Tata Motors Ltd. v. The Brihan Mumbai Electric Supply

695 [2023] 6 S.C.R. 695 TATA MOTORS LIMITED v. THE BRIHAN MUMBAI ELECTRIC SUPPLY & TRANSPORT UNDERTAKING (BEST) AND OTHERS (Civil Appeal No.3897 of 2023) MAY 19, 2023 [DR. DHANANJAYA Y. CHANDRACHUD, CJI, PAMIDIGHANTAM SRI NARASIMHA AND J. B. PARDIWALA, JJ.] Constitution of India – Power of Judicial review – Contractual/ commercial matters – Held: Courts should exercise a lot o f restraint while exercising Powers of judicial review in contr actual or commercial matters – In contracts involving technic al issues the courts should be even more reluctant – Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer – In the present case, TATA Motors deviat ed from the material and the essential term of the Tender – High Court having once declared TATA Motors as non-responsive and hav ing stood disqualified from the Tender process should not hav e entered into the fray of investigating into the decision of BEST to de clare EVEY as the eligible bidder – High Court was not exercis ing its writ jurisdiction in public interest – It looked into a pet ition filed by a party trying to assert its own rights – Grant of judicial relief at the instance of a party which does not fulfil the requi site criteria is misplaced – BEST committed no error or cannot be he ld guilty of favoritism, etc. in allowing EVEY to submit a revised Annex ure Y as the earlier one was incorrect on account of a clerical error – This exercise itself was not sufficient to declare the entir e bid offered by EVEY as unlawful or illegal – Writ court should ref rain from imposing its decision over the decision of the employer a s to whether or not to accept the bid of a tenderer unless something very gross or palpable is pointed out – Initiating a fresh tender process at this stage may consume lot of time and also loss to the public exchequer – Part of the judgment of the High Court by which the deci sion of BEST to accept the tender of EVEY was set aside and it was left to the discretion of BEST to undertake a fresh tender process, set aside. Constitution of India – Exercise of power of judici al review in matters as to tenders or award of contracts – Special featu res to be borne in mind – Discussed. Silppi Constructions Contractors v. Union of India

(2020) 16 SCC 489 : [2019] 10 SCR 932; Association of Registration Plates v. Union of India and Others

(2005) 1 SCC 679 : [2004] 6 Suppl. SCR 496; Air India Ltd. v. Cochin International Airport Ltd. (2000) 2 SCC 617 : [2000] 1 SCR 505; Jagdish Mandal v. State of Orissa and Others (2007) 14 SCC 517 – relied on. W.B. State Electricity Board v. Patel Engineering C o. Ltd. & Ors . (2001) 2 SCC 451 : [2001] 1 SCR 352; Kanhaiya Lal Agrawal v. Union of India and Others

(2002) 6 SCC 315 : [2002] 1 Suppl. SCR 284; N.G. Projects Limited v. Vinod Kumar Jain and Others (2022) 6 SCC 127; Raunaq International Ltd. v. I.V.R. Construction Ltd. and Others (1999) 1 SCC 492 : [1998] 3 Suppl. SCR 421; S.S. & Company v. Orrisa Mining Corporation Limited (2008) 5 SCC 772 : [2008] 5 SCR 598; Poddar Steel Corporation v. Ganesh Engineering Works and Others (1991) 3 SCC 273 : [1991] 2 SCR 696; Monarch Infrastructure (P) Ltd v. Commissioner, Ulhasnagar Municipal Corporation and Others (2000) 5 SCC 287 : [2000] 3 SCR 1159; Meerut Development Authority v. Association of Management Studies and Another (2009) 6 SCC 171 : [2009] 6 SCR 663; Maa Binda Express Carrier and Another v. North-East Frontier Railway and Others (2014) 3 SCC 760 : [2013] 12 SCR 529; Jagannath Behera & Ors. v. Raja Harihar Singh Mardaraj Bhramarbara Roy [1958] SCR 1067; Karanpura Development Co. Ltd v. Raja Kamakshya Narain Singh Etc. [1956] SCR 325; Vasantkumar Radhakisan Vora v. Board of Trustees of Port of Bombay (1991) 1 SCC 761 : [1990] 3 SCR 825; Steel Authority of India Ltd v. Gupta Brother Steel Tubes Ltd (2009) 10 SCC 63 : [2009] 14 SCR 253 – referred to. Case Law Reference [2001] 1 SCR 352 referred to Para 28 [2002] 1 Suppl. SCR 284 referred to Para 29 [1998] 3 Suppl. SCR 421 referred to Para 32 [2008] 5 SCR 598 referred to Para 32 [1991] 2 SCR 696 referred to Para 34 [2000] 3 SCR 1159 referred to Para 35 [2009] 6 SCR 663 referred to Para 35 [2013] 12 SCR 529 referred to Para 35 [1958] SCR 1067 referred to Para 37 [1956] SCR 325 referred to Para 37 [1990] 3 SCR 825 referred to Para 37 [2009] 14 SCR 253 referred to Para 37 [2019] 10 SCR 932 relied on Para 48 [2004] 6 Suppl. SCR 496 relied on Para 52 [2000] 1 SCR 505 relied on Para 53 CIVIL APPELLATE JURISDICTION : Civil Appeal No.3897 of 2023. From the Judgment and Order dated 05.07.2022 of the High Court of Judicature at Bombay in WPL No.15548 of 2022. With Civil Appeal Nos.3899 And 3898 of 2023. Tushar Mehta, SG, Mukul Rohatgi, Shyam Divan, Ajit S. Bhasme, Dr. Abhishek Manu Singhvi, K. V.Viswanathan, Gopal Jain, Sr. Advs., Abhinav Mukerji, Akshay Shrivastava, Mrs. Bihu Sharma, Ms. Pratishtha Vij, Anjandas Gupta, Ms. Rimali Batra, Abhishek Lalwani, V. K. Patil, M/s. D.S.K. Legal Ms. Nandini Gore, Ms. Aditi Bhatt, Sarthak Gau r, Yash Dubey, Ms. Manvi Rastogi, Amit Bhandari, M/s. Karanjawala & Co., Advs. for the appearing parties. & TRANSPORT UNDERTAKING (BEST) The Judgment of the Court was delivered by

