Gauhati High Court
Prem Construction Pvt. Ltd vs The Union Of India & 7 Ors on 4 August, 2015
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM &
ARUNACHAL PRADESH)
WP(C) 3362/2014
PREM CONSTRUCTION PVT. LTD.
A private limited company incorporated under
the provisions of the Companies Act, 1956 and
having its registered office at Commerce
house, 4th floor, A.T. Road, Guwahati-781001
represented by Sri Niraj Harlalka,
one of the Director of the petitioner company.
....PETITIONER
-versus-
1. Union of India
Represented by Secretary to the Government of
India, Ministry of Corporate Affairs, Food and Public
Distribution, Department of Food, New Delhi.
2. Food Corporation of India
Represented by Chairman and Managing Director,
16/12 Barkhamba Road, New Delhi.
3. Executive Director,
FCI, Zonal Office, North East Zone, G.S. Road,
Guwahati, Assam.
4. Executive Director (Storage),
Food Corporation of India, Headquarter,
16-12 Barakhamba Road, New Delhi.
2
5. General Manager, (R), Assam
Food Corporation of India,
Regional Office Assam Region, Paltan Bazar, Guwahati.
6. General Manager (Storage),
Food Corporation of India, Headquarter,
16-12 Barakhamba Road, New Delhi.
7. Harsha Warehouse Pvt Ltd.
Plot No.803, B. Block, Nagarjuna Residency,
Telecomnagar, Serliganpalle, Hyderabad- 500032.
8. Sri Mohana Reddy Chintan
Plot No.1297, Road No.63, Jubilee Hills,
Hyderabad.
...RESPONDENTS
BEFORE HON'BLE MR. JUSTICE MANOJIT BHUYAN Advocates for the petitioners - Dr. Ashok Saraf, Senior Advocate Mr. A Goyal, Mr. K Choudhury, Mr. P Baruah, Mr. Z Islam Advocates for the Respondent Nos.2 to 6- Mr. KP Pathak, Senior Advocate Mr. PK Roy, Advocates for the Respondent No.7 - Mr. D Das, Senior Advocate Mr. R Sarma Date of hearing - 23.7.2015 Date of delivery of judgment -
3JUDGMENT AND ORDER (CAV) Heard Dr. AK Saraf, learned Senior counsel assisted by Mr. A. Goyal, Advocate for the petitioner. Also heard Mr. KP Pathak, learned Senior counsel assisted by Mr. PK Roy, Advocate, representing Food Corporation of India as well as Mr. D. Das, learned Senior counsel assisted by Mr. R. Sarma, Advocate, representing Respondent No.7. None represents Respondent No.8.
2. Sealed tenders were invited under two-bid system by NIT dated 10.4.2014 by Food Corporation of India, Regional Office, Assam from intending persons owning land or holding land under registered deed for the period prescribed with permission to construct godown or willing to acquire land by way of ownership/registered lease within 120 days from the date of acceptance of tender in respect of construction of godowns for FCI Storage Requirements of food grains at the specified locations. The instant proceedings pertain to the proposed construction of storage godown at Bongaigaon of 25,000 MT capacity.
3. Clause 21 of the NIT, as changed/added vide Corrigendum dated 23.4.2014, relating to one of the primary technical requirements, is reproduced below;
"Clause 21 at page 17- The tenderer should furnish in technical bid all the details of the location, survey numbers, proof of ownership/registered lease of land/original affidavit mentioning the details of land which tenderer undertakes to acquire, area in acres indicating the boundaries along with non- encumbrance certificate and sketch plan about the location of the land. In case, the bidder is not able to furnish NEC with the technical bid, he can submit the same within 120 days from the date of acceptance letter. The details of the land should be furnished adequately as suitability of the land for the intended 4 purpose is one of the major criteria for selection of the tenderer. The land on which the godown is proposed to be constructed should not have a HT Line (11 KVA and above) passing over the proposed layout plan of the godown. In case, HT Line is passing over the proposed layout plan of the godown, party has to produce a certificate from the local electric utility that HT line will be shifted and party will have to remove the HT line within 120 days from the date of acceptance letter. FCI will have a right to inspect the site from time to time and the tenderer will carry out their directions regarding any corrective action required. Any proposal for reduced capacity at a later stage shall not be entertained. Land must not be in the flood or water logging prone area/zone. Polluting industries should not be in the vicinity and sufficient land should be available for ancillary works. A detailed layout plan proposed for the godowns, weigh bridge, office building, roads and railway siding (in case of godowns with railway siding) and other facilities should also be given in the technical bid."
4. From the above it is clear that the requirements so indicated to justify suitability of the land for the intended purpose assume a major criterion for selection of the tenderer. The issue here is confined to the following two criteria/requirements:
i) the land on which the godown is proposed to be constructed should not have a High Tension (HT) Line (11 KVA and above) passing over the proposed lay-out plan of the godown;
ii) the land must not be in the flood or water-logging prone area/zone.5
In respect of (i) above, Clause 21 also provides that in case HT line is passing over the proposed lay-out plan of the godown, the party has to produce a certificate from the local electric utility that such HT line will be shifted and to that end the party will have to remove the HT line within 120 days from the date of acceptance letter.
5. Clause 12 of the NIT relating to opening of tenders, more so under sub-clause (2), lays down that after evaluation of the Technical Bids (wherever necessary after site inspection by FCI of the land offered), the Price Bids of only the technically qualified tenders will be opened. Clause 27 of the NIT envisages summary rejection of tenders which do not fulfill any of the conditions or are incomplete in any respects.
