MS PATNI ENGINEERING AND CONSTRUCTION vs STATE OF UTTARAKHAND
- Court
- Uttarakhand High Court
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HIGH COURT OF UTTARAKHAND AT NAINITAL
HON’BLE THE ACTING CHIEF JUSTICE SRI MANOJ KUMAR TIWARI
AND
HON’BLE SRI JUSTICE SUBHASH UPADHYAY
Writ Petition (M/B) No. 463 of 2026
MS Patni Engineering and Construction --Petitioner
Versus
State of Uttarakhand and others --Respondents
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Presence:-
Mr. Abhijay Negi, Advocate, for the petitioner
Mr. J.C. Pandey, Standing Counsel, for the State.
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The Court made the following:
(per Hon’ble The Acting Chief Justice Sri Manoj Kumar Tiwari)
JUDGMENT:
1. Petitioner’s technical bid, submitted for the work
of hill side cutting and muck disposal work (Phase II
stage-I) and construction of wall and cross drainage
work (Phase-II stage-2) in Kathgodam to Ranibag
section of National Highway No. 87, was declared to be
non-responsive for the following reason:-
“As per Sec. IV, Cl 1.1 (e) in case of JV, all partners of JV
must fullfill a minimum of 25% of eligibility criteria for all
requirements. As per sec. IV Cl 2.2 A(d) the bidder should
have executed the minimum quantities of Principal item of
work mentioned in bid, in any one of the 5 (five) Financial
years. Both bidders of JV are not executing minimum
quantities of Principal item of work mentioned in bid in any
same Financial year.”
2. Thus feeling aggrieved, petitioner has approached
this Court challenging order dated 23.05.2026 passed
by Tender Evaluation Committee.
3. In para 2 of the writ petition, it is mentioned that
petitioner participated in the tender process as a joint
venture, lead partner being M/s Dinesh Chandra Patni
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with 65% shareholding and M/s Patni Engineering and
Construction Limited, having 35% shareholding. As per
case set up in the writ petition, estimated cost of the
work is Rs. 546.83 Lacs and the work is to be
completed within nine months.
4. Learned counsel for the petitioner submits that
relevant clause of Standard Document for procurement
of works/Government of Uttarakhand (SBD) does not
require that all partners in the Joint Venture should
have executed work to the extent of minimum 25% of
the value of the work in question, in the same year to
become eligible. He submits that there are two partners
in the Joint Venture and both of them have completed
required value of work in different years.
5. Reliance is placed upon Clause 1.1 e (i) of SBD,
which is reproduced below:
“1. Eligible Bidder
1.1 For determining the eligibility of Bidder, the following
conditions are to be satisfied:
e. in the case of a joint venture
i. In case of JV, all partners of JV must fulfill a
minimum of 25% of eligibility criteria for all
requirements. All members shall be jointly and
severally liable for the execution of the Contract in
accordance with the Contract terms.”
6. Learned counsel for the petitioner has also drawn
attention of this Court to Clause 2.2 A(d) of SBD, which
is reproduced below:
“A. Qualification Criteria:
a) The Bidder should have achieved a minimum average
annual Construction turnover (based on financial statement)
over the last [5 (five)] financial years amounting to Rs.
322.62 lakh [usually not less than two times the estimated
annual payments under this contract].
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b) The Bidder should have Experience of ‘similar construction
contracts’ in the role of contractor for at least the last [5
(Five)] years prior to the bid submission deadline.
c) The Bidder should have satisfactorily completed at least
[one] similar work of [at least 33% of the contract value i.e.