J. B. PARDIWALA, J.

¶1Leave granted.

¶2As the issues raised in all the captioned appeals are com mon and the challenge is also to the self-same order passed by the High Court of Judicature at Bombay dated 05.07.2022 in the Writ Petition (L) No. 15548 of 2022, those were taken up for hearing analogously and are being disposed of by this common judgment and order.

¶3The Appeal arising out of SLP(C) No. 15708 of 2022 is at the instance of TATA Motors Limited (for short, “TATA Motors”) (Original Writ Petitioner before the High Court).

¶4The Appeal arising out of SLP(C) No. 11871 of 2022 is at the instance of EVEY Trans Pvt. Ltd. (for short, “EVEY” ) (Original respondent No. 2 before the High Court).

¶5The Appeal arising out of SLP(C) No. 11933 of 2022 is at the instance of the Brihan Mumbai Electric Supply & Transport Undertaking (for short, “BEST”) (Original respondent No. 1 before the High Court), a statutory corporation operating under the provisions of the Mumbai Municipal Corporation Act, 1888. FACTUAL MATRIX

¶6BEST floated a tender bearing No. DMM(T-II)/08/TCU/73169/ 2021-2022/Advt. dated 26.02.2022 for the supply, op eration and maintenance of 1400 (+50% variation) Single Decker AC Electric Buses with driver, for the purpose of public transport service within the city of Mumbai along with other civil infrastructure development at the BEST depots for a period of 12 years (hereinafter referred to as,‘the Tender’).

¶7The Tender document provided for Technical specifications as stipulated under Clause 3.5(e) and Clause 12 of Section 2 of Schedule IX, under which the bidders were required to provide Single Decker Buses which can run 200 Kms in single charge without interruption in actual conditions for the relevant Gross Vehicle Weight (GVW) with air conditioning with not more than 80% battery being consumed. Clause

3.5(e) and Clause 12 respectively are reproduced hereunder: “SCHEDULE IX TECHNICAL SPECIFICATIONS …. Section 2: Technical specifications of SD AC Electri c Buses under Wet Lease Scheme …. Sr. No. Description Specifications

3.5 Electric Propulsion System Electric propulsion system motor rating/power sufficient to provide:

(e) Minimum Operation Range per bus per day The minimum operating Km of the buses offered in si ngle charge will be 200 Km, for SD buses respectively with (80% SoC). These offered buses should run above mentioned minimum Km w ithout any interruption. xxx xxx xxx 12 Operating range Presently the BEST buses operate for around an averag e of 200 km. per day (mostly uninterrupted). Keeping the above in mind, the EV manufacturers have to provide vehicles which can run 200 km. in single charge for SD AC Buses in actual conditions for the relevant GVW with Air Conditioning. The Operating s chedule shall be provided by BEST and the successful bidder has to ensure the uninterrupted operation of the schedules through adequate spare buses.

In case the successful bidder is unable to maintain un interrupted operation of schedules for want of charging, then BEST sh all take suitable action by levying additional penalty by non-p ayment towards assured kms for that entire day per instance and if the instance keeps on recurring for a long period of tim e then the BEST may resort to even termination of Contract.”

¶8 In all, eight market players participated in the Tender process, including EVEY and TATA Motors. In the pre-bid meeting held on

11.03.2022, TATA Motors submitted its pre-bid points, wherein under Point 1, it requested BEST to consider its bid for 200 Kms per day with 75-minutes of opportunity charging time during the day operations and range testing conditions as per AIS 040/FAME II.

¶9On 15.03.2022, BEST published the minutes of the pre-bid meeting. BEST revised certain specifications, however, the modifications as requested by TATA Motors were rejected. BEST opted for a specific reference to “in actual conditions” and excluded any reference to “AIS 040” or “Standard Conditions” in the Tender specifications. It is pertinent to note that the AIS 040 certification would be upon standard t esting conditions and not on the actual road conditions, which would account for passenger load, temperature, traffic conditions, etc.

