TaxTMI 
TaxTMI 
2011 (1) TMI 1599
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.... Court. 3. Initially, the writ petition was filed against the respondent No. 1 to 6. Later on, the respondent Nos. 7 to 9 were brought on record in pursuance of the order of this court dated 23.11.2010. 4. Heard Mr. S.K. Kapoor, learned senior Counsel assisted by Mr. K.R. Surana, learned Counsel appearing for the petitioners. Also heard Mr. K.M. Mazumder, learned Counsel for the Respondent Nos. 1 and 2, Mr. N. Dutta and Mrs. M. Hazarika, learned senior Counsel assisted by Ms. A. Ajitsaria, learned Counsel for the respondents 3 to 6, Mr. Jayanta Mitra, learned senior Counsel assisted by Mr. Padam Khaitan, Mr. K.K. Dutta, Mr. Sanjib Roy, learned Counsel for the respondent No.7, Mr. U. Bhuyan, learned senior counsel assisted by Mrs. A. Verma and Mr. A. Hazarika and Mr. Uday Shekhar Roy Choudhury, learned Counsel for the respondent No.8. and Mr. A.K. Bhattacharjee, learned senior Counsel assisted by Mr. A.K. Choudhury, learned Counsel and Mr. Diganta Lahkar for the respondent No. 9. Pleaded case of the parties 5. The brief facts of the case needed to be discussed are as under: Notices inviting tender dated 2.9.2010 for biding for Package 8a and 8b respectively were....
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....ord" of good performance of DI pipes for last three years stipulated by the guidelines, they became absolutely ineligible, disqualified and excluded from participating in the tender process. 6. The petitioner in Para-14 of the writ petition pleaded, inter alia, that if every public institution in the world were to stipulate the existence of five years of supply and certification history as a qualifying criterion for a market player, no new market player would be able to forge any ground in the domestic or international market and axiomatically no new market player would ever be born. Accordingly, for the sake of healthy competition, it is necessary that only relevant criteria are engrafted into the roster of qualifying conditions for participation in a tender involving mere supply of material, more so when India is presently reeling under a huge supply-demand gap of ductile iron pipes. 7. In Paragraph- 19 of the writ petition, the petitioner pleaded that similar tender floated by diverse public authorities involving supply of D.I pipes of stipulated quality and specifications clearly show that eligibility conditions pertaining to antiquity of manufacturing process or antiquit....
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....lso denied that the bid documents for contract Page- 8a and 8b were prepared in terms of the JICA sample documents and guidelines as contended in the affidavit in opposition. Further contention therein is that in view of the objection raised by the petitioner regarding the vagueness in the clauses relating to type test, cement lining smoothness test and portability test etc., the respondents GMDA subsequently deleted all these three clauses and those deletion were done without prior consent of the JICA and unilaterally. Not only that, apart from the aforesaid deletion, the GMDA also without prior consent of JICA, unilaterally reduced the eligibility clause relating to average turn over as well as qualifying length. In writ petition, though there was no pleading regarding to Competitive Law, but in Paragraph-10 of the affidavit in reply, a new plea has been taken for guiding condition made in the writ petition, inter alia, that in pursuit of globalization, it is always necessary that a particular market should be geared to face the steepest competition from within the country and outside. The State and/or any authority under article 12 of the Constitution of India is under an obliga....
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....dissolved solids and iron contents with fluoride contamination. As estimated, the current population is expected to be more than double and triple by 2025 and 2040, respectively and due to rapid growth of urban population and economy, the gap between water demand and water supply has been widening. On the contrary, the city being situated on the bank of Brahmaputra river, which is one of the major rivers in India, has advantage of having huge water sources available. Therefore, providing treated surface water to every citizen is a long due and very much essential. Keeping in mind the next twenty years, a master plan for Guwahati Metropolitan Area 2025 sets the target that the 100% houses will be supplied with piped filtered water by the year 2025. In this back ground, the water supply scheme has been conceived and it has assumed immense importance in the very survival of the citizens of Guwahati and a project is being prepared for the said purpose. Any delay for implementation of the project would cause untold and irreparable harm to the lives of the citizens which will get compounded with each passing day. 12. For fulfilment of the project as aforesaid, there was exchange of no....
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....dure other than the International competitive bidding, a request for review has to be submitted to JICA and JICA shall inform of concurrence by means of a notice regarding procurement methods. In terms of the Schedule 4 aforementioned, for pre-qualification in case of contract, the estimated value of which is not less than 500 million Japanese yen, after the pre-qualified firms have been selected, the same has to be submitted to JICA for its review and concurrence with a report on the selection process supported by reasons thereon for the choice made, attaching all relevant documents together with a request for a review of the results of the pre-qualification. The borrower is also to submit to JICA for JICA's reference such other documents which the JICA may request. When JICA has no objection to the said documents, JICA shall inform the borrower accordingly by means of a Notice regarding result of pre-qualification. 15. Before sending a notice of award to the successful bidder, the borrower shall submit to JICA, for their review and concurrence, the analysis of bids and proposal for award, together with a request for review of analysis of bids and proposal for award and fur....
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.... and concurrence, the analysis of technical proposals, together with a request for review and such relevant documents as JICA may request. When JICA has no objection, JICA shall inform the borrower regarding analysis of technical proposals. 18. It is further pleaded in the affidavit in opposition submitted by the respondent No. 3, 4 and 6 that the entire water supply project is divided into nine contract package. The summary of the contract package and the contract-wise progress of the main water supply facility are as under: Contract Package No. Scope Original Actual/Planned Remarks/Status Start Completion Start Completion C#01 North Zone Intake facilities, Raw Water Pumps & Rising Mains, WTP (38MLD), Clear Water Pumps & Rising Main, & Service Reservoir (1 No.) including setting of water Testing Laboratory Jan-2012 Mar-2014 Jan-2011 May-2013 Bid documents issued to 9 pre-qualified bidders on 20 August 2010 Bids are due on 08 November 2010 C#02 North Zone-Installation of Distribution network except procurement of DI pipes Jan-2012 Mar-2015 Apr-2011 Apr-2013 PQ notice issued on 13 October 2010 Bid document is expected to be issued to pre-qualif....
