1 WPC No. 5687 of 2025 2025:CGHC:53253-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 5687 of 2025 M/s Atul Industrial Corporation Through Proprietor Mr. Dhanram Jeswani, S/o Late Mr. Gurbuxrai Jeswani, Aged About 70, R/o 1425, Dr. Barat Compound, Napier Town, Jabalpur, Madhya Pradesh, 482001 ... Petitioner versus 1 - The State Of Chhattisgarh Through The Secretary, Food Civil Supplies And Consumer Protection Department, Government Of Chhattisgarh, Indravati Bhawan, Capitol Complex, Sector 19, Atal Nagar Nava Raipur, Chhattisgarh 492018 2 - Chhattisgarh State Co-Operative Marketting Federation Ltd. (MARKFED) Through The Managing Director, Raipur, 6th Floor Tower C Commercial Complex, CBD, Sector 21, Block C, Nava Raipur, Atal Nagar, Chhattisgarh ... Respondents (Cause title is taken from CIS) For Petitioner : Mr. Anshuman Singh and Mr. Vaibhav A. Goverdhan, Advocates For Respondent/ State : Mr. Prafull N. Bharat, Advocate General alongwith Mr. S. S. Baghel, Dy. Govt. Advocate For Respondent No.2 : Mr. Animesh Tiwari, Advocate SOURABH BHILWAR Digitally signed by SOURABH BHILWAR Date: 2025.11.04 10:40:52 +0530 2 WPC No. 5687 of 2025 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Bibhu Datta Guru, Judge 31.10.2025 1. By way of this writ petition, the petitioner has prayed for the following reliefs:- “(i) Issue an appropriate writ, order or direction, quashing and setting aside the Notice Inviting Tender (NIT) and the Additional Terms and Conditions (ATC) issued by the Respondent for procurement of ISI-marked Black Polyethylene Cap Covers (BIS Standard IS 2508 : 2016) Bid Number: GEM/2025/B/6658323 Dated 30.09.2025 (Annex. P-3); (ii) Declare that the impugned tender conditions are violative of Articles 14 and 19(1)(g) of the Constitution of India, the Micro, Small and Medium Enterprises Development Act, 2006, the Public Procurement Policy for MSES, 2012, and the Procurement Manual, 2024, being arbitrary, disproportionate and contrary to binding government policy; (iii) Direct the Respondent to re-issue the tender afresh, after duly incorporating the mandatory relaxations for Micro and Small Enterprises in respect of prior turnover, prior experience, and Earnest Money Deposit, as contemplated under the Office Memorandum dated 25.03.2022 issued by the Ministry of MSME and Clause 4 of Chapter 1 of the Procurement Manual, 2024; 3 WPC No. 5687 of 2025 (iv) Direct the Respondent to permit the Petitioner to participate in the reissued or ongoing tender process without insisting upon the impugned prequalification and EMD conditions, treating the Petitioner as an eligible bidder in terms of the statutory MSME policy framework; (v) Pass such further or other orders as may be deemed just, proper, and expedient in the facts and circumstances of the case, including costs of this petition.” 2. (i) Facts of the case, in brief, are that the present writ petition has been filed assailing the Notice Inviting Tender (NIT) and Additional Terms and Conditions (ATC) issued by the respondent, Chhattisgarh State Co-operative Marketing Federation Ltd. (MARKFED), for procurement of ISI-marked Black Polyethylene Cap Covers fabricated from Low Density Polyethylene (LDPE) film conforming to BIS Standard IS 2508:2016, floated on the Government e-Marketplace (GeM). (ii) The grievance of the petitioner is that several conditions incorporated in the NIT and ATC are arbitrary, discriminatory, and contrary to the principles of fair competition under Article 14 of the Constitution of India. In particular, the impugned conditions impose unreasonable restrictions on eligible bidders by mandating prior experience and turnover requirements disproportionate to the tender value, and by fixing responsibility upon the bidder for performance of other suppliers in the rate 4 WPC No. 5687 of 2025 contract, which is irrational and contrary to established norms of tendering. It is submitted that the petitioner, being a manufacturer of LDPE film duly licensed by the Bureau of Indian Standards (BIS) and having long-standing experience in supply of similar goods to government departments, is otherwise fully qualified and competent to participate. However, due to the arbitrary tender conditions, the petitioner stands unfairly excluded from fair participation. 