The Jammu and Kashmir and Ladakh High Court reiterated that the tendering process can be cancelled at any stage before the finalization and issuance of letter of acceptance.

The Court held thus in a petition filed by persons who challenged the cancellation of e-NITs (Electronic Notice Inviting Tenders) by the Chairman of the State Level Purchase Committee, Sheep Husbandry Department, Jammu and Kashmir.

A Single Bench of Justice Sindhu Sharma observed, “The invitation to offer merely invites the other party to make negotiations and makes an order. This offer was yet to be accepted by the respondents for a contract to come into existence which could be enforceable for the parties. It is a well settled position of law that merely by participating in the tender, no right is created in favour of the bidder and the tenderer cannot be precluded from its option to cancel the tendering process on any grounds. The tendering process, thus, can be cancelled at any stage before finalization and issuance of letter of acceptance as there was no concluded contract between the parties.”

The Bench said that the legitimate expectations on the petitioners having altered their positions based on being declared L-1 has no significance as there was no contract between the parties.

Advocate M.A. Wani appeared for the petitioners while Government Advocate Faheem Nisar Shah appeared for the respondents.

Brief Facts -

The Chairman, State Level Purchase Committee, Sheep Husbandry Department issued e-NITs for supply of livestock (sheep/goat) from the States having similar agro-climatic conditions as of Kashmir for establishment of units under ISDS) Integrated Sheep Development Scheme). The contention of the petitioners was that they had fulfilled all the codal formalities and participated in the tendering process and being the lowest bidders, were declared as L-1 in both the e-NITs.

The respondents/authorities did not finalize the tendering process despite lapse of time, constraining the petitioners to approach the High Court. In their objections submitted by the respondents, they argued that e-NITs were cancelled ab initio due to technical issues vide an office order and the writ petition was disposed of with a liberty to the petitioners to challenge the cancellation order.

The moot question before the High Court was whether the petitioners have a right to seek allotment after having participated in the tendering process or not.

The Court in respect of the aforesaid question noted, “It is well settled that the tender is only an invitation to offer and the other party makes an offer pursuant to the invitation to offer, as such, it is not obligatory to the authority issuing tender to accept the offer and no right is created on the basis of merely being L-1. Thus, the respondents were well within their right to cancel the tender before the acceptance was made. A right would only be arisen when a contract comes into existence.”

The Court said that the scope of judicial review in contractual manner is very circumspect and the law with regard to interference of the Courts in judicial review of the administrative decisions is well settled under Article 226 of the Constitution.

“It was found that the best genetics of sheep in the Country and induction of animals from the neighbouring States would jeopardize the efforts of the Department, put in place for improving the genetic makeup of our sheep population”, further noted the Court.

The Court said that therefore, the recommendation was that Livestock required for establishment of Sheep/Goat units must be procured from within the UT of J&K to prevent the dilution of sheep population. It concluded that the petitioners failed to show any mala fide intention or arbitrariness in the impugned order.

Accordingly, the High Court dismissed the petition.

Cause Title- Ghulam Qadir Bhat and Another v. U.T of J&K and Others

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