Saptagiri Restaurant Pvt Ltd v. Airport Authority of India & Anr.

Delhi High Court · 19 Dec 2022 · 2022:DHC:5666-DB

Satish Chandra Sharma; Subramonium Prasad

W.P.(C) 2175/2022

2022:DHC:5666-DB

administrative petition_dismissed Significant

AI Summary

The Delhi High Court dismissed the review petition challenging cancellation of a tender by the Airport Authority of India, holding that no vested right arises without issuance of acceptance and that commercial decisions by public authorities are subject to limited judicial review.

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Neutral Citation Number: 2022/DHC/005666

W.P.(C) 2175/2022
HIGH COURT OF DELHI
Date of Decision: 19th December, 2022 IN THE MATTER OF:

W.P.(C) 2175/2022
SAPTAGIRI RESTAURANT PVT LTD ..... Petitioner
Through: Mr. Adi Narayan Rao, Senior Advocate with Mr. Aashish Prasad, Advocate.

VERSUS

AIRPORT AUTHORITY OF INDIA & ANR. ..... Respondents
Through: Mr. Digvijay Rai & Mr. Archit Mishra, Advocates for Respondent
No.1/ AAI.

CORAM:

HON’BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

JUDGMENT

SUBRAMONIUM PRASAD, J.

REVIEW PETITION 334/2022 & CM APPLs. 53610-
11/2022

1. The instant Review Petition has been filed seeking review of the Judgment dated 01.11.2022 passed by this Court in W.P.(C) 2175/2022.

2. This Court by the Judgment under review has dismissed the writ petition which has been filed for a direction to Respondent No.1 to issue LOIA to the Petitioner in terms of the RFP bearing E-bid No. (Tender ID No.) 2021_AAI_76204_1 in respect of concession to design, fit out, finance, develop, market, operate, maintain and mange the food & beverage outlets at the Pune Airport.

3. Though the Petitioner was the highest bidder, yet the contract was not handed over to the Petitioner in view of the Circular dated 28.09.2021. The relevant portion of same reads as under:- “In such a scenario, if the quote received is more than the MRLF, the same may be processed as per codal procedure. In case of NIL response in such tender, subsequent action for reduction in MRLF may not be taken and interim arrangement may be made for utilisation of space till new tender is finalised and even if reduction of MRLE has been approved by competent authority, same may be brought to earlier level after reconsideration with the approval of Competent Authority and then tender may be invited in Jan, 2022 onwards. Where tenders have been invited on reduced MRLF: - In such a scenario, financial bid may be opened:- - if the quote received is equal to or more than the Original MRLF (without reduction), the same may be processed as per codal procedure. - If the quote received is lesser than the original MRLF (without reduction), the same may be considered on NPV basis and if differences is within 10% with original MRLF then it can be considered or else tender may be cancelled &fresh tender be initiated post 31.12.2021.” (emphasis supplied)

4. After considering the said Circular, this Court dismissed the writ petition holding as under:-

“20. From the above, it is crystal clear that the decision to cancel the Impugned Tender is purely guided by commercial prudence. The Respondent No.1 realises that owning to the pandemic, air traffic had substantially reduced, due to which it did not receive

any interest for its previous tenders. However, as the situation is now substantially better, the Respondent No. 1 rightly expects more lucrative offers. The Respondent No.1 is simply trying to maximise profits and provide better food and beverage services at the Raipur airport. These considerations cannot be termed as arbitrary or capricious.

21. Furthermore, the Respondent No. 1 did not issue a letter of acceptance in favour of the Petitioner. The dictum of U.P. Avas Evam Vikas Parishad (Supra), which lays down that if a letter/order accepting the bid has not been issued, the highest bidder has no vested right in the tendering process, would apply squarely to the instant case.

22. As has been laid down in a catena of cases, the only right of a bidder is that to be treated equally. In the considered opinion of this Court, the Respondent No. 1’s decision does not violate this right of the Petitioner. Further, as stated, the decision of the Respondent No. 1 is not actuated by bias and is neither arbitrary nor capricious. On the contrary, the Respondent No. 1 has simply acted as any prudent businessperson should be expected to. As the tender is within the realm of commercial and contractual decisions of the State, commercial violability and maximization are considerations of a paramount nature and cannot be dispensed with. It is needless to say the Petitioner can participate in the fresh tender.”

