Rajasthan High Court – Jaipur
Galaxy Prime Private Limited vs Rajasthan State Road Development And … on 26 August, 2025
Author: Sameer Jain
Bench: Sameer Jain
[2025:RJ-JP:33426]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 7522/2025
Kshitiz Kumar Choudhary S/o Shurya Pal Choudhary, Sole
Proprietor Of M/s Kshitij Kumar Choudhary, Aged About 40 Years
Resident Of A-33-34, Sundar Van, Opposite To Khichar Hospital,
Nawalgarh Road, Sikar (Rajasthan).
----Petitioner
Versus
1. Rajasthan State Road Development And Construction
Corporation Ltd., Through Managing Director, Having Its
Regd. Office- Setu Bhawan, Opposite Jhalana Doongari,
Jaipur-Agra Byepass, Jaipur-302004.
2. Deputy General Manager-Ii, Rajasthan State Road
Development And Construction Corporation Ltd., Having
Its Regd. Office- Setu Bhawan, Opposite Jhalana
Doongari, Jaipur-Agra Byepass, Jaipur-302004.
3. Project Director-Unit Jhunjhunu, Rajasthan State Road
Development And Construction Corporation Ltd., Unit-
Jhunjhunu, Having Its Registered Office At 2/55, Housing
Board, Near Central School, Jhunjhunu, (Rajasthan).
4. M/s Galaxy Mining And Royalties Pvt. Ltd., Through The
Director, Having Its Registered Office At 701, Ganga
Heights, Bapu Nagar, Tonk Road, Jaipur (Rajasthan).
5. Mandeepa Enterprises (A proprietorship firm) through
General Manager, Bhairav Patel, G-1, Tulip Garden,
Dashadrone, Rajarhat Main Road, opposite SBI Bank,
Kolkatta - 700136
6. M/S Green Star Minerals, through its authorized
signatory, situated at plot no. 4, 1st floor, opposite Nidhi
Kamal Bajaj Showroom, near Pink Sq. Mall,Govind Marg,
Janta Colony, Raja Park, Jaipur (Raj.-302004)
----Respondents
Connected With
S.B. Civil Writ Petition No. 7531/2025
Galaxy Prime Private Limited, Through Its Authorised Signatory
Sh. Sandeep S/o Sh. Ramavtar, Having Its Registered Office At P.
No. 8, Vaishali Nagar Enclave Yojna, Vaishali Nagar, Jaipur
(Rajasthan).
—-Petitioner
Versus
1. Rajasthan State Road Development And Construction
Corporation Ltd., Through Managing Director, Having Its
Regd. Office- Setu Bhawan, Opposite Jhalana Doongari,
Jaipur-Agra Byepass, Jaipur-302004.
2. Deputy General Manager-Ii, Rajasthan State Road
Development And Construction Corporation Ltd., Having
Its Regd. Office- Setu Bhawan, Opposite Jhalana
(D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders)
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[2025:RJ-JP:33426] (2 of 20) [CW-7522/2025]
Doongari, Jaipur-Agra Byepass, Jaipur-302004.
3. Project Director-Unit Iv Jaipur, Rajasthan State Road
Development And Construction Corporation Ltd., Unit- Iv
Jaipur, Having Its Registered Office At Setu Bhawan,
Opposite Jhalana Doongari, Jaipur-Agra Byepass, Jaipur-
302004 (Rajasthan).
4. Ridhi Sidhi Housing Pvt. Ltd. Through Its Director, Haing
Its Registered Office At 312, Ganpati Plaza, M. I. Road,
Jaipur (Rajasthan).
