The decision taken by the tender issuing authority ought not to be questioned, but the decision-making process can certainly be subject to judicial review: High Court of J&K and Ladakh

True it is that the legal position governing the matters of Government contracts envisages that, ordinarily, the soundness of the taken by the tender issuing authority ought not to be questioned, but the decision-making process can certainly be subject to judicial review as held by the Hon’ble High Court of J&amp;K through a learned bench of Justice Ali Mohammad Magrey and Justice Sanjay Dhar in the case of Mohammad Shafi Lone Vs Union Territory of JK &amp; Ors. [LPA No. 148/2021; CM No. 7352/2021; &amp; Caveat No. 1714/2021] and M/S A. Khan Trading Company Vs Union Territory of JK &amp; Ors [LPA No. 147/2021; CM No. 7323/2021; &amp; Caveat No. 1724/2021].
Brief facts of the case are that the official Respondents invited e-bids for appointment of Government Auctioneer in relation to conducting of auction of Government properties for the year 2020-21 for Jammu as well as Kashmir Division on the terms and conditions prescribed in the tender notice. After culmination of the aforesaid tendering process, it appears that the official Respondents appointed M/S F. S. Enterprises (L1) as Government Auctioneer for Kashmir Division. Thereafter, a Writ Petition, being WP(C) No. 1421/2021, was filed by a firm, namely, M/S A. Khan Trading Company/ Writ Petitioner/ Appellant in LPA No.147/2021, who had also participated in the aforesaid tendering process; thereby assailing the appointment of said M/S F. S. Enterprises as a Government Auctioneer made in terms Order dated 5th of July, 2021 on the ground that the said firm did not meet the eligibility criteria prescribed in the tender notice qua having experience certificate of at least two years in the business of auctioning. The learned Single Judge, vide Judgment dated 28th of October, 2021, disposed of the Writ Petition.
After a perusal of the record, the Hon’ble High Court observed that the learned Single Judge has, on the basis of the pleadings on record and upon hearing the parties, decided the Writ Petition after framing the question ‘as to whether the certificate of experience of at least two years in the business of auctioning submitted by the private Respondent meets the eligibility requirements of e-tender notice issued by the official Respondents’. While answering the aforesaid question in the negative, the Writ Court was of the view that the decision of the official Respondents to award contract to the private Respondent-F. S. Enterprises is arbitrary, irrational and smacks of bias/ mala fide and, therefore, cannot sustain in the eyes of law.
In conclusion, while dismissing the appeals, the Hon;ble Court stated that “The soundness of the decision can be questioned, firstly, if the decision made is so arbitrary and irrational that the Court can say that the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached or; second, if the process adopted or decision made by the authority is malafide or intended to favour someone or; third, if the public interest is affected. In the instant case, when the said firm F.S. Enterprises did not meet all the terms and conditions prescribed in the tender notice inasmuch as it did not furnish the requisite experience certificate in the business of conducting auction of any Government Office/ Semi-Government organization/ Military establishment/ Public enterprise, in such eventuality, the decision of the official Respondents to appoint the said firm as Government Auctioneer clearly falls within the scope of such action where they have acted in a manner in which no responsible authority acting reasonably and in accordance with the relevant law would have acted.”
