ORDER
S.K. Agarwal, J.
1. The above appeal is directed against the judgment dated 17th September, 1999 passed by learned Single Judge of this court partially allowing the writ petition of appellants and quashing the Letter of Intent dated 3rd June, 1999 issued by Mahanagar Telephone, Nigam Limited (for short MTNL), respondent No. 1, in favour of the respondent No. 2, Fujitsu India Ltd. (for short FIL), Judge of this court, allowing the writ petition of respondents, 1 to 3 herein, quashing the Letter of Intent dated 3rd June, 1999 issued by Mahanagar Telephone Nigam Limited (for short MTNL), respondent No. 4, in LPA 444/99 and appellant in LPA 457/99, in favour of the appellant Fujitsu India Ltd. (for short FIL), and directing the MTNL to take fresh steps for award of the contract, as it may deem fit and appropriate, in accordance with law.
2. Facts giving rise to these appeals briefly are that LG Information and Communications Ltd. a Korean Company, its collaborating concern in India M/s Escorts, Communications Limited and their authorised representative Mr. Rajinder Sharma, respondent No. 1 to 3, filed a writ, challenging the letter of intent dated 3rd June, 1999 issued by MTNL to FIL for supply of Wireless in Local Loop system (WILL) of CDMA ISA-95 Technology (for short the Technology) on the ground that they were ‘Ineligible and unfit to bid for the tender as its bid was not responsive as per terms contained in paras 3, 9.2 and 13 of MTNL’s Notice Inviting Tender (for short NIT), which prescribed eligibility and qualifications of a bidder and that the required documents were not enclosed along with the bid. It was alleged that as per the terms of NIT the bidder was required to enclose documents establishing supply of the said technology (at least one lakh lines) and also satisfactory feed back certificate of after sales service of at least two major customers; that NIL terms further prescribed that the bidders who do not fulfill the above requirements would not be considered and that their bids would be liable to be rejected; that FIL did not furnish along with their bid any document showing such supply or the performance certificate thus their bid was ex-facie unresponsive and liable to be rejected. The Tender Evaluation Committee (for short TEC) of the MTNL found FIL to be ineligible, however, MTNL arbitrarily over-ruled their rejection and awarded tender to FIL in flagrant breach of the eligibility criteria and after obtaining from them a letter dated 12th April, 1999 along with a certificate, from the Union of Mynamar certifying the supply of the said technology; the MTNL acted arbitrarily and the award speaks of unreasonableness and smacks favouritism; and that MTNL ought to have rejected the bid of FIL in terms of clause 26 of the NIT.
3. In reply MTNL submitted that they had invited sealed global tender bids in two parts, (Techno-commercial and financial), from reputed manufacturers or suppliers, of WILL CDMA IS-95-A technology with atleast two years standing and adequate financial strength on turn-key basis to carry out survey, design, supply of equipment, install, test commission and make over the systems to MTNL. Subsequent annual maintenance support was also a part of the scope of the said tender. As many as nine bidders submitted their bids in two parts (i) technocommercial unpriced bid and, (ii) financial/priced bid by the closing date of the tender. For the purpose of selection of the supplier, a Tender Evaluation Committee (TEC) was constituted to facilitate, aid and to recommend to the Competent Authority for selecting the best equipment at the competitive price. Firstly, the technocommercial/unpriced bids of all the nine bidders were opened on 12.10.1998 in the presence of their representatives. The TEC started the evaluation of the technocommercial unpriced bids and took about four months to complete its recommendations. Thereafter these recommendations were sent to the competent authority. Chairman-cum-Managing Director (for short CMD) of MTNL, through proper channel, for final decision. The TEC recommended to the competent authority for the opening of financial/priced bids of FIL as well as respondents 1 to 3 apart from other successful bidders; however, competent authority sought some clarification in respect of some technical aspect of the proposal and directed the TEC to examine the bids afresh and make clear out recommendations.