¶10 On 27.04.2022, BEST issued Corrigendum No. 8 specifying the end of submission of bids for the Tender as 02.05.2022 and the date of opening the technical bid as 04.05.2022.

¶11TATA Motors submitted its bid on 25.04.2022, wherein it guaranteed operating range of 200 Kms with 80% State of Cha rge, “SoC” (i.e. 20% reserve left upon running 200 Kms in single ch arge), however, the same was achieved “in standard test conditions as per AIS 040”. This was a deviation from the Tender specifications.

¶12EVEY submitted its bid on 02.05.2022, claiming that the same was submitted without any deviation from the Tender conditions including the condition of minimum operating range of 200 Kms in a single charge. EVEY claimed that the TATA Motors was the only bidd er which, referenced “standard test conditions” instead of “actual road conditions”, while stating that it complied with the Tender requirement of minimum operating range.

¶13Under Clause 5.1.1 of the Schedule II (Definiti ons and Instructions to Bidders) of the Tender, the mode and manner of submission of the bid proposal has been provided. The said clause also provided for certain annexures to be submitted along with the bid. Pertinently, Annexure Y, which is an undertaking to be given by the Operational Equi pment Manufacturer (OEM) for the operating range of the buses, was not required to be submitted along with the bid but was only required to be submitted by the successful bidder. The purpose of the undertakin gs under Clause 3.5 (e) and Clause 12 of Section 2 of Schedule IX (Technical Specifications) and Annexure Y is to con firm that the requirement of meeting the 200 Kms range in single charge is satisfied.

¶14EVEY along with its bid dated 02.05.2022 submitted Annexure Y, wherein the OEM gave an undertaking for the operating range which included a table that mentioned that the operating range for a single decker bus would be 200 Kms with the opportunity charging time of 1 hour. The same was done in accordance with the specifications of the earlier tender dated 20.08.2021, which allowed for an opportunity time of 60 minutes.

¶15EVEY vide email dated 06.05.2022, provided a revised Annexure Y as per the Single Charge Requirements mentioned in t he Tender along with an explanation for the same holding it to be a mere “clerical error”.

¶16The Tender bids were opened on 04.05.2022 and the technical suitability evaluation was announced on 06.05.2022. BEST in its technical suitability evaluation dated 06.05.2022, held TATA Motors along with four other bidders, to be “technically non-responsive”. TATA Motor’s bid was rejected on account of technical deviation with respec t to the operating range in its Annexure F and Annexure Y, respectively. The bid offered by EVEY in the said report was deemed to be “techn ically responsive”.

¶17Thereafter, on 06.05.2022, the price bids of the eligible bidders were opened, and EVEY was declared to be the L1 bidder. The p rice bid of TATA Motors was not opened in accordance with Sr. No. 7 of the Schedule I (Invitation for Proposal) and Sr. No. 15 of the Schedul e II (Definitions and Instructions to Tenderers) of the Tender document. Sr. No. 7 of Schedule I reads as under: “7. The Bidders/Tenderers who meet the mandatory technical and commercial eligibility criteria as mentioned in Sc hedule III of Tender Document shall only be held eligible for opening of price bids.”

¶18 Sr. No. 15 of Schedule II (Definitions and Instructions to Tenderers) of the Tender document, reads as under: “15. The Bidders shall accept unconditionally BEST’ s ‘Conditions of Tender & Conditions of Supply’ in TO TO, failing which their financial bids shall not be considered for ·opening. Bidders are requested to go through the s ame carefully.”

¶19Aggrieved by the technical suitability evaluation issued by BEST by which it rejected the bid of TATA Motors, the latter approached the High Court of Judicature at Bombay by way of a writ petition beari ng WP(L) No. 15548 of 2022 dated 10.05.2022. TATA Motors prayed for the following reliefs: “18. The Petitioners therefore pray that this Hon’b le Court may be pleased to:

(a) Issue a writ of Certiorari or any other writ, o rder or direction in the nature of Certiorari to call for the records of the case and quash and set aside the decision dated

06.05.2022 taken by the Respondent No. 1 declaring the bid submitted by the Petitioner No. 1 as “technically n on-responsive”;

(b) Issue a writ of mandamus or writ in the nature of mandamus or any appropriate writ, order or direction under Article 226 of the Constitution of India directing Respondent N o. 1 to reconsider the bid submitted by the Petitioner No. 1 for the purposes of the Tender;

(c) In the alternative to prayer (b) issue a writ of mandam us or writ in the nature of mandamus or any appropriate writ, order or direction under Article 226 of the Constit ution of India directing Respondent Nos. 1 to cancel the Ten der and float a fresh tender;

(d) During the pendency of the Petition, restrain Respon dent No. 1 from taking any steps towards award of contract under the Tender;

(e) ad-interim reliefs in terms of prayers in clause (d) abov e;

(f) Cost of the present Petition; and

(g) such further and other reliefs as the nature an d the circumstances of the case may require be granted to the Petitioner.”