6. Three parties, including the petitioner company, responded to the NIT dated 10.4.2014 in respect of the proposed construction of godown at Bongaigaon. Technical bids were opened on 30.5.2014 and pursuant to an inspection of the sites by a Five-Member team of the FCI and in terms of the Committee's Report dated 17.6.2014, the land offered by all the three bidders were found suitable for the proposed construction. Immediately thereafter, the Price Bids were opened on 23.6.2014 wherein the Respondent No.7 i.e. Harsha Warehouse Pvt. Ltd. was found to be the successful L-I bidder. The Price Bids of the respective bidders are as follows:
Sl No. Name of the Party Capacity of Godown Rate Quoted
1. Harsa Warehouse Pvt. 25000 MT (rail fed, Rs.7.99 per Qtl Per Ltd. within 8 KM of NBQ month (L1) (respondent No.7) railhead
2. Mohana Reddy Chintan 25000 MT (Rail siding) Rs.8.86 Qtl. Per (respondent No.8) month (L2)
3. Prem Construction 25000 MT (rail fed, Rs.10.50 per Qtl (Writ petitioner) within 8 KM of NBQ Per month railhead (Highest)
7. From records, pursuant to the opening of the Price Bids on 23.6.2014, the respondent FCI addressed two letters on the very next date i.e. 24.6.2014 to the Circle Officer, Sidli Revenue Circle, Sidli and to the 6 Assistant General Manager, Bongaigaon Electrical Division, APDCL, Bongaigaon respectively. The Circle Officer was asked to provide detailed physical report of the land covered by Dag No.4 and 5 of village Tengaigaon and Dag Nos.62, 63, 64 and 65 of village Dholagaon under Sidli Revenue Circle. The Bongaigaon Electrical Division was asked to provide inputs with regard to feasibility of the existing HT and LT electric line passing through the village Dholagaon and Tengaigaon under the Sidli Revenue Circle. Both the authorities responded to the FCI letter dated 24.6.2014 on 25.6.2014 and 27.6.2014 respectively, the contents of which shall be noticed shortly.
8. On 14.8.2014 when this matter had come up for consideration before the Court, Dr. AK Saraf, learned Senior counsel representing the petitioner, placed arguments questioning the suitability of the sites offered by Respondent Nos.7 and 8 vis-a-vis the requirements under Clause 21 of the NIT having regard to the aforesaid reports submitted by the Circle Officer of Sidli Revenue Circle dated 25.6.2014 (Annexure-VIII to the writ petition) and of the Assistant General Manager of APDCL dated 27.6.2014 (Annexure-VII to the writ petition). This Court had observed that in assessing the viability of the offered sites, the projections made by the Circle Officer and the Power Company cannot be ruled out as irrelevant. Accordingly, a direction was made for a re-verification exercise to decide whether the land offered by Respondent Nos.7 and 8 conformed to Clause 21 of the NIT. Such exercise was directed to be undertaken by the Deputy General Manager (Region), Assam, being a senior officer of the FCI by making visit to the spots. The views of the Revenue Department and the APDCL were directed to be taken into account, having regard to the aforesaid letters dated 25.6.2014 and 27.6.2014. Further, that after reconsideration of all parameters, site inspection and hearing the parties, a decision be taken afresh on the suitability of the sites offered by the Respondent Nos.7 and 8. The Report of the Inspection was directed to be furnished to the Court in a sealed cover.
9. Pursuant to the Court's order and direction dated 14.8.2014, the Deputy General Manager (Region), FCI conducted site inspection of the 7 offered land of Respondent No. 7 on 2.9.2014 in presence of the following officers/representatives:
(i) K. Brahma, Circle Officer, Sidli Revenue Circle,
(ii) Dimbeswar Roy, Supervisor,
(iii) Gobinda Sinha, Mondal under Sidli Revenue Circle,
(iv) Nikhilesh Baruah, GM, APDCL (LAR), Bongaigaon,
(v) Kitish Sarma, AGM, APDCL (LAR), Bongaigaon,
(vi) Devajit Phukan, representative of Respondent No.7.
10. The Assessment Report dated 5.9.2015 of the DGM (Region), FCI, as annexed to in the Reply Affidavit of FCI to the Additional Affidavit filed by the petitioner, is reproduced below for ready reference:
"ASSESSM EN T REPORT ON THE FEASI BI LI TY OF THE OFFERED SI TES OF PROPOSED GODOW N AT BON GAI GAON As per directions of the Hon'ble Gauhati High Court in W P (C) 3362/ 2014 dated 14.08.2014, com m unication w as m ade to the Deputy Com m issioner, Bongaigaon District w ith a copy to
1. The Director (technical) AP DCL, Guw ahati and the AGM , AP DCL Bongaigaon,
2. M / S Harsha W arehousing Corporation, Hyderabad.
3. M / S M ohana Reddy Chintam , Hyderabad.
Although, the date of inspection w as fix ed on 01.09.2014 but later on it w as re-fix ed on 02.09.2014 due to 24 hours Assam Bandh called by AK RASU.
Accordingly the undersigned conducted site inspection at Village Tengaigaon and Dholagaon under Sidli Revenue Circle and at Village Salm ara - part 5 under Revenue Circle Srijangram / Abhyapuri on 02.09.2014. The findings and observations of the sam e are as follow s 8
1. Harsha W arehousing Corporation's Land (Respondent No.7):
The inspection w as conducted at 12.30 P .M . in presence of Sri. K . Brahm a, Circle Officer, Sri Dim besw ar Roy, Supervisor, Sri Gobinda Sinha, M ondal under Sidli Revenue Circle, and Sri Devajit P hukan, the representative of Harsha W arehousing Corporation.
And again at 4.30 P .M . in presence of Sri Nikhilesh Baruah, GM , AP DCL (LAR) and Sri K itish Sarm a, AGM , AP DCL (LAR) Bongaigaon.
