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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.      7593      OF     2012   (Arising out of S.L.P. (C) No.3571 of 2012)

Ratnagiri Gas & Power Pvt. Ltd. …Appellant

Versus

RDS Projects Ltd. & Ors. …Respondents

With

CIVIL     APPEAL     NO.     7594      OF     2012   (Arising out of S.L.P. (C) No.5554 of 2012)

And

CIVIL     APPEAL     NO.      7595     OF     2012   (Arising out of S.L.P. (C) No.6180 of 2012)

J     U     D     G     M     E     N     T   

T.S.     THAKUR,     J.   

1. Leave granted.

2. These appeals arise out of a common judgment and order  

dated 17th October, 2011 passed by the High Court of Delhi whereby  

Writ Petition (C) No.534 of 2011 filed by the respondent has been  

allowed and the rejection of the tender submitted by it quashed with

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a mandamus to the appellant-company to take a fresh decision on  

the subject in the light of the observations made by the High Court.

3. The factual matrix leading to the filing of the writ petition by  

RDS Project Ltd. (hereinafter referred to as ‘RDS’ for short) has been  

set out at considerable length in the order passed by the High Court.  

We do not, therefore, consider it necessary to re-count the same all  

over again except to the extent the same is absolutely necessary for  

the disposal of these appeals. Suffice it to say that Government  

of India has entrusted the task of reviving and restructuring of the  

Dabhol Project to Gas Authority of India Ltd. (GAIL) and National  

Thermal Power Corporation (‘NTPC’  for short) both Government of  

India undertakings who have in turn formed a joint venture company  

in the name and style of Ratnagiri Gas & Power Pvt. Ltd., the  

appellant in this appeal, for short referred to as ‘RGPPL’. The  

appellant-RGPPL is charged with the duty of completing the balance  

work at LNG Terminal of the Dabhol Power project and of  

commissioning and operating the same. The appellant has, for that  

purpose, engaged GAIL as its Engineer who has in turn appointed  

Engineers India Limited (EIL) as their Primary Project Management  

Consultant. Scott Wilson a U.K. based entity was also kept in the  

loop as a backup consultant for marine works.

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4. In terms of an international competitive bidding notice, issued  

by it on 26th June, 2009, EIL invited tenders from eligible parties for  

completion of, what is called “Breakwater” at LNG Terminal at RGPPL  

site, Dabhol, Maharashtra. The construction of the breakwater was  

left incomplete by a previously employed contractor appointed for  

the purpose on account of the stoppage of the work by the Dabhol  

Power Company. The earlier contractor had, according to the  

appellant, constructed only 500 meters of breakwater length leaving  

the balance of nearly 1800 meters incomplete and a certain length  

thereof untouched.   

5. Apart from stipulating other terms and conditions, Clause  

8.1.1.1 of the tender required that Single Bidders responding to the  

invitation should have experience of successfully completing as a  

single bidder or “as a lead of a Consortium/Joint Venture”, at least  

one project of a breakwater in an offshore location with a minimum  

length of 400 meters.  Clause 8.1.1.1 of the Tender document was in  

the following words:

“The bidder shall have experience of having successfully  completed, as a single bidder or as a lead of a Consortium/Joint  Venture, at least one project of a breakwater in an offshore  location (as defined at Clause No.8.1.2.5 below) of minimum  length of 400m during the last 20 (twenty) years to be reckoned  from the last date of submission of bids. The scope of work of

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the proposed qualifying project work should comprise of the  design, engineering, project management and construction of the  breakwater.”

6. In response to the notice inviting tenders, EIL received five  

tenders from five different entities viz. RDS the respondent in this  

appeal, M/s ESSAR Construction Ltd., M/s Afcons Infrastructure Ltd.,  

joint venture of M/s Higgard Punj Lloyd Ltd. and joint venture of M/s  

Hung-Hua/Ranjit Buildcon Ltd.  

7. With the tender submitted by it RDS enclosed the requisite  

documents such as Form-B in which details of specific work  

experience, on the basis whereof it claimed to be satisfying the Bid  

Qualification Criteria (‘BQC’  for short), were also given. It also  

enclosed along with its tender, completion certificate dated 5th April,  

2008 issued by Deputy Chief Engineer-IV, Andaman Harbour Works  

under the Ministry of Shipping, Road Transport and Highway,  

Government of India certifying that RDS had completed breakwater  

of 500 meters against a tender dated 26th May, 1999. Completion  

certificate dated 30th June, 2003 issued by the Senior Executive  

Manager of Ellen Hinengo Ltd. a Tribal Society (EHL) and letter dated  

10th November, 2000 addressed by the said Ellen Hinengo Ltd. to  

RDS asking it to commence work for construction of breakwater at  

Mus in Car Nicobar Island pursuant to tender dated 3rd November,

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2000 were also produced by RDS apart from a certificate issued by  

EHL about the offshore location of the breakwater.   

8. Tenders received from different parties were techno  

commercially evaluated by EIL all of whom were found to be  

technically qualified except Hung-Hua & Ranjit Buildcon Ltd. who  

went out of the reckoning at that stage itself.  Names of only four  

bidders found techno commercially eligible were recommended by  

EIL for the approval of GAIL the owner’s engineer. The price bids of  

the four bidders were pursuant to the said recommendation opened  

on 11th February, 2010 in which RDS was found to be the lowest  

bidder having quoted a price of Rs.390 crores only, which was less  

than the estimated cost of the project by Rs.160 crores. GAIL  

accordingly recommended RDS to the appellant-company for award  

of the contract.  Recommendation received from GAIL  

notwithstanding the appellant-company appears to have expressed  

apprehensions about the capability of RDS to complete the project in  

time having regard to the fact that RDS had taken three years to  

complete a breakwater with a length of mere 500 meters whereas  

the appellant-company’s breakwater project stretched over a length  

of 1800 meters and had to be completed within a period of 33  

months only. Reservations about the viability of the rates quoted by

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RDS which were found to be abnormally low were also expressed.  

9. While a final decision regarding award of the contract had yet  

to be taken,  Hung-Hua/Ranjit Buildcon Ltd. who was one of the  

bidders and whose bid was not found to be techno-commercially  

qualified, filed a writ petition in the Delhi High Court, inter alia,  

alleging that while they had been wrongly disqualified, RDS who did  

not satisfy the qualifying criteria had been wrongly held to be  

qualified. Questions regarding validity of certificates submitted by  

RDS were also raised in the writ petition.

10. In response to the above writ petition filed by Hung-Hua, the  

appellant company filed a short affidavit in which it disputed the  

averments made in the writ petition and took the stand that the  

documents filed by RDS along with its bid showed that breakwater at  

Mus in Car Nicobar Island was built at an offshore location and that  

RDS had completed the entire work as a single entity on behalf of  

M/s Ellen Hinengo Ltd.   