Rs. 212.93 lacs], as a prime contractor, within the last 60
Sixty months from the last date of submission. The similar
work shall be strictly based on the nature, physical size,
complexity, methods, technology or other characteristics for
the works requirement described in Section V Form Tech 1
Note: Base year to be considered as the FY 2024-25 in which
the tenders are invited. Financial turnover of previous years
shall be given a weightage of 5% per year to bring them to
the price level of the FY in which the tenders are invited.
d) The Bidder should have executed in any one of the 5 (five)
financial years, the minimum quantities of the following
works: [insert type and quantity of principal item of the works
to be executed]
7. By referring to the aforesaid clauses of the SBD, it
is contended on behalf of the petitioner that a joint
venture entity is required to have achieved a minimum
25% of the above qualification in terms of Section IV
Clause 1.1.
8. A counter affidavit is filed by Krishan Kumar,
Executive Engineer, Temporary Division, PWD, Bhowali.
Relevant paras of said counter affidavit are reproduced
below:
“13. That the contents of paragraph no. 16 of the writ
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petition are denied. The rejection note specifically recorded
that the Joint Venture partners were not found to satisfy
the prescribed requirement relating to execution of
minimum quantities of principal items of work in the
manner contemplated under the bidding document. The
petitioner is attempting to read the tender conditions
selectively and contrary to their plain meaning. It is
submitted that the petitioner has failed to establish that
the documents furnished by the Joint Venture partners
satisfy every component of the eligibility criteria as
required under the bidding document. The qualifying
experience of Each Partners of JV as a combined or
individual must be demonstrable in one common financial
year, because otherwise the JV is not showing the
prescribed level of execution in any single year at all; it is
merely stitching together experience from different years
of different entities.
21. That the contents of paragraph nos. 34, 35, 36, 37
and 38 of the writ petition are denied. As per Sec. IV, Cl
1.1 (e) in case of JV, all partners of JV must fullfill a
minimum of 25% of eligibility critera for all requirements.
As per sec. IV Cl. 2.2 A.(d) the bidder should have
executed the minimum quantities of Principal item of work
mentioned in bid. in any one of the 5 (five) Financial years.
Both bidders of JV are not executing minimum quantities
of Principal item of work mentioned in bid in any same
Financial year. The qualifying experience of Each Partners
of JV as a combined or individual must be demonstrable in
one common financial year, because otherwise the JV is
not showing the prescribed level of execution in any single
year at all; it is merely stitching together experience from
different years of different entities. The Partner 01 namely
M/S Patni Engineering and Construction has executed the
minimum required quantities in work named "Chandak
Bans Awalaghat motor Road km 29 to Tallisar Stage 1
Length 3.075 km" in FY 2020-21. The Partner 02 namely
Dinesh Chandra Patni has executed the minimum required
quantities in work named "T01-Dasaithal Khirmande
Gwasikot Motor Road, Upgradation (Bituminous Concrete
with waste plastic) Phase XXIII" in FY 2024-25. Both
partners of JV are not executing minimum quantities of
Principal item of work mentioned in any same Financial
year. The true copies of the minimum required quantities
of partner no. 1 and minimum required quantities of
partner no. 2 are annexed as Annexure No. CA-3 & CA-4
respectively to this affidavit.
25. The contents of paragraph no. 43 of the writ petition
are denied. The respondents state that the petitioner Joint
Venture failed to satisfy the eligibility requirements in the
manner prescribed under the applicable tender provisions.
The conclusion reached by the Technical Evaluation
Committee was based upon the records submitted by the
petitioner itself and was neither arbitrary nor erroneous.
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30. That the contents of paragraph no. 48 of the writ
petition are denied. The respondents submit that the
petitioner's interpretation of the eligibility conditions is
erroneous. The mere assertion that each Joint Venture
partner independently satisfied certain thresholds does not
establish compliance with the tender requirements as
interpreted by the competent authority. The eligibility
criteria were required to be satisfied in the manner
contemplated under the governing documents.
54. That the petitioner has applied in the bid process as
Joint Venture Company comprising M/s Patni Engineering
and Construction and M/s Dinesh Chandra Patni and the
documents supplied by the petitioner shows that M/s
Dinesh Chandra Patni was a leading partner in the JV,
whereas the petitioner has not fulfilled the eligibility and
qualification criteria as mentioned in SBD as per Clause
1(1.1)(e)(i) in case of JV, all partners of JV must fulfilled a
minimum of 25% of eligibility criteria for all requirements.