As per version of Sri K Brahm a, Circle Officer, Sidli revenue circle:-
a) The road passing by in front the proposed site is not flood prone. The area did not w itness flood problem .
b) The HT Electric w ire of 11 K V passes through front of the offered site approx im ately 30 ft. apart, from m id of the ex isting road. As per sketch attached, it is apparent that only the proposed approach road w ill fall w ithin the dom ain of the HT line and the godow n structure is free from purview of the sam e.
During the course of site inspection by the undersigned, it has been observed that shifting of 11 K V HT line is not required at all for proposed construction of godow n because of the follow ing reasons:
a) The HT line w ill only pass over proposed approach road to the godow n w hich w ould be approx im ately 30 ft. w ide
b) Distance of the HT line from the proposed godow n w ould be approx im ately 90 ft. w hich is a considerable distance and in no w ay pose any hazard to food grain stock and free m ovem ent of the foodgrain trucks/ staff.9
Further it is to m ention that other ancillary structure in the godow n prem ises are at least approx im ately 30 ft. from the HT line.
I n view of the above facts shifting of HT line as per proposed plan is not required.
During the course of site inspection, the GM , AP DCL and AGM , AP DCL Bongaigaon w ere specifically asked w hether HT line passing over the proposed approach road w ill pose any threat to the Life/ P roperty. To this they observed that this aspect can be taken care of if approx im ately 300 m eters stretch of the 11 K .V. HT line is raised to the ex tent of 17 ft. vertical clearance m andatory in 11 K .V. HT line. AP DCL agreed for raising of HT line on the request and at the cost of the party. The AP DCL also view ed that to further ensure protection of life/ property guard pole m ay be installed on the approach road portion.
As per M TF provision the party w ill have to do the earth filling to raise the form ation level approx im ately 200 to 300 m m (approx im ately 1 ft.) from the ex isting road level so that the possibility of w ater logging w ould be com pletely elim inated.
2. M ohana R eddy Chintam 's land (Respondent N o.8) The inspection w as conducted at 3.00 P M in presence of Sri Nabajyoti Ojha, Circle Officer, Sri Jiten K alita, M ondal under Srijangram / Abhayapuri Revenue Circle, Sri P aw an K hatuw ala the representative of M ohana Reddy Chintam , Hyderabad.
As per version of Sri Nabajyoti Ojha, Circle Officer, Srijangram / Abhayapuri Revenue Circle
a) The area did not w itness flood problem for the last 10 years.
10b) The National Highw ay P assing by in front of the offered land never w itnessed flood problem in the past.
c) As per M TF provision the party w ill have to do the earth filling to raise the form ation level approx im ately 200 to 300 m m (approx im ately 1 ft.) from the ex isting road level so that the possibility of w ater logging w ould be elim inated.
A letter dated 03.09.2014 w as sent to the Director, P rem Construction, Guw ahati for hearing on 04.09.2014 and in response to that the party appeared on given date at FCI Regional Office Guw ahati. The party subm itted a representation and sought to give som e ex planation in support of their stand tak en in the w rit petition.
How ever, in view of m y findings after spot verification as aforesaid, I am of the opinion that the 5 (five) m em ber com m ittee report as regards the suitability of the offered land, is correct.
Date:05.09.2014
P lace: Guw ahati Sd-
(Anupam Dubey)
Deputy General M anager (Region)
Food Corporation of I ndia
Regional Office, Assam ."
11. The reproduced Assessment Report makes observation on the viability of the offered sites in respect of both Respondent Nos.7 and 8. In so far as Respondent No.7 is concerned, mention is made that the version of K. Brahma, Circle Officer, Sidli Revenue Circle was taken into account who opined that (i) the road passing by in front of the proposed site is not flood prone and the area did not witness flood problem, and (ii) the HT line passes through the front of the offered site approximately 30 feet apart and as per the sketch only the proposed approach road will fall within the domain of the HT line and the godown structure is free from purview of the same. According to the DGM (Region), there is no requirement of shifting the HT line having regard to the proposed plan. With regard to any 11 possibility of threat to life and property in view of the HT line passing over the proposed approach road, the Report indicates that authorities present at the site and representing APDCL had opined that the apprehension can well be taken care of if approximately 300 meter stretch of the 11 KVA HT line is raised to the mandatory vertical clearance of 17 feet. The Report also indicates that the APDCL authorities had agreed for raising the HT line on the request and at the cost of the party. With regard to any possibility of water-logging, it was observed that the party will have to do earth-filling to raise the formation level approximately 200 to 300 mm (approximately 1 ft) from the existing road level so as to completely eliminate any possibility of water-logging. In so far as Respondent No.8 is concerned, the inspection was made with regard to vulnerability of the proposed site to flood and water-logging. The version of Nabajyoti Ojha, Circle Officer, Srijangram/Abhayapuri Revenue Circle was referred to, who stated that the area as well as the National Highway passing by in front of the offered site has not witnessed any flood problem. Also, the possibility of water-logging would be completely eliminated if the formation level is raised by approximately 1 foot from the existing road level by means of earth-filling.
12. Dr. A.K. Saraf, learned Senior counsel representing the petitioner, after delineating the facts and expressing disgruntlement, lambasts the DGM (Region) of having given a lop-sided report and not having discharged his duties and functions in the manner he was obliged to do so, particularly when this Court reposed trust and appointed him to undertake the inspection of the sites and to report. According to Dr. Saraf, the modalities governing the re-verification exercise, as laid down by this Court by order dated 14.8.2014, had been totally ignored, in that, the letter of the Circle Officer dated 25.6.2014 and that of the APDCL authority dated 27.6.2014 were not considered at all. Referring to the Assessment Report, Dr. Saraf submits that the same lacks bona fide and is an incorrect portrayal of the physical status of the lands offered by Respondent Nos. 7 and 8. It is also contended that the views of the Circle Officer and that of the General 12 Manager, APDCL, who were present at the site on the date of inspection, have been incorrectly projected in the Report dated 5.9.2014.