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.... Representative of JICA informed the Chief Executive Officer, GMDA, the respondent No.6 herein, requesting the GMDA to incorporate the recommendation, mentioned, inter alia, the analysis on compliance with JICA procurement guidelines and analysis on evaluation criteria and submit a compliance report along with a revised bid documents to the said Chief Representative of JICA. 21. In response to the aforesaid letter dated 18.8.2010, the OSD & Contract Manager, PIU for JICA funded Guwahati Water Supply Project, submitted the draft bid documents vide his letter dated 27.8.2010, Annexure-D to the affidavit in opposition. Thereafter, the concurrence of the bid documents was granted by the JICA vide its letter dated 1.9.2010 wherein it is mentioned, inter alia, in accordance with Schedule 4, Section 3(2)(b) of the Loan Agreement No. ID-P 201 dated March 31, 2009 between Japan International Cooperation Agency and the President of India that they have no objection to the bid documents as proposed by GMDA for the contract package mentioned therein subject to GMDA allowing for sixty days time for submission of bids. 22. It has been further stated that in accordance with the Loan Agreeme....
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....ectrotherm (India) Ltd. submitted their bids. The bids were opened on 2.11.2010 and the report of initial filter which was assessed by the Project Management Consultant, the analysis of technical proposals by the Project Management Consultant, together with a request for review of the Analysis of Technical Proposals have been forwarded to JICA for its perusal and concurrence. Only after receiving concurrence of JICA on the initial filter and technical bids, the financial bids would be open. 27. The further case of the respondents 3, 4 and 6 is that the present writ petition is not maintainable and the same is bad for non-joinder of necessary parties, like the JICA, which funded for the Guwahati Water Project on certain terms and conditions and no steps whatsoever can be taken without the concurrence of JICA and the said project is to be implemented solely on terms of JICA. 28. In order to avail the loans, terms and conditions provided for in the Loan Agreement and the procurement guidelines of JICA has to be followed in letter and spirit. The JICA is not only the mere provider of funds, but it has most important role to play as one of the player in the implementation of the p....
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.... of the Bid documents provides that a bidder should have a certificate issued by the BIS or equivalent international standard operating for a minimum period of 5 years to manufacture/produce DI pipes of diameter 100 mm to 600 mm class K as per ISI 8329.2000 or equivalent international standard. The order dated 30.10.2009 read with this Clause would clearly show that any international bidder with a valid international and subsisting certificate can bid, provided he obtains a BIS certificate from the BIS prior to bidding. Therefore, the contention of the petitioner, inter alia, that the impugned Clauses of tender a primary disqualifying factor both in the domestic as well as the international market are incorrect. 33. The respondents 3, 4 and 6 further stated in their affidavit that the writ petitioners tried to canvass their private interest over the greater public interest by contending that the requirement of five years experience is irrelevant and is used only as a mechanism to disqualify the players like the petitioners from the tender process which are not correct. But the fact remains that the past experience in production of DI pipes is essential to ensure that the prospec....
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....ayments up to Rs. 1900 million for five years and minimum average production turn over in terms of length of 5 lakh meters for all sizes of DI pipes for at least one year is unreasonable and irrational; whether the aforesaid conditions are unwarranted and/or illegal and for creating monopoly in favour of any particular bidder in view of the provisions of Section 3 and Section 4 of the Competition Act ? Submission of the Counsel of the rival parties 36. Mr. Kapoor at the beginning of his argument would contend that though the tender in question is global in nature, but no players from the outside country participated in the game and only nine national players obtained the bid documents and out of them, six players including the petitioners admittedly participated in the pre-bid discussion and after the said discussion, the purchaser GMDA amended the clauses in the bid documents, inter alia, reduced the annual production turnover of INR 3000 million or equivalent in Japanese Yen calculated to INR 1900 million and the qualifying length of 10 lacs m to 5 lacs m, but the production period with last five years and performance experience as mentioned in Clause 2.4.2 wherein it is me....
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....nt GMDA that the quality of the DI pipes produced by the petitioner is not up to the mark. Hence, it can be said that the petitioner is a competent player for supply of tender materials for which notice has been invited. 41. He further contended that Clause 2.4.1(a)(c) is also not clear whether a player having BIS license require minimum five years experience for manufacturing/producing DI pipes of diameter 100mm to 600mm class K9 as per IS 8329:2000 or equivalent international standards, at least 5 years from date of issue of such license. 42. According to the learned Counsel, such clause creates confusion amongst the players who intended to participate in the bid in question. Not only that, in Clause 2.4.1, the purchasers intended to get a player having experience of five years license issued by BIS or as per IS 8329:2000 standard and in Clause-2.4.2, it is stated that the bidders should demonstrate to have a proven track record of good performance of DI pipes for last three years as per IS 8329:2000 or equivalent international standard. Therefore, issuance authority of NIT also were not clear what is the actual requirement and thus those clauses are also ambiguous. He furt....
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....ngal Transport Infrastructure Development Corpn. Ltd. [2010] 6 SCC 303 wherein the Apex Court while examining the terms and conditions of the tender whether those were valid or not, noted that the facts may vary from case to case, but the right to judicial review of tender conditions relating to a contract has been applied and is undeniable. 46. He further contended that GMDA being an 'enterprise' while acquiring DI pipes through a contract having dominant position indirectly imposing unfair and discriminatory conditions in purchase proceeding excluded the petitioner and similarly situated players from the competition in the market area of DI pipes and thus the said contract of the GMDA is nothing but an abuse of dominant position for which itself the impugned clauses are liable to be struck down and the petitioners should be allowed to participate in the tender process. More so, due to exclusion of the petitioner as a player from the game, the respondent GMDA authority deprived the petitioners and persons working under the petitioner No.1, their right to life as laid down by the Constitution makers under Article 21 of the Constitution as right to life includes also righ....
