Holding

The Supreme Court held that the tender evaluation and award were lawful, transparent and reasonable, and that no illegality, irrationality or procedural impropriety existed; consequently the appeal was dismissed.

Summary

Siemens and other bidders challenged the award of a contract by the Delhi Metro Rail Corporation (DMRC) for 486 standard gauge cars to Hyundai Rotem, arguing that the GEC (energy consumption) values used to adjust bids were untenable and that the Government’s appointment of a committee to review the tender process while the matter was sub‑judice was improper. The High Court held the tender process transparent, fair and regular, and dismissed the writ petitions. The Supreme Court affirmed that the evaluation complied with the tender terms, found no illegality, irrationality or procedural impropriety, held that the Government’s parallel committee could not invalidate the award, and dismissed the appeal with costs.

Issues considered

The award of the contract to Hyundai Rotem was illegal, irregular or arbitrary.
Whether the GEC values offered by the successful bidder needed validation before being used for bid evaluation.
Whether the Government’s constitution of a committee to review the tender process while the case was sub‑judice amounted to impermissible interference.
Whether judicial review can extend to technical merits of the GEC values or is limited to the legality of the decision‑making process.

Legislation cited

Constitution of Indias. Art. 13, s. Art. 299, s. Art. 32

Subjects

government procurementtender evaluationjudicial reviewadministrative lawGEC valuescontract awardsub‑judicegovernment committee interferenceprocedural fairnesspublic interest

Judgment

[2014] 2 S.C.R. 824

A M/S SIEMENS AKTIENGESELISCHAFT & S. LTD.
v.
DMRC LTD. & ORS.
(Civil Appeal No. 2068 of 2014)
FEBRUARY 14, 2014
B
[T.S. THAKUR AND C. NAGAPPAN, JJ.]

CONSTITUTION OF IND/A, 1950:

c. Art. 32 r/w Arts. 13 and 299 - Government contracts -
Contract for supply of Standard Gauge Cars Electrical
Multiple Units for use in Mass Rapid transit system - Award
of contract to lowest bidder (L-1) - Challenged - Held: In any
challenge to award of contract, the legality and regularity of
0 the process leading to the award of contract is to be examined
-- Court has to constantly keep in mind that it does not sit in
appeal over the soundness of the decision - Court can only
examine whether the decision making process was fair,
reasonable and transparent - In cases involving award of
E contracts, court ought to exercise judicial restraint where the
decision is bonafide with no perceptible injury to public
interest - High Court has, in the case at hand, undertaken that
exercise and concluded that there was neither any illegality
nor any irregularity in the process of evaluation of the bids or
the final allotment of contract - The allotment of contract did
F not suffer from any illegality as it is understood in the matter
of judicial review of administrative action -- The process by
which the bids were evaluated and eventually accepted was
transparent, fair and reasonable and does not, therefore, call
for any interference Judicial review - Judicial restraint.
G
ADMINISTRATIVE LAW:

Government contract - Award of contract challenged
before court - Thereafter, Government directing constitution
H 824
M/S SIEMENS AKTIENGESEUSCHAFT & S. 1-TD. v. 825
DMRC LTD. & ORS.
of a Committee - Held: Government ought to have stayed its A
hands once the matter landed in court - Inasmuch as
Government did nothing of this kind, it did not act properly -
Even otherwise, solong as the view taken by the experts of
the authority competent to take a final decision is a possible
view, the very fact that some other experts have expressed B
doubts about the sustainability of the GEC values wiH not be
enough to declare that the values offered by respondent no.
2 are unachievable.

The award of contract for the supply of 486 Standard C
Gauge Cars Electrical Multiple Units meant for use in
~hase-111 of the Mass Rapid Transit Sy~tem ('MRTS') for
Delhi and its extension corridors, in favour of the lowest
bidder (L-1), namely, respondent No.2(HR), was
challenged by the two unsuccessful bidders, namely, the
0
appellant and another. The High Court held that the
process of evaluating the bids received and award of
contract in favour of respondent no. 2 was transparent
and did not suffer from any illegality, irregularity or
-perversity to warrant interference.
E
In the instant appeal, it was contended for the
appellant that while the GEC value offered by the
appellant was the highest, the one offered by the
respondent successful bidder for 'X' factor was wholly
untenable. It was submitted that the terms of the tender F
notice required the GEC values offered by the bidders to
be validated before they could be used for processing the
bids; and that the report submitted by the Director,
Ministry of Urban Development, Government of India,
indicated that the stimulation test conducted by DMRC G
as a part of the process of verification and validation of
the GEC value offered by respondent. no. 2 was not
accurate. It was urged that the Government of India had
appointed a two-member Committee to check the
evaluation process of the bids and the report of the H
826 SUPREME COURT REPORTS [2014] 2 S.C.R.

A Committee filed by the Government in the Court in a·
sealed cover could throw considerable light on the
subject and help in deci~ing whether an independent
verification of the GEC values was necessary.

8 Dismissing the appeal, the Court

HELD: 1.1 Judicial review would apply even to
exercise of contractual powers by the Government and
Government instrumentalities in order to prevent
arbitrariness or favouritism. In any challenge to the award
C of contact before the High Court and so also before this
Court what is to be examined is the legality and regularity
of the process .leading to award of contract. What the
Court has to constantly keep in mind is that it does not
sit in appeal over the soundness of the decision. The
D Court can only examine whether the decision making
process was fair, reasonable and transparent. In cases
involving award of contracts, the Court ought to exercise
judicial restraint where the decision is bonafide with no
perceptible injury to public interest. The High Court has,
E . in the case at hand, undertaken that exercise and
concluded that there was neither any illegality nor any
irregularity in the process of evaluation of the bids or the
final allotment of the contract. [para 17,22 and 23) [842-
F; 846-E-H]
F
Tata Cellular v. Union of India 1994 (2) Suppl. SCR 122
= (1994) 6 SCC 651; Ramana Dayaram Sheffy v.
lntemational Airport Authority of India and Ors. 1979 (3) SCR
1014 = (1979) 3 sec 489 - relied on.
G MP. Oil Extraction v. State of M.P. & Ors. 1997 (1) Suppl.
SCR 671 = (1997) 7 SCC 592; Jagdish Manda/ v. State of
=
Orissa & Ors. 2006 (10) Suppl. SCR 606 (2007) 14 SCC
517; Heinz India (P) Ltd. & Anr. v. State of U.P. & Ors. 2012
(3) SCR 898 = (2012) 5 SCC 443 - referred to
H
M/S SIEMENS AKTIENGESELISCHAFT & S. LTD. v. 827
DMRC LTD. & ORS.
Reid v. Secy. of State for Scotland (1999) 1 All ER 481· A
referred to;

