Courts In Exercise Of Judicial Review Cannot Supply 'Deeming Fiction' Missing From Tender Conditions: Delhi High Court
The Delhi High Court has held that courts cannot supply a “deeming fiction” absent from tender conditions, while examining eligibility disputes in public contracts. A division bench of Justices Anil Kshetarpal and Amit Mahajan clarified that when the tender does not contain any deeming provision by which a suspended, or abandoned work would be treated as a completed work merely because...
The Delhi High Court has held that courts cannot supply a “deeming fiction” absent from tender conditions, while examining eligibility disputes in public contracts.
A division bench of Justices Anil Kshetarpal and Amit Mahajan clarified that when the tender does not contain any deeming provision by which a suspended, or abandoned work would be treated as a completed work merely because the abandonment was attributable to the Government, it could not rewrite the tender conditions to infer so.
The Court thus dismissed a plea challenging rejection of Petitioner's technical bid in a CPWD redevelopment tender.
Petitioner had relied upon its work at LNJP Hospital, Delhi, to satisfy the eligibility requirement relating to prior experience. However, the project had been suspended and later abandoned by the government before completion.
Before the Court, the Petitioner argued that it could not be penalised for non-completion caused by the government itself and contended that the work executed by it substantially exceeded the original contract value.
It further argued that the tender clause referring to “completed cost of project/work” should be interpreted to include the value of work executed by it, even if the overall project remained incomplete.
Rejecting the contention, the Court held that Clause 7.1 of the tender specifically required “satisfactorily completed” work and contained no provision deeming suspended or abandoned work as completed merely because the abandonment was attributable to the government.
“The Court exercising judicial review cannot supply a deeming fiction which the tender itself does not contain,” the bench observed.
The Court further clarified that execution of work of substantial monetary value was not equivalent to satisfactory completion where the tender conditions expressly made completion an eligibility criterion.
Accordingly, the writ petition was dismissed.
Appearance: Mr. Rajshekhar Rao Sr. Adv. with Mr. Dinkar Singh and Mr. Rohit Singh, Advs. for Petitioner; Mr. Abhishek Seth, SPC with Mr. Achal Gupta, Ms. Widaphi Lyngdoh and Ms. Ashima, Advs. for Respondents
Case title: Swadeshi Civil Infrastructure Private Limited v. The Executive Engineer And Senior Manager C III Redevelopment Project Division Cpwd & Ors.
Case no.: W.P.(C) 5670/2026