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.... the past experience as impugned in the instant writ petition. 49. In support of his aforesaid contention, he relied upon the case of Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd. [2007] 8 SCC 1, particularly para-36, 37 and 38 of the said report. According to him, this is the only case where the Apex Court discussed about the Competition Law. It would be useful for this Court if the aforesaid Para-36 to 38 of the said reports are reproduced herein. Accordingly, the same is reproduced hereunder: "36. We find merit in this civil appeal. Standards applied by courts in judicial review must be justified by constitutional principles which govern the proper exercise of public power in a democracy Article 14 of the Constitution embodies the principle of "non-discrimination". However, it is not a free-standing provision. It has to be read in conjunction with rights conferred by other articles like Article 21 of the Constitution. The said Article 21 refers to "right to life". It includes "opportunity". In our view, as held in the latest judgment of the Constitution Bench of nine Judges in I.R. Coelho (supra), Articles 21/14 are the heart of the chapter o....
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....he policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wife sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basis requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action an....
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....reements. The statute also imposes a statutory duty not to abuse a dominant position which are equivalent to personal right vested in individual which can be enforced and also are in the public interest or for the common good and are to be considered for the general economic prosperity of the public the same being now law in India and the Government and its instrumentalities which are enterprises are bound to apply for complying the same uniformly in all their transactions. 54. He further contended that on repealing the Monopolies and Restrictive Trade Practices Act, 1969 which contained some provisions regarding monopolistic trade practices and restrictive trade practices the Legislature enacted the Competition Act. According to him, the restrictive trade practice was defined, inter alia, as a practice which may have the effect of restricting competition in any manner. His further contention is that while dealing with the definition in the context of MRTP Act, the Supreme Court in Mahindra & Mahindra Ltd. v. Union of India AIR 1979 SC 798 held that in such case, the enquiry has to be made whether the practice has the effect of preventing distorting or restricting competition. T....
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....ourt on perusal of the record considers the action of the tendering authority not arbitrary, irrational, irrelevant or discriminatory, then obviously the petitioners have no case. If the action of the respondents authority is violative of principle of reasonableness and contrary to the provisions of Section 3 and 4 of the Act, then the petitioners are entitled to get relief as sought for. 58. Mr. Dutta, learned Counsel for the respondents 3 to 6 while countering the contention of Mr. Kapoor at the very first instance tried to oust the petitioners from the arena of the Court raising the question of maintainability of the writ petition on the ground that the writ petitioners knows well that JICA is one of the principal necessary party in the game of contract as it is financing the Guwahati Water Supply Project on the basis of an Agreement between the Union of India through the President of India and unless the terms approved by JICA would remain in the bid documents, the JICA would stop financing the said project and consequent thereto GMDA shall not be able to execute the said project and as a result there would be no other alternative before the GMDA authority except to annul/ca....
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....by regulations from any person, consumer or their association or trade association or a reference made to it by the Central Government or a State Government or statutory authority. He further stated that the statute not only provided original jurisdiction, but also provided an appellate jurisdiction under Section 53(A) of the Act wherein it is suggested for establishment of an appellate Tribunal to be known as Competition Appellate Tribunal. According to the learned Counsel, in view of the above prescription of the statute also the present writ petition is not maintainable. 60. He further urges that if the petitioners are of the opinion that the action of the GMDA causes an appreciable adverse affect on competition between the petitioners and the private respondents due to alleged anti-competition terms in the bid document and/or abused dominant position which affects the right of the petitioner, then they can approach the statutory authority under the Competition Act. 61. He again urges that when self-contained statute prescribes specific forum and procedure for a dispute relating to contravention of the provisions therein, then Writ Court should be restrained from exercisin....
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.... GMDA took the decision consciously for incorporating the terms impugned as the bid in question is relating to water project for supplying pure hygienic water to the citizen residing within the jurisdiction of the Guwahati Municipal Corporation and by this time in a catena of decisions, the Apex Court held that contract being essential commercial transaction and terms incorporated in the bid documents being within the domain of the notice inviting authority i.e. the purchaser like petitioner, the Court should not interfere with and struck down the terms contained therein exercising its jurisdiction of judicial review as prescribed under Article 226 of the Constitution. The Apex Court also in its various decision stated that the Court is not the authority to set the terms of the tender as it thinks for it is the purchaser who is the best judge to decide as to how and in what manner they will set out the terms of the tender documents, he contended. He further contended that terms of the tender are not open to the judicial scrutiny, the same being administrative policy decision of the notice inviting authority and in the realm of the contract. In support of his contention, he relied u....
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....an or subsidy, as the case may be and also considered that the financial authority has the power to interfere at the time of making bid documents and put their own conditions for protecting the financial interest of them. 66. While referring the aforesaid law report, Mr. Dutta also contends that contract with JICA has to be given importance on the ground that if its conditions are not accepted, then they would not finance. Consequent thereto, the GMDA cannot be in a position to execute the project in question. In the result, the people at large will suffer and the Court cannot allow the writ petition of the petitioners for their personal interest at the cost of public interest. 67. The learned Counsel for the respondents while countering the contention of Mr. Kapoor, that putting clauses in the bid documents by GMDA, due to which the petitioner players are going to be excluded from the game, is not only unreasonable and unfair, rather they are anti-competitive clauses and abusing dominant position in contravention of Sub-Section (1) of Section 3 and Sub-Section (1) of Section 4 of the Act, would contend that none of these provisions are applicable in the case in hand as the r....
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....erstandable to the bidders willing to participate in the tender process and the petitioners after purchase of the bid documents, admittedly, participated in the pre-bid discussion knowing consequence of terms and conditions in the bid documents and now cannot question the legality of those clauses on the ground of alleged unreasonableness, arbitrariness and illegality. He further contends that the petitioners have understood the condition of experience for a minimum period of five years to manufacture/produce DI pipes of the diameter as mentioned in the tender documents. As the same do not suit to them, even after reducement of average turnover of INR-3000 million to INR 1900 million and the qualifying length of 10 lakh meter to 5 lakh meter, they challenge those clauses which is not permissible under law. Once a person participated in the pre-bid discussion and after discussion, the authority somehow reduced the conditions which are not only reasonable and bona fide, but also for public interest, the same is not open to challenge. 70. He further contended that selection of one manufacturer through a process of competition is not creation of any monopoly in violation of Article ....
