Judicial review power won't be permitted at cost of public interest: High Court

Srinagar, Aug 05: Underscoring that power of judicial review would not be permitted to protect private interest at the cost of the public interest, the High Court of J&K and Ladakh Monday declined a plea challenging a related tender notice.

A bench of Justice Wasim Sadiq Nargal dismissed the plea against a tender notice issued by the Jammu and Kashmir Energy Development Agency (JAKEDA) in June, wherein e-bids were sought for the supply, installation and commissioning of grid-connected rooftop solar photovoltaic power plants on Government buildings in J&K.

After hearing the parties, the court reiterated that the power of the judicial review will not be permitted to be invoked to protect the private interest at the cost of the public interest or to decide a contractual dispute.

The court dealt with four issues in response to the plea it adjudicated upon.

Regarding the scope of judicial review in tender matters, the court noted that the scope of judicial review in the tender and auction process is extremely limited. “ The Government and other public authorities have the freedom of contract and in the absence of manifest unreasonableness, patent arbitrariness or clear mala fide and bias, the court should show due deference to the decision of the public authority”.

The second issue the court dealt with was whether a right is accrued to a party being ineligible to challenge the terms and conditions of the tender and if the terms and conditions of the tender could be tailor-made at the behest of that party to suit eligibility.

“This court is of the view that the conditions of the tender cannot be tailor-made at the behest of a party, who is ineligible to compete having no unfettered legal right. It is within the domain of the tender-making authority having expertise both on the technical side and administrative side to frame the conditions of a tender in a particular manner and Courts having no expertise cannot direct the tender-making authority to frame the condition of the tender in such a manner to suit the eligibility of ineligible tenderer,” the court said. “In the instant case, the conditions of the tender are logical, rational”.

The bench observed: “The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder and must not interfere, where such interference will cause unnecessary loss to the public exchequer.”

The court also considered whether it was permissible to bifurcate the terms and conditions of a tender costing around Rs 400 crores for the execution of a project involving a cumulative capacity of 70,000 KW at the behest of a party, who was not financially capable of executing such project and lacks eligibility criteria to compete.

“The court cannot assume the role of a tender issuing authority and cannot issue a direction to bifurcate, alter or change the terms and conditions of tender at the behest of a party who is ineligible and has no right to compete,” the court said.

About the scope of interference by the Constitutional Court in a tender involving huge public interest, the court said: “The petitioner by no stretch of imagination can advance the cause of 31 tenderers through the medium of the instant petition filed under Article 226 of the Constitution by expanding the scope of jurisdiction of this Court”.

The court observed that “the petitioner through the medium of the instant petition is estopped under the law to espouse the cause of public at large, as the petitioner has not filed the instant petition in the public interest”.

The court said: “ In a huge project involving 400.00 crores, which relates to 70,000 KW, the criteria which have been laid down by the respondents is in conformity with the guidelines that are MNRE and CVC guidelines cannot be termed as arbitrary”

In its judgment, the court also referred to India's commitment to several key international treaties aimed at combating climate change including the United Nations Framework Convention on Climate Change (UNFCCC), ITS Kyoto Protocol (KP) and Paris Agreement (PA) for mitigating greenhouse gas emissions and promoting sustainable development.

The court said that in alignment with these obligations, a detailed roadmap has been carved out for maximizing energy harvesting from alternate energy sources, particularly, focusing on renewable energy such as solar power.

Referring to the records, the court said that various meetings were held on the direction of the Prime Minister's Office (PMO) for saturating the rooftop solar power plants on all Government buildings with a strict deadline for completion of the projects before December 2025 in respect of large states and large union territories and December 2024 in respect of small states and small union territories.

In this direction, the court said a decision was taken that JAKEDA shall implement a 70 MW Rooftop Solar Project for covering 8792 Government buildings under the CAPEX mode and, subsequently a tender was issued on 12 June this year on the JK Tenders Portal for the Request for Selection (RFS) of bidders for the supply, installation and commissioning including warranty and Comprehensive Maintenance Contract (CMC) for five years, of Grid-Connected Solar Rooftop Photovoltaic Power Plants on Government buildings in J&K. It is this tender notice which was challenged by the petitioner.