1.2 The allotment of contract did not suffer from any
illegality as it is understood in the matter of judicial review
of administrative action and as that expression has been 8
used by this Court in Tata Cellular's case. It is also not
the case of the appellant that the decision taken by the
DMRC is so outrageous in its defiance of logic or
accepted moral standards that no sensible person who
had applied his mind could have arrived at the same. C
Perversity or irrationality in the decision or the decision
making process_is also not a ground that can be invok~d
in the case at hand. [para 23] [847·E·G]

1.3 It is common ground that the price bid offered by
the tenderers was not itself determinative. What was D
equally important was the GEC values comprising X and
Y factors which the tenderers had to disclose in their
techn°ical .bids. That the values offered had to be
converted into Indian Rupees and loaded to the price bid
of the tenderers. is also beyond question. That each one E
of the bidders had offered their GEC values comprising
Xand Y factors separately was also beyond doubt. There
is no error even in the conversion of such values in terms
of Indian Rupees nor is there any dispute about the effect
of such loading of values to the price bid of all the F
tenderers. because of which loadingthe bid offered by
respondent no. 2 eventually emerged as L-1 with
appellant sliding to L-4 position. That being so, the
process of evaluation of bids cou_ld not be faulted as the
same was strictly in accordance with the nor111.s G
stipulated for such evaluation. [para 24] [848-B-E]

1.4 There is nothing in the tender document to
suggest that the GEC values had to be, tested for their
achievability. All the six bidders declared eligible are H
828 SUPREME COURT REPORTS (2014) 2 S.C.R.

A world leaders in the field and have sufficient expertise
and know-how not o~!Y about the design and technology
which they use but also about their capacity to validate
their respectiv~ GEC values. Therefore, DMRC did not
tommit any, error in considering that the GEC values
B offered 'by respondent no. 2 were achievable especially
when/such values offered by some of the bidders for X
1
and Y factors were lower than those offered by
respondent no. 2. At any rate the DMRC had sufficiently
protected itself because under the terms and conditions
c stipulated in the tender notice failure of the successful
tender to make good the GEC values offered by them
would result in a penalty which was higher than the GEC
value factor that was loaded to the price bid. Therefore,
there was no basis for the DMRC to go any further than
D it did in protecting its interest. In the absence of any
specific stipulation or requirement for validation of the
GEC values by the DMRC and its experts or by any
outside agency such a requirement could not be implied
into the tender process. Inasmuch as the DMRC found
E the bid offered by respondent no. 2 to be acceptable,
keeping in view the GEC values offered by it, the former
had committed no illegality in the evaluation of the bids
or in making its choice of the contractor. [para 24] [848-
G-H; 849-A-D]
F 1.5 Even assuming that the process of validation of
the GEC values and their achievability was an implied
condition in the evaluation process, DMRC had on the
basis of an internal simulation satisfied itself that the GEC
values were not unachievable. The High Court has
G referred to the simulation results and the original record
has also been produced by DMRC before this Court.
There is no illegality or irregularity in the process of
verification conducted by the DMRC to test the
achievability of the GEC values. [para 25] [849-E-F]
H
M/S SIEMENS AKTIENGESELISCHAFT & S. LTD. v. 829
DMRC LTD. & ORS.
1.6 Therefore, this Court is satisfied that the process A
by which the bids were evaluated and eventually
accepted was transparent, fair and reasonable and does
not, therefore, call for any interference from this Court.
[para 25] [829-A]
B
2.1 Once the Government had known that the entire
issue regarding the validity of the process adopted by
DMRC including the transparency and fairness of the
process of evaluation of the bids was sub judice before
the High Court and later before this Court, it ought to have C
kept its hands off and let the law take its course. It could
have doubt{ess placed all such material as was relevant,
before the High Court and invited a judicial
pronouncement on the subject instead of starting a
parallel exercise. The Government could even approach
0
the High Court and seek its permission to review the
process of evaluation either by itself or through an expert
Committee if it felt that any such process would help the
court in determining the issues falling for consideration
before the court more effectively. Nothing of that sort E
was, however, done. On the contrary even when the
Secretary to the MoUD pointed out that the matter is
subjudice and any further action in the matter could await
the pronouncement of the court, the Minister heading
MoUD directed the constitution of the Committee. [para
26] (850-E-H; 851-A] F

2.2 The terms of reference give a clear indication that
the process initiated by the Government w.as a parallel
process of the adjudication of the very same issue as fell
for consideration before the High Court and at a later G
stage before this Ccurt. The.Government could not have
done this. Continuance of the process of review even
after the High Court had delivered its judgfT!ent amounted
to subjecting the judicial pronouncement to an
administrative review. There was no question of any H
830 SUPREME COURT REPORTS [2014] 2 S.C.R.

A such judicial determination or adjudication being
subjected to any administrative review albeit in the name
of a Committee constituted for the purpose. [para 27]
[851-B-C, F-G]
2.3 Suffice it to say fhat the Government ought to
8
have stayed its hands once the matter landed in the
Court. Inasmuch as the Government did nothing of this
kind, it did not act properly. [para 28] (852-B]
2.4 Even assuming that the Committee has taken
C expert advice regarding the tenability of the GEC values
offered by respondent no. 2, it would simply mean that
there is a conflict between the views taken by the experts
of DMRC and those consulted by the Committee. Any
such conflict cannot be resolved by this Court in exercise
D of its powers of judicial review. So long as the view taken
by the experts of the authority competent to take a final
decision is a possible view, the very fact that some other
experts have expressed doubts about the sustainability
of the GEC values will not be enough to declare that the
E values offered by respondent no. 2 are unachievable.
[para 29] (852-E-G]
Federation of Railway Officers Association v. Union of
India (2003) 2 SCR 1085; N.D. Jayal v. Union oflnOia 2003
=
(3) Suppl. SCR 152 (2004) 9 SCC 362 - referred to.
F
2.5 Besides, the preparation and submission of a
report that does not even take the view point of the party
affected by it into consideration can hardly provide to this
Court a good reason to scuttle the entire process at this
G stage when respondent no. 2, the successful bidder, has
already taken substantial steps in the direction of
executing the works allotted to it. (para 31] [854-A-B]
Amrik Singh Lyal/puri v. Union of India & Ors. 2011 (5)
SCR 560 = (2011) 6 SCC 535 and Union of India v. K.M.
H Shankarappa 2000 (5) Suppl. SCR 117 = (2001) 1 SCC 582;
MIS SIEMENS AKTIENGESELISCHAFT & S. LTD. v. 831
DMRC LTD. & ORS.