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.... SC 32. 72. Referring to Para-11 and 15 of the counter, he contended that the tendering authority has clearly stated therein that in the name of mere competition, the contract cannot be made open to all and sundry and in the contract of such nature which is time bound and involved procurement of huge quantity of pipes, it is necessary to have such eligibility criteria so that only those capable of delivering DI pipes are brought into fray of competition as larger competition always does not ensure lower costs. He further contended that whether the tendering authority wants quality products in a reduced rate or higher rate is with them as they are the best judge to decide what quality of materials they will purchase and intending tenderer has no right to raise those question regarding the applicability of Section 3 and 4 of the Act. While adopting the submissions of Mr. Dutta, he contended that the Competition Act, 2002 has been enacted by the Legislature to provide more benefit to the purchaser and further to ensure fair competition in the country by prohibiting trade practices which cause adverse affect on the competition in the market and while any personal company like the pe....
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....hority v. Association of Management Studies [2009] 6 SCC 171. 75. Mr. Bhattacharjee, learned senior Counsel for the respondent No.8 adopting the submission of Mr. Dutta, learned Counsel for the respondent-GMDA and Mr. Mitra, learned senior Counsel for the respondent No.7 would contend that Article -14 of the Constitution can be applicable between the equals, not in case of unequal and the present petitioner is in no way equal to the private respondents being the petitioner has got license and started its business in producing the D.I pipes in the month of September, 2010 whereas the private respondents are in the field of game for many years past. 76. He further contended that though the petitioners have no capability to play in the game for supply of DI pipes, they are still arguing for lifting the conditions prescribed for participation in the game. Mr. Bhattacharjee also submits that the same reliefs which have been sought for in the present writ petition, had also been sought for in a public interest litigation being W.P (C) 89 of 2000 (Principal Bench) and the Division Bench of this Court did not interfere with the terms and contract as mentioned in the bid documents. Re....
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....Ulhasnagar Municipal Corporation [2000] 5 SCC 287 and other cases, he contended that the principle of reasonableness have been repeatedly laid down by the Apex Court and taking this Court in Directorate of Education (supra), Mr. Kapoor contended that though the terms of invitation of the tender are not open to the judicial scrutiny as the same being in the realm of contract, but it was held that that the Court can interfere with the administration policy decision only if the said decision is arbitrary, discriminatory or mala fide. Therefore, it would be proper for this Court if, while going through the terms and conditions, this Court finds the same are arbitrary, unreasonable and discriminatory and mala fide, and also contrary to the provisions of Section 3(1) and Section 4 of the Competition Act, then the Court should exercise its power of judicial review for striking down the clauses impugned in this writ petition. 79. While asking for striking down the impugned clauses of the bid document he also relied upon the case of Association of Registration Plates v. Union of India [2004] 5 SCC 364, Association of Registration Plates (supra) and Shimnit Utsch India (P.) Ltd. (supra), ....
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....ry disclosures to us provided the appellants are not allowed to have a look at the documents disclosed. This we were not prepared to do. We did not think it proper to use materials behind the back of one of the parties we thought that would be clearly contrary to the rules of natural justice." 81. The reference of Mr. Kapoor in Hindustan Motors Ltd. (supra) has no application in the instant case so far looking of the documents are concerned. In the said case their lordships considered relating to conduct of search in various premises of the petitioner-company by the enforcement authority, particularly the Assistant Director of Enforcement in the Ministry of Finance, Government of India issued various search warrants and on his authorization the respondents-enforcement officers and also considered the Section 19(d) of the Foreign Exchange Act, 1947 which gives power to the enforcement authority to search any secret place where the searching authority has a reason to belief that the documents is necessary for his opinion will be useful for any relevant proceeding, and while examining the facts and issues involved in that case their Lordships rightly did not allow to see the docume....
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....sion and after pre-bid discussion; the respondents authorities also relaxed certain conditions regarding the annual production turnover as well as qualifying length of 10 lac meters to 5 lac meters. To appreciate the submission of the learned Counsel of the rival parties, it would be proper to reproduce the experience clauses impugned in the writ petition. Accordingly the same is reproduced hereunder: 2.3.2 Average Annual Production turnover (1) Minimum average annual production turnover as prime Bidder of INR 3000 (three thousands) Million, or equivalent in Japanese Yen calculated as total certified payments received for supplies and Contracts in progress or completed, supplied and/or installed (as per IS 8329:2000 or equivalent international standards Ductile Iron pipes) within the last 5 (five) years and (2) Minimum annual production turnover of Ductile Iron K9 Pipes in terms of length of 1000000 (Ten lakh) meters of all sizes from 100 to 600mm in any one of last 5 (five) years as per IS 8329:2000 or equivalent international standards. 2.4.1 General Production Experience (a) Should demonstrate to have a license issued by Bureau of Ind....
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....ns of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which- (a) Directly or indirectly determines purchase or sale prices; (b) Limits or controls production, supply, markets, technical development, investment or provision of services; (c) Shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way; (d) Directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition: Provided that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services. Explanation - For the purposes of this sub-section, "bid rigging" means any agreement, between....
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.... (c) the Trade and Merchandise Marks Act, 1958 (43 of 1958) or the Trade Marks Act, 1999 (47 of 1999) (d) Geographical Indications of goods (Registration and Protection) Act, 1999 (48 of 1999) (e) the Designs Act, 2000 (16 of 2000) (f) the Semi-conductor Integrated Circuits layout-Design Act, 2000 (37 of 2000) (ii) the right of any person to export goods from India to the ext to which the agreement relates exclusives to the production, supply, distribution or control of goods or provision of services for such export. Prohibition of abuse of dominant position. 4. Abuse of dominant position-(1) No enterprise shall abuse its dominant position". (2) There shall be an abuse of dominant position under sub-section (1), if an enterprise,- (a) directly or indirectly, imposes unfair or discriminatory- (i) condition in purchase or sale of goods or services; or (ii) price in purchase or sale (including predatory price) of goods or service; or Explanation. - For the purpose of this clause, the unfair or discriminatory condition in purchase or sale of goods or services referred to in sub-clause (i) ....