11. While the writ petition filed by Hung-Hua was pending before  

the High Court, the appellant sought from GAIL the work order  

issued to RDS in respect of the qualifying project at Car Nicobar to  

verify the credentials of the RDS.  RDS was accordingly asked by EIL

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to produce the documents in support of its qualification such as the  

work order for the Andaman Harbour works. The appellant-company  

also sought the details about the contracts to verify the correctness  

of the certificates submitted by RDS along with its bid in response to  

the tender notice.

12. A further development in the meantime took place in the  

form of the CAG forwarding a report in which certain adverse  

observations regarding the completion of the breakwater at chainage  

22M to chainage 200 M in the Andaman and Nicobar Project were  

made. The report revealed that in January, 1998 the contractor had  

completed only 15 to 47 percent of the work and that in April, 1998  

the Executive Engineer had taken out a part of the unexecuted work  

for awarding it to another contractor. The CAG found that due to  

delay in the construction of a portion of the breakwater coupled with  

non-compliance of contractual terms, the department had suffered a  

loss of Rs.2.61 crores, apart from increase in cost of the work by  

Rs.3.55 crores.   

13. The report of the CAG was forwarded by the appellant to  

GAIL with the request to arrange copies of work order, and  

satisfactory evidence of the credentials of RDS. GAIL was also  

informed that in the absence of satisfactory evidence furnished by

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RDS, the appellant was not in a position to place the matter for  

award of contract before the Board of Directors.  

14. While correspondence between RGPPL, GAIL and EIL was  

being exchanged on the subject the appellant received certain  

documents under RTI Act including the work order placed by  

Andaman Harbour Works on EHL and those placed on M/s Recon  

International for a part of the Andaman Project for chainage 22-200  

meters. These documents were quickly sent to EIL for review who  

examined the matter again and submitted its observations in terms  

of letter dated 18th September, 2010 stating that RDS did not meet  

the basic qualifying conditions of offshore breakwater of a minimum  

length of 400 meters. GAIL then forwarded that opinion to the  

appellant to take appropriate action on the subject.

15. On receipt of the letters aforementioned, the appellant  

requested GAIL to forward its own recommendations. GAIL,  

however, reiterated that since all the relevant information on the  

subject was available with the appellant, it could take an appropriate  

decision in the matter in its capacity as the owner of the project.   

16. A resolution was accordingly passed by the Board of Directors  

of the appellant company on 4th October, 2010, whereby it decided  

to annul the Breakwater tender in exercise of its power under Clause

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28.1 of the Bidding Document on the ground that RDS did not  

qualify the BQC criteria which fact had, according to the appellant,  

come to light only after the opening of the price bids.  From the  

minutes of the meeting of the Board of Directors it is further evident  

that the Board had taken note of the CVC guidelines and declined to  

award the contract to the next lowest tenderer in view of the huge  

price difference between L1 & L2 and opted to go for fresh tenders.  

By a separate communication dated 6th October, 2010 the appellant-

company conveyed to RDS the reasons for rejection of its tender.

17. With the annulment of the entire tender process Writ Petition  

No.2142 of 2010 filed by Hung-Hua/Ranjit Buildcon Ltd. inter alia  

challenging the acceptance of the technical bid submitted by RDS  

was dismissed as withdrawn by the High Court in terms of order  

dated 30th November, 2010.  That order came to be passed on an  

application filed by the appellant-RGPPL stating that the entire  

tender process having been scrapped with a decision to invite fresh  

tenders Writ Petition No.2142 of 2010 did not survive for  

consideration.  The High Court took note of the subsequent events  

and dismissed the writ petition as not pressed in view of the fact that  

the tender process had been scrapped and a decision to invite fresh  

tenders had been taken.  

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18. In Writ Petition (C) No.8252 of 2010 which was filed by RDS  

to challenge the annulment of the tender process and the rejection  

of its techno commercial bid as non-responsive a similar order was  

made by which the writ petition was dismissed as withdrawn  

reserving liberty to the respondent-RDS to take recourse to seek  

redress in accordance with law if it was excluded from consideration  

in the fresh tender which RGPPL had decided to issue. We shall  

presently refer to the writ petition and the effect of its withdrawal in  

greater detail. Suffice it to say that the maintainability of Writ  

Petition No.534 of 2011 filed by RDS out of which the appeal arises  

was assailed by the appellant herein on the ground that the earlier  

petition filed by it having been withdrawn the second petition filed by  

RDS was not according to the appellant maintainable insofar as the  

same sought to question the validity of the decision taken by the  

Board of Directors on 4th October, 2010 cancelling the tender  

process and the communication of the said decision with reasons for  

rejection of the bid submitted by RDS on 6th October, 2010.  The  

High Court has in the judgment under appeal rejected that  

contention and not only held that the writ petition filed by RDS was  

maintainable but also that the decision to reject the tender  

submitted by it was not legally valid nor was the annulment of the

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entire tender process.  The High Court found that the action taken  

by the appellant on both counts was vitiated by mala fides especially  

when the fresh tender notice issued by the appellant made an  

attempt to exclude RDS from competing for the works in question.

19. We have heard learned counsel for the parties at  

considerable length. The following questions, in our opinion, fall for  

our determination:

(1)Whether Writ Petition No.534 of 2011 filed by RDS  

challenging the rejection of its tender and annulment of the  

entire tender process was maintainable in the light of the  

withdrawal of writ petition No.8252 of 2010 previously filed by  

it?

(2)Whether the rejection of the tender submitted by RDS and  

the decision to annul the entire tender process was vitiated by  

mala fides?

(3)Whether the condition of eligibility stipulated in the second  

tender notice issued by the appellant-RGPPL unfairly excluded  

the appellant from bidding for the allotment of the work in  

question? and;

(4) Whether respondent-RDS was eligible in terms of the first  

tender notice to compete for the works in question having

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executed a minimum breakwater length of 400 meters in a  

single project required vide Clause 8.1.1.1.  

We propose to deal with the questions ad-seriatim.   

In     Re:     Question     No.1           

20. Writ Petition (C) No.8252 of 2010 questioned the validity of  

the appellant-Board’s decision dated 4th October, 2010 regarding  

rejection of the bid submitted by RDS in terms of the former’s letter  

dated 6th October, 2010 as also the annulment of the entire tender  

process for the completion of the “Breakwater”  at LNG Terminal at  

RGPPL site, Dabhol, Maharashtra.  It also prayed for a mandamus  

directing the appellant to formalise the award of contract for the  

Dabhol project to RDS.  For the sake of clarity it is useful to extract  

the prayer made by RDS in the said writ petition:

“In the premises mentioned above it is most respectfully prayed  that this Hon’ble Court be pleased to:- (A) Issue an appropriate writ, order or direction, quashing the  

action of the Respondents, and in particular the decision  dated 4.10.2010 of the Respondent No.1, as communicated  to the Petitioner vide letter dated 6.10.2010 whereby bid of  the Petitioner has been rejected and the entire bidding  process for the completion of the breakwater of LNG  Terminal of Dabhol Power Project, Maharashtra, has been  annulled; and

(B) Issue a Writ of Mandamus or any other appropriate writ,  order or direction, directing the Respondent No.1 to  formalise the awarding of the contract for the DABHOL  PROJECT to the Petitioner; and

(C) Issue any other appropriate writ, order or direction, as this  Hon’ble Court may deem fit and proper in the facts and  circumstances of the case.”