3. (a) Learned counsel for the petitioner submits that the impugned Notice Inviting Tender (NIT) and Additional Terms and Conditions (ATC) issued by the respondent are arbitrary, unreasonable, and violative of the principles of equality and fair play enshrined under Article 14 of the Constitution of India. The conditions incorporated in the tender are designed in such a manner that they restrict fair competition and effectively eliminate genuine and capable bidders like the petitioner, who are otherwise fully qualified and competent to undertake the supply. It is contended that the petitioner is a duly licensed manufacturer of ISI-marked LDPE film conforming to BIS Standard IS 2508:2016 and has been regularly supplying similar material to various government departments and public sector undertakings without any complaint regarding quality or performance. (b) Despite such credentials, the petitioner has been rendered ineligible to participate owing to arbitrary and onerous eligibility 5 WPC No. 5687 of 2025 criteria prescribed in the impugned tender. Learned counsel submits that the conditions requiring excessively high turnover and prior experience are wholly disproportionate to the estimated value of the procurement and are neither justified by any rational basis nor by public interest. Such stipulations, it is urged, are contrary to the settled principles of tendering which require that eligibility norms be reasonable and commensurate with the nature of the work. By fixing conditions that only a handful of suppliers can satisfy, the respondent has acted in a manner that defeats the object of ensuring transparency, competition, and equal opportunity in public procurement. (c) It is further submitted that the clause making a bidder jointly or severally responsible for the performance of other suppliers in the rate contract is manifestly arbitrary and contrary to settled principles of contract law. Each successful bidder under a rate contract is individually liable for the supply and quality of goods delivered by it; imposing collective responsibility on unrelated and competing bidders is irrational, impracticable, and contrary to public policy. Such a condition not only exposes bidders to uncertain liability but also discourages participation, thereby reducing competition and defeating the very purpose of open tendering. Learned counsel contends that the respondent authority, being an instrumentality of the State, is bound to adhere to the principles of fairness, non-discrimination, and 6 WPC No. 5687 of 2025 reasonableness in every stage of the tender process. However, the impugned NIT and ATC reveal a clear departure from these principles and reflect an intention to tailor the tender in favour of certain preferred suppliers. The arbitrary conditions, therefore, deserve to be struck down as violative of Article 14 of the Constitution and the law laid down by the Supreme Court in ‘n’ number of cases. (d) According to the learned counsel, the condition regarding execution of similar project of a total cost of Rs.6.25 crores per year (cumulative) in any of last three years out of previous five years (2020-25) is concerned, the said condition grossly disproportionate to the value of the tender, particularly since the total supply is to be apportioned among five bidders. He would submit that fixation of the said figure is unsupported by any objective data and risk assessment and as such the same is arbitrary and unreasonable. Accordingly, it is prayed that the impugned NIT and the offending clauses of the Additional Terms and Conditions be quashed, and the respondent be directed to reissue the tender with fair, transparent, and reasonable eligibility conditions, ensuring equal opportunity to all bona fide and capable manufacturers, including the petitioner. Hence, the writ petition deserves to be allowed. 4. On the other hand, learned respondents counsel oppose the submissions made by the learned counsel for the petitioner and 7 WPC No. 5687 of 2025 submits that the impugned Notice Inviting Tender (NIT) and Additional Terms and Conditions (ATC) have been issued strictly in accordance with the prescribed procurement policy and in the larger public interest. It is submitted that all conditions are reasonable, uniformly applicable to all bidders, and intended to ensure transparency, quality, and timely execution of the contract. The respondents deny any arbitrariness or mala fides in the tender process and contend that no interference is called for by this Court. 5. We have heard learned counsel for the parties and perused the other documents appended with writ petition. 6. In case of Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd.1, the Hon’ble Supreme Court has observed that the owner or the employer of a project having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. 7. In N.G. Projects Ltd. v. Vinod Kumar Jain2,, the Apex Court has observed as under: “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 1 (2016) 16 SCC 818 2 (2022) 6 SCC 127 8 WPC No. 5687 of 2025 Committee was actuated by extraneous considerations or was malafide. 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 malafide 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.” 