The King v. Parmanand and Ors. AIR 1949 Patna 222 and A
D. Jones Shield v. N. Ramesam & Ors. AIR 1955 AP 156;
In Re: P.C. Sen 1969 SCR 649 =AIR 1970 SC 1821 and
Jang Bahadur Singh v. Baij Nath Tiwari 1969 SCR 134 = AIR
1969 SC 30; Asia Foundation & Construction Ltd. v. Trafalgar
House Construction 1996 (10) Suppl. SCR 209 = (1997) 1 B
SCC 738; Monarch Infrastructure (P) Ltd. v. U/hasnagar
Municipal Corpn. 2000 (3) SCR 1159 = (2000) 5 SCC 287;
Jagdish Manda/ v. State of Orissa 2006 (10) Suppl. SCR 606
= (2007) 14 SCC 517 and Heinz India (P) Ltd. v. State of U.P.
2012 (3) SCR 898 = (2012) 5 sec 443- cited. c
Case Law Reference:
2011 (5) SCR 560 cited Para 16
2000 (5) Suppl. SCR 117 cited Para 16
D
AIR 1949 Patna 222 cited Para 16
AIR 1955 AP 156 cited Para 16
1969 SCR 649 cited Para 16
E
1969 SCR 134 cited para 16
' ,1994 (2) Suppl. SCR 122 cited Para 16
'· 1996 (10) Suppl. SCR 209 cited Para 16
2000 (3) SCR 1159 cited Para 16 F

2006 (10) Suppl. SCR 606 cited Para 16
2012 (3) SCR 898 cited Para 16
1979 (3) SCR 1014 relied on para 17 G
1997. (1) Suppl. SCR 671 referred to para 19
2006 (10)' Suppl. SCR 606 referred to para 21
2012 (3) SCR 898 referred to para 21
H
832 SUPREME COURT REPORTS [2014] 2 S.C.R.

A (1999) 1 All ER 481 referred to para 21

(2003) 2 SCR 1085 referred to Para 29

2003 (3) Suppl. SCR 152 referred to Para 30

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8
2068 of 2014.

From the Judgment and Order dated 15.05.2013 in WPC
~o. 1853/2013 of the High Court of Delhi at New Delhi.

C Mohan Parasaran, SG, U.U. Lalit, T.R. Andhyarujina,
Maninder Singh, K.K. Venugopal, Dr. Rajeev Dhawan, C.
Mukund, Pankaj Jain, Firdouse Qutb Wari, P.V. Saravanaraja,
Anvesh Verma, Ashok Jain, Bijoy Kumar Jain, V.K. Biju, D.L.
Chidanand, Ashwin Kumar D.S., Rajiv Nanda, Padma Laxmi
D Nigam, Sushma Surim Shawna Singh Dev, Tarun Johri, Payal
Chandra, Soumik Ghosal, Ankur Gupta, Santosh Kumar fol the.
appearing parties.

The Judgment of the Court was delivered by

E T.S. THAKUR, J. 1. Leave granted.

2. A Division Bench of the High Court of DeLtJi has by a
common order passed in Writ Petition (C) No.1853 of 2013
filed by the appellant and Writ Petition No.2615 of 2013 filed
F by Alstom Transport India Ltd. declined to interfere with the ·
award of a t:ontract for the supply of 486 Standard Gauge Cars
Electrical MultiP.le Units meant for use in Phase-Ill of the Mass
Rapid Transit System ('MRTS' for short) fot Delhi and its
extension corridors. The High Court has taken the view that the
G process of evaluation of the bids received from eligible bidders
culminating in the award of a contract in favour of respondent
No.2-Hyundai Rotem Company ('HR' for short) was transparent
and did not suffer from any illegality, irregularity or perversity
of any kind to warrant interference by it. The High Court held
H that the bidders were well aware of and had accepted the
MIS SIEMENS AKTIENGESELISCHAFT & S. LTD. v. 833
DMRC LTD. & ORS. [T.S. THAKUR, J.]
. tender conditions which were free from any vagueness or A
uncertainty. The parameters of evaluation conditions were also
held to have been applied uniformly to all the bidders under a
procedure that was open, transparent and fair as required by
law. The present appeal assails the correctness of that
judgment and order. Alstom Transport India Ltd. & Ors.-Writ- B
Petitioners in connected Writ Petition No.2615 of 2013 have,
however, remained content with the view taken by the High
Court and have not chosen to appeal.

3: Respondent-Delhi Metro Rail Corporation ('DMRC' for C
' short) bas planned to implement Phase-Ill of the MRTS for Delhi
to keep pace with the ever increasing traffic demands in Delhi.
Phase-Ill of the MRTS, Delhi comprises metro corridors of
Mukundpur-Rajori Garden-Dhaula Kuan - Maujpur - Gokulpuri
and Janakpuri (West)-Munirka - Kalkaji - Kalindi Kunj - Botanical D
Garden - (Naida). The project, it is common ground, is financed
with the help of a loan secured by the DMRC from Japan
International Cooperation Agency ('JICA' for short). The loan
agreement, inter alia, stipulates the bid procedure to be
followed by DMRC. What is noteworthy is that the procedure,
E
inter alia, provides for submission of tenders to JICA for review,
concurrence and analysis of bids by the DMRC and reserves
with the JICA the diSCJ"P.tion to convey its views regarding the
analysis of the bids ana the proposal for award of the works

4. In keeping with the requirements of the agreement F
. betw~en DMRC and JICA, the former invited sealed tenders
in two parts (Technical & Price Bid) on International Competitive
Bid ('ICB' for short) basis for the design, manufacture, supply,
testing, commissioning and training of 486 number of Standard
Gauge Cars Electrical Multiple units referred to earlier at an G
estimated budget cost of Rs.3500 crores funded by JICA. Pre-
bid meetings were held to answer the queries, if any, raised
· by the bidders. The DMRC in the meantime issued as many
as 9 Addenda which necessitated the change in the dates fixed
tf
834 SUPREME COURT REPORTS [2014] 2 S.C.R.

A for submission of bids to enable the bidders to formulate their
offers and make their bids in accordance with the terms and
conditions finally stipulated for the purpose. DMRC eventually
received eight bids including one submitted by the appellant
before us. The technical bids were opened on 18th September,
B 2012 whereupon only six of the bidders including the appellant
were declared to be eligible. With the opening of the technical
bids GEC values which the bidders were required to submit
as a part of their technical bid and which were relevant and to
a great extent critical for evaluation of the price bid under the
c applicable terms and conditions also became knovvn to the
bidders. The financial bids offered by these six bidders were
then opened on 9th February, 2013 and the bid amount plong
with GEC values offered by each bidder announced by the
DMRC. The price quotations of the six bidders found eligible
o were as under: .·

Bidder Grand Total INR per Position
in INR Car (with- before
out Loading
loading) due to
differ-
ence in
E GEC
. values
Siemens Consortium . 3625,27,92,409 7,45,94,223 L-1
Bombardier Consortium 4242,27,83,378 8;72,89,678 . L-2
Hyundai ROTEM 4290,57,94,689 8,82,83,528 L-3
F Alstom Consortium . 4373,87,65,001 8,99,97,459 L-4 ..
CAF Consortium 4614, 18,66,794 9,49,42,113 L-5
Hitachi + BHEL 4891,32,60,656 10,06,44,569 L-6
5: Significantly, however, the above did not represent the
G true inter se position of the bidders. That was so because apart
from the price quotation, the terms and conditions of the tender
notice required loading of GEC values duly converted into
Indian rupee to the price quotation of each eligible bidder. The
GEC values in turn comprised two distinct components, namely,
H 'X' factor representing the electricity consumption for the
M/S SIEMENS AKTIENGESELISCHAFT & S. LTD. v. 835
DMRC LTD. & ORS. [T.S. THAKUR, J.]
operation of the train without HVAC and 'Y' factor for operation A
of HVAC. The GEC values offered by the six bidders found
technically compliant were as under:
.

