The Supreme Court ruled that the courts cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical.
Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Delhi, by which the High Court, in exercise of its powers under Article 226 of the Constitution of India, has allowed the writ petition and has struck down the decision to carry out region-wise sub-categorisation of the 49 airports falling under Group D-1. T
he stipulation that only previous work experience in respect of providing GHS to scheduled aircrafts shall be considered acceptable for the purpose of the impugned tender/RFP and the revised minimum Annual Turnover criteria of INR 18 crores as discriminatory and arbitrary, the Airport Authority of India has preferred Civil Appeal. The subsequent order rejecting the review application to review and recall the final judgment and order passed in Writ Petition is also the subject matter of Civil Appeal.
K.M. Nataraj, Additional Solicitor General of India appearing for AAI, contended that the original writ petitioner before the High Court has no locus standi to maintain the writ petition.
He submitted that the terms and conditions invitation to tender, being in the realm of contract, are not open to judicial scrutiny.
He added that as per the settled position, NGOs have no locus standi to maintain a writ petition challenging the tender conditions especially when the same is not in the nature of a Public Interest Litigation.
Advocate Umakant Mishra, appearing for the respondent, submitted that all the members of respondent are GHAs and were to participate in the tender.
He contended that after the authorities did not respond to the representations of the individual GHA members of respondent, only thereafter a writ petition was preferred before the High Court challenging the illegal policy changes made in the tender.
The division bench of Justice M.R. Shah and Justice Krishna Murari noted that respondent claiming to be a non-profit organisation carrying out research, advisory and advocacy in the field of civil aviation had filed a writ petition challenging the tender conditions in the respective RFPs.
It was further noted that none of the GHAs who participated in the tender process and/or could have participated in the tender process have challenged the tender conditions.
“It is not appreciable how respondent original writ petitioner being an NGO would have any locus standi to maintain the writ petition challenging the tender conditions in the respective RFPs. Respondent cannot be said to be an” aggrieved party”. Therefore, in the present case, the High Court has erred in entertaining the writ petition at the instance of respondent, challenging the eligibility criteria/tender conditions mentioned in the respective RFPs” the court said.
The bench stated that the terms and conditions of the Invitation to Tender are within the domain of the tenderer/tender making authority and are not open to judicial scrutiny, unless they are arbitrary, discriminatory or mala fide.
It was further added that the terms of the Invitation to Tender are not open to judicial scrutiny, the same being in the realm of contract. The Government/tenderer/tender making authority must have a free hand in setting the terms of the tender.
The court opined that the clauses/conditions cannot be said to be arbitrary and/or mala fide and/or actuated by bias. It was for the AAI to decide its own terms and fix the eligibility criteria.
Case title: Airport Authority of India v/s Centre for Aviation Policy, Safety & Research (CAPSR) & Others
Citation: Civil appeal nos. 6615-6616 of 2022