—-Respondents
For Petitioner(s) : Mr. R. B. Mathur, Sr. Adv. assisted by
Mr. David Mehla
Mr. Chandra Vikram Singh
Mr. Sandeep Singh Shekhawat
For Respondent(s) : Mr. Vigyan Shah, AAG with
Mr. Yash Joshi
Mr. Sankalp Vijay
Mr. Priyam Agarwal
Ms. Tanisha Pant
Mr. Ritika Naruka with
Ms. Manisha Agarwal
Mr. Deepak Mishra
Mr. H. V. Nandwana
Mr. Sanjeev Sogarwal
Mr. Lakshay Pareek
HON’BLE MR. JUSTICE SAMEER JAIN
Judgment
REPORTABLE
Reserved on: 07/08/2025
Pronounced on: 26/08/2025
1. In the present batch of writ petitions, the scope of the
controversy involved, albeit not limited to but is broadly and
predominantly defined by the challenge made against the
impugned order dated 09.05.2025 passed in the second appeal(s)
so preferred by the petitioners hereby, whereby the learned
appellate court dismissed the appeal of the appellants therein, vis-
à-vis the controversy regarding E-NIT dated 24.03.2025 bearing
(D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders)
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no. 536/2024-25 for selection of bidder for collection of user fee
on the basis of competitive bidding through e-procurement basis
on Sikar-Jhunjhunu-Loharu and Jaipur-Kuchaman-Nagpur BOT
road for a period of one year. Consequently, considering the fact
that the writ petitions warrant adjudication on common questions
of law and fact; with the consent of learned counsel appearing on
behalf of all the parties, S.B. Civil Writ Petition No. 7522/2025
titled as Kshitij Kumar Choudhary vs. RSRDC and Ors., is
being taken up as the lead case. It is cautiously clarified that any
discrepancies in the present batch of writ petitions, pertain purely
to the factual narratives contained therein and not vis-à-vis the
questions of law to be determined by this Court; the instant
judgment shall be applicable on both the petitions connected
herein/henceforth on mutatis mutandis basis.
SUBMISSIONS BY PETITIONERS:-
2. At the outset, learned counsel appearing for the
petitioners submitted that the petitioner was a sole proprietor
engaged in the field of toll collection, royalty collection, and other
allied contractual activities. The present petition is filed assailing
the arbitrary action of the respondents, who are instrumentalities
of the State within the meaning of Article 12 of the Constitution of
India and were, therefore, amenable to the writ jurisdiction of this
Court.
3. It was further submitted that the controversy in
question related to a tender process initiated by the respondents
through issuance of an information notice along with the terms
and conditions, namely E-NIT No. 536/2024/25 dated 24.03.2025,
(D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders)
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inviting applications for selection of a contractor for user fee
collection at certain BOT roads. A pre-bid meeting in pursuance
thereof was scheduled on 07.04.2025, the bids were to be
submitted by 16.04.2025, and the same were to be opened on
17.04.2025.
4. Learned counsel contended that the respondents
subsequently issued modifications and additions to the original
terms and conditions of the impugned E-NIT by way of
corrigendum. Vide corrigendum No. 1 dated 04.04.2025, the
qualification criteria for eligible bidders was amended to provide
that a bidder must have a minimum net worth of 10% of the
Annual Potential Collection (APC) amounting to Rs. 3.3552 Crores;
and vide corrigendum No. 2, the submission of hard copies of the
documents was extended till 17.04.2025 at 16.00 hours. It was
further submitted that the petitioner submitted its bid in respect of
the aforesaid E-NIT along with the requisite documents and
mandatory fee, strictly in the prescribed manner, as contemplated
under the Request for Qualification-cum-Request for Proposal
issued by the respondents.
5. In this backdrop, it was contended that, to the shock
and surprise of the petitioners, the respondents, in sheer
derogation of the terms of the tender document, proceeded to
declare the bid of another bidders as ‘responsive’, despite having
categorically recorded that the said bidder had not submitted the
hard copy of the requisite documents. Consecutively, a tender
summary report was issued. It was urged, that the said action of
respondents, was not only arbitrary and contrary to the provisions
(D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders)
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[2025:RJ-JP:33426] (5 of 20) [CW-7522/2025]
of the Rajasthan Transparency in Public Procurement Act, 2012
(hereinafter referred to as ‘RTPP Act‘) but was also in violation of
Clause 2.8 of the Invitation for RFQ-cum-RFP. Learned counsel
further placed reliance upon Clause 3 (more specifically Clause
3.2) of the Invitation for RFQ-cum-RFP, which prescribed the
requisites for the test of responsiveness, and submitted that the
respondents had failed to adhere to the same.