13. In so far as the views of the Circle Officer are concerned, the contention is that not only his opinion contained in the letter dated 25.6.2014 was totally ignored, but even his observations and views on the date of inspection was given a different hue. In this respect, Dr. Saraf makes reference to three letters to drive home his point. The first is the letter dated 5.9.2014 whereby the Circle Officer had informed his superior officer i.e. the Additional Deputy Commissioner, Bongaigaon, that he along with another revenue official had visited the sites on 2.9.2014 as per his instruction. During the enquiry it was found that the land covered under the particular Dag Nos. (of Respondent No.7) is low-land, approximately 8-10 feet below the existing rural road. There is a lake-like water-logging body on the northern side of Dag No.65 about 150-200 feet away. As per office record the land covered by Dag No.65, PP No.125 is a disputed land (Case No.61/13-14 dated 15.5.2014). The 11 KVA HT line is passing within 50 feet of the said Dag on the northern side, which is the main entry to the plot. Also, if the entire Dag is raised by land development, there will be drainage problem for the local public which may create law and order problem. The second is the letter dated 4.9.2014 of the DGM (Region), FCI himself, addressed to the Circle Officer requesting that he may pen a line of confirmation of the views that he had expressed on the date of site inspection that the road passing by the front side of the offered land is not flood prone and if the formation level of the offered land is raised by 200 to 300 mm (approximately 1 ft) from the existing road level, the possibility of water-logging in the land would be completely eliminated. The third is the letter dated 9.10.2014, which is the reply of the Circle Officer to the letter dated 4.9.2014 of the DGM (Region), FCI. By the said letter, reference was made to his earlier letter dated 5.9.2014 by indicating that the actual status of the land in question had already been clearly submitted. Further, that he is not in a position to say whether the possibility of water-logging in the land would be completely eliminated in the event the land is raised by 13 approximately 1 foot by land development from the existing road level. The reason assigned is that the entire area is low-land and 'lahi' class.
14. Relying upon the said three letters and the earlier letter dated 25.6.2014 of the Circle Officer, which was referred to in the Court's order dated 14.8.2014, Dr. Saraf contends that the inspection carried out on 2.9.2014 was a hoax and diametrically opposite/contrary to the actual physical status of the offered site of Respondent No.7, as observed by the Circle Office during the inspection on 2.9.2014. The further contention is that the Report has not only recorded a wrong version of the Circle Officer but also do not disclose any independent finding of the DGM (Region) on the aspect as to whether or not the offered land of Respondent No.7 is a flood or water-logging prone area/zone. The DGM (Region) has only referred to the alleged version of the Circle Officer, that too only in respect of the road in front of the proposed site as to whether it is flood prone, for which a line of confirmation was requested from the Circle Officer, Sidli by his aforesaid letter dated 4.9.2014 i.e. on the date prior to rendering the Assessment Report. For reasons above, Dr. Saraf submits that the Assessment Report of the DGM (Region), FCI smacks of bad faith and rendered with the sole objective of favouring the Respondent No.7. The Report, according to Dr. Saraf, in so far as the physical status of the land is concerned, is a travesty of the trust reposed by this Court on a senior officer of FCI, for which an adverse inference is called for.
15. In so far as the 11 KVA HT line is concerned, Dr. Saraf contends that the admitted position is that the HT line is passing over the proposed approach road to the proposed godown of Respondent No.7. According to the senior counsel, the Assessment Report indicates that the General Manager as well as the Assistant General Manager of APDCL, who were present at the site on the day of inspection, had stated and agreed to the raising of the HT line, on request and cost, to the extent of 17 feet vertical clearance, which is mandatory in 11 KVA HT line, so as to obviate any threat to life and property. This, Dr. Saraf submits, is again an incorrect rendering of the version and views of the APDCL authorities who were present and had 14 inspected the site with the DGM (Region) on 2.9.2014. Reference is made to the Report of the General Manager, Bongaigaon Zone, APDCL contained in the letter dated 4.9.2014, addressed to the Chief General Manager (D), LAR, APDCL, informing about his findings on his visit to the site on 2.9.2014. The said letter indicates that the 11 KVA Bongaigaon Feeder No.II is passing along the road in front of the proposed site. The land is about 6 feet below the road level and on the other side of the road is a water-logged lake-like area of N.F. Railway where it is not feasible to shift the line along the road. Further, that after development of the land of the proposed warehouse site, the required ground clearance of the line will not be maintained, which will be a safety hazard for vehicular and manpower movement. As such, the shifting/construction of HT line passing through the area is not feasible. On this count also, Dr. Saraf contends that an altogether different version of the APDCL authorities have been rendered in the Assessment Report only to give undue favour to the Respondent No.7 and to obviate any impediment with regard to the HT line passing over the proposed lay-out plan of the godown site. It is argued that on this point also the Assessment Report of the DGM (Region) is false, incorrect and void ab-initio.
16. In so far as the question of suitability of the offered site of Respondent No.8 is concerned, Dr. Saraf contends that no finding/observation is made by the DGM (Region), save and except reference being made to the version of the Circle Officer of Srijangram/Abhayapuri Revenue Circle. This, according to Dr. Saraf, amounts to disregarding the directions of the Court where a verification exercise was also directed to be undertaken on the offered land of Respondent No.8.