¶20 During the pendency of the aforesaid writ petition BEST awarded the Tender in favour of EVEY with the Letter of Accep tance dated 20.05.2022. EVEY accordingly submitted the re quired Performance Bank Guarantee on 23.05.2022. An agreement for operation of Stage Carriage Services for public transport of Single Decker AC Electric Buses with Driver in the city of Mumbai and its extended suburbs on Gross Contract Cost (GCC) model for 12 years was entered into between the EVEY and BEST on 26.05.2022.

¶21A subsidy bank guarantee dated 02.06.2022 was submitted by EVEY and BEST released the requisite amount to the EVEY’s account towards subsidy on 10.06.2022. The EVEY even provided the BEST with 8 buses between 04.07.2022 and 05.07.2022.

¶22The High Court vide its impugned order and judgment dated

05.07.2022, took the view that the requirement for the operating range to be more than 200 Kms in a single charge in “actual conditions” was unambiguous. Accordingly, the High Court upheld the disqualification of TATA Motors and rejected their claim from being considered as an eligible bidder as they failed to comply with the technical requirem ents of the Tender. The High Court in paragraphs 9 and 13 respectively of the impugned order observed thus: “9. Reading the aforesaid, it is unambiguous that oper ating range provided in the tender document is that the e lectric vehicles manufacturers have to provide the vehicles which can run 200 kms in single charge for SD air conditi oning buses in actual conditions for relevant GVW air conditioning. The prima donna requirement of the tender document it appears is that the electric vehicle offered should run 200 Kms in a single charge for Single Decker air condit ioning bus in actual conditions with 80% SoC without any interruption. Xxx xxx xxx

¶13Petitioner No.1 did not submit its bid for 200 Kms@ 80% SoC in single charge on actual condition but at standard test conditions as per AIS 040. As per the tender condit ion if a person to whom the contract is awarded i.e. lessee does not comply with the condition of achieving range of 200 Kms at 80% SoC in single charge then he is penalized for the same. Meaning thereby, Respondent No.1 was conscious that the standard test conditions as per AIS 040 is different than the actual condition . The tender of the Petitioner certainly was not compliant with the said clause. The Petitioner has deviated from the material and the substantial term of the tender. The Petitioner, as such, is rightly disqualified for deviating from the material requirements stipulated in the tender .” (Emphasis supplied)

¶23 The High Court, after holding as above proceeded further to discuss as to why the bid of EVEY also should have been rejected. The High Court noted EVEY’s contention that Annexure Y submitted along with the technical bid was an incidental document, however, reje cted such contention. The High Court while referring to Clause 16 of Schedule I held that once the final date for the submission of the bid expires, there can be no additions/corrections/ submissions of documents by the bidders. Clause 16 of Schedule I of the Tender is produced hereinbelow: “SCHEDULE I Invitation for Proposal …

¶16Interested Bidders are advised to study this Tender docum ent carefully before submitting their proposal in response to this Tender document. Submission of a proposal in response to this tender shall be deemed to have been after careful study and examinati on of this document with full understanding of its terms, conditions and implications. No addition / correction, submission of docum ents will be allowed after opening of technical bid”

¶24The High Court as a result, held that the email dated 06.05.2022 ought not to have been entertained, and the technical bid evaluat ion, which was released on the same day did not depict fairness in the actions of BEST. The High Court in paragraphs 20 – 22 respectively held as under: “20.It has been contended by Respondent No.1 that lette r issued by Respondent No.2 on 6th morning did not influence the decision to hold the bid of Respondent No.2 responsive in the afternoon of 6th May 2022. The same is not born e-out from the facts and circumstances of the case. Clause -16, as stated above specifically and categorically prohibits additio ns / corrections / submission of documents after openi ng of technical bid. Technical bids have been opened on 4 th May 2022. Thereafter no such letter could have been entertaine d. The proximity of the time i.e. 6th May at 11.35 am. the letter issued by Respondent No. 2 along with the modified Annexure-Y and after two hours, the bid of Respondent No.2 h eld responsive, does not support the contention of Resp ondent No.1 that the said revised Annexure-Y and the lette r written on 6th May morning did not weigh in holding Respond ent No.2’s bid responsive. First of all, accepting the letter from Respondent No.2 by Respondent No.1 on 6 May morning itself was against the specific terms of the tender (clause 16). It is further the case of Respondent No.1 that on 6 thmorning revised Annexure-Y forwarded by Respondent No.2 was sou motu and not at the instance of Respondent No.1, may not be relevant here. The fact remains that Respondent No. 2 was allowed to submit the letter and revised Annexure-Y after two days of the opening of technical bids. It is also the fact that on 28th April Respondent No.2 had submitted the bid and on 2nd May it had submitted the revised bid, however, with the same Annexure-Y clearly stating that it would requi re opportunity charging tune of one hour. The same would not be in tune with the tender conditions.

