Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Constitution of India – Judicial Review |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Constitution of India – Judicial Review – Foreign funded project – Bullet Train Project – Interference by High Court in Tender Process – When not justified – Appellant, a government company issued a tender notice calling for bids for works in relation to the project of construction of Mumbai-Ahmedabad High Speed Rail (Project) – Bids submitted by the respondent along with four other bidders were declared unsuccessful at Technical Stage – High Court allowed the writ petition filed by the respondent and quashed the communications dated 27.04.2021 and 28.04.2021 and the notification dated 28.04.2021 by which the technical Bid submitted by the respondents was rejected on the ground that the same is non-responsive – Whether w.r.t such a foreign funded project, the High Court was justified in interfering with the tender process in absence of any specific allegations of mala fides and/or favouritism – Held: High Court ought to have appreciated that the Bullet Train Project is a result of long-drawn deliberations between the Government of India and the Government of Japan – A loan agreement came to be executed between the Japan International Cooperation Agency (JICA) and Hon’ble the President of India – JICA agreed to fund approximately Rs.1 lakh crores for the project on the terms and conditions mentioned in the loan agreement and the other agreed terms including the terms and conditions of the Bid document finalized by the JICA/JICC (Japan International Consultants Consortium) – The Bidding Documents are based on JICA’s Standard Bidding Documents as well as based on its procurement guidelines, which form an integral part of the loan agreement – Therefore, any decision contrary to the terms and conditions of the Bidding Document would be altering the terms and conditions of the loan agreement, which would not be permissible – JICA has a vital role to play in such contracts – The foreign funded investment such as Development Assistance (ODA) loan by the JICA are made on the basis of non- negotiated terms and conditions where the sole discretion as to what will be the conditions of investment and on what terms the contractors would be chosen to implement the project vests with the investor- foreign developed nation – The ultimate decision vests on the concerned parties, who financed/invested in the project, i.e., in the present case JICA – The decision to hold that the Bid was not responsive was of JICC – Under the contractual mechanism,the appellant had no authority to deviate from the evaluation done by JICC – Appellant acted as per the decision of the JICC concurred by JICA – The JICC and JICA can be said to be the final authority and no contrary decision to the decision of the JICC/JICA could have been taken by the appellant, more particularly, with respect to the Bidding Process etc. – Further, the bidding procedure adopted was transparent, fair and does not suffer from any arbitrariness – As such there were no allegations of mala fides and/or favouritism either against the appellant or against JICC and/or JICA – High Court erred in interfering with the conscious decision taken by the JICA/JICC, followed by the appellant – It erred in holding that the Bid submitted by the respondent was in substantial compliance and in interfering with the tender process and with the decision of the JICC/JICA rejecting the Bid submitted by the original writ petitioner at technical stage – Impugned judgment passed by the High Court is quashed and set aside – Contracts. Contracts – Foreign Funded Contracts – Constitution of India – Judicial Review – Scope of – Held: Scope of judicial review in foreign funded contract should be far much less than the ordinary Government funded contracts funded from Consolidated Fund of India – The scope of judicial review in such foreign funded contracts/projects would be restricted and minimal – In such foreign funded contracts, the only ground for judicial review ought to be on a limited aspect, i.e., the action of the executing authority does not suffer from favouritism or nepotism and based on the grounds which have been concealed from the foreign financing authority, if disclosed, would have persuaded the financing authority to cancel the contract. |
Judge | Hon'ble Mr. Justice M.R. Shah |
Neutral Citation | 2022 INSC 124 |
Petitioner | National High Speed Rail Corporation Limited |
Respondent | Montecarlo Limited & Anr |
SCR | [2022] 12 S.C.R. 810 |
Judgement Date | 2022-01-31 |
Case Number | 6466 |
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