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21. When the above petition came up before the High Court on  

the 14th December, 2010 learned counsel for RDS withdrew the writ  

petition and the accompanying application reserving liberty to seek  

redress in case the tender which is floated sought to exclude RDS in  

any manner from competing for the allotment of the work in  

question. Since the answer to question No.1 above depends on the  

interpretation of the said order we may extract the same in extenso:

“Learned senior counsel for the petitioner submits that though  the tender process has been scrapped on 4.10.2010, the same  was followed up by a letter dated 6.10.2010 of the respondents  setting out the reasons why the petitioner was held not to meet  the BQC requirements of having completed at least one project  of breakwater in an offshore location of a minimum length of 400  mtrs; which was a stipulation in the contract.  Learned senior  counsel for the petitioner has serious objection to the contents of  this letter and thus submits that the objection was only to  somehow ensure that the petitioner does not get the contract  because the petitioner had made the technical qualifications and  thereafter the price bid was opened in which the petitioner was  L-1.

The learned counsel for respondents No.1, on the other  hand, disputes the aforesaid and submits that on analysis of the  matter it was deemed proper to scrap the tender process itself  exercising the rights of an owner under article 28.1 of the terms  & conditions of the tender.

In view of the aforesaid, taking into consideration the fact  that the tender process now stands scrapped, learned counsel for  the petitioner fairly states that he would like to withdraw the writ  petition and the application at this stage but that in case the  tender which is floated seeks to exclude the petitioner, in any  manner, so as to prevent the participation in the tender, the  petitioner should have leave and liberty to take recourse to legal  remedy in accordance with law. Liberty granted.

Dismissed as withdrawn.”

22. Two distinct features of the above order may be noticed

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immediately. These are (a) The writ petition specially questioned the  

validity of the Board resolution dated 4th October, 2010 and the  

rejection of the bid offered by RDS, by letter dated 6th October, 2010  

meaning thereby that the same squarely related to the issues that  

were sought to be agitated in the subsequently filed writ petition  

No.534 of 2011 in which too RDS had prayed for quashing of the  

resolution dated 4th October, 2010 and communication dated 6th  

October, 2010 rejecting the bid offered by RDS. There is thus almost  

complete identity of the subject matter and the issues raised in the  

two writ petitions and the grounds urged in support of the same, and  

(b) The challenge to the Board resolution dated 4th October, 2010  

and communication dated 6th October, 2010 was withdrawn in toto,  

with liberty reserved to RDS to file a fresh petition for redress only in  

case the fresh tender to be floated by the appellant for allotment of  

the works in any manner sought to exclude RDS from participation in  

the same. This necessarily implies that if RDS was allowed to  

participate in the fresh tender process it would have had no quarrel  

with the annulment of the entire tender process based on the first  

tender notice.  Conversely if the fresh tender notice sought to  

disqualify RDS from bidding for the works it could seek redress  

against such exclusion. Liberty granted by the High Court to file a

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fresh petition was in our considered opinion limited to any such fresh  

challenge being laid by RDS to its exclusion in terms of any fresh  

tender notice.  The order passed by the High Court did not permit  

RDS to re-open and re-agitate issues regarding rejection of its bid  

pursuant to the earlier tender notice and the annulment of the entire  

tender process, even if the second tender notice sought to disqualify  

it from competition by altering the conditions of eligibility to its  

disadvantage.  In fresh Writ Petition No.534 of 2011 filed by RDS not  

only were the amended conditions of the tender notice assailed but  

the validity of the resolution dated 4th October, 2010 and letter  

dated 6th October, 2010 was also   sought to be re-opened no matter  

the same was already concluded with the withdrawal of Writ Petition  

No.8252 of 2010. RDS sought to use the liberty to challenge the  

amended terms of eligibility to re-open what it could and indeed  

ought to have taken to a logical conclusion in Writ Petition No.8252  

of 2010. If the intention behind withdrawal of the Writ Petition  

No.8252 of 2010 was to come back on the issues raised therein  

there was no need for any such withdrawal, which could if taken to  

their logical conclusion have given to RDS the relief prayed for in the  

latter writ petition without even going into the question whether  

exclusion of RDS in the second tender notice was legally valid.

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Besides, the withdrawal of the earlier writ petition was a clear  

acknowledgment of the fact that the grievance made by RDS  

regarding the rejection of its bid had been rendered infructuous as  

the works in question remained available for allotment in a fresh  

tender process with everyone otherwise eligible to compete for the  

same being at liberty to do so. Inasmuch as and to the extent writ  

petition No.534 of 2011 filed by RDS challenged the rejection of the  

tender and the annulment process in a second round despite  

withdrawal of the earlier writ petition filed for the same relief, it was  

not maintainable.  The scope of writ petition no.534 of 2011 was and  

had to be limited to the validity of the amendment in the conditions  

of eligibility introduced by RGPPL in the second tender notice issued  

by it.  Question no.1 is answered accordingly.

In     Re:     Question     No.2           

23. This question no longer survives for consideration in view of  

what has been observed by us while answering question no.1 above.  

If writ petition no. 534 of 2011 could not have re-agitated issues  

touching the validity of annulment of the tender process, there was  

no occasion for the High Court to go into the question whether or  

not the decision to refer to the bid and annul the process was  

vitiated by malice in law or fact.  The findings recorded by the High

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Court on the question of mala fides are, therefore, liable to be set  

aside on that ground alone.

24. Even otherwise the findings recorded by the High Court on  

the question of mala fides do not appear to us to be factually or  

legally sustainable. While we do not consider it necessary to delve  

deep into this aspect of the controversy, we may point out that  

allegations of mala fides are more easily made than proved. The law  

casts a heavy burden on the person alleging mala fides to prove the  

same on the basis of facts that are either admitted or satisfactorily  

established and/or logical inferences deducible from the same.  This  

is particularly so when the petitioner alleges malice in fact in which  

event it is obligatory for the person making any such allegation to  

furnish particulars that would prove mala fides on the part of the  

decision maker.  Vague and general allegations unsupported by the  

requisite particulars do not provide a sound basis for the court to  

conduct an inquiry into their veracity.  The legal position in this  

regard is fairly well-settled by a long line of decisions of this Court.  

We may briefly refer to only some of them.  In State of Bihar v.  