¶21From the aforesaid facts, it is clear that; (i) t he tender documents submitted by the Petitioner contained deviation in Annexure-Y i.e. the undertaking from OEM stating that o ne hour charging time would be required for achieving operating range of 200 Kms.; and (ii) Respondent No.2 submitted the revised Annexure-Y on 6th morning i.e. two days afte r the opening of technical bids and after acceptance of r evised Annexure-Y on 6tb May morning, the technical bid of Respondent No.2 was accepted in the afternoon of the same day.

¶22The aforesaid does not depict fair play in action. The facts create doubt about, whether the decision was a fair one or was the decision reached fairly? The same does not appear to be so in view of the facts discussed above while accepting the bid of Respondent No.2 as responsive.” (Emphasis supplied)

¶25In view of the aforesaid, the High Court thought fit to declare EVEY also as an unsuccessful bidder. The High Court in paragraphs 23 and 24 respectively held as under: “23. We are aware that the principle of equity and natu ral justice stay at a distance and no judicial interfer ence is warranted in case of an error in assessment. Howeve r, the same holds good, if the decision is bona fide. We a re also aware that interference of the Court would lead to some delay. It would be seen that earlier also the tenders were issued. However, because of non-sanction of subsidy, the ea rlier tender process was scrapped and fresh tender proces s was issued. For accepting the bid of Respondent No.2, 9 0 days’ time is provided to it for getting the prototype ve hicle. The said period is not over. It is not even one month. The Respondent No.2’s tender is accepted. The Courts up on coming to the conclusion that the decision making p rocess was not fair. The same lacked fair play in action and arbitrary, will have to step in.

¶24In the light of the above, we set aside the decision of the Respondents of acceptance of tender of Respondent N o.2. Respondent No.1, if it so desires, may proceed with a fresh tender process. ” (Emphasis supplied)

¶26In such circumstances referred to above, all the three parties are here before this Court with their respective petitions.

¶27It is pertinent to note that during the pendenc y of the proceedings before the High Court and after submitting the sub sidy guarantee, EVEY had already supplied total 8 buses between 04.07.2022 to 05.07.2022. However, this Court by an interim order dated 14.07.2022 granted an interim stay of the impugned judgment insofar as EVEY is concerned. This Court observed that, the supply of the buses, if any, by EVEY would be subject to the result of these petitions and EVEY shall not claim any equity at a later stage. SUBMISSIONS ON BEHALF OF THE “EVEY”

¶28Mr. Rohatgi, the learned Senior counsel appearing for EVEY placed strong reliance on the decision of this Court in W.B. State Electricity Board v. Patel Engineering Co. Ltd. & Ors ., reported in

(2001) 2 SCC 451 to submit that the equitable relief can be grante d to the bidder where it has made a material mistake of fact i n the bid and upon discovery of that mistake he has acted promptly and rectified his mistake. He submitted that, Clause 16 of Schedule I of the Tender would not apply to a document, like Annexure Y, which was originally required to be submitted by the “Successful Bidder’’ after the evaluation of the bid. Furthermore, the learned Senior counsel proceeded to submit that, even in the original Annexure Y as submitted on 02.05.2022, his client had mentioned that, “ These offered buses will run above mentioned minimum Kms without any interruption”.

¶29He submitted that, Annexure F specifies that “If the variations specified herein, are found to be in nature of contradiction t o BEST’s requirements/specifications then such Bids will be tr eated as Non-responsive” and therefore, the bidder would have to essentially comply with the specifications mentioned in Annexure F otherwise the bid would be treated as “technically non-responsive”. He submitted that Annexure F can be rightly termed as an essential condition of Tender. He placed strong reliance on the decision of this Court in the case of Kanhaiya Lal Agrawal v. Union of India and Others, reported in (2002) 6 SCC 315, to submit that whether a condition is essential, or collateral could be ascertained by reference to the consequence of non-compliance thereto. It was submitted that if non-fulfilment of the requireme nt results in rejection of the tender, then it would be an essential part of the tender otherwise it is only a collateral term. He further submit ted that, non-compliance of the conditions mentioned in Annexure Y would lead to levy of penalty and if the instance keeps on recurring, it may l ead to termination of contract and therefore, Annexure Y should be treated as a collateral term of the Tender. Under Clause 5.1.1 of Schedule II (Definitions and Instructions to Bidders) of the Te nder document Annexure Y was not required to be submitted along with the bid documents but the same was to be submitted by the “Successful Bidde r’’.

¶30He submitted that, in view of the decision of this Court in, N.G . Projects Limited v. Vinod Kumar Jain and Others, reported in

(2022) 6 SCC 127,the writ court should refrain itself from imposing its decision over the decision of the employer as to whether to accep t the bid of a tenderer and that contract of public service should not be interfered with lightly. The injunction or interference in the Tender leads to additional costs on the State and is also against public interest.

¶31He submitted that the allegations of favouritism levelle d by TATA Motors by pointing towards the fact that apart from EVEY, there were two more parties who were technically qualified and were L2 and L3 viz., Switch Mobility Automotive Limited and PMI Electro Mobility Solutions Private Limited respectively, EVEY was declar ed L1 and awarded the Tender only after opening of the price bids at a later stage are reckless and baseless.

