Jammu & Kashmir High Court
Nitiraj Engineers Ltd. And Ors vs Ut Of Jammu And Kashmir And Others on 22 April, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
WP(C ) No. 788/2025
Nitiraj Engineers Ltd. and ors ..... Petitioner (s)
Through :- Mr. Ashish Sharma Advocate.
V/s
UT of Jammu and Kashmir and others .....Respondent(s)
Through :- Mr. Ravinder Gupta AAG
Mr.Gagan Oswal Advocate
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1 The petitioners have challenged contract dated 11.03.2025,
awarded by respondent No.2 in favour of respondent No.7. Challenge has also
been thrown to a tender document dated 21.02.2025, whereby bids were invited
for the supply of Weighing Scales (Infant), Infantometers, Stadiometers, and
Analog Weighing Scales.
2 Issue notice to respondents No. 1 to 3 and respondent No7 in the
first instance. Mr. Ravinder Gupta, learned AAG, accepts notice on behalf of
respondents No. 1 to 3, whereas Mr. Gagan Oswal, learned counsel, accepts
notice on behalf of respondent No.7.
3 Mr Ravinder Gupta, learned AAG, has submitted that he has
brought the record relating to the present case with him and that he is prepared
to argue the matter on the basis of the said record.
2
4 With the consent of the learned counsel for the parties, the matter
has been taken up for consideration.
5 Heard and considered.
6 It appears that respondent No.2 had floated the impugned tender
for procurement of Growth Monitoring Devices under the Poshan Abhiyan,
through the GeM portal. Respondent No.7, along with respondent No.6,
participated in the tender process, but, later on, respondent No.6 withdrew from
the tender process. Upon evaluation of the bids, the contract for the supply of
aforesaid products was awarded in favour of respondent No.7, in terms of the
impugned contract dated 11.03.2025.
7 The petitioners have challenged the impugned action of the
official respondents on the ground that the specifications relating to the
Weighing Scale (mother and child) provided in the tender document were
mentioned as a minimum graduation of 100-150 grams, whereas, in the
contract, the specification for the said product has been mentioned as a
minimum graduation/resolution of 500 grams. Therefore, the official
respondents have altered the specifications of the aforesaid product with a view
to oust petitioner No.1 from the competition and to extend undue benefit to
respondent No.7. It has been contended that respondent No.4, the Original
Equipment Manufacturer (OEM) of respondent No.7, the successful bidder, has
submitted forged and false laboratory reports in respect of its products. It has
been further contended that the OEMs of respondent No.7 viz., respondents
No.4 and 5, have already been blacklisted by the Himachal Pradesh Authority,
3
as such, the impugned action of the official respondents is in violation of the
conditions stipulated in the bid document.
8 Learned counsels appearing for the respondents have raised a
preliminary objection with regard to the maintainability of the writ petition on
the ground that petitioner No.1 itself had not participated in the bidding process
and its status was only that of an OEM of respondent No.6, who had submitted
its bid and, later on, withdrawn the same. In support of their contention, the
respondents have relied upon a Judgment of the Division Bench of the Delhi
High Court in the case of Primatel Fibcom Ltd. vs. Indian Oil Corporation
Ltd. and others, (WP(C) No. 8220/2024, decided on 01.06.2024).
9 So far as the assertion of the respondents that petitioner No.1 itself
had not participated in the tendering process and that it was respondent No.6
who had submitted its bid with petitioner No.1 as its OEM is concerned, the
same is not in dispute. The question that falls for determination is as to whether
petitioner No.1, in its capacity as an OEM and not as a bidder, has locus standi
to challenge the award of the contract to respondent No.7.