P.P. Sharma 1992 Supp. (1) SCC 222, this Court summed up the  

law on the subject in the following words:

“50. Mala fides means want of good faith, personal bias, grudge,  oblique or improper motive or ulterior purpose. The  administrative action must be said to be done in good faith, if it

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is in fact done honestly, whether it is done negligently or not. An  act done honestly is deemed to have been done in good faith. An  administrative authority must, therefore, act in a bona fide  manner and should never act for an improper motive or ulterior  purposes or contrary to the requirements of the statute, or the  basis of the circumstances contemplated by law, or improperly  exercised discretion to achieve some ulterior purpose. The  determination of a plea of mala fide involves two questions,  namely (i) whether there is a personal bias or an oblique motive,  and (ii) whether the administrative action is contrary to the  objects, requirements and conditions of a valid exercise of  administrative power. 51. The     action     taken     must,     therefore,     be     proved     to     have     been    made     mala     fide     for     such     considerations.     Mere     assertion     or     a    vague     or     bald     statement     is     not     sufficient.   It must be  demonstrated either by admitted or proved facts and  circumstances obtainable in a given case. If it is established that  the action has been taken mala fide for any such considerations  or by fraud on power or colourable exercise of power, it cannot  be allowed to stand.”

(emphasis  supplied)

25. We may also refer to the decision of this Court in Ajit Kumar  

Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia  

and Ors. (2005) 7 SCC 764 where the Court declared that  

allegations of mala fides need proof of high degree and that an  

administrative action is presumed to be bona fide unless the  

contrary is satisfactorily established. The Court observed:       

56. … … … It is well settled that the burden of proving mala fide is  on the person making the allegations and the burden is “very  heavy”. (vide E.P. Royappa v. State of T.N. (1974) 4 SCC 3) There  is every presumption in favour of the administration that the power  has been exercised bona fide and in good faith. It is to be  remembered that the allegations of mala fide are often more easily  made than made out and the very seriousness of such allegations  demands proof of a high degree of credibility. As Krishna Iyer, J.  stated in Gulam Mustafa v. State of Maharashtra (1976) 1 SCC 800  (SCC p. 802, para 2): “It (mala fide) is the last refuge of a losing  litigant.”

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26. There is yet another aspect which cannot be ignored. As and  

when allegations of mala fides are made, the persons against whom  

the same are levelled need to be impleaded as parties to the  

proceedings to enable them to answer the charge. In the absence of  

the person concerned as a party in his/her individual capacity it will  

neither be fair nor proper to record a finding that malice in fact had  

vitiated the action taken by the authority concerned.   It is important  

to remember that a judicial pronouncement declaring an action to be  

mala fide is a serious indictment of the person concerned that can  

lead to adverse civil consequences against him.  Courts have,  

therefore, to be slow in drawing conclusions when it comes to  

holding allegations of mala fides to be proved and only in cases  

where based on the material placed before the Court or facts that  

are admitted leading to inevitable inferences supporting the charge  

of mala fides that the Court should record a finding in the process  

ensuring that while it does so, it also hears the person who was  

likely to be affected by such a finding.  Decisions of this Court have  

repeatedly emphasised this aspect, which is of considerable  

importance. In State of M.P. and Ors. v. Nandlal Jaiswal and  

Ors.   (1986) 4 SCC 566, speaking for the Court, P.N. Bhagwati,  

J., as His Lordship then was,  disapproved the observations made by

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the High Court attributing mala fides  and corruption to the State  

Government without there being any foundation in the pleadings for  

such observations. The Court declared that wherever allegations of  

mala fides are made, it is necessary to give full particulars of such  

allegations and to set out material facts specifying the particular  

person against whom such allegations are made so that he may  

have an opportunity to controvert such allegations. The following  

observations of the Court are apposite:

“39. Before we part with this case we must express our  strong disapproval of the observations made by B.M. Lal, J. in  para 1, 9, 17, 18, 19 and 34 of his concurring opinion. The  learned Judge made sweeping observations attributing mala  fides, corruption and underhand dealing to the State  Government. These observations are in our opinion not at all  justified by the record. In the first place it is difficult to  appreciate how any such observation could be made by the  learned Judge without any foundation for the same being laid in  the pleadings. It is true that in the writ petitions the petitioners  used words such as “mala fide”, “corruption”  and “corrupt  practice”  but the use of such words is not enough. What is  necessary is to give full particulars of such allegations and to set  out the material facts specifying the particular person against  whom such allegations are made so that he may have an  opportunity of controverting such allegations. The requirement of  law is not satisfied insofar as the pleadings in the present case  are concerned and in the absence of necessary particulars and  material facts, we fail to see how the learned Judge could come  to a finding that the State Government was guilty of factual mala  fides, corruption and underhand dealing.”

27. To the same effect is the decision of this Court in Smt.  

Swaran Lata v. Union of India & Ors. (1979) 3 SCC 165, where  

the Court emphasized the need for particulars supporting the

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allegations of mala fides, in order that the Court may hold an inquiry  

with the same.  Absence of such particulars was held to be sufficient  

for the Court to refuse to go into the allegations. The Court said:

“57. ……….. The Court would be justified in refusing to carry on  investigation into allegations of mala fides, if necessary  particulars of the charge making out a prima facie case are not  given in the writ petition. The burden of establishing mala fides  lies very heavily on the person who alleges.”

28. The above was reiterated in a recent decision of this Court in  

Nirmal Jeet Singh Hoon v. Irtiza Hussain & Ors. (2010) 14  

SCC 564 and All India State Bank Officers’  Federation v.  

Union of India (1997) 9 SCC 151.  In the latter case this Court  

observed:

“22. There     is     yet     another     reason     why     this     contention     of     the    petitioners     must     fail.     It     is     now     settled     law     that     the     person    against     whom     mala     fides     are     alleged     must     be     made     a     party     to    the     proceeding  . The allegation that the policy was amended with  a view to benefit Respondents 4 and 5 would amount to the  petitioners contending that the Board of Directors of the Bank  sought to favour Respondents 4 and 5 and, therefore, agreed to  the proposal put before it. Neither the Chairman nor the  Directors, who were present in the said meeting, have been  impleaded as respondents. This being so the petitioners cannot  be allowed to raise the allegations of mala fides, which  allegations, in fact, are without merit.”

(emphasis supplied)

29. In the case at hand there was no allegation of “malice in fact”  

against any individual nor was any individual accused of bias, spite  

or ulterior motive impleaded as a party to the writ petition.  Even Mr.  

Sudhir Chandra and Jagdeep Dhankar, learned Senior Counsels  

appearing for RDS fairly conceded that RDS had not alleged malice

Page 22

in fact against any individual who had played any role in the decision  

making process. What according to them was alleged and proved by  

RDS was malice in law, which did not require impleading of individual  

officers associated with the decision making process. We will  

presently examine whether a case of malice in law had been made  

out by the respondent-RDS.  But before we do so we wish to point  

out that the High Court had in the absence of any assertion in the  

writ petition and in the absence of the officers concerned recorded a  

finding suggesting that the officers had acted mala fide.  The High  

Court named the officers concerned and concluded that the integrity  

of the entire process was suspect. We shall subsequently extract the  

passage from the impugned judgment where the High Court has  

even without an assertion of any malice against the officers named  

in the judgment, recorded a finding which was wholly unjustified in  

the circumstances of the case especially when the High Court was  

making out a case for RDS which it had not pleaded when nor were  

the officers concerned arrayed as parties to the writ petition, in their  

individual capacities.