17. On facts, therefore, the learned senior counsel submits that having regard to the views and observations of both the Revenue and APDCL authorities and the apparent incongruities in the Assessment Report, the mandatory requirements of Clause 21 of the NIT have not been fulfilled either by the Respondent No.7 or Respondent No.8. Accordingly, not being technically qualified tenderers, their Price Bids could not have been opened 15 in view of Clause 12.2 of the NIT, having suffered rejection under Clause 27 thereof.
18. On the consequences of a waiver of a mandatory requirement as well as on the power of the Court for judicial review of administrative action, Dr. Saraf relies upon the case of R am ana Dayaram Shetty vs. International Airport Authority of India and others reported in (1979) 3 SCC 489 as well as in the Judgment and Order dated 13.7.2015 passed by this Court in W P(C) 738/ 2015 (M / s K akoti Engineering W ork and anr. vs. The Oil and Natural Gas Corporation Lim ited). Reliance is also placed in the Judgment and Order dated 25.9.2014 passed by a Division Bench of this Court in W A 316/ 2014 to say that in similar circumstances the stand of FCI has been that long term safety of the godown is to be taken into account and presence of water bodies and low- lying area are all considered to be negative factors to reject the suitability of the site.
19. Mr. KP Pathak, learned senior counsel representing Food Corporation of India (FCI) gives a chronological account of the case commencing from the date of issuance of the NIT by means of a "List of Dates". Relying upon the same, Mr. Pathak submits that whereas Price Bids were opened on 23.6.2014 and the Respondent No.7 was adjudged as L-1 bidder, challenge to the decision for opening of the price bids of both the Respondent Nos.7 and 8 was made by means of the present proceedings only on 1.7.2014. Mr. Pathak refers to the interim order of the Court dated 3.7.2014; the filing of Misc. Case No.2054/2014 for modification/alteration/vacating of the interim order and the grounds taken thereof; the Court's order dated 14.8.2014 directing a re-verification exercise; the site inspection by the DGM (Region), FCI on 2.9.2014 and the Report dated 5.9.2014, followed by the filing of additional affidavit by the petitioner on 28.10.2014 and the reply filed by FCI on 7.11.2014 as well as the decision of the Division Bench of this Court in WA 316 of 2014 arising out of the same NIT dated 10.4.2014 in respect of Nagaon location.
1620. Mr. Pathak also makes submission on the basis of the written note to say that the petitioner has raised disputed questions of fact and seeks interference under writ jurisdiction. Further, the letters of the Circle Officer, Sidli or the GM, APDCL, Bongaigaon are in no manner inconsistent with the Inspection Report of the DGM(R) and the petitioner is not at liberty to say that the Court should arrive at a finding on the suitability of the site different from the findings of the DGM(R) or that of the Five Member Team. That there is no specific allegation of mala fide, arbitrariness or irrationality for the writ court to interfere with the decision of the authority in a tender matter which is in the realm of contract, save and except affecting public interest.
21. Reliance is placed on the following decisions by Mr. Pathak to say that the Court does not have the expertise to correct the administrative decision and 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;
(i) (1994) 6 SCC 651 (Tata Cellular v. Union of India)
(ii) (2007) 14 SCC 517 (Jagdish M andal v. State of Orissa)
(iii) (2012) 8 SCC 216 (M ichigan R ubber (India) Lim ited v.
State of K arnataka)
(iv) W A 316/ 2014 (M ohana Reddy Chintam v. FCI)
22. Respondent No.7 is represented by Senior counsel Mr. D Das. Adopting the arguments advanced by Mr. Pathak and, in addition, Mr. Das refers to Schedule-I of the NIT, particularly, Clause 'C' which lays down that the formation level and Internal Road Level has to be kept 200 mm and 300 mm respectively above the level of MDR/SH/NH as the case may be. To this end it is urged that the Assessment Report makes mention of raising the formation level by approximately 200 to 300 mm by earth-filling from the existing road level so as to completely eliminate the possibility of water-
17logging. According to Mr. Das, the Assessment Report takes care of the condition of the NIT with regard to the requirement of the formation level.
23. While tacitly admitting that the views contained in the letters of the Circle Officer and that of the APDCL dated 25.6.2014 and 27.6.2014 do not find mention in the Assessment Report, Mr. Das argues that re-consideration was made by taking into account all parameters, that too, on the basis of a site inspection. Looking at the merit of the decision/findings, the Assessment Report was rendered in consonance and conformity with the Court's directions dated 14.8.2014. Lastly, it is argued that the petitioner is not entitled to equity having approached the Court after more than a month from the date the Respondent No.7 was found suitable in the Technical Bid.
24. Mr. Das relies upon the case of Siem ens Public Com m unication Netw orks Pvt. Ltd. v. Union of India, reported in (2008) 16 SCC 215 to say that there are inherent limitations in the exercise of power of judicial review and there can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power unless the same is exercised for any collateral purpose which, according to Mr. Das, is absent in the present case. It is contended that the modern trend points to judicial restraint in administrative action and the Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. The discretionary power under Article 226 has to be exercised with great caution and should be exercised only in furtherance of public interest, nay, overwhelming public interest. Taking it forward, Mr. Das submits that judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. As such, a Court before interfering in tender or contractual matters in exercise of power of judicial review should satisfy itself whether the process adopted or decision made by the authority is mala fide or intended to favour someone, whether public interest would be affected and whether the decision can be said to be such a decision that no responsible authority acting reasonably and in accordance with relevant law could have reached. Further, if two views are possible and 18 no mala fides or arbitrariness is alleged or shown, there is no scope for interference. Lastly, if the decision relating to award of contracts is bona fide and is in public interest, Court will not exercise the power of judicial review even if there is a procedural lacuna.