S.No. Bidder Other than HVAC ('Y') Total
HVAC ('X)
ALSTOM 1434 595 2029 B
1
2 BTC 1621- 564 2185
3 CAFC 1159 790 1949
4 HBC 1767 514 2281
5 HRC 1259 567 1826 c
6 SIEMENS 1560 786 2346

6. In terms of Annexure ITT-8 the GEC value of respondent
No.2 which was the lowest was taken as the baseline for the
purpose of loading the rupee equivalent of the higher values o
offered by other bidders on to their price bids. The Indian rupee
conversion of the said value above the baseline, proportionate
to the higher GEC values was worked out as under: ..

S.No. Bidder GEC GEC for INR
('X' + 'Y') loading E
KWH
1 ALSTOM 2029 203 6,911,264,587.08
2 BTC 2185 359 12,222,384, 171.24
3 CAFC 1949 . 123 4, 187 ,613,518.28
F
4 HBC 2281 455 15,490, 765453.80
5 HRC 1826. 0 0
. (baseline)
6 SIEMENS 2346 520 17,703,731,947.20
G
7. The position that emerged after the GEC values
component was loaded to the price bid of the bidder was as
under:

H
OJ )>
:c (j) Tl m 0 ()

en
Bidder Grand Total INR per Position Grand Total INR.per Position Total SEC c
"U
inlNR Car. before (with energy Car (with after Energ~ value ;;o
(without Loading loading) loading) loading (kWH) (kWH/ m
loading) inlNR 1000 s::
m
GTKM)
()
Siemens 3625,27,92,409 7,45,94,223 L-1 5395,65,24,355 11,10,21,655 L-4 2346 55.71 0
Consortium c
;;o
Bombardier 4242,27,83,378 8,72,89,678 L-2 5464,51,67,548 11,24,38,616 L-5 2185 51.89 -I
Consortium ;;o
m
Hyundai 4290,57,94,689 8,82,83,528 L-3 4290,57,94,690 8,82,83,528 L-1 1826 43.36 "U
ROTEM 0
;;o
Alstom
Consortium
4373,87,65.001 8,99,97,459 L-4 5065,00,29,588 10,42,18,168 L-3 2029 48.18
~
CAF 4614, 18,66,794 9,49,42, 113 L-5 5032,94,80,313 10,35,58,601 L-2 1949 46.28
Consortium
Hitachi+ 4891,32,60,656 10,06,44,569 L-6 6440,40,26, 108 13,25, 18,572 L-6 2281 54.17
BHEL
N
en
()
;;o
M/S SIEMENS AKTIENGESELISCHAFT & S. LTD. v. 837
DMRC LTD. & O~S. [T.S. THAKUR, J.]
8. It is evident from a comparative study of the charts A
extracted above, that while the appellant was L-1 in the price
bid, it went down to L-4 after GEC value was loaded to its price
bid. On the contrary respondent No.2-HR who was L-3 in the
price bid rose to L-1 position on account of its low GEC value
in comparison to a higher GEC value offered by the appellant. B

9. Allotment of the award in favour of HR as the lowest
bidder, thus, appeared as a writing on the wall to the appellant
who ~nt a communication dated 12th February, 2013 to DMRC
alleging that the GEC values offered by HR were untenable and C
unsustainable and pointing out that since the appellant's price
bid was lesser than that of the HR by 665 crores (approx.) it
should be taken as L-1 instead of determining the inter se
position of the bidders on the basis of a supposedly anticipated
saving in the consumption of energy on a lifecycle of 30 years.
Yet another letter dated 25th February, 2013 the appellant called D
for· evaluation of energy values by an independent third party
agency so as to ascertain whether the GEC values offered by
HR were achievable. Yet another letter dated 1st March, 2013
to the same effect having failed to cut any ice with the DMRC,
the appellant preferred Writ Petition No.1853 of 2013 before E
the High Court of Delhi. Tbat writ petition was 11otified for
hearing on 1st May, 2013. In the meantime DMRC issued a
Letter of Acceptance in favour of HR under intimation to the
appellant. The appellant, therefore, sought a restraint order
against the award of the contract before the High Court whq in F
turn accepted an undertaking given by the counsel for the
DMRC and HR that they will not act in pursuance of the letter
of award pending disposal of the writ petition.

10. Alstom Transport India Ltd. was the only other bidder G.
aggrieved by the award of the contract who filed Writ Petition
No.2615 of 2013 challenging the tender process. Both the writ
petitions were eventually heard by the High Court on 1st May,
2013 and dismissed by the order under appeal before us.

, 11. Appearing for the appellant, Mr. U.U. Lalit, learned H
838 SUPREME COURT REPORTS [2014] 2 S.C.R.

A senior counsel, fairly conceded that the appellant had not
alleged any mala tides, bias or bad faith in the matter of
evaluation of the bids by the DMRC or any process connected
therewith nor even in the award of the contract in favour of HR,
the successful bidder. He contended that the tender notice no
B doubt required GEC values to be offered by the bidders to be
made use of in the process of tile evaluation of the bids but
such values were not sacrosanct or immune from scrutiny and
evaluation to determine whether the same were at all
achievable. He submitted that since all the six bidders
c competing for the contract are significant players in the
international market, they could with a reasonable amount of
certainty say whether or not the GEC values offered by the
bidders were sustainable. It was contended by Mr. Lalit that
while the GEC value offered by the appellant was the highest,
the one offered by the respondent successful bidder for 'X'
0
factor was wholly untenable. He urged that the terms of the
tender notice required the GEC values offered by the bidders
to be validated before they could be used for processing the
bids. He drew considerable support from a report submitted
by the Director, Ministry of Urban Development, Government
E of India, to suggest· that the stimulation test conducted by
DMRC as a part ofttie process of verification and validation
of the GEC value offered by HR was not accurate and urged
that the Government of India had appointed a two-member
Committee to check the evaluaticm process of the bids. The
F report of the Committee filed· by the Go'ii'ernment in this Court
in a sealed cover could, according to the learned Counsel,
throw considerable light on the subject and help this Court in
deciding whether an independent verification of the GEC values
was,. necessary.
G
12. Mr. Andhyarujina, learned counsel for the respondent-
DMRC, on the other hand, argued that the bids offered by the
eligible tenderers were evaluated by three different Committees
i.e. the Evaluation Committee, the Appraisal Committee and
H finally by the Tender Committee in a fair and transparent
M/S SIEMENS AKTIENGESELISCHAFT & S. LTD. v. 839
DMRC LTD. & ORS. [T.S. THAKUR, J.]
manner. On receipt of the representations ~rom the appellant- A
Siemens, Bombardier, Alstom and Hitachi regarding the GEC
values offered by HR, the Board of Directors of DMRC
constituted a sub-Committee to consider the said
representations. The Board sub-Committee consisted of six
directors out of whom three were Functional Directors besides B
MD of the DMRC, a nominee Director of MoUD of Indian
Railways and one independent Director. The Sub-Committee
met on 4th and 5th March, 2013 and thoroughly examined the
issues raised in the representation and found the detailed
explanations provided in the Tender Committee Minutes to be c
satisfactory. The Sub-Committee, therefore, agreed with the
recommendations of the Tender Committee culminating in the
issue of a Letter of Acceptance to respondent-HR. Our attention
was drawn to the counter- affidavit filed by the DMRC in which
the process of evaluation of the bids and the GEC values has
been set out. The counter-affidavit further states that the DMRC D
was fully satisfied about the achievability of the GEC values
offered by HR. There was, therefore, no room for validation of ·
the GEC values by any outside agency.