¶32Relying on the decisions of this Court in Raunaq International Ltd. v. I.V .R. Construction Ltd. and Othersreported in (1999) 1 SCC 492 and S.S. & Company v. Orrisa Mining Corporation Limited reported in (2008) 5 SCC 772, he submitted that once the High Court found TATA Motors to be technically non-compliant, it ought not to have entertained a challenge to the tendering process at the instance of an unsuccessful party. The writ petition was filed against the t echnical evaluation, whereas, the contract is now well underway at the stage of performance. He submitted that interfering with the technical evaluation at this stage would make the contract redundant and ca use loss of exchequer’s money.

¶33In the last, the learned Senior counsel submitted that till date EVEY has supplied 20 tailor-made buses and the civil infrastructure for these buses has also been put in place. SUBMISSIONS ON BEHALF OF THE “TATA MOTORS”

¶34 Dr. Abhishek Manu Singhvi, the learned Senior counsel, appearing for TATA Motors vehemently submitted that the contract awarded by BEST to EVEY is per se illegal. The learned Senior counsel argued that the acceptance of the EVEY’s revised Annexure Y after the expiry of the bid submission end date and technical bid opening date is contrary to the Tender conditions. Clause 16 of Schedule I (Invitation for Proposal) of the Tender prohibits any addition, correction or submission of document after the technical bid opening. However, the s ame was not followed and by allowing a bidder to correct errors at a l ater stage may lead to unequal treatment of bidders. The decisions of this Court in Poddar Steel Corporation v. Ganesh Engineering Works and Others, reported in (1991) 3 SCC 273 (Para 6) ; W.B. State Electricity Board (supra) (Paras 27 and 28), were relied upon to substantiate the aforesaid contention.

¶35He submitted that the actions of BEST could be termed as arbitrary, discriminatory, unfair, and that his client has locus to challenge the same as no legitimacy should be granted to tender processes tainted with malice. The learned Senior counsel relied upon the decision of this Court in Monarch Infrastructure (P) Ltd v. Commissioner, Ulhasnagar Municipal Corporation and Others, reported in (2000) 5 SCC 287 (Paras 10 and 14); Meerut Development Authority v. Association of Management Studies and Another, reported in (2009) 6 SCC 171 (Paras 27, 28, 45 and 76);Maa Binda Express Carrier and Another v. North-East Frontier Railway and Others, reported in (2014) 3 SCC 760 (Paras 8, 9 and 12)to fortify the submission.

¶36He argued that the High Court in paragraph 19 of the impugned judgment has rightly observed that the battery range guarantee can be given only by the OEM from whom the bidder is purchasing the battery, and in such circumstances, the same cannot be said to be incid ental. The same was considered as an important part of the technical evaluation by BEST.

¶37He vociferously submitted that Annexure Y was a part of the bid document and once submitted, could not have been permitted to be altered after the bid submission end date i.e., 02.05.2022. The argument that Annexure Y was optional and not required at the time of submission of the bid is an afterthought, and the same being a question of fact or at the most a mixed question of fact and law cannot be raised for the first time in a Special Leave Petition. He relied on the decision of this Court in Jagannath Behera & Ors. v. Raja Harihar Singh Marda raj Bhramarbara Roy , reported in 1958 SCR 1067 (Paras 17 and 19);Karanpura Development Co. Ltd v. Raja Kamakshya Nar ain Singh Etc. , reported in 1956 SCR 325 (Para 24); Vasantkumar Radhakisan V ora v. Board of Trustees of Port of Bombay,reported in

(1991) 1 SCC 761 (Para 24); Steel Authority of India Ltd v. Gupta Brother Steel Tubes Ltd, reported in (2009) 10 SCC 63 (Paras 32 and 34).

¶38He submitted that the High Court was justified in saying that a fresh tender in the present matter is warranted more pa rticularly in view of the arbitrary tender process and delay in supply of the buses as per the timeline prescribed under the Tender. He submitted that a fresh tender would be in public interest as there has been a breach of delivery timeline by EVEY as prescribed under the Tender. It is alleg ed that there is a deficit in the supply of 1,030 buses till date. BEST has failed to take necessary steps against EVEY for the delay, an d the same showcases that the two contracting parties have colluded with eac h other. The fresh tender would allow for more competitive price bids and there would not be any financial burden on BEST in the event of termination, as the Tender provides for forfeiture of Earnest Mon ey Deposit (EMD) and encashment of performance guarantee.

¶39In the last, the learned Senior counsel submitted that the High Court while upholding the disqualification of his client on the sole basis that it guaranteed the operating range in ‘standard test conditions as per AIS 040’ committed an error. It was submitted that TATA Motors had complied with the essential conditions and certain departures under the Tender were permissible. SUBMISSIONS ON BEHALF OF THE “BEST”

¶40Mr. Tushar Mehta, the learned Solicitor General, appearing for BEST submitted that the Tender document provided for mandatory eligibility conditions for being declared as a qualified bidder at the stage of technical bid, and the said eligibility conditions were stipulated in sub – clauses (iv) and (v) of Clause 5.1.1 respectively of the Tender Document.