25. In reply, Dr. Saraf submits that a letter dated 20.6.2014 had been issued by FCI indicating that Price Bids of all the three parties will be opened on 23.6.2014. However, information to that effect was first received by the petitioner through the e-mail dated 21.6.2014 of the FCI on 21.6.2014, which was a Saturday. On the very same day, a letter was marked by the petitioner to the Chief Managing Director, FCI requesting not to open the Price Bids of Respondent Nos.7 and 8 and to reject their tenders, being technically disqualified. The said letter of the petitioner dated 21.6.2014 was received in the concerned office of FCI on 23.6.2014, as would be apparent from the acknowledgement of FCI with seal and signature. At this stage senior counsel Mr. Pathak, representing FCI, denied receipt of the letter on 23.6.2014 as the same was not marked at the address for correspondence of FCI as per the NIT. Be that as it may, Dr. Saraf submits that it was only upon receipt of the e-mail dated 21.6.2014 it had come to learn of the decision of the FCI to open the Price Bids of Respondent Nos.7 and 8. As such, there has been no delay on the part of the petitioner in approaching the Court on 1.7.2014. With regard to the physical status of the land offered by Respondent No.7, Dr. Saraf submits that on the very admission of FCI at paragraph 5 (C) of Misc. Case No.2054 of 2014, the technical inspection team had suggested that the plot of land offered by Respondent No.7 has to be filled up with soil to have the level of the road. This, according to Dr. Saraf, is sufficient to indicate the low-lying status of the land, much less raising it further by earth filling so as to bring the formation level above 1 foot from the existing road level. Lastly, Dr. Saraf contends that in terms of this Court's order dated 14.8.2014 the DGM (Region), FCI was required to inspect and report to the Court on the status of the offered sites in the manner so indicated. Recommendations and suggestions or curative 19 measures indicated in the Assessment Report were not the functions of the DGM (Region).
26. The exhaustive submissions of the parties concerned have received due attention and consideration of this Court. The pleadings and records so available have been taken note of. Although, this Court intended to look into the FCI letters dated 24.6.2014, which had prompted the Circle Officer, Sidli Revenue Circle as well as the APDCL authority to make reply vide their letters dated 25.6.2014 and 27.6.2014 respectively, it was informed by the FCI counsel Mr. PK Roy, assisting Mr. KP Pathak, that the said letters are not traceable, as per instructions received by him in writing.
27. Having regard to the overwhelming and paramount public interest involved in the act of setting up of a proper godown for storage of food grains and in strict terms of the provisions under the Food Security Act, 2013 which casts duty on the Government to ensure minimum 4 (four) months food requirement of the FCI district and also having regard to the conditions under the NIT, particularly Clause 27 thereof, there is no manner of doubt that the requirements envisaged under Clause 21 are essential conditions requiring rigid enforcement. Clause 21 unambiguously lays down that the suitability of the land on which the godown is proposed to be constructed is a major criteria for selection of the tenderer. It must not have an HT line (11 KVA and above) passing over the proposed lay-out plan of the godown, curable as indicated, as well as not being located in flood or water-logging prone area/zone. Curative measure in respect of the latter requirement vis-a-vis the offered sites is, however, not provided in Clause 21 of the NIT.
28. Before considering the rival merits of the case, consideration is had to the power of the Court under Article 226 and to the exercise of power of judicial review.
29. In the case of K hudiram Das v. The State of W est Bengal, reported in AIR 1975 SC 550, the Apex Court held that where in a case the authority had arrived at a conclusion so unreasonable that no reasonable 20 authority could ever reach, then interference by the Court is not as an appellate authority but as a judicial authority. The proposition of law laid down is that there is nothing like unfettered discretion that can be immune from judicial reviewability.
30. In R am ana Dayaram Shetty (supra), the Apex Court, having regard to a requirement in the tender notice which was an essential condition of eligibility, examined the question as to whether the authority could have validly condoned the shortcoming in the tender of the beneficiary. The Apex Court held that the action amounted to illegal discrimination and further that the power or discretion of the Government in the matter of grant of largesse must be confined and structured by rational, relevant and non-discriminatory standard and norm. A departure thereof would make the action of the Government liable to be struck down.
31. The case of Poddar Steel Corporation v. Ganesh Engineering W orks, reported in (1991) 3 SCC 273 and B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., reported in (2006) 11 SCC 548 are cases touching upon the essential and ancillary conditions in a tender notice. The proposition of law laid down by the Apex Court is that as a matter of general proposition an authority issuing the tender has the latitude not to give effect to every term indicated in the tender in meticulous details, save and except a technical irregularity which cannot be waived or ignored. An essential condition has to be punctiliously and rigidly enforced.
32. In the case of R ajasthan Housing Board v. GS Investm ents , reported in (2007) 1 SCC 477 as well as in the three other cases relied upon by the senior counsels i.e. Jagdish M andal v. State of Orissa (supra), M ichigan R ubber (India) Ltd. v. State of K arnataka (supra) and Siem ens Public Com m unication Netw orks Pvt. Ltd. v. Union of India (supra), the Apex Court reiterated the principles which have to be applied in judicial review of administrative action, especially those relating to acceptance of tender and award of contract. The principles of judicial review are applicable in order to prevent arbitrariness, irrationality, favouritism, 21 mala fides on the part of the government bodies. The absence of it limits the power of the Court to make any interference. Although the modern trend points to judicial restraint in administrative action and a free play in the joints is a necessary concomitant for an administrative body, however, the decision must be tested by the application of Wednesbury principles of reasonableness and must be free from arbitrariness, bias and mala fides. This is also the ratio found in the case of Tata Cellular v. Union of India (supra).
