LexRELIANCE AIRPORT DEVELOPERS PVT. LTD. versus AIRPORTS AUTHORITY OF INDIA AND ORS.
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A RELIANCE AIRPORT DEVELOPERS PVT. LTD. v . . AIRPORTS AUTHORITY OF INDIA AND ORS. NOVEMBER 7, 2006 B [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] Administrative Law: Administrative authority-Exercise of discretion-Judicial review-Scope C of-Privatization of airports of Delhi and Mumbai on joint venture basis- Bids invited-Evaluation of bids-Constitution of Committee (ECJ-Approach of EC in evaluation being inconsistent with terms of request for proposal (RPF)-Another committee (GETE) constituted-Reports submitted-Two bidders awarded contract of one airport each-One of unsuccessful bidders D challenging constitution of GETE-Held, necessity for taking views of different committees was a step towards making the whole decision making process transparent-In multi tier system in decision making process, authority empowered to take decision can accept view expressed by one committee in preference to another for plausible reasons-On facts, discretion properly exercised-Challenge to constitution of GETE clearly untenable-GET£ has E gone by objective standards-Criterion adopted by GETE more rational- Ultimately, the authority concerned rightly exercised its discretion in larger public interest-Privatization Po/icy-Contract-Government contract- Evaluation of bids-Confidential and sensitives meetings-Need to maintain secrecy. F Words and Phrases: Expressions 'contract' and 'discretion'-Connotation of In furtherance of the privatization policy of the Government of India, "Invitation To Register An Expression of Interest" was issued for G privatization of two airports of Mumbai and Delhi on a joint venture basis. The bidders were invited to bid on certain basis and pattern. The tendering process involved two tiers, i.e., Expression-cum-Request for Qualification and a Request for Proposal (RFP). At 01e RFP stage, evaluation was carried out in four stages. The first two stages involved verification in the -- · H 398 - RELi. AIRPORT DEVELOPERS PVT.LTD. v. AIRPORTS AUTH.OF INDIA 399 nature of mandatory norms. The third stage was technical evaluation A stage; and the final stage was financial evaluation stage. Before approval of transaction document by Empowered Group of Ministers (EGOM), RFP documents of two airports were forwarded to the bidders. Thereafter final transaction documents were forwarded to the bidders. There were six bidders for Delhi and five bidders for Mumbai. Bid evaluation was B entrusted to Global Tl!chnical Adviser, Legal Consultant and Financial Consultant (GT A, LC and FC) which was also described as Evaluation Committee (EC). The technical bids were opened and a Government Review Committee (GRC) was constituted to undertake an independent review of evaluation report of bids of the two airports and restructuring process prepared by the Evaluation Committee/Advisers. EC submitted C their evaluation report. A Committee called as Group of Eminent Technical Experts (GETE) was appointed to review the Consultants' Evaluation Report. Accordingly, GETE submitted its reports. On 31.1.2006, Executive Director of AAI informed appellant RAL that GMR would be given a choice of the two airports and whichever airport it chooses it would be required to match the higher fi~ancial bid. RAL wrote D to AAI alleging change of procedure and protesting against the same. It also wrote to the members of the EGOM alleging illegalities in consideration of the bids, and later filed a writ petition before the High Court on 2.2.2006. On 4.2.2006 GOl informed GMR and GVK that they were selected as successful bidders for undertaking the re-structuring and E modernization_ of the Delhi and the Mumbai airports respectively. It was contended for the petitioner that the EGOM/ GOI should have accepted the recommendations of the EC and should not have asked the GETE to make further examination. It is submitted that GETE did not examine the queries relating to GMR as raised by the IMG and the reduction of technical qualification from 80% to 50% was impermissible; that the F appointment of GETE itself was illegal and unauthorized. On dismissal of writ petition RA! filed the present appeal. On the questions: Whether GETE's constitution was legal and whether jurisdiction conferred on GETE has been properly exercised, Dismissing the appeal, the Court HELD: Per Pasayat, J 1.1. 'Discretion' means when it is said that something is to be done G H .. 400 SUPREME COURT REPORTS [2006]SUPP. 8
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