10 The aforesaid question has been answered by the Division Bench
of the Delhi High Court in the case of Primatel Fibcom Ltd. (supra). While
answering the said question, the Division Bench has relied upon the ratio laid
down by the Supreme Court in the case of National Highway Authority of
India vs. Gwalior-Jhansi Expressway Ltd., (2018) 8 SCC 243. The relevant
observations of the Supreme Court are reproduced as under:
“18. While considering the relief claimed by the respondent
(claimant), the same should have been tested on the touchstone of
the principle governing the tender process, especially when the
4validity of the tender document has not been put in issue or
challenged before any competent forum. Going by the terms and
conditions in the tender documents, as already alluded to in
paragraph 8 above, there is no title of doubt that the right of the
claimant (respondent) to match the bid of L-1 or to exercise ROFR
would come into play only if the respondent was to participate in
the tender process pursuant to the notice inviting tenders from the
interested parties. The objective of tender process is not only to
adhere to a transparent mechanism but to encourage competition
and give equal opportunity to all tenderers with the end result of
getting a fair offer or value for money. The plain wording of the
eligibility clause in the tender documents and the incidental
stipulations make it explicit that the respondent was required to
participate in the tender process by submitting its sealed bid
(technical and financial). The fact that a deeming clause has been
provided in the tender document that if the respondent was to
participate in the bidding process, it shall be deemed to fulfill all
the requirements of the tender clauses 3 to 6 of the RFP, being the
existing concessionaire of the Project, does not exempt the
respondent from participating in the tender process; rather the
tenor of the terms of the documents made it obligatory for the
respondent to participate in the tender process to be considered as
a responsive bidder, along with others. Having failed to
participate in the tender process and, more so, despite the express
terms in the tender documents, validity whereof has not been
challenged, the respondent cannot be heard to contend that it had
acquired any right whatsoever. Only the entities who participate
in the tender process pursuant to a tender notice can be allowed to
make grievances about the non-fulfillment or breach of any of the
terms and conditions of the concerned tender documents. The
respondent who chose to stay away from the tender process,
cannot be heard to whittle down, in any manner, the rights of the
eligible bidders who had participated in the tender process on the
basis of the written and express terms and conditions. At the
culmination of the tender process, if the respondent had not
participated, in law, the offer submitted by the eligible bidders is
required to be considered on the basis of the stated terms and
conditions. Thus, if the claim of the respondent was to be strictly
adjudged on the basis of the terms and conditions specified in the
subject tender document, the respondent has no case whatsoever”.
5
11 Relying upon the aforesaid observations of the Supreme Court, the
Division Bench of the Delhi High Court, in the aforesaid case, has observed as
under:
“9. The Petitioner herein admittedly did not participate in the
bidding process and elected to remain outside the said process.
The fact that Petitioner was the intended supplier of SDH
equipment of Respondent No. 4 would not give any locus to the
Petitioner to challenge the tender process and maintain these
proceedings. The issuance of a Commitment Letter dated 02nd
June, 2023 by the Petitioner to Respondent No. 4 does not make it
a ‘bidder’ in the tender process. In view of the aforesaid judgment
of the Supreme Court, it is clear that a party which has not
participated in a tender process does not have any locus to
challenge the award of the Tender and cannot be heard to make
any grievances as such a party does not acquire any right in the
tender”.
12 From the foregoing analysis of the law on the subject, it is clear
that an OEM, who has not participated independently in the tender process,
cannot maintain a challenge to the award of a tender in favour of the successful
bidder, even if there is any error in awarding of tender in favour of the
successful bidder. As already stated, admittedly, petitioner No.1 has not
participated in the tender process independently, rather, it is respondent No.6
who had participated in the tender process with petitioner No.1 as its OEM, as
such, the petitioners have no cause to challenge the impugned action of the
official respondents.
13 The respondents have produced a copy of communication dated
05.03.2025, addressed by respondent No.6 to respondent No.2, wherein
respondent No.6 has unequivocally made a request to withdraw its bid and it
has been confirmed in the said communication that neither respondent No.6 nor
its OEM, the petitioners herein, have any objection to such withdrawal, and
6
that all claims, demands or entitlements arising from the bid submission would
stand waived. In the face of this unequivocal assertion of respondent No.6
through whom the petitioners are claiming their right to challenge the award of
the contract in favour of respondent No.7, it is not open to the petitioners to lay
a challenge to the action of the official respondents.
14 For the foregoing reasons, this Court has no hesitation in holding
that the petitioners do not have any locus standi to challenge the impugned
action of the official respondents. Accordingly, the writ petition is held to be
not maintainable and is dismissed, as such.
(SANJAY DHAR)
Jammu JUDGE
22.04.2025
Sanjeev
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
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