30. Coming then to the question whether the action taken by the  

appellant-RGPPL was vitiated by malice in law, we need hardly  

mention that in cases involving malice in law the administrative

Page 23

action is unsupportable on the touchstone of an acknowledged or  

acceptable principle and can be avoided even when the decision  

maker may have had no real or actual malice at work in his mind.  

The conceptual difference between the two has been succinctly  

stated in the following paragragh by Lord Haldane in Shearer v.  

Shields (1914) A.C. 808 quoted with approval by this Court  

Additional District Magistrate, Jabalpur v. Shivkant Shukla  

(1976) 2 SCC 521 :

“410.  

Between 'malice in fact' and 'malice in law' there is a broad  distinction which is not peculiar to any system of jurisprudence.  The person who inflicts a wrong or an injury upon any person in  contravention of the law is not allowed to say that he did so with  an innocent mind. He is taken to know the flaw and can only act  within the law. He may, therefore, be guilty of 'malice in law',  although., so far as the state of ins mind was concerned he  acted ignorantly, and in that sense innocently. 'Malice in fact' is  a different thing. It means an actual malicious intention on the  part of the person who has done the wrongful act.”

31. Reference may also be made to the decision of this Court in  

State of AP & Ors. v. Goverdhanlal Pitti (2003) 4 SCC 739  

where the difference between malice in fact and malice in law was  

summed up in the following words:

“11. The legal meaning of malice is “ill-will or spite towards a  party and any indirect or improper motive in taking an action”.  This is sometimes described as “malice in fact”. “Legal malice” or  “malice in law”  means 'something done without lawful excuse'.  In other words, 'it     is     an     act     done     wrongfully     and     wilfully     without    reasonable     or     probable     cause,     and     not     necessarily     an     act     done    from     ill     feeling     and     spite'  . It is a deliberate act in disregard of the  rights of others'. [See Words and Phrases legally defined in Third

Page 24

Edition, London Butterworths 1989]. Where     malice     is     attributed     to     the     State,     it     can     never     be     a    case     of     personal     ill-will     or     spite     on     the     part     of     the     State.     If    at     all,     it     is     malice     in     legal     sense,     it     can     be     described     as     an    act     which     is     taken     with     a     oblique     or     indirect     object...  ”   

(emphasis supplied)

32. To the same effect is the recent decision of this Court in Ravi  

Yashwant Bhoir v. District Collector, Raigad and Ors (2012) 2  

SCC 407 where this Court observed:                                       

“MALICE IN LAW:

37. This Court has consistently held that the State is under an  obligation to act fairly without ill will or malice- in fact or in law.  Where malice is attributed to the State, it can never be a case of  personal ill-will or spite on the part of the State. “Legal malice”  or “malice in law” means something done without lawful excuse.  It is a deliberate act in disregard to the rights of others. It is an  act which is taken with an oblique or indirect object. It is an act  done wrongfully and willfully without reasonable or probable  cause, and not necessarily an act done from ill feeling and spite.  Mala fide exercise of power does not imply any moral turpitude.  It means exercise of statutory power for “purposes foreign to  those for which it is in law intended.”  It means conscious  violation of the law to the prejudice of another, a depraved  inclination on the part of the authority to disregard the rights of  others, where intent is manifested by its injurious acts. Passing  an order for unauthorized purpose constitutes malice in law.  (See: Addl. Distt. Magistrate, Jabalpur v. Shivkant Shukla, AIR  1976 SC 1207; Union of India thr. Govt. of Pondicherry and Anr.  v. V. Ramakrishnan and Ors.,2005) 8 SCC 394; and Kalabharati  Advertising v. Hemant Vimalnath Narichania and Ors., AIR 2010  SC 3745).”

          33. In the case at hand the final decision to reject the tender  

submitted by RDS was taken by the appellant-RGPPL in its capacity  

as the owner of the project.  GAIL and EIL performed only an  

advisory role whose opinions were recommendatory and meant to  

assist the owner to take a final call. The appellant-RGPPL had from

Page 25

the date of receipt of the recommendations made to it by EIL and  

GAIL till the end maintained a consistent stand and expressed  

reservations about the capacity of RDS to undertake the work.  

Correspondence exchanged between RGPPL and GAIL and EIL bears  

testimony to that fact.  In the challenge mounted before the High  

Court by Hung Hua/Ranjit Buildcon Ltd. to the decision holding RDS  

techno commercially responsive, RGPPL had no doubt filed a short  

affidavit supporting its decision holding RDS eligible but discovery of  

material in proceedings under the RTI Act and an adverse CAG  

report instead of clearing the mist had created further confusion in  

the process, supporting  what may have been a mere hunch or  

apprehension in the beginning about the capacity of RDS to handle a  

major project having regard to the fact that it had overshot the time  

schedule for completion of a much lesser project in Car Nicobar. In  

that backdrop and as owner of a project being executed at a colossal  

cost running into hundreds of crores of rupees, RGPPL was perfectly  

justified in adopting a careful approach to ensure that those found  

eligible by its technical experts and consultants were indeed so  

qualified and possessed the necessary wherewithal, experience and  

expertise to execute the project at Dabhol. It was also well within its  

right to demand documentary proof from RDS to support its claim

Page 26

that it had indeed executed the project at Mus in Car Nicobar area  

so as to make it eligible for claiming award of the works in question.  

In the course of the hearing we had on several occasions asked  

learned counsel for RDS to furnish documentary evidence to  

probabilize if not conclusively establish that RDS had indeed  

undertaken the execution of the work involving construction of 400  

meters of breakwater which it claimed to have executed. Besides,  

we had directed the Central Government Counsel to produce before  

us the relevant record relating to the project at Car Nicobar in  

response to which Mr. Gulati had produced a few files.  These files,  

according to Mr. Gulati, did not show that RDS had indeed executed  

the breakwater Project of 400 meters length in Car Nicobar.  More  

importantly Mr. Gulati was unable to disclose the basis on which the  

certificates, which RDS had produced to prove its eligibility, were  

issued by the engineers concerned.  The files that were produced did  

not bear any testimony to the issue of any such certificates or the  

basis on which the same were issued.  Our effort to resolve the issue  

regarding the eligibility of RDS in these proceedings, therefore,  

remained fruitless, no matter we were keen to give a quietus to the  

controversy which is delaying indefinitely a project of national  

importance. The task of finding an answer to the question of

Page 27

eligibility was rendered all the more difficult by the fact that the High  

Court has not adverted to and resolved that issue on merits and by  

reference to the available material.  We will advert to this aspect in  

some detail a little later.  Suffice it to say for the present that RGPPL  

as the owner acting as a prudent and responsible public authority  

discharging public trust obligations was well within its rights to raise  

questions and seek answers on an important matter like the  

eligibility of RDS to participate, no matter EIL and GAIL had on the  

basis of the certificates produced before them recommended RDS as  

an eligible bidder.  There was in that view no justification for either  

RDS or the High Court to raise an accusing finger against RGPPL  

simply because it had demanded proof regarding the claim of  

eligibility from RDS or collected relevant information under RTI Act  

and referred the material so collected to GAIL and EIL for evaluation  

and opinion. The final decision to scrap the project being within its  

powers under the terms of the tender notice RGPPL’s invocation of  

that power was not in the facts and circumstances vulnerable to  

challenge on the ground of malice in fact or law, on the grounds set  

out by the High Court even assuming that writ petition No.534/2012  

was maintainable notwithstanding the withdrawal of the earlier  

petition filed by RDS.

