Where Public Interest Outweighs Private Interests, Constitutional Courts May Refuse To Grant Relief Even If There Is Some Infraction By State
The Delhi Excessive Court docket noticed that the place public curiosity outweighs personal pursuits, then, even the place there’s some infraction by the State, the Constitutional Courts might refuse to grant aid.
The Court docket noticed thus in a Writ Petition filed by an organization in search of route to Bharat Sanchar Nigam Restricted (BSNL), to simply accept and admit the techno-commercial bid in respect of a Tender.
A Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela elucidated, “It’s trite that train of jurisdiction beneath Article 226 of the Structure of India is discretionary and aid might not essentially be granted in all instances. Particularly, the place public curiosity would far outweigh personal pursuits, then, even the place there’s some infraction by the State, the Constitutional Courts might refuse to grant aid. Even when some defect is discovered within the decision-making course of, the Court docket should train its discretionary powers beneath Article 226 with nice warning and may train it solely in furtherance of public curiosity and never merely on the making out of a authorized level.”
The Bench mentioned {that a} Constitutional Court docket might intervene to the extent of inspecting the decision-making course of and has full jurisdiction to intervene, supplied such decision-making course of is discovered to be vitiated by malafides, unreasonableness, and arbitrariness.
Senior Advocate Parag Tripathi appeared for the Petitioners whereas Solicitor Normal Tushar Mehta, Senior Advocates Nalin Kohli, Mukul Rohatgi, Dayan Krishnan, Vivek Chib, Ashish Dholakia, Advocates L.B. Rai, Nikhilesh Krishnan, and Shagun Chug appeared for the Respondents.
Case Background
The Respondent-BSNL issued a young in 2024 for Growth (Creation, Upgradation and Operation & Upkeep) of center mile community of BharatNet on Design, Construct, Function and Preserve (DBOM) Mannequin. The tender consisted of labor in 16 packages equivalent to totally different States and Union Territories within the nation. The full contract worth of the tender was roughly Rs. 65,000 crores. The Venture was of nationwide significance because it envisages laying of the infrastructure for broadband connectivity within the rural areas of the nation, together with its operations and upkeep for the subsequent ten years. The Petitioners claimed to be one of many main corporates coping with and servicing numerous necessities of the telecom sector and claimed to have been acknowledged/awarded for its excellence, inter alia, by numerous governments and public entities.
They made a bid in the direction of procuring a contract beneath the mentioned tender and as per the necessities of the tender, they have been required to furnish “Expertise/work completion certificates” from its earlier employers so as to set up its technical eligibility. The final date for submission of the bids was August 5, 2024 and a bidder needed to submit techno-commercial bid and monetary bid concurrently. The techno-commercial bid was to be opened on August 7. In September month, BSNL issued post-bid queries in search of sure clarifications to which the Petitioners responded. Reliance had despatched an e mail concerning the contents of WEC on to BSNL to which it didn’t reply. The bid was evaluated and the identical was declared as non-responsive. Being aggrieved, the Petitioners have been earlier than the Excessive Court docket.
Reasoning
The Excessive Court docket within the above regard, famous, “… the Hon’ble Supreme Court docket in a catena of judgments has undoubtedly laid down the regulation that Constitutional Courts in train of powers of judicial evaluation beneath Article 226 of the Structure might intervene, even in tender issues, supplied that the tender course of smacks of malafides, infraction of tender situations or arbitrariness, discrimination and non clear method of conducting the tender course of.”
The Court docket emphasised {that a} Constitutional Court docket is to not sit as an appellate physique over the choice taken by the State or its instrumentality on the executive facet however is to look at and judicially scrutinize the choice making course of, albeit, whether or not the choice has been made lawfully and never arbitrarily or in a non clear method displaying abject discrimination.
“In case the Constitutional Court docket finds such obvious discrimination or arbitrariness and even unfairness in its dealing by a State, judicial evaluation to that extent is permissible. It seems that no straitjacket system could be laid down and such interference could also be warranted on a case to case foundation”, it mentioned.
Moreover, the Court docket remarked that the Supreme Court docket was anxious to make sure and declare that whereas a State has full discretion whereas getting into into contracts by public tenders, it and its instrumentalities have a public obligation and accountability to be honest to all involved events to such public tenders.
“In fact, this isn’t to ignore that the first goal of a Court docket is to be conscious about the paramount public curiosity which can be concerned, whereas proposing to intervene or interdict a young course of. … That mentioned, this Court docket is conscious about the truth that no keep or any interim order was handed through the pendency of the current writ petition which resulted within the tender course of being proceeded with and declaration of sure bidders as L1 who additionally furnished PBGs”, it added.
The Court docket was of the view that interfering with the tender at this stage and that too having vast amplitude and of such enormous quantity might create a rippling impact throughout the 16 packages concerned within the tender course of.
“Furthermore, the tender and the undertaking it implements is vastly vital and of paramount nationwide significance and interference at this stage will not be conducive to the nation itself protecting in view that the entire nation and each village is being united by OFC which might undoubtedly improve communication and connectivity and can’t be undermined”, it added.
The Court docket additionally noticed that its interdiction might additional delay and protract the implementation of the tender, unnecessarily enhancing the undertaking value which is acknowledged to be Rs. 65,000 crores as of now.
“Thus, balancing the controversy, although there was a show of some error, we don’t discover any paramount public curiosity that will impel this Court docket to intervene or interdict both the tender course of or the additional award of contracts to the profitable L-1 bidders throughout any of the packages”, it concluded.
Accordingly, the Excessive Court docket dismissed the Writ Petition and refused to grant any aid.
Trigger Title- Tempo Digitek Personal Restricted & Anr. v. Bharat Sanchar Nigam Restricted & Ors. (Impartial Quotation: 2025:DHC:5142-DB)
Look:
Petitioners: Senior Advocate Parag Tripathi, Advocates Anirudh Wadhwa, Bhargav Thali, Vipul Kumar, Debarshi Chakrobarty, and Abmuj Sachhan.
Respondents: Solicitor Normal Tushar Mehta, Senior Advocates Nalin Kohli, Mukul Rohatgi, Dayan Krishnan, Vivek Chib, Ashish Dholakia, Advocates L.B. Rai, Nikhilesh Krishnan, Shagun Chug, Leena Tuteja, Nimisha Menon, Rohan Chawla, S. Banerjee, Ananya Tyagi, Vikhyat Oberoi, Mansi Gupta, Nishita Gupta, Sidharth Sunil, Ravi Sharma, Shivam Prakash, Amit George, Rishabh Dheer, Aishwarya Singh, Sreedhar Kale, Siddharth Singh, Varun Chugh, Nandita Mishra, Udit Seth, Anil Seth, Anil Sethi, and Divyanshu.