4. This time TEC found FIL as non-compliant, CMD after going through these subsequent recommendations of the TEC directed that a clarification be sought in writing from FIL under clause 24 of NIT, to prove their credentials within one week, failing their bid be cancelled. FIL in response to the aforesaid directions of the MTNL sent a letter dated 12.4.99 along with a certificate dated 11.10.98 of the Post and Communications, Ministry of Communications, Mynamar, of their having supplied a system of 1,00,000 lines capacity of the offered product. In the letter FIL further claimed that said documents were already annexed by them along with their bid. Thereafter the bid of FIL along with others including respondents 1 to 3 were cleared for participating in financial/priced bids. The financial/priced bids of all the short-listed bidders were opened on 29.4.99 in the presence of their representatives. The bid of FIL was found to be the lowest. Bid of the respondents 1 to 3 was admittedly not the lowest. The difference between the bids of respondent nos. 1 to 3 and that of the lowest tenderer was of order of Rs. 90 (US $ 2.08) per line which comes to around Rs. 1.5 crores for the entire contract. It was also pleaded that respondent nos. 1 to 3 have belatedly moved the court only with a view to delay the award of contract.
5. FIL in reply stated that they are one of the leading manufacturers of the telecommunication equipment and network since 1935 and known for its quality products world-wide with a turnover of over US $ 50 billion. They have been the regular suppliers of various types of telecom equipment to DOT/MTNL since 1979. They had supplied and installed the first electronic telephone exchange at Mumbai in 1982. They had supplied and installed other exchanges in all four Metro cities of the country. In 1992, they had installed and commissioned the first State of Art Digital Telephone Exchange of the country at Mumbai. They had also supplied various optical fiber network systems and microwave communication equipment to MTNL/Department of Telecommunications, over the last two decades, without any blemish. As
such, it was pleaded that they are manufacturer and supplier of high quality telecommunication network and equipment and their credentials in this regard cannot be doubted. Details of supplies to MTNL/DOT and Certificates of appreciation from them were placed on record. It was also pleaded that MTNL was well within its right to seek any clarification from the bidders during the technical evaluation of the bids to satisfy itself about the competence and capability of the bidder; under clause 24 of the NIT, it was only after satisfying itself of their capability that they have invited for opening of the financial bids. It was also pleaded that they while submitting their tender, had annexed all the necessary documents, to fulfill the requirements of the tender.
6. We have heared Mr. Ashok Desai, learned Sr. Advocate for the appellant-FIL and Mr. C.S. Vaidyanathan, learned Additional Solicitor Generals, for the MTNL and Mr. Mukul Rohtagi, learned Sr. Advocate for the contesting respondents No. 1 to 3 and have been taken through the record.
7. As arguments were based on the interpretation of various clauses of Notice Inviting Tender (NIT), in order to appreciate the rival contentions, the said clauses NIT are reproduced herein-below :
Clause 3. ELIGIBILITY OF BIDDERS
(a) Bids are invited from reputed manufacturers and suppliers of Wireless in Local Loop of CDMA IS-95 A Technology equipment with two years standing and adequate financial strength. The bidders should have supplied atleast 1,00,000 lines of WILL of CDMA IS-95 Technology. They shall provide credentials in support of their technical capabilities, financial strength and commitment to their customers in this regard. Those who do not fulfill the above requirements shall not be considered.
(b) Indian reputed vendors with adequate financial strength and having valid collaboration agreement with vendors meeting the
eligibility condition as per 3(a) above may also be eligible to bid in this tender.
Clause 9 PREPARATION OF BIDS :
9.2 DOCUMENTS COMPRISING THE BID
The bid prepared by the bidder shall comprise the following components :
(a) Documentary evidence established in accordance with clause 3 and 13 indicating that the bidder is eligible to bid and is qualified to perform the contract if his bid is accepted.
(b) Bid Security furnished in accordance with clause 15.
(c) A clause by clause compliance of the goods/services offered as per clause 14.
(d) A bid form and price schedule completed in accordance with clause 10, 11 and 12.
Clause 13 DOCUMENTS ESTABLISHING BIDDER’S ELIGIBILITY AND QUALIFICATIONS:
13.1 Pursuant to Clause 3, the bidder shall furnish as part of bid documents establishing the bidder’s eligibility to bid, and its qualifications to perform the contract if its bid is accepted.
13.2. The documentary evidence of the bidder’s qualifications to perform the contract if its bid is accepted, to the purchaser’s
satisfaction.
13.3 That the bidder has the financial, technical and production capability necessary to perform the contract. For this, he shall
certify the following criteria.
(i) The bidder must be a manufacturer and supplier of CDMA IS-95 A equipment with two years standing experience and has supplied
at least 100 K lines (Radio & Switching). The bidder(s) should have a sound financial strength. They may give balance sheets for
the last three years for assessing their financial strength. In case of joint venture each of the participant member may give their balance sheet separately for the last three years for this purpose.