8. The Apex Court, in the matter of Michigan Rubber (India) Ltd. vs. State of Karnataka & Ors., reported in (2012) 8 SCC 216, held that in the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its 9 WPC No. 5687 of 2025 statutory powers, interference by courts is not warranted. Taking note of its several decisions, the Supreme Court observed as under (at paras No. 10 to 14):- “10. This Court, in a series of decisions, considered similar conditions e incorporated in the tender documents and also the scope and judicial review of administrative actions. The scope and the approach to be adopted in the process of such review have been settled by a long line of decisions of this Court. Since the principle of law is settled and well recognised by now, we may refer to some of the decisions only to recapitulate the relevant tests applicable and approach of this Court in such matters. 11. In Tata Cellular v. Union of India this Court emphasised the need to find a right balance between administrative discretion to decide the matters on the one hand, and the need to remedy any unfairness on the other, and observed: (SCC pp. 687-88, para 94) "(1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.… (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary 10 WPC No. 5687 of 2025 concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure." (emphasis in original) 12. In Raunaq International Ltd. v. I.V.R. Construction Ltd. this Court reiterated the principle governing the process of judicial review and held that the writ court would not be justified in interfering with commercial transactions in which the State is one of the parties except where there is substantial public interest involved and in cases where the transaction is mala fide. 13. In Union of India v. International Trading Co. this Court, in similar circumstances, held as under: (SCC pp. 445 & 447, paras 15-16 & 22-23) "15. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in 11 WPC No. 5687 of 2025 essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualised than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness. 16. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in a different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary. * * * 22. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. As noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed. 23. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interests of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In 12 WPC No. 5687 of 2025 determining whether there is any unfairness involved; the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Canalisation of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. (See Parbhani Transport Coop. Society Ltd. v. RTA, Shree Meenakshi Mills Ltd. v. Union of India, Hari Chand Sarda v. Mizo District Council and Krishnan Kakkanth v. Govt. of Kerala.)" 14. In Jespar I. Slong v. State of Meghalaya this Court, in para 17, held as under: (SCC p. 494) "17. ... fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable." 9. Having heard learned counsel for the parties and upon perusal of the material placed on record, it appears that the grievance of the petitioner revolves around the alleged arbitrariness and unreasonableness of certain conditions incorporated in the impugned Notice Inviting Tender (NIT) and Additional Terms and Conditions (ATC). The petitioner contends that such stipulations 13 WPC No. 5687 of 2025 are disproportionate, discriminatory, and violative of Article 14 of the Constitution, whereas the respondents justify the same as necessary measures to ensure quality and reliability in public procurement. This Court is conscious of the well-settled principle that the scope of judicial review in contractual and tender matters is limited. Interference by the writ court is warranted only when the action of the tendering authority is found to be arbitrary, discriminatory, mala fide, or in violation of statutory or constitutional provisions. The courts are not expected to sit in appeal over the wisdom of the tendering authority in formulating terms and conditions of the tender, unless such terms are manifestly unreasonable or designed to favour a particular bidder. 10. From the material available on record and the tender documents issued through the GeM portal, it is evident that the bidder who is seeking exemption of EMD, he must submit the valid supporting documents for the relevant category as per the GeM, GTC with the bid. It also provides that under MSE category, only manufacturer for goods and service providers for services are eligible for exemptions from EMD and the traders are excluded from the purview of the said policy. It also provides that the EMD of Rs.11 lacs to be submitted and no exemption from paying EMD/security is allowed. It has categorically been specified that the provisions of the Public Procurement Policy for MSEs Order, 14 WPC No. 5687 of 2025 2012 is applicable only to the Central Government Ministries/ Departments and CPSUs and it is not at all applicable to State Government Ministries/Departments/PSUs. 11. As per the clause 8 of the tender document, it is evident that the complete quantity of the material will be divided into five parts. For the sake of convenience, the said provisions is quoted hereinbelow:- 8. The complete quantity will be divided into five parts. 