13. It was further contended by Mr. Andhyarujina that the E
tender conditions specifically provide for levy of a penalty in
case of failure of the committed GEC values. He referred to
ERTC 3.24.1 according to which the defaulting Contractor shall
be liable to pay penalty at the rate ofRs.4.03 crores per unit of
electricity committed in excess of the GEC values declared by F
it. The penalty stipulated thus works out to be approximately
18.47% which is significantly higher than the rupee component
loaded for each unit, argued the learned counsel. This implies
that the lowest tenderer is under an onerous obligation to make
good the GEC values or else end up paying a penalty at a rate G
which is higher than the amount by which the financial bid has
been loaded on a per unit of energy basis. The Letter of
0

Acceptance issued to ·HR also makes a specific provision for
levy of penalty and, thus, fully secures the interest of the DMRC.
H
840 SUPREME COURT REPORTS · [2014] 2 S.C.R.

A 14. Reliance upon the adaitional documents and the report
of the Committee appointed by the MoUD was, according to
Mr. Andhyarujina, wholly misplaced. He submitted that there was
no occasion for the Government to appoint a Committee for
evaluation of the bids received by DMRC which was an
B autonomous,entity. The appointment of the Committee at the
instance of the Minister in disregard of the observations made
by the Secretary MoUD was not proper, argued the learned
counsel, especially when the matter was pending adjudication
before the High Court. The appointment of the Committee was
c in any case not disclosed to the High Court by the Union of India
on 1st May, 2013 when the matter was taken up for hearing. It
was contended that the DMRC had at all times maintained that
there was no question of any enquiry by an outside body
regarding the evaluation ofthe bids received by it not even by
the Government of India. He drew support for that submission
D from the following statement made in the affidavit filed ,by the
Union of India in this Court:

''All tenders are floated and finalized by respective Metro
Rail Corporations including DMRC. MoUD has no role
E in award/cancellation of any contractlten8er."

15. It was argued that the DMRC had also in its reply dated
14th August, 2013 sent to the Government clearly stated that it
would not respond to the preliminary observations 'of the
F Committee as the matter had in the meantime travelled to this
Court and was sub judice. Legal opinion obtained by the DMRC
a
from Senior Advocate of this Court, also advised that in a
matter that is sub judice, any report by any outside Enquiry
Committee appointed by the Government. would be
G impermissible and improper nor would it be advisable for
DMRC to participate in any such exercise. In the premises it
was contended that the Report by the Enquiry Committee
submitted to this Court in a sealed cover need not be looked
into as the same was wholly extraneous.lb a judicial review of
the process of evaluation and eventual J~ard of the contract
H
M/S SIEMENS AKTIENGESELISCHAFT & S. LTD. v. 841
DMRC LTD. & 9RS. [T.S. THAKUR, J.]
by DMRC, the authority competent to do so. Relying upon the A
decisions of this Court in Amrik Singh Lya/lpuri v. Union of
India & Ors. (2011) 6 SCC 535 and Union of India v. K.M.
Shankarappa (2001) 1 SCC 582, it was argued that
administrative review of a judicial decision was not legally
permissible. It was also contended by Mr. Andhyarujina that B
pursuant to the allotment made in his favour, HR had taken
substantial steps towards implementation of the project and that
interference with the award of the contract at this belated stage
was neither in public interest nor otherwise justified in the facts
and circumstances of the case. c
16, Appearing for the respondent No.2-HR, Mr. Venugopal,
learned senior counsel adopted the submiss-ions of ML
Andhyarujina and took strong exception to the constitution of a
Committee by the Minister of Urban Development, Government
of India on a subject which was subjudice before the High Court. D
It was contended by Mr. Venugopal that the constitution of the
Committee was not only against the sound advice tendered by
the Secretary to the Government, Minister of Urban
Development Department but was tantamount to interference·
with the. course of justice. Relying upon the decision of the Full E
Bench of the High Court of Patna in The King v. Parrnanand
and Ors. AIR 1949 Patna 222 and D. Jones Shield v. N.
Ramesam & Ors. AIR 1955 AP 156; In Re: P.C. Sen AIR ~970
SC 1821 and Jang Bahadur Singh v. Baij Nath Tiwari AIR 1969
SC 30, Mr. Venugopal argued that when a matter is pending F
adjudication before a Court of law, nothing can be done which
might disturb the course of justice by either interfering with the
judicial process or prejudging the merits of the case or by
usurping the functions of the Court having seisin over the
proceedings. Any such practice, argued the learned counsel, G
was fraught with danger and would ~mount to opening the door
for contempt for those responsible for such interference. It was
further contended by Mr. Venugopal that judicial review in tender
cases was limited to examining the decision-making process
and not the decision itself. Reliance in support of that H
842 SUPREME COURT REPORTS [2014] 2 S.C.R.

A submission was placed by the learned counsel upon the
decisions of this Court in Tata Cellular v. Union of India (1994)
6 SCC 651; Asia Foundation & Construction Ltd. v. Trafalgar
House Construction (1997) 1 SCC 738; Monarch
Infrastructure (P) Ltd. v. Ulhasnagar Municipal Corpn., (2000)
B 5 SCC 287; Jagdish Manda/ v. State of Orissa (2007) 14 SCC
517 and Heinz India (P) Ltd. v. State of U.P. (2012) 5 SCC
443. It was submitted that the decision making process in the
in.stant case was transparent, fair and reasonable and that the
High Court had after a careful examination of all aspects
c correctly held that there was no illegality or irregularity in the
said process to warrant interference.