(ii) The bidder has a Nodal Centre existing/proposed to be opened, to facilitate the interaction which shall be preferably in Mumbai, which shall form part of contractual commitment. The services shall be available throughout the period of conduct.
(iii) The bidder (along with their collaborator, if any) should have satisfactory feed-back regarding after-sale service from
their customers. A certificate for satisfactory performance of the contract from at least three major customers may be produced.
Clause 23 BID OPENING
23.1 OPENING OF BIDS BY PURCHASER :
The purchaser will open Techno Commercial/Unpriced bids, in the presence of authorised bidder’s representatives who choose to
attend, at date and time specified in NIT. the bidder’s representatives, who are present shall sign an attendance register. Authority letter to this affect shall be submitted by the bidder/representative before they are allowed to participate in bid opening. Technical/Commercial Bids shall be opened first and Financial Bids of only technically eligible bidders shall be opened subsequently after necessary short-listing. In the event of specified date of bid opening declared a holiday by the purchaser, the bid shall be opened at the appointed time and
location of the next working day.
23.2 A maximum of two representative for any bidder shall be authorised and permitted to attend the bid opening.
23.3 The Bidder’s names, modifications, bid withdrawl and the presence or absence of the requisite bid security and such other
details as the purchaser, as its discretion, may consider appropriate will be announced and recorded at the bid opening.
23.4. The purchaser will prepare minutes of the bid opening.
Clause 23 CLARIFICATION OF BIDS
To assist in the examination, evaluation and comparison of bids, the Purchaser may, at its discretion ask the bidder for the clarification of its bid. The request for clarification and the response shall be in writing and no change in the price substance of the bid shall be sought, offered or permitted.
Clause 25 PRELIMINARY EVALUATION
25.1 The purchaser shall evaluate the Techno Commercial/Unpriced bids to determine whether they are complete, whether any
omputational errors have been made, whether required bid security has been furnished, whether the documents have been properly signed,
and whether the bids are generally in order.
25.2 Bids without proper authorisation from the bidder/manufacturers as per Clause – 17 shall be treated as non-responsive.
Clause 26 EVALUATION OF TECHNO COMMERCIAL BIDS :
10.Criteria for technical and commercial qualification shall be the following :-
1. Capability of the bidding company to undertake the project in terms of its
(a) Technical expertise
(b) Financial strength
2. Experience of the bidding company in undertaking similar projects in India and/or abroad.
(a) Performance of the networks supplied by the bidding company.
(b) Support given by the bidders company in operation and maintenance of the systems supplied by them.
3. Bidding company’s commitment of India.
4. Bidding company’s commitment, ability and promptness to support maintenance of the system including supply of spares.
5. Strength of the bidder to give maintenance support on long term basis (Refer to Technical Specifications).
6. Ability and willingness to train MTNL’s personnel to operate the system and perform first line maintenance.
The details of financial strength and experience of the bidders shall be examined to determine whether the bidders meet the
qualification in accordance with the criteria specified in clause 3 and 13 above.
26.3 During the technical evaluation, MTNL at its discretion may call upon the bidders to give their presentation on their offer,
to explain their capability to undertake the project and to respond to any questions from MTNL.
26.4 The bids that do not meet all the qualification requirements will be rejected.
26.5 Prior to detailed evaluation, the purchaser will determine the substantial responsiveness of each bid to the bidding docu ment. A substantially responsive bid is one which conforms to all the terms and conditions of the bidding documents without materi al deviation.
26.6 A bid determined as not substantially responsive will be rejected by the purchaser and may not subsequently be made
responsive by the Bidder by correction of the non-conformity.
8. On 18th September, 1998 MTNL also issued clarification/amendment to the certain clauses of the tender and introduced new clause 26.10 which, inter alia, provided that based on technical compliance capabilities, techno commercial bids will be graded and only those bidders who are graded 90% and above shall be considered as technically compliant and would be considered for opening of their financial bids.