Page 28

34. Independent of what has been said above we may point out  

that the High Court has rested its finding on malafides entirely on  

the conflict between recommendations made by EIL in its letter  

dated 8th March, 2010 holding RDS to be techno commercially  

responsive and letter dated 1st December, 2010 by which the said  

recommendation has been reversed. The High Court has while  

dealing with the change in the view taken by the EIL, inspired as it  

was by the legal opinion tendered to it on the subject, observed:

“It was submitted before us that this opinion became the edifice  for the change of view that the EIL took on 1.9.2010. We may  note at the outset that the opinion is completely converse to the  stand taken by the EIL up to 11.8.2010.  It is pertinent to note  (a fact we were told in the hearing) that the said legal opinion  bears the endorsement of Mr. Grover, Director (Projects) calling  upon Mr. R.K. Bhandari, General Manager (Project), EIL to simply  comply with the view taken by the legal department. As noticed  here in above by us, Mr. R.K. Bhandari was the same gentleman,  who on 10.6.2010 had opined that no revision in the award  recommendation in favour of RDS was called for.  The crucial  question which arises, is that, was Mr. R.K. Bhandari given a  chance to express his view on the opinion rendered by the legal  department.  This is a pertinent aspect of matter to our minds  since Mr. R.K. Bhandari, followed by Mr. Ravi Saxena, in EIL and  Mr. M.B. Gohil in GAIL were people who would have dealt with  such like contact on a number of occasions.  Being experts in  their respective fields, they would know what was intended when  terms like “single project” and “single bidder” were put in Clause  8.1.1.1 Therefore, for the legal department of EIL to take  contrary, though “absurd”  and “harsh”  view, required at least a  modicum of response from the expert, which was none other  than Mr. R.K. Bhandari dealing with the issue till 10.6.2010. Mr.  Grover Director (Projects) did not deem it fit to even ask for his  comments.  Therefore, the integrity of entire process is suspect  to say the least. In any event, in our view, the opinion is  completely contrary to the plain language of clause 8.1.1.1.”

Page 29

35. The above clearly shows that the High Court has recorded its  

finding on mala fides on the sole basis that EIL had reviewed its  

earlier opinion regarding eligibility of RDS.  The High Court, in our  

opinion, was wrong in doing so.  While the High Court could find fault  

with the interpretation which EIL placed on the provisions of clause  

8.1.1.1 on the basis of the legal opinion tendered to it, it went too  

far in dubbing the entire process as mala fide. The High Court  

appears to have taken the view as though Mr. R.K. Bhandari, Mr.  

Ravi Saxena and Mr. M.B. Gohil were experts, even in the matter of  

interpretation of the terms and conditions of the tender document,  

who could sit in judgment over the legal opinion tendered to them. If  

on an interpretation of a clause in the tender notice by the legal  

department concerned the officers review their decision or reverse  

the recommendations made earlier, the same does not tantamount  

to malice in law so as to affect the purity of the entire process or  

render it suspect even assuming that the opinion is on a more  

thorough and seasoned consideration found to be wrong.  In the  

absence of any other circumstances suggesting that the process was  

indeed vitiated by consideration of any inadmissible material or non-

consideration of material that was admissible or misdirection on  

issues of vital importance, fresh recommendations made in tune with

Page 30

the legal opinion could not be held to have been vitiated by malice in  

law.  The High Court, it appears, felt that since the officers referred  

to above were senior officers they ought to have known what was  

meant by terms like ‘single project’  and ‘single bidder’ appearing in  

clause 8.1.1.1.  We need hardly point out that in cases where the  

decision making process is multi-layered, officers associated with the  

process are free and indeed expected to take views on various  

issues according to their individual perceptions.  They may in doing  

so at time strike discordant notes, but that is but natural and indeed  

welcome for it is only by independent deliberation, that all possible  

facets of an issue are unfolded and addressed and a decision that is  

most appropriate under the circumstances shaped. If every step in  

the decision making process is viewed with suspicion the integrity of  

the entire process shall be jeopardized. Officers taking views in the  

decision making process will feel handicapped in expressing their  

opinions freely and frankly for fear of being seen to be doing so for  

mala fides reasons   which would in turn affect public interest.  

Nothing in the instant case was done without a reasonable or  

probable cause which is the very essence of the doctrine of malice in  

law vitiating administrative actions. We have, therefore, no  

hesitation in holding that the findings recorded by the High Court to

Page 31

the effect that the process of annulment of the tender process or the  

rejection of the tender submitted by RDS was vitiated by mala fides  

is unsustainable and is hereby set aside. Question no. 2 is  

accordingly answered in the negative.

In     Re:     Question     No.3           

36. The withdrawal of Writ Petition No.8252 of 2010 with  

permission to petitioner-RDS to file a fresh Writ Petition No.534 of  

2011 was followed by the issue of a fresh tender notice in which  

Clause 8.1.1.1 of the first tender document was modified.  Clause  

8.1.1.1 as it appeared in the second tender notice was as under:

“The bidder must have completed in a single contract, as a  single bidder or as a leader of a consortium, at least one  breakwater (using marine spread-refer Note 1) of minimum  length of 400 m located in sea during the last 20 (twenty) years  to be reckoned from the last date of submission of bids. The  scope of work of the above referred qualifying job should  comprise of design, engineering, construction and project  management of the breakwater. Land connected breakwater  having a minimum length of 400m located in sea is also  acceptable provided construction has been carried out using  marine spread as mentioned above.”

37. Even when RDS claimed to have completed the project of 400  

meters length in Mus-Car Nicobar, it was ineligible to compete for  

the works at Dabhol under the above clause as the work in Car  

Nicobar was executed under two contracts and not a ‘single contract’  

which was added to the conditions of eligibility under the above

Page 32

clause. The said modification in the BQC was, according to the RDS,  

meant to unfairly exclude RDS from competing.  The modified clause  

was, therefore, assailed on the ground that it was tailor made to suit  

the requirement of other tenderers who had lost out on the  

“financial bid”  front in relation to the first tender. The High Court  

accepted that contention and declared that the modification in the  

BQC by which RDS was rendered ineligible was not justified and  

unfairly eliminated it from competing for the allotment of the works.  

