Delhi High Court: Where Public Interest Outweighs Private Interests, Constitutional Courts May Refuse To Grant Relief Even If There Is Some Infraction By State
The Delhi High Court said that a Constitutional Court may interfere to the extent of examining the decision-making process and has complete jurisdiction to interfere, provided such decision-making process is found to be vitiated by malafides, unreasonableness, and arbitrariness.
Chief Justice Devendra Kumar Upadhyaya, Justice Tushar Rao Gedela, Delhi High Court
The Delhi High Court observed that where public interest outweighs private interests, then, even where there is some infraction by the State, the Constitutional Courts may refuse to grant relief.
The Court observed thus in a Writ Petition filed by a company seeking direction to Bharat Sanchar Nigam Limited (BSNL), to 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 is trite that exercise of jurisdiction under Article 226 of the Constitution of India is discretionary and relief may not necessarily be granted in all cases. In particular, where public interest would far outweigh private interests, then, even where there is some infraction by the State, the Constitutional Courts may refuse to grant relief. Even when some defect is found in the decision-making process, the Court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point.”
The Bench said that a Constitutional Court may interfere to the extent of examining the decision-making process and has complete jurisdiction to interfere, provided such decision-making process is found to be vitiated by malafides, unreasonableness, and arbitrariness.
Senior Advocate Parag Tripathi appeared for the Petitioners while Solicitor General 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 tender in 2024 for Development (Creation, Upgradation and Operation & Maintenance) of middle mile network of BharatNet on Design, Build, Operate and Maintain (DBOM) Model. The tender consisted of work in 16 packages corresponding to different States and Union Territories in the country. The total contract value of the tender was approximately Rs. 65,000 crores. The Project was of national importance as it envisages laying of the infrastructure for broadband connectivity in the rural areas of the country, including its operations and maintenance for the next ten years. The Petitioners claimed to be one of the leading corporates dealing with and servicing various requirements of the telecom sector and claimed to have been recognized/awarded for its excellence, inter alia, by various governments and public entities.
They made a bid towards procuring a contract under the said tender and as per the requirements of the tender, they were required to furnish “Experience/work completion certificate” from its previous employers in order to establish its technical eligibility. The last date for submission of the bids was August 5, 2024 and a bidder had to submit techno-commercial bid and financial bid simultaneously. The techno-commercial bid was to be opened on August 7. In September month, BSNL issued post-bid queries seeking certain clarifications to which the Petitioners responded. Reliance had sent an email regarding the contents of WEC directly to BSNL to which it did not respond. The bid was evaluated and the same was declared as non-responsive. Being aggrieved, the Petitioners were before the High Court.
Reasoning
The High Court in the above regard, noted, “… the Hon’ble Supreme Court in a catena of judgments has undoubtedly laid down the law that Constitutional Courts in exercise of powers of judicial review under Article 226 of the Constitution may interfere, even in tender matters, provided that the tender process smacks of malafides, infraction of tender conditions or arbitrariness, discrimination and non transparent manner of conducting the tender process.”
The Court emphasised that a Constitutional Court is not to sit as an appellate body over the decision taken by the State or its instrumentality on the administrative side but is to examine and judicially scrutinize the decision making process, albeit, whether the decision has been made lawfully and not arbitrarily or in a non transparent manner displaying abject discrimination.
“In case the Constitutional Court finds such apparent discrimination or arbitrariness or even unfairness in its dealing by a State, judicial review to that extent is permissible. It appears that no straitjacket formula can be laid down and such interference may be warranted on a case to case basis”, it said.
Furthermore, the Court remarked that the Supreme Court was anxious to ensure and declare that while a State has complete discretion while entering into contracts through public tenders, it and its instrumentalities have a public duty and responsibility to be fair to all concerned parties to such public tenders.
“Of course, this is not to disregard that the primary objective of a Court is to be acutely aware of the paramount public interest which may be involved, while proposing to interfere or interdict a tender process. … That said, this Court is acutely aware of the fact that no stay or any interim order was passed during the pendency of the present writ petition which resulted in the tender process being proceeded with and declaration of certain bidders as L1 who also furnished PBGs”, it added.
The Court was of the view that interfering with the tender at this stage and that too having wide amplitude and of such huge amount may create a rippling effect across the 16 packages involved in the tender process.
“Moreover, the tender and the project it implements is greatly significant and of paramount national importance and interference at this stage may not be conducive to the nation itself keeping in view that the whole nation and every village is being united by OFC which would undoubtedly enhance communication and connectivity and cannot be undermined”, it added.
The Court also observed that its interdiction may further delay and protract the implementation of the tender, unnecessarily enhancing the project cost which is stated to be Rs. 65,000 crores as of now.
“Thus, balancing the controversy, though there has been a display of some error, we do not find any paramount public interest that may impel this Court to interfere or interdict either the tender process or the further award of contracts to the successful L-1 bidders across any of the packages”, it concluded.
Accordingly, the High Court dismissed the Writ Petition and refused to grant any relief.
Cause Title- Pace Digitek Private Limited & Anr. v. Bharat Sanchar Nigam Limited & Ors. (Neutral Citation: 2025:DHC:5142-DB)
Appearance:
Petitioners: Senior Advocate Parag Tripathi, Advocates Anirudh Wadhwa, Bhargav Thali, Vipul Kumar, Debarshi Chakrobarty, and Abmuj Sachhan.
Respondents: Solicitor General 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.