All Members shall be jointly and severally liable for the
execution of the contract in accordance with contract
terms. The petitioner company has also not fulfilled the
Condition No. 2.2A of SBD as the petitioner was utterly
failed to comply the relevant qualifying criteria, on these
grounds they were declared non-responsive in the bid
process.
9. Learned State Counsel refers to Clause 1.1 e (i) of
Section IV of SBD for contending that in case of Joint
Venture, all partners of Joint Venture must fulfill
minimum 25% of eligibility criteria for all requirements.
Learned State Counsel further submits that as per
Clause 2.2 A(d), the minimum quantity of work which a
bidder should have executed in any of the five
preceding financial years has been given and, in the
last column of the table, mentioned in Clause 1.1 (d),
minimum quantity of work should be executed in any
one of the 5 financial years is mentioned.
10. He further submits that a conjoint reading of
Clause 1.1 e (i) with Clause 2.2 A(d) of SBD reveals
that every partner in a Joint Venture must fulfill the
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minimum quantity of work, as indicated in the table in
Clause 2.2 A(d) of the SBD.
11. The stand taken by petitioner is that even though
two partners in the joint venture have independently
completed minimum quantity of work mentioned in
Clause 2.2 A(d) during the last 5 years, but he
concedes that such work was completed by them not in
the same financial year, but in different financial years.
12. We find some substance in the submission made
by learned State Counsel.
13. Based on Clause 1.1 e (i), every partner of a Joint
Venture has to separately meet the eligibility
requirement, therefore the condition mentioned in
Clause 2.2 A(d) of SBD has to be independently met by
both the partners; since Clause 2.2 A(d) specifies the
minimum quantity of work which has to be executed by
the bidder in any one of the 5 financial years, therefore
the insistence by the employer upon the condition of
completing requisite quantity of work by each partner
of the Joint Venture in the same financial year, cannot
be said to be so arbitrary so as to warrant interference
under Article 226 of the Constitution.
14. In the case of Central Coalfields Limited & another
vs. SLL-SML (Joint Venture Consortium) & others,
reported as (2016) 8 SCC 622 it was held that decision
making process of the employer or owner of the project
in accepting or rejecting the bid of a project tender
should not be interfered with and interference is
permissible only if the decision making process is mala
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fide or intended to favour someone. It was further held
that the decision should not be interfered with unless it
is so arbitrary or irrational that the court can say that
the decision is one which no responsible authority
acting reasonably and in accordance with relevant law
could have reached.
15. In the case of Afcons Infrastructure Limited v.
Nagpur Metro Rail Corporation Ltd., reported in (2016)
16 SCC 818 , has held as under:-
“ 13. In other words, a mere disagreement with the
decision-making process or the decision of the
administrative authority is no reason for a constitutional
court to interfere. The threshold of mala fides, intention to
favour someone or arbitrariness, irrationality or perversity
must be met before the constitutional court interferes with
the decision-making process or the decision.”
16. In Afcons Infrastructure Limited (supra), it was
further held that the owner or employer of a project,
having authored the tender documents, is the best
person to understand and appreciate its requirements
and interpret its documents. Constitutional Courts
must defer to his understanding and appreciation of the
tender documents, unless there is mala fide or
perversity in the understanding or appreciation or in
the application of the terms of the tender conditions. It
is possible that the owner or employer of a project may
give an interpretation to the tender documents, which
is not acceptable to the Constitutional Courts, but that
by itself is not a reason for interfering with the
interpretation given.