33. The grounds of challenge, founded on Clause 21 and Clauses 12.2 and 27 of the NIT makes the present case distinct on facts from W.A. 316/2014 (Sri Mohana Reddy Chintam & Smt. Saroja Chintam v. Food Corporation of India). The Division Bench of this Court in the said writ appeal reiterated the settled proposition of law that Court "cannot sit in opinion over the tender authorities, unless the opinions of the tender authorities are irrational or blatantly arbitrary or actuated with malice".
34. A comprehension of the legal expositions above makes it abundantly clear that the Court in exercise of power of judicial review can unflinchingly examine whether the "decision making process" was reasonable, rational, not arbitrary, unbiased and not violative of Article 14 of the Constitution.
35. Now, whether on the facts noticed above the principles underlying exercise of power of judicial review by this Court is warranted. This is the question that requires an answer of this Court, to be derived from the decision/findings made by the respondent FCI having regard to Clause 21 read with Clauses 12.2 and 27 of the NIT as well as having regard to the views of the Revenue and APDCL authorities and the directions of this Court contained in the order dated 14.8.2014.
36. Referring to the directions of this Court rendered in the order dated 14.8.2014, particularly at paragraph 10, it is explicitly clear that the FCI while discharging its primary role in assessing the viability of the offered sites, the views and projection made by the Circle Officer, Sidli and APDCL, was to be taken into account. Categorical mention is made to the respective 22 letters of the aforesaid authorities dated 25.6.2014 and 27.6.2014. The re- verification exercise directed to be undertaken was for reaching a decision whether the land offered by the Respondent Nos.7 and 8 conformed to Clause 21 of the NIT. The manner for making an independent assessment on the feasibility of the offered sites was clearly laid down in the order dated 14.8.2014, that is, by visit/inspection of the site by the DGM (Region), FCI and by taking into account the views of the concerned Engineers of APDCL and also the Revenue Department.
37. The Assessment Report of the DGM (Region), as reproduced above, now stands for review - as to whether the same conforms to the directions of this Court contained in the order dated 14.8.2014. In respect of Respondent No.7, the version of the Circle Officer, Sidli, as recorded in the Assessment Report, is made to the extent that the road passing by in front of the proposed site is not flood prone and the area has not witnessed flood problem. The DGM (Region) found that as per the Model Tender Form (MTF) provision, the party has to do earth-filling to raise the formation level approximately 200 to 300 mm (approximately 1 ft) from the existing road level so that the possibility of water-logging would be completely eliminated. Per contra the assessment made by the DGM (Region), it is apparent on the face of the records that no assessment was made with regard to the offered site of Respondent No.7. Assessment and opinion is only rendered in respect of the road passing by in front of the proposed site. There is no indication as to the level of the site, its low-lying topographical status as observed and reported by the Circle Officer, Sidli in his letter dated 25.6.2014. The fact that the site is 8-10 feet below the existing road level is conveniently ignored and the physical set-back of the site is sought to be circumvented and down-played by only referring to the MTF provision under Clause 'C', Schedule I of the NIT where the requirement is that the formation level must be maintained at 200 mm above the road level. This aspect of the matter is not in keeping with the directions of the Court, as indicated above.
38. No independent opinion/assessment appears to have been made by DGM (Region), FCI in respect of the physical/topographical status of the 23 offered site of Respondent No.7, having regard to Clause 21 and that of the Court's order dated 14.8.2014. The reference made to the version of the Circle Officer, Sidli and the suggestion on earth-filling so as to raise the formation level by approximately 1 feet from the existing road level, are neither reproduced correctly and completely nor are the independent views of the DGM (Region). The letter of the DGM (Region) dated 4.9.2014, addressed to the Circle Officer, Sidli, requesting a line of confirmation in support of the Circle Officer's version as recorded in the Assessment Report as well as with regard to the raising of the formation level, is indicative of non-application of mind by the DGM (Region) to reach an independent opinion/assessment. The views of the Circle Officer, Sidli, as expressed in his letter dated 25.6.2014 as well as in his report to his superior officer dated 5.9.2014, detailing his findings on the site-inspection with DGM (Region) on 2.9.2014, do not tally with his alleged version as recorded in the Assessment Report. The findings and observations of the Circle Officer, Sidli, derived from the site inspection on 2.9.2014 has not only been misrepresented but also left blank in the Assessment Report. For ready reference, the views of the Circle Officer, Sidli as appearing from his letter dated 5.9.2014 pursuant to site inspection are as follows :
"GOVT OF ASSAM OFFI CE OF THE CI RCLE OFFI CER :: SI DLI REV CI RCLE SI DLI No.SLRC.16/ M G-Enq/ 2014/ Dated Sidli, the 5 th Sept'2014 To, The Addl. Deputy Com m issioner Bongaigaon.
Sub: Subm ission of joint field inspection report on dag No.4 & 5 of village Tengaigaon and 62, 63, 64 & 65 of village-Dholagaon under Sidli R ev. Circle, Sidli in the district of B ongaigaon.
Ref: Letter No.BRS.14/ 2011/ 61 dated 29-8-2014
24
Sir,
W ith reference to the subject cited above, I have the honour to inform you that as per your instruction, on 02-09- 2014 self along-w ith S.K ., concerned L.M . and DGM (R) FCI and his party visited the dag N o.4 & 5 of village Tengaigaon and 62, 63, 64 & 65 of village-Dholagaon, w here FCI authority is going to proposed for construction a w are house of FCI .
During enquiry it has been found that-
1. The land covered under dag No.64 & 65 is low land, w hich is approx im ately 8-10 Ft below from the present ex isting rural road. And the said ex isting road is passing over the 65 dag No and P .P . No.125.
2. As on 02-09-2014 on N orthern side of dag No.65 there is a lake lik e w ater logging body w hich is approx . 150-200 Ft. w ithin the said dag.