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....ling with the correctness or otherwise of the submission of the rival parties made before this Court, on the issue of maintainability of the writ petition on the ground of non-joinder of necessary parties and of alternative remedy available under the statute, it would be proper for this Court to survey the law reports referred by them either on the point of the terms and condition included in the bid documents as impugned on the ground of reasonableness or unreasonableness or relating to provisions of Competition Act. 87. In Tata Cellular (Supra) when the Apex Court considered what are the requirements of tender and the principles of judicial review in a contractual matter also took note of the fact that on examination of the entire case law cited before their lordships of the Apex Court, their Lordships laid down the following principles which are as follows: - "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 review the manner in which the decision was made. (3) The court does not have the expertise to correc....
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....the parameter of judicial review also took note of the principle of Wednesbury unreasonableness and discussed in detail which would be evident from para 78, 79 and 80 of the said decision. As that would be profitable for this Court to come to a proper conclusion, the same are reproduced herein under:- "78. What is the charming principle of Wednesbury unreasonableness? Is it a magical formula? In R. v. Askew, Lord Masnfiled considered the question whether mandamus should be granted against the College of Physicians. He expressed the relevant principles in two eloquent sentences. They gained greater value two centuries later: "It is true, that the judgment and discretion of determining upon this skill, ability, learning and sufficiency to exercise and practice this profession is trusted to the College of Physicians and this Court will not take it from them, nor interrupt them in the due and proper exercise of it. But their conduct in the exercise of this trust thus committed to them ought to be fair, candid and unprejudiced; not arbitrary, capricious, or biased; must less, warped by resentment, or personal dislike." 79. To quote again, Michael Supperstone a....
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.... being done in bad faith; see also R.V. tower hamlets London borough Council ex p Chetnik Developments Ltd. (Chapter 4, p. 73, supra). He summarized the principles as follows: 'The Court is entitled to investigate the action of the local authority with a view to seeking whether or not they have taken into account matters which they ought not to have taken into account, or, conversely, have refused to take into account or neglected to take into account matter which ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority had kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could even have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, an concerned only, to see whether the local authority has contravened the law by acting in excess of the power which parliament has confide....
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....s or services offered are of the requisite specifications; (3) Whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important; (4) The ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) Past experience of the tenderer and whether he has successfully completed similar work earlier; (6) Time which will be taken to deliver the goods or services; and often (7) The ability of the tenderer to take follow-up action, rectify defects or to give post-contract services. Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, as there could be, in a given case, an element of public law or public interest invo....
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....ck on the part of the Court to say that getting access of pure hygienic drinking water is the right fundamental to life and the State is duty bound to provide the same to its citizen and in this case when the State is trying to provide the pure hygienic drinking water to its citizens through the GMDA, funding by creditor JICA they cannot be asked to compromise with the terms and conditions in the bid document. The aforesaid views of this Court get support from the decision the Apex Court in AP Pollution Control Board v. Prof. MV Nayudu [2001] 2 SCC 62 wherein the Apex Court held that the right of access to drinking water is fundamental to life and there is a duty on the state under Article 21 to provide clean drinking water to its citizen. 94. In Air India Ltd. (supra) the Apex Court taking note of Tata Cellular (Supra) and Raunaq International (Supra) as well as other decisions rendered by the Apex Court prior to Tata Cellular noted "In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial sc....
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....is difficult for the country to go ahead with such high Cost projects unless the financial institutions like the World Bank or the Asian Development Bank grant loan or subsidy, as the case may be. When such financial institutions grant such huge loans they always insist that any project for which loan has been sanctioned must be carried out in accordance with the specification and within the scheduled time and procedure for granting the award must be duly adhered to." 100. In para 11 of the said judgment the Apex Court categorically stated that "the terms provide for modification or corrections even after a specified date and further coming to the conclusion that the respondent No. 1 being the lowest bidder there was no reason for the Port Trust to award the contract in favour of the appellant. We cannot lose sight of the fact of escalation of cost in such project on account of delay and the time involved and further in a coordinated project like this, if one component is not worked out the entire project gets delayed and the enormous cost on that score if rebidding is done. The High Court has totally lost sight of this fact while directing the rebidding. In our considered opini....
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....n the purchaser decided to purchase some materials either for its own use or for a public project on certain conditions and terms as suits him. Seller has no right to ask the purchaser for modification of the terms as suits to the seller. In the instant case, the debate started after previous discussion when the tendering authority relaxed to some extent the tender clauses relating to turn over as well as length of the pipe without modifying the past experience for five years. The petitioner company admittedly appeared in the pre-bid discussion and while participating there insisted for relaxation of the conditions as stated in the original bid documents and when the result of the previous discussion does not suits the petitioner company they impugned the clauses as stated supra on the grounds of arbitrariness and mala fide as alleged in the petition and though not stated in the writ petition but for the first time subsequently in the rejoinder raised the question regarding the legality of the terms and conditions as the same is allegedly in violation of provisions of Section 3 and 4 of the Competition Act. From the pleadings and the submission of the learned counsel for the petiti....
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....(v) When a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object of which essential conditions were laid down, the same may not ordinarily be interfered with. (vi) The contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority. (vii) Where a decision has been taken purely on public interest, the Court ordinarily should exercise judicial restraint. (emphasis supplied) 105. In Rajasthan Housing Board (supra) the Apex Court taking note of the decision in Master Marine Services (P.) Ltd. (supra) where in the case of Tata Cellular (supra) has also been taken note of, stated in para 11 that even if some defect was found in the ultimate decision resulting in cancellation of the auction, the Court should exercise its discretionary power under Article 226 of the Constitution with great care and caution and should ex....
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....sure quality of the product, experience in three to five other countries (which would be amongst those described earlier) should be necessary. Similarly, the condition in NITs regarding a particular quantum of turnover in number plates business in the immediately preceding year cannot be met by any product (number plates) is being introduced in the country for the first time. It can be met only by those whose joint-venture partner is a foreign company and is already dealing with such type of license plates. This condition again has the effect of completely ousting Indian companies. The Government of India, Ministry of Road Transport and Highways had sent a letter dated 13-11-2002 to the Secretaries/Commissioners (transport) of all States wherein it was clearly mentioned that earlier guidelines circulated on 06.03.2002 and 14.06.2002 were merely suggestive in nature and they did not stipulate details about experience/capacity of bidders/collaborators. It was also mentioned therein that experience in 5 countries in not a mandatory requirement. This letter has been completely ignored while laying down the eligibility criteria". Ultimately His Lordship quashed the eligibility criteria ....
