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Ordinarily, the soundness of the decision taken by the tender issuing authority ought not tobe questioned, but the decision-making process can certainly be subject to judicial review. The Courts are expected to exercise judicial restraint in interfering with the administrative action, particularly in the matter of tender or contract as held by the Hon’ble High Court of J&K and Ladakh through a learned bench of Hon’ble Mr Justice Ali Mohammad Magrey in the case of Firdous Kamran Shora Vs Union of India & Ors [WP(C) No. 1330/2021 c/w CCP(S) No. 356/2021].

In this case, Mr A. H. Naik, the learned Senior Counsel representing the Petitioner, submitted that the action and inaction on the part of the Respondents in determining the contract between the parties and changing the site, that too, without negotiating with the Petitioner amounts to arbitrary exercise of power, aimed at giving undue benefit to some other blue-eyed contractor(s). It was submitted that there was no agreement executed between the parties, therefore, there was no question of invoking any clause of the agreement which was not in existence.

Objections stand filed on behalf of Respondents 2 and 3. It was stated that the BSNL, Civil wing, was assigned the responsibility of execution of NFS project by the Department of Telecommunication (Government of India). The Project, as stated, was meant for enhancing the communication system of the Army and is of national importance as the project site is located at a highly sensitive strategic area of LOC. It was pleaded that the Petitioner was awarded the contract for timely execution, but he, despite repeated reminders, did not execute the same on time, constraining the Respondents to take the impugned action against the Petitioner and re-tender the work, therefore, no interference was warranted in the said process from this Court.

After the court had heard the learned counsel for the parties, perused the pleadings on record and considered the matter. Then the court had gone through the relevant records made available by the learned Senior Counsel representing the Respondents 2 and 3.

The Hon’ble High Court was of the view that law on the subject of scope of judicial review in the matters of Contract is no more res integra. The court relied on the Judgments in cases of Tata Cellular V. Union of India: (1994) 6 Supreme Court Cases 651, Sterling Computers Limited V. M&N Publications Ltd: (1993) 1 SCC 445, Directorate of Education & Ors. V. Educomp Datamatics Ltd. And Ors: (2004) 4 SCC 19 to conclude that what comes to limelight is that the modern trend points to judicial restraint in administrative action and that the Court does not sit as a ‘Court of Appeal’, but merely reviews the manner in which the decision was made. In conclusion, it was stated that “It has also been declared that Court does not have the expertise to correct the administrative decision and that if a review of the administrative decision is permitted, it will be substituting its own decision, and without the necessary expertise which itself may be fallible. Furthermore, fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasiadministrative sphere and quashing administrative decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.”

Click here to read the Judgment                    

Judgment Reviewed by – Aryan Bajaj