6. It was then submitted that as per Clause 3.2.1(d) of
the bid document, the requisite documents were mandatorily
required to be submitted in hard copy before the stipulated
deadline and the same had to correspond with the documents
submitted online. Learned counsel contended that this essential
mandate was completely bypassed by the respondents while
declaring the bid of the private respondent as responsive.
7. To assail the said irregularity, the petitioner preferred
first appeal under Section 38 of the RTPP Act, which, however,
came to be dismissed vide order dated 01.05.2025 in a summary
manner. Thereafter, the petitioners preferred second appeal,
placing reliance upon the judgment passed in SBCWP No.
8396/2025 titled as M/s Devdashratha Associates vs.
RSRDC and Ors., wherein the Principal Seat at Jodhpur had
restrained the respondents therein from finalizing the financial
bids during the pendency of the proceedings. Despite such
reliance, the second appeal of the petitioner was also dismissed
vide order dated 09.05.2025.
8. Learned counsel consecutively submitted that during
the pendency of the litigation, the respondents issued the Letter of
(D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders)
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Acceptance in favour of respondent No. 4 on 11.05.2025, thereby
awarding the contract in question. It was urged that the said
action was manifestly arbitrary, violative of the provisions of the
RTPP Act as well as the tender conditions, and suffered from non-
application of mind. On these grounds, learned counsel contended
that the present petition deserved to be allowed. In support of the
aforesaid submissions, reliance was placed on judicial precedents
wherein courts had intervened in cases of arbitrary and unfair
exercise of power by tendering authorities inter alia others,
Jamshed Hormusji Wadia Vs. Board of Trustees, Port of
Mumbai: AIR 2004 SUPREME COURT 1815, Bharat
Petroleum Corporation Ltd. Vs. Mddrula Ratanavalli and
ors.: 2007 (6) SCC 81, Banshidhar Construction Pvt. Ltd.
Vs. Bharat Coking Coal Ltd. and Ors.: 2024 INSC 757,
Vidarbha Irrigation Development Corporation and ors. Vs.
Anoj Kumar Agarwal and ors.: 2020 (17) SCC 577, Monarch
Infrastructure Pvt. Ltd. Vs. Commissioner Ulhasnagar and
Ors.: (2000) SCC OnLine SC 923, Glodyne Technoserve Ltd.
Vs. State of MP and ors.: 2011 (5) SCC 103 and Sorath
Builders vs. Shreekrupa Buildcon Ltd.: 2009 (11) SCC 9.
SUBMISSIONS BY THE RESPONDENTS:
9. Per contra, learned counsel appearing for the
respondents vehemently opposed the submissions advanced on
behalf of the petitioners. It was contended that as per Clause 7 of
the E-NIT dated 24.03.2025, it was made explicitly clear that the
tender forms were to be submitted online only and that the entire
process would be conducted through online mode. Learned
(D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders)
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counsel submitted that Corrigendum No. 1 dated 04.04.2025
merely amended the qualifying criteria for eligible bidders,
whereas Corrigendum No. 2 extended the time for submission of
hard copies of the documents, ‘if applicable’, from 11.00 hours to
16.00 hours on 17.04.2025, and correspondingly extended the
time for opening of bids from 11.00 hours to 17.00 hours on the
same day.
10. With regard to the reliance placed by the petitioners
upon Clause 2.8 of the bid document, learned counsel submitted
that no such stipulation existed which made the submission of
hard copies of documents a mandatory requirement, non-
compliance of which would render a bidder non-responsive. It was
contended that the petitioners had misconstrued the said
provision, inasmuch as the essence of the clause was to ensure
submission of requisite documents in conformity with the
prescribed format, and not to mandate submission in hard copy as
a condition precedent for responsiveness.