5. The Petitioner sought to challenge the said Judgment by filing a Special Leave to Appeal (C) No.20736/2022 before the Apex Court and the Apex Court vide Order dated 21.11.2022 has dismissed the Special Leave Petition.

6. Even after the dismissal of the Special Leave Petition, taking aid of the Judgment passed by the Apex Court in Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., (2019) 4 SCC 376, which states that the dismissal of a Special Leave Petition does not attract doctrine of merger, therefore, it is open for a party to file a review against the very same order against which an SLP is dismissed, the instant review petition has been filed.

7. Mr. Adi Narayan Rao, learned Senior Advocate for the Petitioner, draws attention of this Court and tries to point out that in certain other tenders i.e. in respect of Goa Airport and Bhubaneswar Airport, the Circular has not been followed and the tenders were awarded even though the bid was substantially lesser than the MRLF (Minimum Reserve License Fee). Paragraph 5 of the review petition reads as under:-

“5. That admittedly, the said Commercial Circular No 42 dated 2gth September 2021 is being applied selectively by the respondent authority. That during the same time period the respondent authority came out with two more tenders, one for Goa Airport and the second one for Biju Patnaik International Airport, in such tenders, the reserve price was reduced by as much as 70% and the tenders were awarded by the respondent authority at reduced reserved price without applying the said Commercial Circular. The Hon'ble Court while passing the Judgment dated opt November, 2022, totally overlooked such arbitrary and capricious exercise by the respondent authority. Unfortunately, the judgment has not dealt with said aspect, which serious lapses on the part of the respondent authority, and as such, it is most respectfully submitted that, formal decision of this Hon'ble Court is humbly begged on said issue/conduct of the respondent authority. That error so crept into the Judgment dated 01 st November, 2022 ought to be rectified by this Hon'ble Court and as such the present review petition is preferred by the Petitioner.”

8. At the outset, it is to be stated that the said point was not argued by the Petitioner during the hearing of the Writ Petition. A Bench of three Judges of the Apex Court in Review Petition No. 2670/1996 in CA NO. 1867/1992, has held as under: “The record of the appeal indicates that Shri Sudarsh Menon was the Advocate-on-Record when the appeal was heard and decided on merits. The review petition has been filed by Shri Prabir Chowdhury who was neither an arguing counsel when the appeal was heard nor was he present at the time of arguments. It is unknown on what basis he has written the grounds in the review petition as if it is a rehearing of an appeal against our order. He did not confine to the scope of review. It would not be in the interest of the profession to permit such practice.......”

9. The Apex Court has time and again brought out that the scope of the review is narrow and is confined to the error apparent on the face of record. There are definitive limits to the exercise of power of review, and the Supreme Court has iterated the circumstances wherein the review of a judgement or an order can be sought. In Meera Bhanja (Smt.) v. Nirmala Kumari Choudhury (Smt.), (1995) 1 SCC 170, the Supreme Court had observed as under:

“8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of AribamTuleshwar Sharma v. AribamPishak Sharma [(1979) 4 SCC 389 : AIR 1979 SC 1047] , speaking through Chinnappa Reddy, J., has made the following

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pertinent observations: (SCC p. 390, para 3) “It is true as observed by this Court in Shivdeo Singh v. State of Punjab [AIR 1963 SC 1909], there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.”

10. It is well settled that an error which has to be established by a longdrawn process of reasoning on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ [Refer to: Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137].

11. In any event, the Petitioner has not been able to point out any error apparent on the face of record and has chosen to argue a fresh point which has not been argued in the writ petition. Be that as it may, the point sought to be raised also does not have any merit inasmuch as the date of award of the tender for the Goa Airport is 28.07.2021 and the date of award of tender for the Bhubaneswar Airport is 25.08.2021 which is prior to the Circular dated 28.09.2021, as quoted above.

12. In view of the above, no case is made out for the review. Though this review petition is complete abuse of the process of law, this Court is refraining from imposing costs keeping in mind the special facts and circumstances of the case.

13. The review petition is dismissed, along with the pending application(s), if any.

SATISH CHANDRA SHARMA, C.J. SUBRAMONIUM PRASAD, J DECEMBER 19, 2022

Saptagiri Restaurant Pvt Ltd v. Airport Authority of India & Anr.

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