¶41He further submitted that Clause 5.1.1 (v), providing fo r Annexure F was a mandatory condition for being qualified as a bidder at the Technical Bidding stage. The mandatory requirement reads as under: “5.1.1 The Proposal should be submitted in the following manner: Bid 1: Technical Submissions, which would include:

i) Schedule of Guaranteed Performance & Other Technical Particulars as shown in the prescribed format in Annexure-A incorporated in the Tender document (in case of a consortium that of a lead member),

ii) Schedule of Performance of the Bidder (in case of con sortium experience of any member) as in Annexure C,

iii) Proforma for certification for Minimum Average Annual Turnover (“MAAT”) from Chartered Accountant as in Annexure D. (in case of consortium for lead member and in case of Aggregator, Networth certificate or Investible fund certificate),

iv) Aggregator have to submit back-to-back agreement with OEM for complete contract period for the maintenance of buses. Agg regator have also to submit Manufacturer Authorization Form (if aggreg ator is a sole bidder or lead bidder then such bidder shall submit Manufacturer Authorization Form) from OEM,

v) Schedule of Departures from technical specification a s in Annexure F,

vi) General details of Bidder with registration proof and credentials (in case of Consortium, this would need to be provided by t he lead members) as in Annexure G & H,

vii) Bid Security/EMD as in Annexure I,

viii) The Annexure-L. (undertaking of the Bidder not being involved/engaged in any corrupt or fraudulent malpractices or not being black-listed with any Government or Public Sector Unit s in India or outside India)

ix) In case of Consortium, proforma of Consortium Agree ment to be entered into between members as in Annexure N,

x) Covering Letter cum Project Undertaking as per Annexu re Q stating the Proposal Validity Period,

xi) Power of Attorney for Signing of the Proposal (in cas e of Consortium, this would need to be provided by all the members) as in Annexure R.”

¶42He submitted that TATA Motors deviated from the mandatory requirement while filing the said Annexure F. He highlighted the portion of the Annexure which states that if variations are found contradicting BEST’s requirements then such bids would be treated as non-responsive. The non-compliant deviation was as under: “Shall meet the operating range requirement of 200 KMS @ 80% SOC in single charge as certified per AIS 040.”

¶43He submitted that none of the bidders including EVEY (successful bidder) deviated from this mandatory condition. Hence, TATA Motors was declared a non-responsive bidder at the technical stage itself. On 06.05.2022, BEST undertook the technical evaluation and took a decision that of all the bidders found eligible and responsive , EVEY had quoted the lowest rates and accordingly the contract was awarde d in its favour.

¶44The learned SG further submitted that the successful bidde r was required to fill up Annexure Y. However, Annexure Y was neither a condition precedent for being a responsive bidder nor a m andatory condition for awarding the contract.

¶45EVEY rectified its mistake, explaining that the Annexure Y submitted by it was inadvertently placed after doing a cut-and-paste job from the previous tender. EVEY filed a revised/fresh Annexure Y strictly in accordance with the Tender.

¶46The learned SG vehemently submitted that to ask BEST t o issue a fresh tender notice would be against public interest. In the contract given to EVEY in May 2022, BEST was to pay Rs. 46.81/KM to EVEY. BEST examined the possibility of re-tendering and found that in the recent past, one similar tender was issued by the Convergency Energy Services Limited (CESL), a Government of India undertaking. As per the recent contract awarded by CESL, it ended up paying Rs. 1,200 Crore more than the present rate at which “BEST” awarded the instant contract. Therefore, it would be commercially imprudent to opt for re-tendering. ANALYSIS

¶47Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is : Whether the High Court after upholding the disqualification of TATA Motors from the Tender was justif ied in undertaking further exercise to ascertain whether EVEY also stood disqualified and that BEST in its discretion may undertake a fresh tender process?

¶48This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationali ty, mala fides and bias. However, this Court has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is norma lly loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more re luctant because most of us in Judges’ robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interf ere where such interference will cause unnecessary loss to the public exchequer. (See: Silppi Constructions Contractors v. Union of India , (2020) 16 SCC 489)