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....ed opinion, therefore, is that none of the impugned clauses in the tender conditions can be held to be arbitrary or discriminatory deserving their striking down as prayed for on behalf of the petitioners." (Emphasis Supplied) In view of the decision of the larger Bench, the judgment of Justice Mathur cannot be treated as a precedent though his Lordship expressed his views regarding monopoly as taken into consideration in competition law, but we have to be guided by the subsequent decision of the Larger Bench wherein the terms prescribed in NIT of that case were upheld. 110. In Shimnit Utsch India (P.) Ltd. (supra) as referred and relied on by Mr. Kapoor, it is nowhere stated that the notice inviting authority has no right to include a clause in the bid documents like past experience, turn over of production to see the capability of the intended bidder; rather the Apex Court in para 53 of the said judgment while referring to the case of Association of Registration Plates (Supra) noted that "while maintaining the State Government's right to get the right and most competent person, it was held that in the matter of formulating conditions of a tender document and awa....
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....mpany or individual. Rather the GMDA included the terms and conditions in the bid documents to protect the public interest. For review, the manner in which the decision was made by GMDA cannot be said to be unreasonable, arbitrary and discriminatory. More so, in paragraph 50 of the Shimnit Utsch India Private Limited (supra) it is stated inter alia, that "of the four bidders, who initially participated in the tender process, one withdrew and as regards Promuk, an objection was raised by Shimnit about their eligibility. Shimnit approached the Calcutta High Court and obtained an interim order from the Single Judge that tender process shall not be finalized. As a matter of fact, due to litigation no substantial progress took place for two years in finalization of process for which NIT was issued in July, 2003 and practically two bidders in the entire tender process remained in fray. In interregnum, considerable number of indigenous manufacturers obtained the requisite TAC from the approved institutions as per the provisions of the 1988 Act and thereby acquired capacity and ability to manufacture HSRP." Keeping in mind the aforesaid facts, the Apex Court allowed the State to change the....
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....d the law laid down by the Apex Court, inter alia, "the award of contract by a private party or by a public body or State is essentially a commercial transaction. While arriving at a decision, the paramount considerations are commercial. The State can choose its own method to fix terms and conditions and take decision in that regard. Unless the decision is arbitrary, mala fide and against public interest, judicial scrutiny is not possible. Court cannot examine the merits of the decision. It can examine the decision making process to see whether it is afflicted by arbitrariness, discrimination, violation of norms, standards and procedures laid down in this regard with a view to eliminate one against the other. If the power has been exercised for collateral purpose, it can be annulled since all State actions must conform to Art. 14 of the Constitution of India by which non-arbitrariness is a fundamental facet. State is expected to exercise the powers vested in it fairly, reasonably and for public good though some discretion "play in the joints" have to be given to it. However, where decision has been taken on legitimate considerations and not arbitrarily, there is little scope for in....
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....chaser may, at its discretion, extend the deadline for the submission of Bids in accordance with Clause 24." 115. On proper scrutiny, Clause 6 of the bid documents of the aforesaid case and Clause 11 of the bid documents of the case in hand are almost pari materia and the said decision is more helpful to come to a logical decision by this Court regarding the power of amendment of bid documents by the Notice Inviting Authority. According to this Court, even when there is no specific clause for amendment of bid documents then also the Notice Inviting Authority has the inherent power to amend the bid documents prior to submission of bid documents by the intending bidders subject to that such amendment is applicable uniformly to all the bidders and not to eliminate any particular intending bidder. It appears from the record that in the instant case the notice inviting authority amended the bid documents after pre-bid discussion of the intending bidders wherein the petitioner company also participated. Amendment of bid documents is not permissible after the submission of the bids by the intending bidders as that would prejudice the stand taken by them in their bids. Whether the tende....
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....ring into such a relationship or to discriminate between persons similarly situated. (iii) It is open to the Government to reject even the highest bid at a tender where such rejection is not arbitrary or unreasonable or such rejecting is in public interest for valid and good reasons." 117. Not only that, the Apex Court while answering the question (iii) noted that, "new terms and conditions have been prescribed apparently bearing in mind the nature of contract, which is only collection of octroi as an agent and depositing the same with the Corporation. In addition, earnest money and the performance of bank guarantee are insisted upon; collection of octroi has to be made on day-to-day basis and payment must be made on a weekly basis entailing, in case of default, cancellation of the contract. We cannot say whether these conditions are better than what were prescribed earlier for in such matters the authority calling for tenders is the best judge." 118. Therefore, from the aforementioned statements of the Apex Court this Court has no hesitation to hold that it is the authority calling for tenders is the best judge to decide whether they would amend the bid documents ei....
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.... the said authority is tainted or illegal or irrational and/or mala fide and in bad faith. 121. It is well known that reasonable means what a reasonable man thinks. But always the man may not think reasonably. According to this Court, reasonable means what the Court thinks reasonable as the Court cannot think unreasonably as reasonable thinking is part of the duty of the Court while rendering justice to the justice seeker who approaches the Court as an institution but not as an individual judge. 122. The meaning of the word "reasonable" has also been considered by the Apex Court in Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar [1987] 4 SCC 497 wherein it is stated that "it would be unreasonable to expect an exact definition of the word "reasonable". Reasons varies in its conclusion according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which build up the old scholastic logic sounds now like the jingling of a child's toy. But mankind must be satisfied with the reasonableness within reach; and in cases not covered by authority, the verdict of a jury or the decision of a judge sitting as a jury usually determi....