17. Principles governing judicial review of administrative
decisions are now fairly well-settled by a long line of decisions
rendered by this Court, since. the decision of this Court in
D Ramana Dayaram Shetty v. International Airport Authority of
India and Ors. (1979) 3 sec 489 which is one of the earliest
cases in which this Court judicially reviewed the process of
allotment of contracts by an instrumentality of the State and
declared that such process was amenable to judicial review.
E Several subsequent decisions followed and applied the law to
varied situations but among the latter decisions one that
· reviewed the law on the subject comprehensively was delivered
by this Court in Tata Cellular's case (supra) where this Court
once again reiterated that judicial review would apply even to
F exercise of contractual powers by the Government' and
Government instrumentalities in order to prevent arbitrariness
or favouritism. Having said that this Court noted the inherent ·
limiti;itions in the exercise of that power and declared that the
State was free to protect its interest as the guardian of; its
G finances. This Court held that there could be no infringement
of Article 14 if the Government tried to get the best person or
the best quotation for the right to choose cannot be considered
to be an arbitrary power unless the power is exercised for any
collateral purpose.· The scope of judicial review, observed this
H Court, was confined to the following three distinct aspects: ·
MIS SIEMENS AKTIENGESELISCHAFT & S. LTD. v. 843
DMRC LTD. & ORS. [T.S. THAKUR, J.]
(i) Whether there was any .illegality in the decision A
which would imply whether the decision making
authority has understood correctly the law that
regulates his decision making power and whether
it has given effect to it;
B
(ii) Whether there was any irrationality in the decision
taken by the authority implying thereby whether
the decision is so outrageous in its defiance of
logic or accepted moral standards that ho sensible
person who had applied his mind to the question · C
to be decided could have arrived at the same; and

(iii) whether there was any procedural impropriety
committed by the decision making authority while
arriving at the decision.
D
18. The principles governing judicial review were then
formulated in the following words:

(i) The modern trend points to judicial restraint in
administrative action.
E
(ii) The court does not sit as a court of appeal but
merely reviews the manner in which the decision
was made.

(iii) The court does not have the expertise to correct F
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.

(iv) The terms of the invitation to tender cannot be G
open to judicial scrutiny because the invitation to
tender is in the realm of contract. Normally
speaking, the decision to accept the tender or
award the contract is reached by process of
negotiations through several tiers. More often than H
844 SUPREME COURT REPORTS [2014] 2 S.C.R.

A not, such decisions are made qualitatively by
experts.

(v) The Government must have freedom of contract.
In other words, a fair play in the joints is a
necessary concomitant for an administrative body
B
functioning in an 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
c affected by bias or actuated by ma/a fides.

(vi) Quashing decisions may impose heavy
administrative burden on the administration and
lead to increased and unbudgeted expenditure.
D
19. In M.P. Oil Extraction v. State of M.P. & Ors. (1997)
7 sec 592, this Court held that if an objective and rational
foundation for the fixation of royalty is disclosed, the Court will
not interfere with the exercise of governmental decision by
undertaking an exercise to determine whether or not a better
E fixation was possible in the circumstances. This Court struck a
note of caution that in economic and policy matters the scope
of judicial review was limited.

20. It is unnecessary and platitudinous for us to burden this
F judgment with reference to the decisions of this Court on the
subject for the governing principles are so well-known and well-
settled that any review of the law on the subject is bound to be
simply repetitive without any meaningful contribution tc5 the
existing legal literature on the subject. We remain content by
G referring to two only of a plentitude of judicial pronouncements
on the subject in which the legal position has been succinctly
restated. One of these decisions was delivered in Jagdish
Manda/ v. State of Orissa & Ors. (2007) 14 SCC 517, where
too this Court was dealing with the exercise of power of judicial
H review in matters relating to tenders and award of contracts.
MIS SIEMENS AKTIENGESELISCHAFT & S. LTD. v. 845
DMRC LTD. & ORS. [T.S. THAKUR, J.]

This Court identified the special features should be borne in A
mind while judicially reviewing award of contracts. We can do
no better than extract the following observations of this Court
in this regard: ·

"22. Judicial review of administrative action is intended to
B
prevent arbitrariness, irrationality, unreasonableness, bias
and mala tides. Its purpose is to check whether choice or
decision is made "lawfully" and not to check whether
choice or decision is "sound". When the power of judicial
review is invoked in matters relating to tenders or award
of contracts, certain special features should be borne in c
mind. A contract is a commercial trarn)action. Evaluating
tenders and awarding contracts are essentially
commercial functions. Principles of equity and natural
justice stay at a distance. If the decision relating to award
of contract is bona fide and is in public interest. courts will D
not. in exercise of power of judicial review. interfere even
if a procedural aberration or error in assessment or
prejudice to a tenderer. is made out. The power of judicial
review will not be permitted to be invoked to protect private
interest at the cost of public interest. or to decide E
contractual disputes."

(emphasis supplied)

21. More recently in Heinz India (P) Ltd. & Anr. v. State
of U.P. & Ors. (2012) 5 SCC 443, this Court speaking through F
one of us (Thakur, J.) examined the legal dimensions of judicial
review and quoted with approval the following passage from
Reid v. Secy. of State for Scotland (1999) 1 All ER 481 which
succinctly sums up the law.
G
"Judicial review involves a challenge to the legal
validity of the decision. It does not allow the court of review
to examine the evidence with a view to forming its own
view about the substantial merits of the case. It may be
that the tribunal whose decision is being challenged has H
846 SUPREME COURT REPORTS [2014] 2 S.C.R.

A done something which it had no lawful authority to do. It
may have abused or misuse.d the authority which it had.
It may have departed from the procedures which either
by statute or at common law as a matter of fairness it
ought to have observed. As regards the decisions itself
B it may be found to be perverse, or irrational or grossly
disproportionate to what was required. Or the decision
may be found to be erroneous in respect of a legal
deficiency, as for example, through the absence of
evidence, or of sufficient evidence, to support it, or
c through account being taken of irrelevant matter, or
through a failure for any reason to take account of a
relevant matter, or through some misconstruction of the
terms of the statutory provision which the deCision-maker
is required to apply. But while the evidence may have to
be explored in order to see if the decision is vitiated by
D
such legal deficiencies it is perfectly clear that in case
of review, as distinct from an ordinary appeal, the court
may not set about forming its own preferred view of
evidence."