17. In Raunaq International Ltd vs I.V.R. Construction
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Ltd. And Ors reported as (1999) 1 SCC 492, Hon’ble
Supreme Court held as under:-
“ 11. When a writ petition is filed in the High Court
challenging the award of a contract by a public authority or
the State, the court must be satisfied that there is some
element of public interest involved in entertaining such a
petition. If, for example, the dispute is purely between two
tenderers, the court must be very careful to see if there is
any element of public interest involved in the litigation. A
mere difference in the prices offered by the two tenderers
may or may not be decisive in deciding whether any public
interest is involved in intervening in such a commercial
transaction. It is important to bear in mind that by court
intervention, the proposed project may be considerably
delayed thus escalating the cost far more than any saving
which the court would ultimately effect in public money by
deciding the dispute in favour of one tenderer or the other
tenderer. Therefore, unless the court is satisfied that there
is a substantial amount of public interest, or the
transaction is entered into mala fide, the court should not
intervene under Article 226 in disputes between two rival
tenderers.
12. …..
13. Hence before entertaining a writ petition and passing
any interim orders in such petitions, the court must
carefully weigh conflicting public interests. Only when it
comes to a conclusion that there is an overwhelming public
interest in entertaining the petition, the court should
intervene.
14. Where there is an allegation of mala fides or an
allegation that the contract has been entered into for
collateral purposes and the court is satisfied on the
material before it that the allegation needs further
examination, the court would be entitled to entertain the
petition. But even here, the court must weigh the
consequences in balance before granting interim orders.
15. Where the decision-making process has been
structured and the tender conditions set out the
requirements, the court is entitled to examine whether
these requirements have been considered. However, if any
relaxation is granted for bona fide reasons, the tender
conditions permit such relaxation and the decision is
arrived at for legitimate reasons after a fair consideration
of all offers, the court should hesitate to intervene.”
18. In the case of Air India Ltd. v. Cochin International
Airport Ltd. and others, reported as (2000) 2 SCC 617 ,
Hon’ble Supreme Court has held as under:-
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“ 7. The law relating to award of a contract by the State,
its corporations and bodies acting as instrumentalities and
agencies of the Government has been settled by the
decision of this Court in Ramana Dayaram Shetty v.
International Airport Authority of India [(1979) 3 SCC 489]
, Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India
[(1981) 1 SCC 568] , CCE v. Dunlop India Ltd. [(1985) 1
SCC 260 : 1985 SCC (Tax) 75] , Tata Cellular v. Union of
India [(1994) 6 SCC 651] , Ramniklal N. Bhutta v. State of
Maharashtra [(1997) 1 SCC 134] and Raunaq International
Ltd. v. I.V.R. Construction Ltd. [(1999) 1 SCC 492] 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 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. It can enter
into negotiations before finally deciding to accept one of
the offers made to it. Price need not always be the sole
criterion for awarding a contract. It is free to grant any
relaxation, for bona fide reasons, if the tender conditions
permit such a relaxation. It may not accept the offer even
though it happens to be the highest or the lowest. But the
State, its corporations, instrumentalities and agencies are
bound to adhere to the norms, standards and procedures
laid down by them and cannot depart from them
arbitrarily. Though that decision is not amenable to judicial
review, the court can examine the decision-making process
and interfere if it is found vitiated by mala fides,
unreasonableness and arbitrariness. The State, its
corporations, instrumentalities and agencies have the
public duty to be fair to all concerned. Even when some
defect is found in the decision-making process the court
must exercise its discretionary power under Article 226
with great caution and should exercise it only in
furtherance of public interest and not merely on the
making out of a legal point. The court should always keep
the larger public interest in mind in order to decide
whether its intervention is called for or not. Only when it
comes to a conclusion that overwhelming public interest
requires interference, the court should intervene.”
