recording a finding that, calling for areport from the Superintending Engineer, Karimnagar, by the ChiefEngineer, is not in accordance with the procedure.

34. Having regard to the nature of dispute, it was always open forGthe Chief Engineer to call for a report from an independent authority i.e.Superintending Engineer, Karimnagar. Such a procedure adopted by theChief Engineer was fair and cannot be said to be either illegal or arbitrary.Such a report is made basis in the decision-making process, to open thebid of the appellant in Part-II.

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35. In the case of Tata Cellular v. Union of India[1], whileconsidering the scope of judicial review, in matters relating to Governmentcontracts-tenders, this Court has held that the State’s decision/actionmust be in consonance of Article 14 of the Constitution of India. Thescope is confined to examine only the decision-making process and notthe merits of the decision itself. It is specifically held that courts cannotsit as appellate court while exercising power of review in matters relatingto contracts and tenders.

36. In the case of Afcons Infrastructure Limited v. NagpurMetro Rail Corporation Limited and Another[3], this Court found faultin the High Court, in interfering with the decision of the authority in amatter relating to contracts and tenders, without there being any malafides or irrationality or perversity in the procedure adopted by theauthorities.

37. In the case of Consortium of Titagarh Firema Adler v.Nagpur Metro Rail Corporation Ltd.[4], while considering the scope ofjudicial review, in matters relating to power of contracts, this Court hasheld that exercise of power of judicial review is called for, if the approachis arbitrary or mala fide or procedure adopted is meant to favour someone.

38. Further, in the case of Municipal Corporation, Ujjain andAnr. v. BVG India Ltd. & Ors.[5], this Court has held that, whileconsidering the scope of judicial review, in matters relating to contracts,it is held that the same is restricted to decision-making process but notthe decision itself. It is held that the High Court cannot act as appellatecourt to review tender evaluation and set aside the award of tender.

39. All the judgments referred above, support the case of theappellant, as much as, we are of the view that the procedure adopted bythe tendering authority is fair, just and reasonable. In absence of anyspecific mala fides and grant of exemption from any essential conditionsof tender, authorities have acted within their authority, as such, it cannotbe construed either as a relaxation or violation of tender conditions.

40. The learned senior counsel, Sri Basant, appearing for the fourthrespondent/writ petitioner, has relied on the judgments in the case ofPoddar Steel Corporation v. Ganesh Engineering Works[7], BSN Joshi& SWons Ltd. v. Nmair Coal Services Ltd. and Ors[8] Bakshi Securityand Personnel Services Pvt. Ltd. v. Devkishan Computed PrivateLimited and Ors.[9]; Central Coalfields Limited and others v. SLL-SML and others[10], in support of his arguments that the essential clauses AB

C

D

E

F

G

H

Aof a tender should be enforced strictly and no deviation is permissibleunder law.

41. We are of the view that the above said judgments have noapplication to the facts of this case, for the reason that, it is not a case ofviolation of any tender conditions. Further, pleading that no case is madeBout by the appellant for interference under Article 136 of the Constitutionof India, learned counsel, in support of his argument, has relied onjudgment in the case of Pritam Singh v. State[11]; Penu BalakrishnaIyer & Ors. v. Ariya M. Ramaswamy Iyer & Ors.[12]; Shaikh AliHossain & Ors. v. Shaikh Showkat Ali & Anr.[13]

42. With reference to the same, it is to be noticed that the powerCconferred on this Court, under Article 136 of the Constitution of India, isthe corrective jurisdiction to settle the law. Further, it is to be noticedthat when the learned Single Judge of the High Court has found that theprocess of re-verification done by the Chief Engineer, on the dispute inquestion, is fair and acceptable for arriving at a decision, but the DivisionBench has set aside such order, only on the ground that the report isDcalled for from the Superintending Engineer, Karimnagar, who is not theconcerned Engineer, as per the procedure. In absence of any prescribedprocedure to deal with complaints, it was fair on the part of the ChiefEngineer, in calling a report from the independent authority, other thanthe jurisdictional officers. As the issue does not relate to strict constructionEof territorial jurisdiction, it is always open for the decision-making authority,to have a report from the independent authority, to arrive at the justdecision.

43. Further, in the case of Management of Narendra & CompanyPvt. Ltd. v. Workmen of Narendra & Company[14], while consideringthe scope of the intra court appeal, this Court has held that, unlessFAppellate Bench concludes that findings of the learned Single Judge areperverse, it shall not disturb the same.

44. For the aforesaid reasons, we allow this appeal and set asidethe order dated 13.03.2019 passed in Writ Appeal No. 153 of 2019, bythe High Court of Telangana at Hyderabad and confirm the order datedG25.02.2019 passed by the learned Single Judge in Writ Petition No. 23501of 2018. No order as to costs.

Kalpana K. Tripathy

Appeal allowed.

H14 (2016) 3 SCC 340