E 22. There is no gainsaying that in any challenge to the
award of contact before the High Court and so also before this
Court what is to be examined is the legality and regularity of
the process leading to award of contract. What the Court has
to constantly keep in mind is that it does not sit in appeal over
F the soundness of the decision. The Court can only examine
whether the decision making process was fair, reasonable and
transparent. In cases involving award of contracts, the Court
ought to exercise judicial restraint where the decision is
bonafide with no perceptible injury to public interest.
G
23. The High Court has, in the case at hand, undertaken
that exercise and concluded that there was neither any illegality
nor any irregularity in the process of evaluation of the bids or
the final allotment of the contract. That view has come to be
assailed by the appellant on what is essentially a short point
H
M/S SIEMENS AKTIENGESELISCHAFT & S. LTD. v. 847
DMRC LTD. & ORS. [T.S. THAKUR, J.]
raised by Mr. Lalit in support of the appeal. The contention, as A
noticed earlier, is that while no malafide or extraneous
considerations have prevailed to vitiate the decision of the
DMRC allotting the contract in favour of HR, the process of
evaluation of the bids offered by the eligible bidders should
have in the facts and circumstances of the case included B
validation of the GEC values offered by HR to determine
whether they were achievable having regard to the ground
realities and the laws of physics relevant to the consumption
of energy. That contention does not suggest any illegality in the
process of allotment of the contract in favour of HR, for no C
violation of any law, rule or regulation governing the process of
invitation of tenders by the DMRC or its evaluation and
acceptance has been alleged or argued before us. No such
statutory or other provision has been brought to our notice which
could possibly provide to the appellant a reason to contend that
the allotment of the contract was itself illegal or in breach of any D
such provision or procedure prescribed thereunder. It is no
body's case that the decision-making authority had not
understood the law that regulates its decision making power
or failed to give effect to it. We have, therefore, no hesitation
in holding that the allotment of contract did not suffer from any E
illegality as it is understood in the matter of judicial review of
administrative action and as that expression has been used by
this Court in Tata Cellular's case (supra}. It is also not the case
of the petitioner that the decision taken by the DMRC is so
outrageous in its defiance of logic or accepted moral standards F
that no sensible person who had applied his mind could have
arrived at the same. Perversity or irrationality in the decision
or the decision making process is also not a ground that can
be invoked in the case at hand.
G
24. The contention urged by Mr. Lalit may at best constitute
an irregularity in the process of evaluation of the bids. That an
irregularity can itself, in certain situations result in invalidating
a process, cannot be disputed. The question, however, is
whether there was any irregularity in the evaluation of the bids
H
848 SUPREME COURT REPORTS [2014] 2 S.C.R.

A in the present case and if so whether the same was sufficient
to invalidate the evaluation process or the ultimate award of the
contract. Whether or not there was any irregularity in the process
of evaluation of the bids shall in turn have to be examined by a
reference to the conditions of the tender notice under which the
8 tenders were invited, received, processed, evaluated and
eventually accepted. It is common ground that the price bid
offered by the tenderers was not itself determinative. What was
equally important was the GEC values comprising X and Y
factors which the tenderers had to disclose in their technical
C bids. That the values offered had to be converted into Indian
Rupees and loaded to the price bid of the tenderers is also
beyond question. That each one of the bidders had offered their
GEC values comprising X and Y factors separately was also
beyond doubt. There is no error even in the conversion of such
values in terms of Indian Rupees nor is there any dispute about
D the effect of such loading of values to the price bid of all the
tenderers because of which loading the bid offered by HR
eventually emerged as L-1 with appellant-Siemens sliding to
L-4 position. That being so, the process of evaluation of bids·
could not be faulted as the same was strictly in accordance with
E the norms stipulated for such evaluation. Even Mr. Lalit fairly
conceded that there was nothing that could be criticized in that
process. What DMRC, according to him, should have done was
to check whether the GEC values offered by the bidders were
achievable. Inasmuch as no such verification was undertaken
F the evaluation process was flawed. There is, in our opinion, no
merit in that contention. The reasons are not far to seek. In the
first place, the contention urged by Mr. Lalit does not find
support from any provision in the tender notice. There is nothing
in the tender document to suggest that the GEC values had to
G be tested for their achievability.As rightly contended by Mr. Lalit
all the six bidders declared eligible are world leaders in the field
and have sufficient expertise and know-how not only about the
design and technology which they use but also about their
capacity to validate their respectiye GEC values. If that be so,
H
M/S SIEMENS AKTIENGESELISCHAFT & S. LTD. v. 849
DMRC LTD. & ORS. [T.S. THAKUR, J.]
DMRC could be supremely confident that the GEC values A
offered by HR were achievable especially when such values
offered by some of the bidders for X and Y factors were lower
than those offered by HR. At any rate the DMRC had sufficiently
protected itself because under the terms and conditions
stipulated in the tender notice failure of the successful tender B
to make good the GEC values offered by them would result in .
a penalty which was higher than the GEC value factor that was
loaded to the price bid. We, therefore, do not see any real basis
for the contention that the DMRC was supposed to go any
c
further than it did in protecting its interest. In the absence of any
specific stipulation or requirement for validation of the GEC
values by the DMRC and its experts or by any outside agency
such a requirement could not be implied into the tender process.
Inasmuch as the DMRC found the bid offered by HR to be
acceptable, keeping in view the GEC values offered by it, the 0
former had committed no illegality in the evaluation of the bids
or in making its choice of the contractor.

25. Secondly, because even assuming that the process of
validation of the GEC values and their achievability was an
implied condition in the evaluation process, DMRC had on the E
basis of an internal simulation satisfied itself that the GEC
values were not unachievable.The High Court has referred to
the simulation results and so has our attention been drawn to
the said result from the original record produced by DMRC. We
do not see any illegality or irregularity in the process of F
verification conducted by the DMRC to test the achievability of
the GEC values. It is true that DMRC had conducted the
simulation in regard to the GEC values offered by HR only but
then in the absence of any condition in the tender notice
requiring DMRC to conduct such verification even in regard to G
other GEC values, there was no need for it to undertake any
such exercise. DMRC was, in our opinion, entitled to adopt
such methods as were reasonable to satisfy itself above about
the GEC values and their achievability offered by lowest
tenderer in whose favour it was considering the award of the H
850 SUPREME COURT REPORTS [2014] 2 S.C.R.

A contract. The upshot of the above discussion, therefore, is that
the process by which the bids were evaluated and eventually
accepted was transparent, fair and reasonable and does not,
therefore, call for any iriterference from this Court.