38. Assailing the above finding of the High Court Mr. Nariman,  

learned Solicitor General, argued that if the annulment of the tender  

process pursuant to the first tender notice was held to be valid and  

beyond challenge at the instance of RDS, the conditions on which  

fresh tenders are invited including the conditions of eligibility  

stipulated in the tender notice was not open to challenge by a  

prospective tenderer. Relying upon the decision of this Court in Air  

India Ltd. v. Cochin International Airport Ltd. and Ors.  

(2000) 2 SCC 617, Mr. Nariman argued that the High Court went  

wrong in declaring the provisions of Clause 8.1.1.1 of the second  

tender notice to be legally bad. The following passage from the  

above decision is apposite:

“7. ….. The award of a contract, whether it is by a private party  or by a public body or the State, is essentially a commercial  transaction. In arriving at a commercial decision considerations

Page 33

which are paramount are commercial considerations. The State  can choose its own method to arrive at a decision. It can fix its  own terms of invitation to tender and that is not open to judicial  scrutiny….”

39. Having said that we must say to the credit of Mr. Nariman  

that he made a statement on instructions that in order to show its  

bona fides and to prove that it had no intention to deliberately target  

or exclude RDS, RGPPL would not apply the modified Clause 8.1.1.1  

of the second tender notice to fresh tenders while evaluating them  

for techno commercial purposes. RGPPL would, according to Mr.  

Nariman, treat Clause 8.1.1.1. in the first tender notice as the  

applicable clause and the second tender process shall be carried  

forward on the Clause 8.1.1.1 as it stood in the first tender  

document.  The statement of Mr. Nariman makes it unnecessary for  

us to examine whether or not RGPPL was justified in amending the  

BQC and whether such amendment was meant to exclude RDS or  

any other similarly situated tenderers from competing for the works.  

In the light of the statement made by Mr. Nariman we do not  

consider it necessary to go into the juristic aspect relevant to the  

validity of the clause extracted above.  All that we need say is that  

Clause 8.1.1.1 of the second tender notice shall not be enforced by  

RGPPL and that the corresponding clause as it appeared in the first  

tender notice shall govern matters stipulated therein.  Question No.3

Page 34

is answered accordingly.                        

In     Re:     Question     No.4           

40. We have while answering Question No.1 held that W.P.  

No.534 of 2011, out of which this appeal arises, was maintainable  

only in so far as the same questioned the exclusion of RDS from  

competing for the work in question.  That exclusion could be on  

account of a change in the conditions of eligibility as was sought to  

be introduced by Clause 8.1.1.1 of the second tender notice or by  

reason of RDS being found ineligible even under the  

unamended/original Clause 8.1.1.1 of the first tender notice.  In so  

far as the amended Clause 8.1.1.1 of the second tender notice is  

concerned Mr. Nariman’s statement which we have noticed while  

answering question no.3 above, has put an end to the controversy.  

RDS cannot, therefore, be excluded from competition based on  

Clause 8.1.1.1 in the second tender notice. But that does not  

automatically make RDS eligible for allotment of the works even  

under the first tender notice. The appellant’s case is that RDS was  

techno commercially ineligible for allotment, and in its  

communication dated 6th October, 2010 it had given the reasons for  

that view. We shall presently examine the said reasons but before  

we do so we need to point out that the High Court had quashed the

Page 35

communication and held RDS to be eligible. That finding has not yet  

attained finality, as the appellant has questioned the judgment of  

the High Court in the present appeal. Whether or not RDS is  

eligible, therefore, remains relevant not for the purpose of taking  

the tender process initiated with the issue of the first tender notice  

forward but for purposes of finally determining whether RDS will be  

eligible to participate in any fresh tender notice issued in future, in  

which Clause 8.1.1.1 remains, the touch stone for determining the  

eligibility of the tenderers.  It is in the above background that we  

need to examine whether RDS was eligible to compete for the  

works based on the first tender notice.

41. In its communication dated 6th October, 2010 the appellant  

had summed up the reasons for declaring RDS to be techno  

commercially non-responsive in the following words:

“From perusal of the various documents, it can be concluded that  the qualifying project claimed by you to have been awarded in  November 2000 had the maximum length of 290 m and not 400  m required under BQC. The breakwater(s) at Mus (chainage 22  m to 200 m and chainage 200m to 330m/490m) was awarded as  two separate projects by the project authority and also executed  accordingly by the respective agencies.  

Further, award for different phases of the project was  made on EHL or M/s Reacon International and you were also not  responsible for the execution of total scope of work in any of the  two projects.

In the light of the above, it is concluded that RDS does  not meet the BQC requirement of having completed at least one  project of a breakwater in an offshore location of minimum  length of 400, during the last 20 (twenty) years to be reckoned  from the last date of submission of bids.”     

Page 36

42. A careful reading of the above would show that the rejection  

of the bid offered by RDS was based on three distinct grounds.  

These are:

(i) RDS had claimed the qualifying project to have been awarded  

in its favour in November, 2000.  The length of the project so  

allotted was 290 meters only as against 400 meters required  

under the BQC.

(ii) The breakwater at Mus (chainage 22m to 200m and 200  

meters to 330/490 meters) were awarded and executed as  

two separate Projects, whereas Clause 8.1.1.1 required that  

the single bidder should have executed the required length of  

Breakwater in a Single Project.  

(iii) The award of the above project was made on EHL or M/s  

Reacon International, for different phases and RDS was not  

responsible for the execution of the total scope of the work in  

any one of the two projects.

43. RDS has before the High Court and even before us, claimed  

that the Breakwater at Mus in Car Nichobar was a single project  

and not two projects as contended by the appellant-RGPPL. It has  

further claimed that the entire project has been executed by it on  

behalf of EHL, no matter a part of the work like quarrying of

Page 37

stones/boulders and shipping the same from the quarry site to the  

place of construction was handled by EHL. These works were  

performed by the above two agencies for monetary consideration  

on behalf of RDS who was entitled to associate them with the  

execution of the project work in terms of the conditions of contract;  

under which EHL had engaged RDS.

44. The case of the appellant on the other hand is that the only  

purpose behind stipulating that the tenderer should have executed  

a breakwater project as a single tenderer with a minimum length of  

400 meters was to ensure that only such tenderers are held eligible  

as have executed a “single project” of that length ‘single handedly’  

without associating any other agency with the execution of the  

work.  It was important for the appellant to do so because the  

breakwater length in the present case is more than four times the  

length stipulated as a condition of eligibility. It is the further case of  

the appellant that apart from Recon International one Surya Rao  

was also associated with the execution of the project, which fact is  

according to the appellant evident from the government files  

produced by Mr. Gulati appearing for the Central Government.  