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....eading of the plaintiff, inter alia, that in reaching that decision, the defendant, given the terms of contractual arrangements and having regard to the defendants; active monopoly position, acted "(a) unreasonably; and/or (b) in breach of good faith, and/or from improper motives and/or with ulterior objects (nobly, a desire to increase prices to the plaintiff above, 'fair and reasonable levels); and/or (c) in breach of its express statutory duty in terms of Section 4(i)(c), State Owned Enterprises Act, 1986 ... ", the Privy Council ultimately held that "it was for the defendant to determine whether its principle objective would be best served by allowed the contractual arrangements to continue or by terminating the contractual agreements. The general and vague assertion of impropriety in paragraph 32 is not supported by any reference to a single alleged fact." It is also noted by the Privy Council, that "it does not seem likely that a decision by a State Enterprise to enter into or determine a commercial contract to supply goods or services would ever be the subject of judicial review in the absence of fraud, corruption or bad faith. Bad faith increases in prices whether by St....
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....e. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power." The Apex Court also in the said judgment stated, inter alia, that action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. 125. The word "fraud" in Black's Legal Dictionary is defined as an int....
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....ular officer of either respondent-State or the respondents-GMDA. Mere assertion or a vague or bald statement allegation is not sufficient, it has to be demonstrated and proved. Admittedly there is nothing on records that with an intention to eliminate the petitioner-company the respondent-GMDA included the terms impugned in the bid documents. Therefore, it cannot be said that the action of the official respondents are unreasonable, irrational and for bad faith and these are hit by the provisions of Article 14 of the Constitution. On applicability of the provisions of Competition Act:- 128. As one of the main contentions of the petitioner, inter alia, that the conditions put in the clauses of the bid documents are unreasonable, irrational and hit by Article 14 of the Constitution fails, only remains the question as to whether the terms included in the bid documents are suffering from illegality as alleged to be contrary to the provisions of Section 3 and 4 of the competition Act. Therefore, it would be injustice to the petitioners to send them back to the forum prescribed in the Competition Act, for deciding the dispute relating to sub- section (1) of Section 3 as well as sub-....
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....er under Section 64 for framing regulations namely, Competition Commission of India (Regulations), 2009 (for short, 'Regulations') 131. As sub-section (1) of Section 4 is pari materia to the provisions of Article 86 of EEC, as it appears from Garden Cottage Foods Ltd. (supra), as referred to by Mr. Kapoor, it would be proper to first deal with the decision of Garden Cottage Foods Ltd. (supra), decided by their Lordships, of the House of Lords. In Garden Cottage Foods Ltd. (supra), the plaintiffs of that case brought an action claiming, inter alia, an injunction restraining the defendants from withholding supplies of butter from the plaintiffs or other vise refusing to maintain normal business relations with them, contrary to Article 86 of the EEC Treaty wherein they applied for an interlocutory injunction in the same terms and their lordships of the House of Lords tired a question regarding dominant position in a substantial part of a common market. Article 86 of the EEC is almost pari materia to the Section 4 of the Competition Act. Parker J. when considering the action claimed by the plaintiffs in Garden Cottage Foods Ltd. (supra), held that there was a serious questio....
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.... Competition Act wherein it is stated that relevant market is the market which may be determined by the Commission with reference to the relevant product market or the relevant geographic market or with reference to both the markets. Clause (t) of Section 2 defines the word relevant product market which means a market comprising all those products or services which are regarded as interchangeable or substitutable by the consumer, by reason of characteristics of the products or services, their prices and intended use. The word enterprise is defined in clause (h) of Section 2 of the Competition Act, which is as under:- "(h) "enterprise" means a person or a department of the Government, who or which is, or has been engaged in any activity, relating to the production, storage, supply, distribution, acquisition or control or articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, whether such unit or division or subsidiary is located at the same ....
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....nch of this Court while deciding four writ petitions wherein the notice inviting tender issued by Dr. B Boorah Cancer Institute was challenged therein, had an opportunity to consider the clauses 10 and 19 of the said NIT along with others. Clauses 10 and 19 are reproduced herein:- "10. The tenderer should submit their credential along with the tender consisting of the following:- (i) Certificate of previous experience of similar job. (ii) Certificate regarding financial capacity from Bank concerned. (iii) Drug License issued by the competent authority. 19. That the tenderer will be required to quote the minimum percentage of profits on distributor's price of medicine and other items to be charged separately for (a) Chemotherapy Medicines, (b) General Medicines, and (c) other medical items (like surgical items etc.). However, allotment of the work will be determined mainly on the basis of the prices of Chemotherapy Medicines (Oncology Products)." Some of the petitioners therein challenged the terms of the tender being violative of Competition Act, 2002. While deciding that issue this Court taking into consideration the proces....
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....t that time also the law relating to Competition Act was not given effect to. In the said case also the Court considered the terms of the NIT challenged on vagueness and uncertainty, what in the instant case the petitioner has raised. Therefore, on that count also this decision is, if not much helpful, but obviously to some extent helpful and applicable. 136. In a recent decision, the Apex Court in CCI v. Steel Authority of India Ltd. [2010] 103 SCL 269 (SC) while dealing with various provisions of the Competition Act including the object and reasons also dealt with establishment of powers and functions of the CCI and to the extent also discussed regarding provision of Section 3 and 4 read with Section 16 and Section 19 of the Act. Therefore the said decision will be helpful though in the said decision their lordships did not go for any detailed discussion on Section 3 and 4 as that was not the subject matter for consideration before the Court. Subject matter for consideration before their lordships was that one Jindal Steel & Powers Ltd. being the 'informant' invoked the provisions of Section 19 read with Section 26(1) of the Act by providing information to the CCI alle....
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....de to the Director General for investigation and granted liberty to SAIL to file its reply before the Director General. Correctness of the order dated 18.12.2009 was challenged by SAIL before the Competition Appellate Tribunal. CCI filed an application on 28.01.2010 before the Tribunal seeking impleadment in the appeal filed by SAIL and also filed an application for vacation of the interim orders which had been issued by the Tribunal on 11.01.2010 in favour of SAIL staying the further proceedings before the Director General in furtherance of the direction of the Commission dated 08.12.2009. The tribunal in its order dated 15.02.2010 dismissed the application of the CCI for impleadment being the Commission was neither a necessary nor a proper party in the appellate proceedings before the Tribunal and resultantly the application for vacation of stay was also dismissed and also held that the appeal preferred by SAIL is maintainable and ultimately set aside the order of the Commission and recorded the finding that there was violation of the principles of natural justice. The order of the Tribunal dated 15.02.2010 was impugned by the Commission before the Apex Court in the appeal wherei....
