In a big setback for Tata Motors, the Supreme Court
on Friday dismissed its plea challenging an order of the Bombay High Court
which upheld the decision of the BEST to disqualify it from a tender process
for supplying 1,400 electric buses worth Rs 2,450 crore, saying the vehicle
manufacturer deviated from the "material and essential" term of the
tender.
A three-judge bench headed by Chief Justice D Y
Chandrachud said it is not in dispute that the first and the foremost
requirement of the tender was the prescribed operating range of the single
decker buses which would operate for around 200 km on a single charge in actual
conditions with 80 per cent state of charge without any interruption.
"The material on record would indicate that
Tata Motors in its bid deviated from this requirement and had informed BEST
that it could carry the operating range in the 'standard test conditions' which
was not in accordance with the tender conditions.
"The high court has rightly observed in its
impugned judgment that the bid of Tata Motors failed to comply with the said
clause. Tata Motors deviated from the material and the essential term of the
tender," the bench, also comprising Justices P S Narasimha and J B
Pardiwala said.
The top court also remarked that the high court
having once declared Tata Motors as non-responsive and having been disqualified
from the tender process should not have entered into the fray of investigating
into the decision of Brihanmumbai Electric Supply and Transport Undertaking
(BEST) to declare Evey Trans Pvt. Ltd. as the eligible bidder.
The auto major had approached the HC challenging the
BEST's decision to disqualify it from the tender process for supplying 1,400
electric buses for operating in Mumbai and award the contract to
Hyderabad-based Evey Trans.
Tata Motors had participated in the tender process
but was "disqualified" following a technical suitability evaluation,
the parties had previously told the high court.
The automaker had argued that its technical bid was
"arbitrarily" rejected to favour the company that later won the
tender.
According to the plea filed by Tata Motors, BEST had
published an e-tender notice on February 26, 2022 for two-bid e-tender for the
operation of stage carriage services for 1,400 single-decker AC electric buses
for Mumbai and its suburbs.
Tata Motors had submitted its technical and
financial bid on April 25, the plea said.
However, on May 6, 2022 the BEST published a
technical suitability evaluation of the tender and "wrongly" declared
Tata Motors' bid as "technically non-responsive", alleging the
deviation mentioned in respect of operating range was not acceptable.
However, BEST denied the allegations and maintained
before the HC that it had followed the due process in awarding the tender.
The top court in its judgement said court being the
guardian of fundamental rights is duty-bound to interfere when there is arbitrariness,
irrationality, mala fides and bias.
"This Court has cautioned time and again that
courts should exercise a lot of restraint while exercising their powers of
judicial review in contractual or commercial matters. This Court is normally
loathe to interfere in contractual matters unless a clear-cut case of
arbitrariness or mala fides or bias or irrationality is made out. One must
remember that today many public sector undertakings compete with the private
industry.
"The contracts entered into between private
parties are not subject to scrutiny under writ jurisdiction. No doubt, the
bodies which are State within the meaning of Article 12 of the Constitution are
bound to act fairly and are amenable to the writ jurisdiction of superior
courts but this discretionary power must be exercised with a great deal of
restraint and caution," the bench said.
It said courts must realise their limitations and
the havoc which needless interference in commercial matters can cause.
"In contracts involving technical issues the
courts should be even more reluctant because most of us in Judges' robes do not
have the necessary expertise to adjudicate upon technical issues beyond our
domain. The courts should not use a magnifying glass while scanning the tenders
and make every small mistake appear like a big blunder.
"In fact, the courts must give fair play in the
joints to the government and public sector undertakings in matters of contract.
Courts must also not interfere where such interference will cause unnecessary
loss to the public exchequer," the bench said.