45. On the question whether the Breakwater constructed at Mus  

in Car Nicobar comprised one or two projects, also there was some

Page 38

debate which was rendered academic, by Mr. Nariman, making a  

fair and unqualified concession that for purposes of determining the  

eligibility of RDS the breakwater at Mus Car Nicobar could be  

treated as a single project. With that concession, what remains to  

be determined is whether RDS had limited its claim to eligibility  

only on the award made in its favour in November, 2000. If so,  

whether it is debarred or stopped from claiming that it had  

executed the project from chainage 22 meters to 200 meters also.  

More importantly, whether RDS had actually executed the  

Breakwater Project at Mus Car Nicobar with a length of 400 meters.

46. We looked in vain for a finding on the above questions in the  

impugned judgment leave alone one that satisfactorily dealt with  

the material placed by the parties on record in support of their  

respective cases. What we found was a concession attributed to Ms.  

Indra Jai Singh, learned Additional Solicitor General to which the  

High Court referred in Para 30.2 of its order, and which by far is  

the only reason given by the High Court for holding that RDS had  

executed the Breakwater Project at Mus in Car Nicobar. The High  

Court observed:

“30.2 We may note at this stage that we had had pointedly put to the  ASG Ms. Indra Jai Singh during the course of hearing, as to  whether there was any doubt or dispute that RDS had not  executed the qualifying work at Mus Car Nicobar Island

Page 39

equivalent to the contracted length of 500 meters. Ms. Indra Jai  Singh, on instructions, categorically informed us that this aspect  of the matter was not in issue. She, however, submitted that  what was in issue, was the fact, that since it had not emerged  that RDS had completed the project in two (2) phases; according  to EIL, it was not eligible. With EIL having taken this stand,  which was not contradicted by GAIL at the hearing; it quite  surprised us when Mr. Chandiok appearing on behalf of RGPPL  took the stand that RDS had not even constructed the required  minimum 400 meters length of qualifying work.”           

47. Ms. Indra Jai Singh appearing for the Central Government  

argued that the High Court had misconstrued her statement, in as  

much as no concession as attributed to her was made or could be  

made when the relevant record did not bear any evidence of RDS  

having been associated with the project in question. Mr. Nariman  

contended that the concession even if made did not bind the  

appellant RGPPL, who as a separate legal entity was entitled to  

argue, as it indeed argued, before the High Court that RDS had not  

been associated with or executed the entire project, at Mus Car  

Nicobar, hence was not eligible to compete.

48. There is considerable merit in the submission made by the  

learned counsel for the appellants and Ms. Jai Singh. A concession  

even if made by one of the parties could not prevent the other  

parties from arguing that it did not bind them or that the same was  

contrary to the facts.  The High Court ought to have examined the  

issue on merits, rather than taking a short cut. The High Court has

Page 40

incidentally taken support from the certificate dated 5th April, 2008  

and clarification issued on 5th June, 2010 to hold that the RDS had  

indeed executed the qualifying project at Car Nicobar. We had in  

the course of the hearing asked Mr. Gulati, learned counsel for the  

Central Government, to disclose to us the basis on which the  

certificate and the clarification had been issued by the officers  

concerned.  We got no satisfactory answer to the query.  We even  

asked the parties to produce the relevant record including the  

government files, so that we could ourselves answer the question  

regarding eligibility of RDS but in the absence of any conclusive  

evidence, and in the absence of a specific finding from the High  

Court, on the question, we remained handicapped. A remand to the  

High Court, therefore, became inevitable which part we must say in  

fairness to learned counsel for both sides, was conceded even by  

them.  

49. In the result we allow these appeals, set aside the judgment  

and order passed by the High Court and remand the matter back to  

the High Court with the following directions:   

(1) The High Court shall examine and decide afresh the limited  

issue whether RDS was eligible to compete for the works in question  

in terms of the first tender notice based on the works which it claims

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to have executed at Mus in Car Nicobar.

(2) If the High Court comes to the conclusion that RDS is not  

eligible in terms of Clause 8.1.1.1 of the first tender notice as it had  

not executed a breakwater of the requisite length, Writ Petition No.  

534 of 2011 filed by the respondent-RDS shall stand dismissed in  

toto. Resultantly, the appellant-RGPPL shall be free to carry forward  

and finalize the process of allotment of works started by it in terms  

of the second tender notice.

(3) In case, however, the High Court comes to the conclusion  

that RDS was eligible to compete for the works in question on the  

basis of the first tender notice, subject to that finding attaining  

finality in any further appeal filed by the aggrieved party, the  

appellant-RGPPL shall be free to issue a fresh tender notice without  

altering the conditions of eligibility as stipulated in Clause 8.1.1.1  

and finalise the said process on such other terms and conditions as it  

may deem fit and proper to incorporate in the tender notice.  

(4) Keeping in view that the tender process relates to a project of  

national importance, the High Court is requested to dispose of the  

matter at an early date and as far as possible within a period of four  

months from the date a copy of this order is received by it.    

50. Parties are left to bear their own costs.                            

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……… ……………….…..…J.        (T.S. Thakur)

     ……………………………..…J.           (Gyan Sudha Misra)

New Delhi October 18, 2012

Page 43

ITEM NO.1B               COURT NO.10             SECTION XIV [FOR JUDGMENT]

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                      C.A. No.........../2012 @ Petition(s) for Special Leave to Appeal (Civil) No(s).3571/2012 (From the judgement and order  dated 17/10/2011 in WPC No.534/2011 of  The HIGH COURT OF DELHI AT N. DELHI)

RATNAGIRI GAS & POWER PVT.LTD.                    Petitioner(s)                  VERSUS RDS PROJECTS LTD.& ORS.                           Respondent(s) (With prayer for interim relief) WITH  C.A. No.........../2012 @ SLP(C) NO. 5554 of 2012

C.A. No.........../2012 @ SLP(C) NO. 6180 of 2012

Date: 18/10/2012  These Petitions were called on for JUDGMENT today.

CORAM :         HON'BLE MR. JUSTICE T.S. THAKUR         HON'BLE MRS. JUSTICE GYAN SUDHA MISRA

For Petitioner(s)    Mr. Shailendra Swarup,Adv.                      Mr. Ashok Mathur, Adv.

Mr. Ajit Pudussery,Adv. Mr. K. Vijayan,Adv.

For Respondent(s)    Ms. Asha Jain Madan,Adv.                      Mr. D.S. Mahra ,Adv                      Ms. Asha Jain Madan, Adv.

                   The Court made the following                                O R D E R  

Hon'ble Mr. Justice T.S. Thakur pronounced the judgment of  the Bench comprising His Lordship and Hon'ble Mrs. Justice Gyan  Sudha Misra.

Leave granted.

The appeals are allowed in terms of the signed judgment.

(N.K. Goel) Court Master

(Veena Khera) Court Master

(Signed Reportable Judgment is placed on the file)