11. Learned counsel further submitted that upon receipt of
the bids from six bidders, the competent committee undertook a
detailed scrutiny and assiduous evaluation of the technical bids in
accordance with the prescribed criteria. On such assessment, five
bidders, including the present petitioner (ranked as L3 and L4),
were found to be technically responsive, while one bidder, namely
M/s Jai Singh and Company, was declared non-responsive. It was
urged that this demonstrated that the evaluation process was
carried out strictly in accordance with the tender conditions, and
(D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders)
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[2025:RJ-JP:33426] (8 of 20) [CW-7522/2025]
no arbitrariness or favoritism could be imputed to the
respondents.
12. Learned counsel further submitted that upon receipt of
the bids, the competent committee examined the same and
prepared a Technical Bid Evaluation Report, which was duly signed
by the members of the committee on 21.04.2025, and thereafter
resolved to open the financial bids on 22.04.2025. With regard to
the contention of the petitioners that submission of hard copies
was mandatory, it was submitted that no such absolute or
compulsory condition was prescribed under the relevant terms and
conditions of the tender document. On the contrary, as per Clause
7 of the E-NIT, it stood clearly provided that the tender form was
to be submitted online only. Thus, non-submission of hard copies
by a bidder could not be construed as rendering such bid
technically non-responsive, so long as the requisite documents
were already uploaded online in conformity with the prescribed
procedure. Learned counsel also invited attention to Clause 7(B)
of the E-NIT, which categorically provided that the bid was
required to be submitted online and that, after such submission,
the subsequent process would be carried out entirely through
online mode.
13. Learned counsel further submitted that in no case, as
per the direction enumerated in the Circular dated 16.12.2022
issued by the Finance Department, Government of Rajasthan,
wherein specific emphasis were laid upon the necessity of
maintaining confidentiality of the identity of bidders with a view to
preventing cartel formation and pooling in procurement processes,
(D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders)
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the contentions of the petitioner can be termed tenable. It was
urged that the said circular was binding on all tendering
authorities in the State and was incorporated in the tender
procedure with the object of ensuring transparency and fairness.
It was thus contended that the interpretation sought to be
advanced by the petitioners, insisting on compulsory submission
of hard copies, is contrary to the plain tenor of the tender
conditions as well as the governing circular of the Finance
Department.
14. Learned counsel further contended that the petitioners,
having participated in the tender process with full knowledge of
the terms and conditions as contained in the E-NIT and
subsequent corrigenda, were now estopped from assailing the
same after being unsuccessful. It was urged that it is a settled
principle of law that a bidder cannot approbate and reprobate
simultaneously, and once having submitted a bid in response to
the tender, the petitioners could not turn around and challenge the
very conditions of the tender or the manner in which the same
had been evaluated.
15. In support of the contentions made insofar, learned
counsel had placed reliance upon a catena of judgments inter alia
others, Kanhaiya Lal Agarwal Vs. Union of India: 2002 (6)
SCC 315, G.L. Fernandez vs. the State of Karnataka: 1990
(2) SCC 488, Yamuna Expressway Industrial Development
Authority vs. Shakuntla Education and Welfare
Society:2022 (20) SCC 698, Tata Cellular Vs. Union of
India: 1994 (6) SCC 651. On these premises, learned counsel
(D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders)
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submitted that the tender process had been conducted strictly in
accordance with law, that the conditions were uniformly applied to
all bidders, and that no arbitrariness or illegality could be
attributed to the respondents. It was, therefore, urged that the
present petition was misconceived and liable to be dismissed.