Click here to read the Judgment
Judgment reviewed by – Aryan Bajaj
 True it is that the legal position governing the matters of Government contracts envisages that, ordinarily, the soundness of the taken by the tender issuing authority ought not to be questioned, but the decision-making process can certainly be subject to judicial review as held by the Hon’ble High Court of J&amp;K through a learned bench of Justice Ali Mohammad Magrey and Justice Sanjay Dhar in the case of Mohammad Shafi Lone Vs Union Territory of JK &amp; Ors. [LPA No. 148/2021; CM No. 7352/2021; &amp; Caveat No. 1714/2021] and M/S A. Khan Trading Company Vs Union Territory of JK &amp; Ors [LPA No. 147/2021; CM No. 7323/2021; &amp; Caveat No. 1724/2021]. Brief facts of the case are that the official Respondents invited e-bids for appointment of Government Auctioneer in relation to conducting of auction of Government properties for the year 2020-21 for Jammu as well as Kashmir Division on the terms and conditions prescribed in the tender notice. After culmination of the aforesaid tendering process, it appears that the official Respondents appointed M/S F. S. Enterprises (L1) as Government Auctioneer for Kashmir Division. Thereafter, a Writ Petition, being WP(C) No. 1421/2021, was filed by a firm, namely, M/S A. Khan Trading Company/ Writ Petitioner/ Appellant in LPA No.147/2021, who had also participated in the aforesaid tendering process; thereby assailing the appointment of said M/S F. S. Enterprises as a Government Auctioneer made in terms Order dated 5th of July, 2021 on the ground that the said firm did not meet the eligibility criteria prescribed in the tender notice qua having experience certificate of at least two years in the business of auctioning. The learned Single Judge, vide Judgment dated 28th of October, 2021, disposed of the Writ Petition. After a perusal of the record, the Hon’ble High Court observed that the learned Single Judge has, on the basis of the pleadings on record and upon hearing the parties, decided the Writ Petition after framing the question ‘as to whether the certificate of experience of at least two years in the business of auctioning submitted by the private Respondent meets the eligibility requirements of e-tender notice issued by the official Respondents’. While answering the aforesaid question in the negative, the Writ Court was of the view that the decision of the official Respondents to award contract to the private Respondent-F. S. Enterprises is arbitrary, irrational and smacks of bias/ mala fide and, therefore, cannot sustain in the eyes of law. In conclusion, while dismissing the appeals, the Hon;ble Court stated that “The soundness of the decision can be questioned, firstly, if the decision made is so arbitrary and irrational that the Court can say that the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached or; second, if the process adopted or decision made by the authority is malafide or intended to favour someone or; third, if the public interest is affected. In the instant case, when the said firm F.S. Enterprises did not meet all the terms and conditions prescribed in the tender notice inasmuch as it did not furnish the requisite experience certificate in the business of conducting auction of any Government Office/ Semi-Government organization/ Military establishment/ Public enterprise, in such eventuality, the decision of the official Respondents to appoint the said firm as Government Auctioneer clearly falls within the scope of such action where they have acted in a manner in which no responsible authority acting reasonably and in accordance with the relevant law would have acted.”
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Serial Nos. 35 & 36 Supplementary 1 Cause List Dated: 11th of November 2021. i) LPA No. 147 2021 CM No. 7323 2021 & Caveat No. 1724 2021: M S A. Khan Trading Company … Appellant(s) … Respondent(s) Mr M. A. Beigh Advocate. Union Territory of JK & Ors. Through: Mr M. A. Chashoo AAG and Mr Shuja ul Haq Tantray Advocate. ii) LPA No. 148 2021 CM No. 7352 2021 & Caveat No. 1714 2021: Mohammad Shafi Lone Union Territory of JK & Ors. Mr Shuja ul Haq Tantray Advocate. Through: Mr M. A. Chashoo AAG and Mr M. A. Beigh Advocate. … Appellant(s) … Respondent(s) Per Magrey JNo. LPA No. 147 2021 CM No. 7323 2021 & Caveat No. 1724 2021 c w LPA No. 148 2021 CM No. 7352 2021 & Caveat No. 1714 2021 1421 2021 CM No. 4828 2021 therefore same were heard together and are being decided by this common Judgment hereunder. The material facts leading to the filing of these appeals briefly stated and as come to the fore from the pleadings on record are that vide e tender notice No. DGSS RC GA 120 dated 1st of September 2020 the official Respondents invited e bids for appointment of Government Auctioneer in relation to conducting of auction of Government properties for the year 2020 21 for Jammu as well as Kashmir Division on the terms and conditions prescribed in the tender notice. After culmination of the aforesaid tendering process it appears that the official Respondents vide Order No. DGSS 321 dated 5th of July 2021 appointed M S F. S. Enterprisesas Government Auctioneer for Kashmir Division. Thereafter a Writ Petition being WP(C) No. 1421 2021 was filed by a firm namely M S A. Khan Trading Company Writ Petitioner Appellant in LPA No.147 2021 who had also participated in the aforesaid tendering process thereby assailing the appointment of said M S F. S. Enterprises as a Government Auctioneer made in terms Order dated 5th of July 2021 on the ground that the said firm did not meet the eligibility criteria prescribed in the tender notice qua having experience certificate of at least two years in the business of auctioning. The learned Single Judge vide Judgment dated 28th of October 2021 disposed of the Writ Petition with the following direction(s): LPA No. 147 2021 CM No. 7323 2021 & Caveat No. 1724 2021 c w LPA No. 148 2021 CM No. 7352 2021 & Caveat No. 1714 2021 10 In view of the above my answer to the question is in the “Negative”. The petition deserves to be allowed to the extent of first impugned order and and second prayer only consequently communication deserve to be quashed and directions need to be issued to the official respondents to issue fresh tenders after carefully formulating terms and conditions which are not only clear and unambiguous but also promote healthy and wider competition. 