Futura Surgicare Pvt. Ltd. v. State Of Haryana And Others

Gurbax Singh 2017.08.29 14:39



   
              

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78 1.

Prayer in this petition under Articles 226/227 of the Constitution of India is for quashing the tender condition incorporated in clause 4.2 (printed as 6.2) in Section IV: 'Eligibility criteria of tender document' dated 5.7.2017, Annexure P.3 as it requires US-FDA certificate for sutures items and mesh. Further direction has been sought to the respondents not to disqualify the bid of the petitioner in pursuance to the above mentioned condition in the tender. 2.

A few facts relevant for the decision of the controversy involved as narrated in the petition may be noticed. The petitioner is a reputed company having vast experience in manufacturing, distributing, supplying etc. of various medicinal and surgical products. It is in the business of sutures and mesh in India. It is supplying medicines, medicinal and surgical products to various Haryana Govt. departments

and other States like Punjab Health System Corporation, Rajasthan Medical Services Corporation etc. It is aggrieved by the condition in clause 4.2 in the tender notice dated 5.7.2017, Annexure P.3 which restricts its participation in the tender process by excluding it from the purview of consideration in eligibility criteria for want of US-FDA certificate. The petitioner filed representation dated 10.7.2017, Annexure P.4 against the above said condition to respondent No.3 with a prayer to remove the same from the tender document. Having received no response, the petitioner has approached this Court through the instant writ petition.

3.

We have heard learned counsel for the petitioner. 4.

Before proceeding further, it would be advantageous to refer to the scope of judicial review in the tender matters at the first instance.


 

 






 











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11. In Michigan Rubber (India) Ltd. v. State of Karnataka and Ors . (2012) 8 SCC 216 
 



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reproduce the impugned condition in Clause 4.2 (typed as 6.2) in the notice inviting tender which is the bone of contention in this petition. It reads thus:- "GMP (Good Manufacturing Practice) The manufacturer should have a valid WHO-GMP inspection certificate in line with the WHO certification scheme and certificate of Pharmaceutical Products (COPP) on Pharmaceuticals being quoted from the appropriate Regulatory Authority (RA). Bidder should submit a valid (at the time of bid submission date) product wise Certificate of WHO-GMP and COPP issued by Regulatory Authority of State/CDSCO) for each items offers. For sutures items and mesh US-FDA certificate is required."

9.

The cardinal issue that arises for consideration in this petition is whether the condition as quoted above inserted in the impugned notice is arbitrary and discriminatory and, therefore, liable to be set aside.

10.

The terms and conditions contained in the notice inviting tender have to be construed having regard to the fact situation obtaining

in each case. No hard and fast rule can be laid down therefor. In the present case, the decision has been taken by the respondents keeping in view the overall interest of the public. It has been authoritatively held that in tender or contract matters, interference by courts is very limited. Power of judicial review will not be invoked to protect private interest at the cost of public interest or to decide contractual disputes. Interference is permissible if the process adopted or decision made is malafide or intended to favour someone or the same is so arbitrary and irrational that no responsible authority acting under the law could have arrived at it or it affected the public interest.

Learned counsel for the petitioner has not been able to produce any material on record to show that the impugned condition in the notice is arbitrary, malafide or irrational except to urge that incorporation of the said condition would oust the petitioner or Indian Companies from submitting tender or that it would be difficult to get US-FDA certificate whereas local drug authorities are available. The learned counsel for the petitioner could not demonstrate that the aforesaid condition imposed was a result of malafide intention of the respondents or to benefit any party. In the absence of the same, the said condition could not be faulted.

11.

In all fairness to learned counsel for the petitioner, adverting to the judgments relied upon by him, it may be noticed that in Michigan Rubber (India) Limited vs. State of Karnataka and others, (2012) 8 SCC 216, it was held by the Apex Court that the Government and their undertakings must have a free hand in setting terms of the tender and only if they are arbitrary, discriminatory, malafide or actuated by bias, would the courts interfere. In Siemens Aktiengeselischaft and Siemens Limited vs. Delhi Metro Rail Corporation Limited and others,

(2014) 11 SCC 288, it was held by the Apex Court that contracts are amenable to judicial review only in order to prevent arbitrariness and favouritism and protect the financial interest of State and the public interest. The scope of such review is confined to the issue as to whether there was any illegality, irrationality or procedural impropriety committed by the decision making authority. The courts cannot sit in appeal over the soundness of the decision made by the competent authority. Similar was the position in M/s Kasturi Lal Lakshmi Reddy vs. state of Jammu and Kashmir and another, (1980) 4 SCC 1 and Ramana Dayaram Shetty vs. International Airport Authority of India and others, (1979) 3 SCC 489. The propositions of law enunciated in these decisions cannot be questioned. However, each case has to be decided on its own facts. The factual matrix in the present case being different, the petitioner cannot derive any advantage from the said decisions.

12.

In view of the above, no interference is called for with the impugned condition in the tender document, Annexure P.3 in writ jurisdiction under Articles 226/227 of the Constitution of India. Consequently, finding no merit in the petition, the same is hereby dismissed.

(Ajay Kumar Mittal) Judge August 08, 2017 (Amit Rawal) 'gs'

Judge Whether speaking/reasoned Yes Whether reportable Yes