DISCUSSION AND FINDINGS:-
16. Having heard the rival arguments advanced by the
learned counsel for all the parties, undertaking a scrupulous
examination of the record pertaining to the case, and juxtaposing
the contentions noted herein above, this Court is of a view that
prior to a substantive adjudication of the matter on its merits, it is
appropriate to delineate and formally note down certain facts that
remain undisputed between the parties, thereby providing a clear
foundation upon which the subsequent legal analysis shall be
constructed:
16.1 That the petitioner is a sole proprietor engaged in the
field of toll collection, royalty collection, and allied contractual
activities.
16.2 That the present writ petition(s) are filed assailing the
tender process initiated by the respondents pursuant to E-NIT No.
536/2024/25 dated 24.03.2025 for the purpose of selection of a
contractor for user fee collection at designated BOT roads.
16.3 That the petitioner preferred an appeal before the First
Appellate authority Rajasthan State Road Development and
Construction Corporation Ltd. contending that the non-appellants
therein had declared the bid of other bidders responsive despite
non-adherence to the mandatory conditions of the bid document.
(D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders)
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However, the said appeal got dismissed vide order dated
01.05.2025. The relevant extract from which is reiterated herein
below:
“यह है दिनां क 13.04.2025 हो जारी Corrigendum मे ऐसा उल्लेख नही
था कि निविदा एवं प्रपत्र की हार्ड कॉपी जमा करना आवश्यक होगा। जबकि मूल
निविदा दिं नाक 24.03.2025 के बिन्दू संख्या 7(अ) में इलेक्ट्रोनिकल प्रपत्र में
प्राप्त निविदा के आधार पर निविदा खोलने के लिये परियोजना निदे शक
(प्रतिपक्ष) को निर्देशित किया गया था। इसी निर्देश की पालना पर तकनीकी
मूल्यां कन समिति के स्तर पर प्राप्त सभी राजकीय पोर्टल से प्राप्त निविदाओं एवं
प्रपत्र का परिक्षण किया जाकर प्रतिपक्ष निविदाकर्ताओ की निविदा का अपीलान्ट
के साथ रे स्पोसिं व माना जाकर लिये गये निर्णय को राजकीय चे वात्तईड पर
अपलोड किया गया”
16.4 Consecutively, a second appeal was preferred by the
petitioner-appellant before the Managing Director Rajasthan State
Road Development and Construction Corporation Ltd. under
Section 38 of the RTPP Act, which also got to be dismissed vide
order dated 09.05.2025. The relevant extract from which is
reiterated herein below:
“यह है कि दिं नाक 24.03.2025 के प्रावधान 7 (अ) एवं 7 (ब) के
अवलोकन से स्पष्ट है कि सम्बन्धित परियोजना निदे शक को निविदा प्रक्रिया
ऑनलाईन के अनुरूप कार्यवाही करने एवं अन्तिम तिथि तक प्राप्त अपलोड की
गई विदा एवं संलग्न प्रपत्र के मूल्याकन हे तु निर्देशित किया गया है जबकि मूल
निविदा में जारी कॉरिजेन्डम-दितीय दिनां क 13.04.2025 से हार्ड कापी
कार्यालय में दिं नाक 17.04.2025 सायं काल 4.00 तक प्रस्तु त करने के
निर्देश निविदाकर्ताओं को दिये गये है । वित्त विभाग द्वारा जारी परिपत्र दिनाका
काल 2022 व उपायन संस्था को दिये गये निर्देश प्रदत्त करते हुये भी यदि
सम्बन्धित परियोजना निदे शक द्वारा निविदा एवं प्रपत्र की हार्डकापी उनके
कार्यालय में प्रस्तु त नही होने एवं उनके आधार पर मूल्यां कन नही ं करने से
आर.टी.पी.पी. एक्ट की धारा 4 एवं धारा 11 के अनुरूप निविदा प्रक्रिया में
पू र्ण रूप से पारदर्शिता रखने का अभाव प्रतीत होता है । सम्बन्धित निविदा के
साथ संलग्न एस.बी.डी. के क्लॉज 2.1 एवं 3.2.1.2 क्रमशः हार्डकापी प्रस्तु त
एवं मूल्यां कन की प्रक्रिया से सम्बन्धित है , उसमें भी यह प्रावधान है कि
