TaxTMI 
TaxTMI 
2021 (10) TMI 37
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....formed of their deficiencies which could be rectified by them. In the case of the petitioner, the 2nd respondent had pointed out certain deficiencies, which were rectified by the petitioner. However, one of the deficiencies pointed out by the 2nd respondent was the non-submission of GST registration certificate. The petitioner took the stand that it was an entity involved in the business of Healthcare Services, which were exempted from payment of Goods and Services Tax by notification No.9/2017-Integrated Tax (Rate), dated 28.06.2017 and as such the petitioner was exempted from registering it under the GST Act and the requirement of producing GST registration certificate would not apply to the petitioner. 2. The 2nd respondent rejected the technical bid of the Petitioner and cleared the technical bids of the 3rd and 4th respondents. Aggrieved by the said rejection of its bid and the acceptance of the technical bid of the 3rd and 4th Respondents, the Petitioner has filed the present writ petition. 3. The contentions of the Petitioner , in this regard, are as follows: A. The bid of the petitioner could not have been rejected on the ground of non-furnishing of GST regis....
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....there is no requirement in the tender conditions that only the lead member of the consortium has to submit the bid and as such the submission of the bid by the 3rd respondent is not defective. The 2nd respondent submitted that the 4th respondent had produced certificates issued by NRI Academy of Sciences for complying with the minimum eligibility criteria of three years experience in operations and maintenance of SNCUs and its bid was also qualified at the technical bid stage. Finally, the 2nd respondent relied upon the judgment of the Hon'ble Supreme Court in the case of Michigan Rubber (India) Ltd., v. State of Karnataka (2012) 8 SCC 216 to contend that the writ petition itself is not maintainable. It is also stated in the counter affidavit of the 2nd respondent that the financial bids have also been processed and the consortium of the 3rd Respondent has been declared as L1. 6. The 4th respondent in its counter affidavit had essentially taken the same stand as that of the 2nd respondent to contend that the certificate produced by the 4th respondent would be sufficient for the 4th respondent to be qualified to participate in the tender process. 7. Sri V.R. Reddy Kovvur....
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....rtificates issued by the NRI Academy of Sciences declaring that the 4th respondent had maintained necessary SNCUs for a period of three years would suffice to meet the condition of minimum experience either under the public sector or under the private sector. 10. Sri Rathangapani Reddy, learned counsel appearing for the 3rd respondent would submit that the requirement of production of GST registration certificate is a mandatory requirement under the tender document. The petitioner having chosen not to challenge the said condition, cannot seek an exemption from production of such a GST registration nor claim that the aid condition can be weived in favour of the petitioner. He would rely upon the judgments of the Hon'ble Supreme Court in India Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489 and a judgment of the Hon'ble High Court of Delhi in Quippo Oil and Gas Infrastructure Ltd., v. Oil and Natural Gas Corporation Limited and anr., 2017 SCC Online Del 8227 (paragraph 20). 11. Sri V.R. Reddy Kovvuri, replying to the above contentions would submit that the Writ petitioner is not challenging the condition requiring the bidders to submit G....
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.... that the decision of the 2nd respondent in rejecting the technical bid of the petitioner is correct. 16. The scope of judicial review of contractual matters or disputes has been a matter of evolving jurisprudence. However, the law in this regard is fairly settled. A few of the leading judgements, which have set the guidelines on such review are: 17. In Tata Cellular v. Union of India (1994) 6 SCC 651, the Hon'ble Supreme Court, at page 687, held as under: "94. The principles deducible from the above are: (1) The modern trend points to judicial restraint in administrative action. (2) The court does not 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. (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 cont....
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....r its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government." 19. The Hon'ble Supreme Court in Joshi Technologies International Inc. v. Union of India (2015) 7 SCC 728 : 2015 SCC OnLine SC 490, at paragraphs 69 & 70, held as under: "69. The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, "normally", the Court would not exercise such a discretion: 69.1. The Court may not examine the issue unless the action has some public law character attached to it. 69.2. Whenever a particular mode of settlement of dispute is pr....
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....o: and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business. 70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages. 70.7. Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if it can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice. 70.8. If the contract between private party and the State/instrumentality and/or agency of the State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court under Article 226 of the Constitution of In....
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....of Government and public sector enterprises venturing into economic activities, this Court found it appropriate to build in certain checks and balances of fairness in procedure. It is this approach which has given rise to scrutiny of tenders in writ proceedings under Article 226 of the Constitution of India. It, however, appears that the window has been opened too wide as almost every small or big tender is now sought to be challenged in writ proceedings almost as a matter of routine. This in turn, affects the efficacy of commercial activities of the public sectors, which may be in competition with the private sector. This could hardly have been the objective in mind. An unnecessary, close scrutiny of minute details, contrary to the view of the tendering authority, makes awarding of contracts by government and public sectors a cumbersome exercise, with long drawn out litigation at the threshold. The private sector is competing often in the same field. Promptness and efficiency levels in private contracts, thus, often tend to make the tenders of the public sector a non-competitive exercise. This works to a great disadvantage to the Government and the public sector. 38. In A....
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....tioner's case is that in view of such an exemption from payment of tax, the petitioner need not register under the GST Act and as such does not have to possess a registration certificate under the GST Act to participate in the tenders called by the 2nd respondent. 24. Section 23 of the Andhra Pradesh GST ACT enumerates the persons who are not liable to register themselves under the said Act. Section 23 (1) (a) reads as follows: 23. Appeal to Special Appellate Tribunal. - (1) Any dealer objecting to an order relating to assessment passed by the (Commissioner of Commercial Taxes suo motu under sub-section (1) of Section 20 Joint Commissioner suo motu under sub-section (4-C) of section 14 or under sub-section (2) of section 20 may appeal to the Special Appellate Tribunal within sixty days from the date on which the order was communicated to him. Provided that the Special Appellate Tribunal may admit an appeal preferred after the period of sixty days aforesaid if it is satisfied that the dealer had sufficient cause for not preferring the appeal within that period. (2) The appeal shall be in the prescribed form, shall be verified in the prescribed manner and shall b....
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....eek to point out certain provisions where details of the lead member are required and where the lead member has to give certain assurances etc. However, this requirement cannot be taken to mean that the bid document has to be filed only by the lead member. All such information and assurances can always be obtained by any other member and file before the tender authority. As such it cannot be said that the 3rd respondent is disqualified on that count and the action of the 2nd Respondent in allowing the 3rd respondent in participating in the financial bid cannot be termed arbitrary. 29. The 3rd Allegation of arbitrariness against the 2nd Respondent is that the 2nd respondent allowed the 4th Respondent to participate in the financial bid even though the 4tgh Respondent did not have the necessary experience to qualify in the technical bid. Criteria No.2 in the eligibility criteria set out under Section-V of the tender document requires the bidder to have a minimum of three years experience in carrying out operation and maintenance of SNCUs in private or public sector. The said experience being demonstrated by users certificate regarding satisfactory completion of assignments. The 4t....