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....ioner approached this Court to decide a relief sought for to which an alternative, efficacious and adequate statutory remedy is available. As it is well settled, that where a particular statute has prescribed a self-contained machinery for determination of questions arising under the enactment, the statutory remedies provided therein must be availed of and recourse should not be ordinarily allowed to be taken to writ jurisdiction. 139. Now let us see whether the terms and conditions as impugned have come within the purview of sub-section (1) of Section 3 of the Competitive Act. The provisions of Section 3 impose a bar on enterprise or association of enterprises or person or association of persons from entering into an agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services which would obviously affect competition within India. Therefore, it can be easily said that to attract sub-section (1) of Section 3 the primary requirement is an agreement and in the instant case admittedly neither the respondent-GMDA nor the respondent-State entered into any agreement with anybody. Therefore, contraventions of sub-section (1....
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....ompetition act will come into play and that stage has not been reached in this case. Therefore, in either case, the competition act has no application." While recording the submission of Mr. Kapoor, it has already been recorded that according to Mr. Kapoor the decision of the Madras High Court is not applicable and binding on this Court being the Competition Act was not in force and same is per incurium, it would be improper on the part of this Court not to answer the point raised by Mr. Kapoor on per incurium. On per incurium 141. Even in the case of Garden Cottage Foods Ltd. (supra) per incurium is discussed wherein it is held inter alia, that "difficulties of estimation, however, were not the ground on which the Court of Appeal overruled the judge's opinion that damages would be an adequate remedy. Neither Lord Denning M.R. nor Sir Sebag Shaw made any mention of this topic; nor does a passing reference by May L.J. at p. 1126 to possible difficulties of assessment of the proper measure of damages "in cases such as this," without any reference to the special characteristics of the company's business to which I have just drawn attention, appear to play a significan....
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....Antulay v. R.S. Nayak [1998] 2 SCC 602 their lordships discussed about per incuriam. The doctrine of per incuriam has again been dealt with by the Apex Court in the case of State of UP v. Synthetics and Chemicals Ltd. [1991] 4 SCC 139 which is as under:- "Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplance Col Ltd.) Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law." The aforesaid principle of doctrine of per incuriam has been again restated by the Apex Court in the case of Furest Day Lawson Ltd. v. Jindal Exports Ltd., [2001] 6 SCC 356. A coordinate Bench of this Court also took note of Synthetics and Chemicals Ltd. (supra) in the case of State of Manipur v. Arambam Kameshwar Singh 2004 (2) GLT 718, while discussing about per incurium. T....
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....risdiction of the High Court to grant, in appropriate case, relief under Article 226. Therefore, it is the High Court who has to decide whether it will exercise its discretion for granting relief sought for or it would send back the matter to the statutory authority like CCI, an expert body with whom all the power vests to decide the issue like the issue involved in the case. 147. A coordinate Bench of this Court discussed about the principle of alternative remedy in details in Food Corporation of India v. State of Arunachal Pradesh 2009 (4) GLT 7 in paragraph 81, 82, 83 and 84, which are as follows:- "81. Having held that the powers of judicial review conferred on the High Court under Article 226 and of supervision under Article 227 form pat of basic structure of the Constitution, let me, now, turn to the question as to whether the existence of alternate remedy is an absolute bar to the exercise of the powers so conferred on the High Court. While dealing with their aspect of the matter, it is imperative to note that the proposition of law is well settled that where a particular statute provides a self-contained machinery for determination of questions arising under the....
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....y the statute. Ordinarily, the Court will not entertain a petition for a writ under Article 226 where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. ... The High Court does not, therefore, act as a Court of Appeal against the decision of a Court or Tribunal to correct errors of facts and does not, by assuming jurisdiction under Article 226, trench upon an alternative remedy provided by a statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the matter provided by a statute, the High Court, normally, will not permit by entertaining under Article 226 of the Constitution the machinery created by the statute to be bypassed and leave the party applying to it to seek resort to that machinery so set up.' 84. The rule requiring exhaustion of statutory remedies before the grant of writ had nothing to do with the jurisdiction of the Court it was a rule of policy, convenience and discretion rather than a rule of law. Despite the existence of an alternative remedy, it is within the jurisdiction of and d....
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....he proceedings, particularly, before the tribunal or the forum". Not only that, the Apex Court also took note of para 7 of Udit Narain Singh Malpaharia v. Board of Revenue AIR 1963 SC 786 which is as under:-"7. To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in who absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding." 149. In the said judgment their lordships also said that there is another way to examine the matter relating to necessary party and noted inter alia, "if the proceeding cannot be concluded completely and effectively in absence of a party, that party should be normally impleaded as a party before the court, of course, subject to other restrictions in law. While non-joinder of necessary parties may prove fatal, the non-joinder of proper parties may not be fatal to the proceedings, but would certainly adversely affect i....
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....on principles of law? Is it essential for being impleaded in a proceeding under Article 226 of the Constitution of India that the person sought to the impleaded as a party is a person or authority or State within the meaning of Article 226? Can a writ application be maintained, wherein it seeks, in effect, relief against a person, who is not a State, authority or person within the meaning of Article 226 or against a person, who is immune to the judicial process in India? Does article 12 impose any limitation upon, or circumscribes the scope of, even the powers of the High Court under Article 226? Is the International Development Association, which is an organ of the World Bank amenable to writ jurisdiction under Article 226. 153. In the aforesaid case of Contractor and Farm Equipment Ltd. (supra) a writ petition was filed by the petitioner therein, which was dismissed by the learned Single Judge vide order dated 27.10.2003 passed in WP(C) 5620/2003 holding that the World Bank is a necessary party and since the writ petitioner has insisted on not making the World Bank a party to the petitioner, the writ petition cannot proceed and must fail. Against the said order of the learned ....