हार्डकापी का उद्दे श्य ऑनलाईन प्राप्त निविदा एं व प्रपत्र की मै चिंग की जावे यदि(D.B. SAW/646/2025 has been filed in this matter. Please refer the same for further orders)
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[2025:RJ-JP:33426] (12 of 20) [CW-7522/2025]विरोधाभास हो तो ऑनलाईन प्राप्त निविदा एवं प्रपत्र को ही प्राथमिकता दी
जाये। उपरोक्तानुसार प्रथम दृष्टिया में प्रतिपक्ष परियोजना निदे शक / तकनीकी
मूल्यां कन समिति ने प्राप्त अपलोड निविदा एवं प्रपत्र के आधार पर तकनीकी
बिड का मूल्यां कन करने में ऐसी कोई त्रु टि एवं भूल नही ं की गई हैं , जिससे मूल
निविदा दिं नाक 24.03.2025 का मूल उद्दे श्य प्रभावित हो रहा हो, ऐसी
स्थिति में तकनीकी मूल्यां कन समिति द्वारा अपीलान्ट के साथ- साथ प्रतिपक्ष
निविदाकर्ताओं की बिड को तुलनात्मक दृष्टि से रखते हुये निगम के हित में
सदभावना से कार्यवाही की गई हैं . इसलियें अपीलान्ट के कथन के आधार पर
इससे पुनः अपलोकन करने एवं निरस्त करने का नि यि लिया जाना आज की
स्थिति में न्यायोचित नही ं होने के कारण अपीलान्ट द्वारा वां छित राहत निरस्त की
जाती हैं । प्रथम अपीलीय प्राधिकारी द्वारा पारित निर्णय दिं नाक 01.05.2025
भी मूल निविदा की शर्त संख्या 7 (अ) एवं 7 (ब) के विवेचन के आधार पर एवं
आर.डी.पी.पी. एक्ट 2012 एख नियम 2013 में प्रदत्त मूल उद्दे श्य की
निविदा प्रक्रिया पू र्ण रूम से पारदर्शिता रखी जाये के आधार पर पारित किया
गया है ,, निर्णय सही है उसमें किसी भी प्रकार का परिवर्तन किया जाना
प्यायोचित नही ं है । ”
16.5 The issue raised by the petitioner hinges upon whether
non-submission of hard copies of the requisite documents, in
addition to online submission, was a mandatory requirement
under the terms of the impugned E-NIT so as to render the
declaration of another bidder as responsive illegal and arbitrary.
16.6 That during the course of litigation of the present
petition(s) the petitioner(s) approached the Division Bench of this
Court, assailing the interim order dated 26.05.2025; whereby the
Division Bench vide order dated 05.06.2025 directed that the
instant petitions be decided expeditiously.
17. A bare perusal of Clause 7 of the E-NIT dated
24.03.2025 leaves no manner of doubt that the tender forms were
required to be submitted online only and that the process of
evaluation was also to be carried out through the online portal.
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Corrigendum No. 2 dated 04.04.2025 extended the timeline for
submission of hard copies “if applicable”, but the expression “if
applicable” itself indicates that the submission of hard copies was
not a sine qua non for responsiveness. The core requirement was
online submission, which all bidders, including the petitioner and
the private respondent, duly complied with.
18. The reliance placed by the petitioners on Clause 2.8
and Clause 3.2.1(d) of the bid document is misconceived. Clause
2.8 merely outlines the test of responsiveness, but does not
stipulate hard copy submission as a mandatory condition.
Likewise, Clause 3.2.1(d), read harmoniously with Clause 7,
demonstrates that online submission was the substantive
requirement, while hard copy submission, if undertaken, was
ancillary in nature. Moreso, in case of any discrepancies between
the documents submitted online and documents submitted offline,
the documents submitted shall prevail, thus the submission of
documents in physical form is merely a formality and not a binding
requirement and non-submission of physical documents cannot be
termed as a material deviation. The interpretation suggested by
the petitioners would amount to rewriting the tender terms, which
is impermissible in judicial review.