¶49It is not in dispute that the first and the foremost requirement of the Tender was the prescribed operating range of the single decker buses which would operate for around and average of 200 Kms in a single charge in “actual conditions” with 80% SoC w ithout any interruption. Then materials on record would indicate that the T ATA Motors in its bid deviated from this requirement and had informed BEST that it could carry the operating range in the “standard test conditions” which was not in accordance with the Tender conditions. The High Court has rightly observed in its impugned judgment that the bid of the TATA Motors failed to comply with the said clause. TATA Motors deviated from the material and the essential term of the Tender. It may not be out of place to state at this stage that it is only TATA Motors who deviated from the condition referred to above. However, we are of the view that the High Court having once declared TATA Motors as “non-responsive” and having stood disqualified from the Tender process should not have entered into the fray of investigating into the decision of BEST to declare EVEY as the eligible bidder. We are saying so because the High Court was not exercising its writ jurisdiction in public interest. The High Court looked into a petition filed by a party trying to assert its own rights. As held by this Court in Raunaq International Ltd. (supra), that grant of judicial relief at the instance of a party which does not fulfil the requisite criteria is something which could be termed as misplace d. In Raunaq International Ltd. (supra), this Court observed as under: “27. In the present case, however, the relaxation was permissible under the terms of the tender. The relaxation which the Board has granted to M/s Raunaq International Ltd. is on valid principles looking to the expertise of the te nderer and his past experience although it does not exactly tally wi th the prescribed criteria. What is more relevant, M/s I.V.R. Construction Ltd. who have challenged this award of tender themselves do not fulfil the requisite criteria. Th ey do not possess the prescribed experience qualification. The refore, any judicial relief at the instance of a party which does not fulfil the requisite criteria seems to be misplaced . Even if the criteria can be relaxed both for M/s Raunaq Interna tional Ltd. and M/s I.V.R. Construction Ltd., it is clear that the off er of M/s Raunaq International Ltd. is lower and it is on this ground that the Board has accepted the offer of M/s Raunaq International Ltd. We fail to see how the award of tender can be stayed at the instance of a party which does not fulfil the requisite criteria itself and whose offer is higher than the offer which has been accepted. It is also obvious t hat by stopping the performance of the contract so awarded , there is a major detriment to the public because the constructio n of two thermal power units, each of 210 MW, is held up on account of this dispute. Shortages of power have be come notorious. They also seriously affect industrial de velopment and the resulting job opportunities for a large num ber of people. In the present case, there is no overwhelming public interest in stopping the project. There is no alleg ation whatsoever of any mala fides or collateral reasons for granting the contract to M/s. Raunaq International L td.” (Emphasis supplied)

¶50We take notice of the fact that Annexure Y was original ly required to be submitted by the “Successful Bidder” after the evaluation of the bid and the same did not figure in the list of documents a nd annexures to be included in the technical submissions, as provided under Clause 5.1.1 of Schedule II of the Tender. Further the format provided for Annexure Y in the Tender documents in its heading stat es that the “Successful Bidders shall upload a Letter of Undert aking on their letter head as below”. Therefore, we are of the view that the restriction on revision of documents under Clause 16 of Schedule I, which states, “No addition/correction, submission of documents will be allowed after opening of technical bid,” is only limited to the documents necessary to be included in the technical bid and would not be applicable to any such document which does not form a part of the technical bid.

¶51We are of the view that the High Court should have been a bit slow and circumspect in reversing the action of BEST permitting EVEY to submit a revised Annexure Y. We are of the view that the B EST committed no error or cannot be held guilty of favoritism, etc. in allowing EVEY to submit a revised Annexure Y as the earlier one was incorrect on account of a clerical error. This exercise itself was not suffici ent to declare the entire bid offered by EVEY as unlawful or illegal.

¶52Ordinarily, a writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer unless something very gross or palpable is pointed out. The court ordinarily should not interfere in matters relating to tender or contract. To set at naught the entire tender process at the stage when the contract is well underway, would not be in public interest. Initiating a fresh tender process at this stage may consume lot of time and also loss to the public exchequer to the tune of crores of rupees. The financial burden/implications on the public exchequer that the State may have to meet with if the Court directs issue of a fresh tender noti ce, should be one of the guiding factors that the Court should keep in mind. Thi s is evident from a three-Judge Bench decision of this Court in Association of Registration Plates v. Union of India and Others, reported in (2005) 1 SCC 679.

¶53The law relating to award of contract by the State and public sector corporations was reviewed in Air India Ltd. v. Cochin International Airport Ltd., reported in (2000) 2 SCC 617 and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choos e its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instru mentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the court m ust exercise its discretionary powers under Article 226 with grea t caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere.

¶54As observed by this Court in Jagdish Mandal v. State of Orissa and Others, reported in (2007) 14 SCC 517, that while invoking power of judicial review in matters as to tenders or award of contracts, certain special features should be borne in mind that evaluations of tenders and awarding of contracts are essentially commercial function s and principles of equity and natural justice stay at a distance in such matters. If the decision relating to award of contract is bona fide and is in public interest, courts will not interfere by exercising powers of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. Power of judicial review will not be i nvoked to protect private interest at the cost of public inter est, or to decide contractual disputes.

¶55In such circumstances referred to above, we set aside that part of the judgment and order passed by the High Court by which the decision of BEST to accept the tender of EVEY was set aside a nd it was left to the discretion of BEST to undertake a fresh tender process.

¶56The Appeal filed by TATA Motors accordingly fails and is hereby dismissed. Whereas the Appeals filed by EVEY and BEST are allowed to the aforesaid extent.

¶57There shall be no order as to costs.

¶58Pending application, if any, stands disposed of accordingly. Divya Pandey Appeals disposed of. (Assisted by : Roopanshi Virang, LCRA)