NHAI’s decision cannot be questioned but decision-making process can be subjected to judicial review: Delhi High Court

The decision taken by the National Highway Authority of India for accepting/rejecting the bids for tenders cannot be interfered by the Court. However, the court was of the opinion that the decision is not subject to judicial scrutiny, but the process is subjected to judicial review. The Delhi High Court presided over J. H. Kohli & J. S. Prasad laid down the ratio in the case of Track & Towers Infratech Pvt. Ltd. Vs. National Highway Authority of India, [W.P.(C) 3743/2020].

The brief facts of this case are that the Respondents i.e. NHAI issued a tender notice for construction of a highway. The Petitioner in a Pre-Bid Meeting submitted its bid and sought for a clarification from the Respondent. In the clarification the Petitioner asked whether construction of railway tracks is considered a “similar work” for qualifying in the eligibility criteria. The Respondents asked the Petitioners to rely on the clause provided by them in the tender contracts as it clearly laid down all the details. The Respondents further sought a clarification from the Petitioner asking them how the projects carried out by them satisfy the terms and conditions laid down in the tender documents. The Petitioner replied by referring the clause earlier cited by the Respondents. The Respondents rejected the bid of the Petitioners on the basis that construction of railway track did not qualify as similar work for the said tender. The Petitioner filed a writ in the Court contending that the highway sector would deem to include the railways and the grounds for rejection was baseless.

The court after analyzing the arguments of both the parties relied on the landmark judgment of Jagdish Mandal Vs. State of Orissa. As laid down in the case the court was of the opinion that the owner of the project is the author of the tender documents and is the best person to interpret and appreciate its requirements. The Court further stated that the decision made by any such authority cannot be interfered with to determine its correctness but the process it adopted to make the particular decision can be subject to judicial review. Hence, the Court dismissing the writ petition filed by the Petitioner stated that, “The petitioner has not been able to demonstrate that the decision-making process adopted by the respondent/NHAI is perverse, irrational or tainted with mala fides or is designed to favor a particular party.”

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