40% of the total quantity will be given to the first lowest tenderer (L1). If L2 to L5 tenderers agrees to match the L1 tenderer financial quote than the distribution of total quantity among them shall be as per following: L2-25% of total quantity L3-15% of total quantity L4-10% of total quantity L5-10% of total quantity If any of the above tenderer does not agree to match L1 price, then the distribution of remaining quantity to supply of cap cover shall be distributed equally by C.G MARKFED. For example- If L2, L3 and L4 bidders agrees to match the L1 cost but L5 bidders refuses to match the L1 cost. In this case the authority shall distribute the remaining 10% of total quantity order among L1, L2, L3 and L4 bidder equally i.e. 2.5% additional to each of L1, L2, L3 and L4 bidder. So the total order quantity of each bidder in this case shall be as per following: 15 WPC No. 5687 of 2025 L1 Bidder- 40% of quantity and additional 2.5% (Total 42.5% of total quantity) L2 Bidder- 25% of quantity and additional 2.5% (Total 27.5% of total quantity) L3 Bidder- 15% of quantity and additional 2.5% (Total 17.5% of total quantity) L4 Bidder 10% of quantity and additional 2.5% (Total 12.5% of total quantity) Note: The above example is only for explanation purpose. 12. The aforesaid condition would be applicable to all the bidders and even the petitioner cannot question the same, as the petitioner is not prohibited to offer its bid for entire five parts. 13. It is the trite law that the Court should not interfere in tender matters unless the Government's decision is arbitrary, unreasonable, malicious, or suffers from mala fides. It should exercise restraint and avoid substituting its judgment for the administrative authority's, especially when it comes to the technical and commercial aspects of the tendering process. The court's role is not to act as an employer but to ensure the process adheres to fairness and is not discriminatory. The Government has broad discretion in setting the terms of a tender. It is also the settled law that the Courts lack the specialized expertise to evaluate technical and commercial contract decisions and should not second-guess the employer's choices. 16 WPC No. 5687 of 2025 Judicial review of tender matters is a limited power, and interference is only warranted for clear-cut cases of arbitrariness, irrationality, or bias. 14. The bidder should have executed a project in central/ state government organization/ PSU for supply and installation/ commissioning of same product (Cap cover as per IS 2508) of total cost of 6.25 Crore rupees per year (cumulative in a year) in any of the last three (03) years out of last financial years 2020- 21, 2021-22, 2022-23, 2023-24 & 2024-25, current financial year 2025 experience till bid issue date is also considerable. Documentary evidence for e.g. WO/Agreement/PO with CA Provisional Certificate/Certificate with UDIN Number/completion certificate having value of the order with the duration and year to be submitted. The bidder should meet this criteria in at least 03 years (each year) of the five years. 15. In the case at hand, from a holistic examination of the tender documents, it does not prima facie appear that the impugned conditions are tailor-made for any particular bidder or that they lack a rational nexus with the object sought to be achieved. The turnover and experience requirements, though stringent, cannot be held per se arbitrary merely on the ground that some bidders, including the petitioner, may be excluded. Similarly, the clause imposing certain performance-related responsibilities appears to have been framed keeping in view the large-scale procurement 17 WPC No. 5687 of 2025 and administrative exigencies of the respondent organization. 16. Thus, this Court finds no sufficient ground to hold that the impugned NIT and Additional Terms and Conditions suffer from arbitrariness or violation of Article 14 of the Constitution. The decision of the respondent authority appears to be based on commercial prudence and administrative discretion, for which this Court ordinarily would not interfere under Article 226 of the Constitution of India. 17. Accordingly, the writ petition being devoid of merit is liable to be and is hereby dismissed. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice S.Bhilwar/ Gowri