It’s not for court to determine whether a policy is fair: Judge

It is concerned only with way in which decision has been taken

It is not for the court to determine whether a particular policy or decision taken in fulfilment of the policy is fair, and it is only concerned with the manner in which the decision has been taken, the Madras High Court has said.

Dismissing a writ petition by a private company seeking to quash a corrigendum of February 18 last year to a tender floated by the Tamil Nadu Generation and Distribution Corporation (Tangedco), Justice V. Dhanapalan said that the extent of the duty to act fairly would vary from case to case. The grounds upon which an administrative action was subject to judicial review were illegality, irrationality and procedural impropriety.

The petition was filed by Misha Power Pvt. Ltd., Avadi near here, seeking quashing of the corrigendum and direction to authorities to continue with a tender dated January 8, 2012 as per the criteria therein.

Tangedco floated a tender for Rs.128-crore time-bound project for “design, engineering, manufacture, supply, installation, testing, commissioning, operation and maintenance of Automatic Power Factor Correction Panels (APFC) and associated material for Dynamic Reactive Power Compensation System.”

The project is funded by the Power Finance Corporation under the Restructured Accelerated Power Development and Reforms Programme, promoted by the Centre, to reduce transmission and distribution losses.

The petitioner mainly contended that the corrigendum, which sought to modify the eligibility criteria and restrict the same to a particular class of people, was arbitrary. The company, which expected to participate in the tender, was prevented because of the corrigendum. Its concern was that the due date for submission of tender document was not extended, despite several requests. There was no sufficient time for interested persons to submit their quotations.

Tangedco submitted that under the Tamil Nadu Transparency in Tenders Act, it being the tender inviting authority (TIA), it could make any change, modifications or amendments to the tender documents. There was no arbitrariness.

Mr. Justice Dhanapalan said from the facts pleaded, the official authorities had only clarified the queries of interested persons in a pre-bid meeting on January 24 by issuing the corrigendum. Though the petitioner claimed that he had participated in the pre-bid meeting, nothing was stated as to why it had not taken part in the tender.

There was no ambiguity that the petitioner had sufficient time to submit his tender documents by February 27 last year. It was clear that the corrigendum and clarifications were only continuation of the original bid qualification requirements (BQRs). They did not alter the original BQR in anyway.

Except pleading that the authorities had acted with a mala fide intention, the petitioner had not substantiated the allegation. Therefore, the power exercised by the TIA was very much in accordance with law. It did not require court interference, the Judge said.

Mr. Justice Dhanapalan said that in the matter of tenders, the court’s duty was to confine itself to the question of legality. The court should consider the viability and the public interest involved. In a commercial transaction, the State could choose its own method to arrive at a decision. It was free to grant any relaxation for bona fide reasons, provided the tender conditions permitted such a relaxation.