9. Learned counsel for the appellants argued that clause 3(a) of NIT required “credentials in support of their technical capabilities, financial strength and commitment to their customers”. It does not in any way make reference to the bidder having supplied one lakh lines of WILL. The credential referred to in the third sentence were in regard to technical “capability, financial strength and commitment” set out in the first sentence of the same clause. Clause 9.2(1) also does not set out any independent requirement but merely refers to documentary evidence to be provided in regard to clause 3 and 13; clause 13.1 refers to the documents required under clause 3; clause 13.2 refers to documentary evidence to show ability of the bidder to perform the contract; clause 13.3 refers to the certificate by the bidder on the criteria set out in clause 13.3 (i), (ii) and (iii): whenever any document is needed it is specifically set out in the relevant clauses such as balance sheet for the last three years for assessing financial strength, in case of joint venture balance sheet of each participant member, for the last three years and thus there was no requirement of a certificate of a person, who had bought one lakh lines from the bidder: under clause 23 bids were to be opened in the presence of the representative of the bidders. The techno commercial bids are required to be opened first and after necessary short-listing, financial bids only of technically eligible bidders were to be opened; petitioners in the writ petition did not challenge the eligibility of FIL when the techno commercial bids were opened on 12th October, 1998; the evaluation of the techno commercial bid was done by a Committee and their offer was found to be technically and commercially compliant. Had the committee found that the bidder did not meet the eligibility clause under 3(1) Section II it would have excluded it from the evaluation. Learned counsel for the respondents 1 to 3 argued to the contrary.
10. File dealing with the said tenders containing noting portion was produced before us by the learned counsel for the MTNL. A perusal of the same shows that after the first report of TEC, DGM (MM-II) vide her detailed note dated 18.2.99 observed that since FIL is stated to have complied with the eligibility clause, even though no supporting document was filed, their bid may be considered as eligible, to enable a wide spectrum competition, and submitted the proposal for approval for opening of the financial bids of the 8 vendors including the appellant FIL and respondents 1 to 3. This proposal was duly approved by the GM (MM-II) and Director (Technical).
11. On 23rd February, 1999, however, CMD noticed some ambiguities with regard to the concept of V. 5.2 of TEC and sought clarification whether all exchanges in Mumbai can be made V. 5.2 compliant and sought a clear utilisation plan and directed the TEC to again have look at the technical bids and make clear cut recommendations. The committee was to remain the same as before except Mr. Harihar Kumar, who had submitted his papers in the meantime and in his place one Mr. P.K. Mittal, Director (Technical), Delhi was nominated to the committee.
12. TEC in its second report found FIL not eligible for having not complied with the basic eligibility condition under clause 3(a) Section II of
the tender documents because they had not submitted any supporting document in support of their claim of having supplied similar equipment (at least one lac line) to two major customers etc. although they had stated ‘complied’ against the relevant column of the tender. Their bid was, therefore, recommended for rejection. The other important decision of this IEC was that financial bids of only those bidders be opened who are V. 5.2 complaint. It was suggested that in view of this, a decision may be taken whether or not financial bid of FIL need to be opened or not.
13. CMD Vide his note dated 6th April,1999, while dealing with the disqualification of FIL observed that the eligibility condition under Clause 3(a) was essentially to find out the “provenness” of the company and its project. It was noticed that the company was given full 5 marks for “provenness” by the TEC and it had also scored 97.89% marks for technical grading of its product and that it was compliant for both V5.2 and R2. The competent authority, therefore, directed that a clarification under clause 24 of NIT, should be sought from FIL, to enable the MTNL to properly evaluate their bid. FIL was asked to prove their credentials, within one week and if they fail to do so they should be given zero mark under the relevant clause. The note dated 5.4.99 of the CMD in this regard reads as under:-
“4. Disqualification of Fujitsu
It is recommended that their bride be rejected since they have not complied with the eligibility condition clause 3(a) Section II page 6 because the company has not produced documentary evidence of their technical capabilities, financial strength and commitment to the customer in this regard. The company has however written ‘Complied”. This clause in the tender states that those who do not fulfill above requirement shall not be considered.
Coming to the evaluation of the bids, I find that this company has been given full 5 marks under Part C. System requirements
C.1. which states as under:
“The bidder should provide a complete list of Administrator/private operators to whom the system quoted has
been supplied along with dates of commencing operations”. To me this looks a bid odd. I consider the eligibility condition 3(a)
is essentially to find out `provenness’ of the company and its product. We reject the company as per 3(a) but we have given the company full 5 marks for `provenness’. I think in this case in view of rejection of the company as per 3(a), we should have
given 0 marks at C1.1. I also find that this company has scored 97.89% for both V5.2 and R2 compliance. Here is a situation which
needs a clarification from the bidder to assist us in the evaluation and comparison of bids. As such, we can ask in writing the company a clarification under clause 24 asking them to prove their credentials as per 3(a). We can given one week time for their response. If they don’t provide satisfactory credentials, their bids may be rejected, at the same time marks given at C.1 may be made zero. If they provide, they may be qualified and their bids for both R2 and V5.2 may be opened.”