26. That brings us to the question whether the Government
8
of India was justified in appointing a Committee to test the
evaluation of bids and, if so, whether this Court ought to look
into the Report of the Committee. There is more than one
aspect that needs to be kept in view in this regard. The first
C and foremost is the fact that the Committee was appointed at
a stage when the matter was already pending before the High
Court. Considerable time was spent by learned counsel for the
parties in debating whether the constitution of the Committee
by the· Government itself tantamounted to interference with the
course of justice, hence contempt. We do not, however,
D consider it necessary to pronounce upon that aspect in these
proceedings especially because we have not been called upon
to initiate such contempt proceedings. All that we need say is
tbat once the Government had known that the entire issue
regarding the validity of the process adopted by DMRC
E including the transparency and fairness of the process of
evaluation of the bids was subjudice before the High Court of
Delhi and later before this Court, it ought to have kept its hands
off and let the law take its course. It could have doubtless placed
all such material as was relevant to that question before the
F High Court and invited a judicial pronouncement on the subject
instead of starting a parallel exercise. The Government could
even approach the High Court and seek its permission to
review the process of evaluation either by itself or through an
expert Committee if it felt that any such process would help the
G Court in determining the issues falling for consideration before
the Court more effectively. Nothing of that sort was, however,
done. On the contrary even when the Secretary to the MoUD
pointed out that the matter is subjudice and any further action
in the matter could await the pronouncement of the Court, the
H Hon'ble Minister heading MoUD directed the constitution of the
MIS SIEMENS AKTIENGESELISCHAFT & S., LTD. v. 851
DMRC LTD. & ORS. [T.S. THAKUR, J.]
Committee with the following terms: A

"2(1) To examine if a fair, equitable and transparent
tender process was followed by DMRC, as per the
prescribed guidelines".

27. We have no manner of doubt that the terms of reference B
give a clear indication that the process initiated by the
Government was a parallel process of the adjudication of the
very same issue as fell for consideration before the High Court
and at a later stage before this Court. We fail to appreciate how
the Government could have possibly done this. Confronted with C
this situation Mr. Mohan Parasaran, learned Solicitor General,
argued that a reference to the Committee was not meant to
subvert judicial process but to only find ways and means to
formulate policies and procedures for future allotment of
contracts. We have no hesitation in rejecting that submission. o
The Reference Order extracted above speaks for itself. It no
where states that the Committee has to look at anything beyond
.the process of evaluation of tenders received by DMRC. It does
not even remotely suggest that the Government is concerned
about the procedures that may be followed in the future or E
anxious to devise transparent methods by which such contract
should be allotted. What is notable is that the Committee's
hands were not stayed by the Government even when the High
Court had pronounced upon the validity of the procedures
adopted by the DMRC and the matter reached this Court.
F
Continuance of the process of review even after the High Court
had delivered its judgment amounted to subjecting the judicial
pronouncement to an administrative review. There was no
question of any such judicial determination or adjudication being
subjected to any administrative review albeit in the name of a G
Committee constituted for the purpose.

28. Mr. Parasaran argued that the Committee's
proceedings did not amount to sitting in appeal over the
judgment of the High Court. The Committee may have not said
anything adverse to view taken by the High Court but if the H
852 SUPREME COURT REPORTS [2014) 2 S.C.R.

A Committee were to find fault with the evaluation process which
the High Court has held to be valid it indirectly amounted to
putting a question mark on the judgment of the High Court itself.
Suffice it to say what the Government ought to have stayed its
hands once the matter landed in the Court. Inasmuch as the
8 Government did nothing of this kind, it did not act properly.
Beyond that we do not consider it necessary or proper to say
anything at this stage.

29. It was contended by Mr. Lalit that the report submitted
by the Committee appointed by the Government ought to be
C taken as expert opinion on the subject and given due weight.
That position was disputed by Mr. Andhyarujina appearing for
DMRC and Mr. Venugopal appearing for HR. That the
Committee comprised a former Finance Secretary to the
Government of India and a Civil Engineer, none of whom could
D claim to be expert in the field relevant to the achievability of the
GEC values, was not disputed by Mr. Parasaran who urged that
the Committee may have taken the opinion of some experts
on the subject. Even assuming that the Committee has taken
expert advice regarding the tenability of the GEC values offered
E by HR, it would simply mean that there is a conflict between
the views taken by the experts of DMRC and those consulted
by the Committee. Any such conflict cannot be resolved by this
Court in exercise of its powers of judicial review. So long as
the view taken by the experts of the authority competent to take
F a final decision is a possible view the very fact that some other
experts have expressed doubts about the sustainability of the
GEC values will not be enough for us to declare that the values
offered by HR are indP.ed unachievable. This Court has in
Federation of Railway Officers Association v. Union of India
G (2003) 2 SCR 1085, stated the wholesome principle applicable
in such situations in the following words:

"Further,· when technical questions arise and experts in
the field have expressed various views and all those
aspects have been taken into consideration by the
H
M/S SIEMENS AKTIENGESELISCHAFT & S. LTD. v. 853
DMRC LTD. & ORS. [T.S. THAKUR, J.]

Government in deciding the matter, could it still be said A
that this Court should re-examine to interfere with the
same. The wholesome rule in regard to judicial
interference in administrative decisions is that if the
Government takes into consideration all relevant factors,
eschews from considering irrelevant factors and acts B
reasonably within the parameters of the law, courts would
keep off the same."

30. Reference may also be made to the decision of this
Court in N.D. Jayal v. Union of India (2004) 9 SCC 362 where C
this Court observed:

"This Court cannot sit in judgment over the cutting edge
of scientific analysis relating to the safety of any project.
Experts in science may themselves· differ in their opinions
while taking decisions on matters related to safety and D
allied aspects. The opposing vie.wpoints of the experts will
also have to be given due consideration after full
application of mind. When the Government or the
authorities concerned after due consideration of all
viewpoints and full application of mind took a decision, E
then it is not appropriate for the court to interfere." ·

31. Reliance by the appellant upon the report of the
Committee is misplaced also for the reason that the same was
ex parte. It is common ground that HR was never associated
with the process of evaluation or verification if any conducted F
by the Committee. In the absence of any such opportunity to
the party whose GEC values were being test checked for their
achievability, the report can hardly provide a sound basis for a
writ court to upset a decision which the competent authority has
taken after due deliberations by not one but four different G
Committees including experts in the field. That apart, Mr.
Parasaran fairly submitted that even the Government have not
accepted the report submitted by the Committee so far. He
urged that since the matter was pending in this Court, the
Government has simply placed the report of the Committee in H
854 SUPREME COURT REPORTS [2014] 2 S.C.R.

A a sealed cover for the Court to decide as to what value has to
be attached to it. That being the position, the preparation and
submission of a report that does not even take the view point
of the party affected by it into consideration can hardly provide
to this Court a good reason to scuttle the entire process at this
B stage when HR, the successful bidder, has already taken
substantial steps in the direction of executing the works allotted
to it.

32. Last but not the least, if the note submitted by the
Director in the·MoUD is an indication of what the Committee
C may have said, the difference in the GEC values pointed out
in the report of the Director, may have led to CAF which was
also an eligible bidder emerging as L-1 and not the appellant.
In terms of cost of the project it would hardly make a sizable
difference so as to justify a reversal of the steps that have
D already been taken for execution of a project that is of utmost
importance for the people living in the national capital execution
whereof can brook no delay especially when the same is being
financed by an agency from outside the country.

E 33. In the result this appeal fails and is, hereby, dismissed
with costs of Rs.5,00,000/- to be deposited within six weeks
from today with the Supreme Court Advocates-on-Record
Welfare Fund.

R.P. Appeal dismissed.