19. Hon’ble Supreme Court in the case of M/s N.G.
Projects Ltd. vs. Vinod Kumar Jain & others , reported
as (2022) 6 SCC 127 has held that the constitutional
Courts should refrain from interfering with tender
process for infrastructure projects, as interference in
such matters stalls projects of national importance and
results in cost overrun. Paragraph nos. 21 to 23 of the
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said judgment are extracted below:-
“
21. Since the construction of road is an infrastructure project
and keeping in view the intent of the legislature that
infrastructure projects should not be stayed, the High Court
would have been well advised to hold its hand to stay the
construction of the infrastructure project. Such provision should
be kept in view even by the writ court while exercising its
jurisdiction under Article 226 of the Constitution of India.
22. The satisfaction whether a bidder satisfies the tender
condition is primarily upon the authority inviting the bids. Such
authority is aware of expectations from the tenderers while
evaluating the consequences of non-performance. In the tender
in question, there were 15 bidders. Bids of 13 tenderers were
found to be unresponsive i.e. not satisfying the tender
conditions. The writ petitioner was one of them. It is not the
case of the writ petitioner that action of the Technical Evaluation
Committee was actuated by extraneous considerations or was
mala fide. Therefore, on the same set of facts, different
conclusions can be arrived at in a bona fide manner by the
Technical Evaluation Committee. Since the view of the Technical
Evaluation Committee was not to the liking of the writ
petitioner, such decision does not warrant for interference in a
grant of contract to a successful bidder.
23. In view of the above judgments of this Court, the writ court
should refrain itself from imposing its decision over the decision
of the employer as to whether or not to accept the bid of a
tenderer. The Court does not have the expertise to examine the
terms and conditions of the present day economic activities of
the State and this limitation should be kept in view. Courts
should be even more reluctant in interfering with contracts
involving technical issues as there is a requirement of the
necessary expertise to adjudicate upon such issues. The
approach of the Court should be not to find fault with
magnifying glass in its hands, rather the Court should examine
as to whether the decision-making process is after complying
with the procedure contemplated by the tender conditions. If
the Court finds that there is total arbitrariness or that the tender
has been granted in a mala fide manner, still the Court should
refrain from interfering in the grant of tender but instead
relegate the parties to seek damages for the wrongful exclusion
rather than to injunct the execution of the contract. The
injunction or interference in the tender leads to additional costs
on the State and is also against public interest. Therefore, the
State and its citizens suffer twice, firstly by paying escalation
costs and secondly, by being deprived of the infrastructure for
”
which the present day Governments are expected to work.
20. Learned State Counsel points out that in recent
times, due to influx of tourists to Nainital and Kainchi
Dham, vehicular movement has increased manifold and
because of the bottleneck created at Ranibagh due to
landslide, huge problem of traffic jam is being faced
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everyday and people are stranded for several hours
altogether. Thus, it is contended that the project in
question, for which tender process was held, is not only
necessary for easing the problem of traffic jam, but it is
also a project of strategic importance.
21. As discussed above, petitioner is a Joint Venture
and according to employer, both the partners are
required to independently meet the condition of
executing work of the value indicated in Clause 2.2
A(d) in any one of the financial years out of last five
years; however, the partners in the Joint Venture do
not meet the said condition, therefore this Court is not
inclined to interfere with the interpretation to the
tender conditions given by the employer.
22. Thus there is no scope for interference in the
matter. The writ petition accordingly, fails and is
dismissed.
23. Interim order, if any, stands vacated.
___________________________________
MANOJ KUMAR TIWARI, A.C.J.
____________________________
SUBHASH UPADHYAY, J.
th
Dt: 14 October, 2026
Mahinder
MAHINDER
SINGH
Digitally signed by MAHINDER SINGH
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF
UTTARAKHAND,
2.5.4.20=da6212e6e78d94ed3134842bc6a8d6ca168979ca7b8c2f031a92d
1a18b08923c, postalCode=263001, st=UTTARAKHAND,
serialNumber=AB77B7C5B240908B392BE84F5CDD4C2AF35DC4626D305
B1BC9EA4BABA43D2B8F, cn=MAHINDER SINGH
Date: 2026.10.17 14:34:51 +05'30'
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