sd/-
S. Rajagopalan
CMD
5.4.99
14. Thereafter under clause 24 of NIT, MTNL asked FIL to substantiate their technical capability and provenness with the list of customers. In response to the same FIL sent a letter dated 12th April, 1999 to MTNL along with a certificate dated 11th October, 1998 from Mynamar Post and Communication Ministry, certifying their having supplied one lakh lines of the capacity of the offered product. In the said letter it was specifically mentioned “we wish to confirm that the documentary evidence of our technical capability was included in Section VI of our unpriced technical and commercial bid”.
15. After considering the said documents FIL was found to have qualified for opening of their financial bids including respondents 1 to 3. On 29.4.99 financial bids of all the short-listed bidders were opened in the presence of their representatives. FIL was found to be the lowest tenderer and they were awarded the contract. Letter of Intent was issued by the MTNL in favour of FIL.
16. Thereafter respondents 1 to 3 filed the writ petition, challenging the letter of intent dated 3rd June, 1999. The learned single Judge of this court by the impugned judgment dated 17th September, 1999 quashed the said letter of intent and directed the MTNL to take fresh steps for award of the contract, as it may deem fit and proper in accordance with law, against which above noted two appeals have been filed, one by FIL (LPA 444/99) and the other by MTNL (LPA 457/99). Respondents 1 to 3 have also filed a separate appeal (LPA 475/99) against the impugned judgment. Arguments in all the appeals were heard. However, order in the appeal of respondents 1 to 3 would be passed separately to avoid confusion.
17. The averments made by the parties and record produced before us clearly show following facts:-
(i) That MTNL floated global tenders and invited tenders in two parts, techno commercial/unpriced bids and financial/priced bids, from the reputed manufacturers for supply of WILL technology.
(ii) TEC was constituted to evaluate and recommend to the competent authority to facilitate the selection of the technology. TEC
in its first report after evaluation of technocommercial unpriced bids recommended for opening of the financial/priced bids of eight bidders, including that of FIL and respondents 1 to 3. The report dated 12.10.98 of the TEC was duly forwarded by DGM(MM-II), GM(MM) and Director (Technical) to the CMD for con sideration.
(iii) CMD after examining the said report found some ambiguities in it and desired clarifications, with regard to the concept of
V5.2 and R2MF/CCS7 and asked the TEC to have a fresh look at the technical bids and make clear cut recommendations. The committee
was to be the same as before, except for Mr. Harihar Kumar who had, in the meantime, submitted his papers and in his place, Director, Tech, Delhi, who was conversant with V5.2 specifications was appointed as a member.
(iv) This time TEC vide its report dated 25.2.99 found that FIL has not complied with the basic eligibility conditions under
clause 3(a) of NIT, as no supporting document was submitted by them evidencing any earlier supply of one lac lines of this technology etc. thereafter, their bid was recommended for rejection. However, as per report TEC had given FIL full five marks
for “provenness” and their bid was technically given 97.89% grading. It was also recommended by the TEC that only bids which
are V5/2 compliant, may be opened and the other bids need not be opened. However, FIL was found to be V5.2 compliant as well.
(v) CMD noticed some contradictions in the recommendations of TEC and vide his note dated 5.4.99 observed that eligibility
condition under 3(a) was essentially to find out ‘provenness’ of the company and its product. If the bid of this company is rejected as per clause 3(a) then it could not be given full 5 marks for ‘provenness’ and instead they should have been given Zero. It was further noticed that the company had secured 97.89% and was compliant for both V5.2 and R2. Therefore, CMD desired that a clarification is needed from the bidder, to assist the MTNL in proper evaluation and comparison of the bids and directed that FIL be asked in writing under clause 24 of NIT, to prove their credentials as per para 3(a) within one week.
(vi) As per the said directions of the competent authority, MTNL vide letter dated 5th April, 1999 asked FIL to substantiate their
technical capability and provenness etc. In response to which FIL sent a letter dated 12th April, 1999 along with a certificate dated 11th October, 1998 from Mynamar Port and Communication Ministry, certifying of their having supplied the said technology to them. They further claimed “that the documentary evidence of their technical capability was included in Section VI of their unpriced technical and commercial bid”. FIL was thereafter found qualified for opening of its financial bid.