19. As per the clause 30 of the RFQ cum RFP, the present
E-NIT and bidding process are governed by the RTPP Act and
Rules. The disclaimer clause therein, makes it undisputed that the
clause 3.2.1 regarding the bid responsiveness is squarely covered
by Rules 59(5) and 61 of the RTPP Rules, which allows minor
deviations that do not materially alter the bid. The provisions of
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[2025:RJ-JP:33426] (14 of 20) [CW-7522/2025]
the RTPP Act, 2012 also support the respondents’ stand as,
Section 6 recognizes the right of the procuring entity to determine
the eligibility of bidders in accordance with the terms of the bid
document, Section 7 confers discretion on the procuring entity to
reject any bid for reasons to be recorded and Section 4 mandates
transparency, fairness, competition, and non-discrimination, all of
which appear to be observed in the present case.
20. Further, consideration can be granted to clause 6.2
which deals with “Miscellaneous Clauses” and provides as under:
“6.2 The Authority, in its sole discretion and without
incurring any obligation or liability, reserves the
right, at any time, to;
(a) suspend and/or cancel the Bidding Process and/ or
amend and/ or supplement the Bidding Process or modify
the dates or other terms and conditions relating thereto;
(b) consult with any Bidder in order to receive
clarification or further information;
(c) retain any information and/or evidence submitted to
the Authority by, on behalf of, and/or in relation to any
Bidder, and/or
(d) independently verify, disqualify, reject and/or accept
any and all submissions or other information and/ or
evidence submitted by or on behalf of any Bidder.”
21. It is further borne out from the record that six bids
were received, duly evaluated, and on careful scrutiny by the
technical committee, five bidders including the petitioner were
declared responsive, while one bidder was declared non-
responsive. The process was, therefore, demonstrably fair and
competitive. No material is placed on record to show that the
respondents acted with malafides, bias, or ulterior motive.
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[2025:RJ-JP:33426] (15 of 20) [CW-7522/2025]
Nevertheless, the disclaimer clause in RFP clearly states that the
RFQ cum RFP is not an agreement and is neither an offer nor
invitation by the authority to the prospective bidders or any other
person but is rather a set of information for the interested parties
that may be useful to them in making their financial bids.
22. The petitioner’s appeal under Section 38 of the RTPP
Act was considered at both stages and dismissed. Having availed
and exhausted the statutory remedies, the petitioners cannot now
invoke Article 226 as an appellate forum in disguise. The maxim
ex turpi causa non oritur actio (no cause of action arises from
one’s own wrong) squarely applies, as the petitioners, after
voluntarily participating in the process, seek to challenge its terms
only upon being unsuccessful. The doctrine of approbate and
reprobate also comes into play, since the petitioners, having
participated in the tender without protest, cannot subsequently
question the validity of its conditions. The Hon’ble Supreme Court
in Meerut Development Authority v. Assn. of Management
Studies: (2009) 6 SCC 171 reaffirmed that bidders cannot
challenge tender conditions after participation.
23. In support of the said contention, reliance was placed
on the ratio encapsulated in Jagadish Mandal v. State of
Orissa: (2007) 14 SCC 517, wherein it was held that judicial
review in contractual matters is confined to examining the
decision-making process and not the merits of the decision itself.
It was further held that unless the decision of the tendering
authority was vitiated by mala fides, arbitrariness, or was in
violation of statutory provisions, the Courts ought not to interfere.
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[2025:RJ-JP:33426] (16 of 20) [CW-7522/2025]
“19. Judicial review of administrative action is intended
to prevent arbitrariness, irrationality, unreasonableness,
bias and malafides. 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 black-listing or imposition of penal
consequences on a tendered/contractor or distribution of
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[2025:RJ-JP:33426] (17 of 20) [CW-7522/2025]
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.”