11 It is so ordered.” It is this Judgment passed by the learned Single Judge that has been assailed in the two appeals before us by both the Writ Petitioner insofar as it directed issuance of fresh tenders on the subjectas well as by the said firm F. S. Enterprisesseeking setting aside of the Judgment in its entirety and consequent dismissal of the Petition filed by the Writ Petitioner. We heard learned Counsel for the parties perused the pleadings on record and have considered the matter. Perusal of the impugned Judgment makes it axiomatic that the learned Single Judge has on the basis of the pleadings on record and upon hearing the parties decided the Writ Petition after framing the question ‘as to whether the certificate of experience of at least two years in the business of auctioning submitted by the private Respondent meets the eligibility requirements of e tender notice issued by the official Respondents’. While answering the aforesaid question in the negative the Writ Court was of the LPA No. 147 2021 CM No. 7323 2021 & Caveat No. 1724 2021 c w LPA No. 148 2021 CM No. 7352 2021 & Caveat No. 1714 2021 view that the decision of the official Respondents to award contract to the private Respondent F. S. Enterprises is arbitrary irrational and smacks of bias mala fide and therefore cannot sustain in the eyes of law. Clauses 6(f) and 7 of the tender notice issued by the Official Respondents clearly provided that the participating bidders shall have experience certificate of at least two years in the business of conducting auction of any Government Office Semi Government Organization Military Establishment Public Enterprise. In the case of the said F. S. Enterprises the experience certificate submitted by the said firm was as rightly pointed out by the learned Single Judge suspicious and issued by a private entity namely proprietor for ‘M S Hem Raj Bali & Sons’ 136 Mast Garh Jammu. The tender notice had specifically prescribed requirement of experience certificate of at least two years in auctioning of goods of Government Semi Government Military Establishment or Public enterprise and as such the certificate submitted by the said F. S. Enterprises clearly does not come within the ambit and scope of the aforesaid requirement more specifically so when the said certificate itself had become shrouded in the mist of grave suspicion. In these circumstances the official Respondents could not have taken into consideration the aforesaid certificate relied upon by the said F.S. Enterprises. True it is that the legal position governing the matters of Government contracts envisages that ordinarily the soundness of the decision LPA No. 147 2021 CM No. 7323 2021 & Caveat No. 1724 2021 c w LPA No. 148 2021 CM No. 7352 2021 & Caveat No. 1714 2021 taken by the tender issuing authority ought not to be questioned but the decision making process can certainly be subject to judicial review. The soundness of the decision can be questioned firstly if the decision made is so arbitrary and irrational that the Court can say that the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached or second if the process adopted or decision made by the authority is malafide or intended to favour someone or third if the public interest is affected. In the instant case when the said firm F.S. Enterprises did not meet all the terms and conditions prescribed in the tender notice inasmuch as it did not furnish the requisite experience certificate in the business of conducting auction of any Government Office Semi Government organization Military establishment Public enterprise in such eventuality the decision of the official Respondents to appoint the said firm as Government Auctioneer clearly falls within the scope of such action where they have acted in a manner in which no responsible authority acting reasonably and in accordance with the relevant law would have acted. In that view of the matter the Judgment passed by the learned Single Judge is in tune with the mandate of law governing the field and has been passed keeping in view the peculiar facts and circumstances of the case. The finding of the learned Single Judge that with the said F. S. Enterprises out of the race because of ineligibility the Writ Petitioner Appellant in LPA No. 147 2021 remains the sole and lone tenderer with huge difference in his quotation in relation to the one quoted by the said F. S. Enterprises therefore it shall not be advisable LPA No. 147 2021 CM No. 7323 2021 & Caveat No. 1724 2021 c w LPA No. 148 2021 CM No. 7352 2021 & Caveat No. 1714 2021 to grant him the contract also is not only based on law but also in keeping with the public interest involved in the matter. In the above background we do not find any illegality or perversity in the impugned Judgment passed by the learned Single Judge. Consequently both these appeals fail and are accordingly dismissed along with connected CMs therewith. This shall also accordingly discharge the two connected Caveats being Caveat Nos. 1714 2021 and 1724 2021. Registry to place a copy of this Judgement on each file. (Ali Mohammad Magrey) Judge Judge November 11th 2021 Whether the Judgment is reportable Yes No. Yes No. Whether the Judgment is speaking 