(vii) On 29.4.99 financial/priced bids of all the short-listed bidders were opened in the presence of their respective representatives. FIL was found to be the lowest bidder and were awarded the contract and the Letter of Intent was issued on 3rd June, 1999 by MTNL in their favour, which was challenged by the contesting respondents 1 to 3.
18. The real question which arises for consideration is whether the competent authority of MTNL could, in the facts and circumstances noted above, ask for clarification under clause 24 of NIT and whether the court should interfere in the award of contract when there is no pleading or averment of mala fides or bias against the decision making authority and when there is no material placed on record that any such power was exercised for a collateral purpose in excess or abuse of its power.
19. Law in this regard is well settled by several authoritative pronouncements of the apex court. In Tata Cellular Vs. Union of India, Supreme Court examined the scope of judicial review in the case of a tender awarded by public authority and held that the judicial review can be exercised only to prevent arbitrariness or favoritism. However, there are inherent limitations in exercise of the powers of judicial review and laid down the following principles:-
(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is
permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.
(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for
an administrative body functioning in an administrative or quasiadministrative sphere. However, the decision can be tested by the application of the “Wednesbury principle” of reasonableness and the decision should be free from arbitrariness, not affected by
bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgted
expenditure.
20. Above principles were reiterated by the Supreme Court in a recent judgment in Raunag International Limited Vs. I.V.R. Construction Ltd. . In this case while upholding the decision of relaxation in the requisite qualifying criteria observed, “in the present case, however, the relaxation was permissible under the terms of the tender. The relaxation which the Board has granted to Raunaq International Ltd. was on valid principles looking at the expertise of the tenderer and its past experience, although it does not exactly tally with prescribed criteria .” these observations are fully applicable to the facts at hand. In this case also clause 24 of the NIT provided that a clarification could be sought from the bidder on technical aspects to get assistance in evaluation.
21. Admittedly, FIL in whose favour the contract has been awarded was found by the TEC to be technically and commercially complnaint and was found to be the lowest bidder. The only procedural impropriety alleged is that the MTNL could not have given another opportunity to FIL to provide documentary evidence in support of their claim under clause 3(a). It may be noticed that bare reading of the clause 24 of NIT shows that MTNL in its discretion could ask the bidder for any clarification of its bid to assist them in examination, evaluation in comparison of bids. The only rider was that no change in the price quoted could be permitted. The job of TEC was only advisory. Thus the competent authority was well within its right to ask for a clarification particularly when the bidder was given full five marks towards provenness: graded 97.89% and also met other technical requirements and respondents 1 to 3 did not question the inclusion of FIL for financial opening of its bid, in spite of their knowing about this deficiency.
22. In New Horizons Ltd. Vs. Union of India Supreme Court
again, while emphasising the need to allow certain flexibility in the administrative decision-making, held that such decisions can be challenged only on the ‘Wednesbury’ principle of unreasonableness i.e. unless the decision is so unreasonable that no sensible person would have arrived at such decision, it should not be upset.
23. In view of the above, we are of the considered opinion that the decision taken by the CMD to call for clarification under clause 24 of the NIT was bona fide and on legitimate considerations. It was not at all arbitrary. Under the facts and circumstances of this case, the learned single Judge could not have interfered with the decision of the competent authority in the absence of any allegation of mala fide or bias against him.
24. At this stage, it may also be noticed that when the petition came up for hearing in June 1999 for grant of stay of the impugned letter of intent, learned single Judge did not pass any interim order and proceeded to hear the writ petition. By the impugned judgment dated 17.9.99 the writ petition was allowed to the extent that the award of contract by MTNL in favour of FIL and Letter of Intent dated 3.6.99 was quashed. It was argued on behalf of FIL that under the contract they were required to manufacture the equipment and offer the same for pre-inspection to the MTNL within three months of the letter of intent and commissioning of the entire network was to be completed by 30th November, 1999 i.e. within six months and that till the date of the judgment they had already spent over Rs.35 crores towards the execution of the contract. In our view, even otherwise order quashing the Letter of Intent dated 3rd June, 1999 and stopping the project from proceeding further, at this stage, would be against public policy.
25. For the foregoing reasons, both the appeals are allowed, impunged judgment and order of the learned Single Judge is set aside. Consequently the writ petition filed by the respondents 1 to 3 herein above, is dismissed with no order as to costs.