(Emphasis supplied)
24. Learned counsel also placed reliance on Tata Cellular
v. Union of India: (1994) 6 SCC 651, wherein the Hon’ble
Supreme Court held that the Courts do not sit as appellate
authorities over administrative decisions in the realm of
contractual matters, and the scope of interference under writ
jurisdiction was limited to cases of illegality, irrationality, or
procedural impropriety.
“111. In Union of India v. Hindustan Development
Corporation: AIR 1994 SC 988 this Court held thus:
…the Government had the right to either accept or reject
the lowest offer but that of course, if done on a policy,
should be on some rational and reasonable grounds. In
Erusian Equipment and Chemicals Ltd. v. State of W.B.
this Court observed as under:
When the Government is trading with the public, ‘the
democratic form of Government demands equality and
absence of arbitrariness and discrimination in such
transactions’. The activities of the Government have a
public element and, therefore, there should be fairness
and equality. The State need not enter into any contract
with anyone but if it does so, it must do so fairly without
discrimination and without unfair procedure.
The principles deducible from the above are:
(1) The modern trend points to judicial restraint in
administrative action.
(2) The Court does no 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.
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[2025:RJ-JP:33426] (18 of 20) [CW-7522/2025]
(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 fairplay 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) hut must be
free 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.”
(Emphasis supplied)
25. Further reliance was placed on Michigan Rubber
(India) Ltd. v. State of Karnataka (2012) 8 SCC 216, wherein
the Hon’ble Supreme Court reiterated that the State and its
instrumentalities must have a free hand in setting the terms of the
tender, subject only to the requirement that such terms are not
discriminatory, arbitrary, or malafide.
CONCLUSION:-
26. In summation of the aforementioned, and upon a
comprehensive appraisal of the tender conditions, the RTPP Act
and Rules, as well as the rival submissions, this Court finds no
infirmity in the process adopted by the respondents. The
submission of hard copies was not a sine qua non for bid
responsiveness, the core requirement being online submission,
which stood duly complied with by all bidders; the interpretation
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[2025:RJ-JP:33426] (19 of 20) [CW-7522/2025]
canvassed by the petitioners, if accepted, would amount to
rewriting the tender terms, which is impermissible; that as the
work orders vis-a-vis the appropriate eligible bidder is already
issued and the successful bidders financial bid generates
significantly higher revenue than the petitioners’, there is no onus
upon the respondents to elucidate their bonafides and modus to
the petitioners, as the same is already substantiated by the
material evidence. Moreover, the process of evaluation was carried
out in a transparent and competitive manner, duly scrutinized by
the technical committee, moreover, no element of malafides or
arbitrariness is established and the provisions of Clause nos. 2.7,
2.8, 3.2.1, 3.2.2, 6.2 and 7 of the sacrosanct document for the
instant bid substantiates the stance of the respondents.
Nonetheless, having voluntarily participated in the process, the
petitioners are estopped from assailing the tender conditions after
being declared unsuccessful, in view of the principles laid down in
Meerut Development (Supra) and Jagadish Mandal (Supra)
and taking cautious note of the ratio encapsulated in Tata
Cellular (Supra), withal noting that the judgments relied upon
by the petitioners are distinguishable from the present matter, this
Court is not inclined to interfere in the instant matter.
27. Consequently, for the reasons recorded hereinabove,
this Court finds no merit in the writ petition. The action of the
respondents does not suffer from illegality, irrationality, malafides,
or procedural impropriety, and the petitioners have failed to
demonstrate violation of any statutory mandate or prejudice
caused to them.
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28. In view of the foregoing discussion, the present
petitions stand dismissed. Any interim orders passed earlier shall
stand vacated. There shall be no order as to costs. Pending
applications, if any, are accordingly disposed of.
29. A copy of this judgment be placed in the connected
petition.
(SAMEER JAIN),J
Pooja /124-125
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