3. As per office record of this office the dag N o.65, P .P . No.125 is a disputed land vide Case No.61/ 13 -14 dated 15-05-2014.
4. The class of land is "LAHI "
5. A 11 K V HT line is passing over the dag No.65 P .P .
No.125. And the electric line is passing w ithin 50 Ft of the said dag on Northern side, w hich is the m ain entry of the plot.
6. I f the entire dag is raised by land developm ent then there w ill be drainage problem for local public and w hich m ay create L/ O problem .
This is subm itted for favour of your kind inform ation and necessary action.
Yours faithfully, Sd-
Circle Officer Sidli Revenue Circle Sidli"
2539. Thus, the Assessment Report while dealing with the suitability of the offered site of Respondent No.7, as regards the physical/topographical status of the land, do not give out an independent opinion of the DGM (Region) nor justifies or records the on-the-spot views and observations of the Circle Officer, Sidli. The Assessment Report to this end is not compliant to the directions of this Court. In so far the Respondent No.8 is concerned, there is absolutely no independent findings of the DGM (Region) on the requirements of Clause 21. It only records the version of a revenue official i.e. the Circle Officer of Srijangram/Abhayapuri Revenue Circle.
40. The findings and decision on the 11 KVA HT line as indicated in the Assessment Report vis-a-vis the views emerging from the APDCL letter dated 27.6.2014 and the report dated 4.9.2014 of the GM, APDCL pursuant to the site inspection on 2.9.2014 with DGM (Region), are wholly at variance. The Assessment Report records that APDCL agreed to the raising of the HT line to the extent of 17 feet vertical clearance, which is mandatory in 11 KVA HT line, on request and cost to be borne by the party. However, the views and observations of the APDCL authority upon site-inspection on 2.9.2014, as revealed from the letter/report dated 4.9.2014 of the GM, APDCL, discloses a different picture, which is not in tandem with what has been indicated in the Assessment Report. The views and findings of the GM, APDCL is as under :
"ASSAM P OW ER DI STRI BUTI ON COM P ANY O/ O- GEN ERAL M ANAGER, BONGAI GAON ZONE No.GM / BZ/ AP DCL/ GEN -23/ 2014-15 Date:
To, The Chief General M anager (D), LAR, AP DCL, Bijulee Bhaw an, P altanbazar, Ghy-1.
Sub: Report on inspection of site in respect of enquiry conducted by the DGM (R), FCI .26
Ref: (1)M em o N o.CGM (D) / AP DCL / LAR / Court
Case/ 2013/ 25. Dt: 30/ 08/ 14.
Sir,
I n inviting reference to the above I w ould like to
inform you that the undersigned accom panied by
AGM (BED), Deputy General M anager BESD-1 visited the site on 2 nd Septem ber 2014 (at Dholagaon). The enquiry officer DGM (R) FCI alongw ith his officials w ere also present at the tim e of inspection.
I t has been found that the 11 K V Bongaigaon Feeder No.I I is passing along the road in front of the proposed site of the w are house of FCI . The land is about 6 feet below the road level and the other side of the road is a w ater logged lake lik e area of N.F. Railw ay w here it is not feasible to shift the line along the road. Again, after developm ent of the land of the proposed w arehouse site, the required ground clearance of the line shall not be m aintained w hich w ill be a safety hazard for vehicular & m anpow er m ovem ent.
So, it is quite clear that shifting/ construction of HT line passing through this area is not feasible.
This is for favour of your kind inform ation.
Yours faithfully General M anager, Bongaigaon Zone, AP DCL, Bongaigaon."
M em o N o.GM / BZ/ AP DCL/ GEN -23/ 2014-15/ 170 Date:-04/ 09/ 14 A copy of the GM, APDCL's letter dated 4.9.2014, indicating his findings upon site-inspection on 2.9.2014, was marked to the DGM (Region), 27 FCI. The Assessment Report dated 5.9.2014, however, makes no reference to the findings of the APDCL authority, as contained in the said letter.
41. On the question of delay in approaching the Court, a point which was strenuously urged by the respondent counsels, it is seen that the decision of the FCI to open the Price Bids of Respondent No.7 and 8 was intimated to the petitioner vide e-mail on 21.6.2014, which was a Saturday. The petitioner responded and objected to the decision on the same day through its letter dated 21.6.2014, which was received by FCI on 23.6.2014. The writ petition was filed on 1.7.2014. As such, no delay can be attributed to the petitioner in approaching this Court.
42. Turning to the Assessment Report of the DGM (Region) dated 5.9.2014 and having regard to the facts alluded to above, the viability of the offered sites of Respondent Nos. 7 and 8 were not correctly assessed by taking into consideration all parameters and in terms of the views, observations and report of the Revenue and the APCL authorities. It is an Assessment Report shorn of the ground realities on the physical/topographical status of the offered sites in question and is an incorrect, inappropriate and in suppression of the views of the Revenue and APDCL authorities. To this end, the Assessment Report was not rendered bona fide. It has been rendered in total transgression of the directions of this Court contained in the order dated 14.8.2014. The findings/decision of the DGM (Region), FCI was not in due dispensation of the directions of this Court nor commensurate with the views of the Revenue and the APDCL authorities. There is no independent and bona fide finding as to the fulfilment of the essential requirements of Clause 21 on the offered sites of Respondent Nos.7 and 8. In this view of the matter, the Assessment Report is interfered with, being rendered in flagrant violation of the directions of this Court and by totally disregarding and misrepresenting the views of the Revenue and APDCL authorities.
2843. On the facts above this Court is satisfied that the process adopted and decision taken by the respondent FCI is not a bona fide decision. Rather, it is a decision which is not in furtherance of public interest but intended to favour Respondent No.7. It is a decision where no responsible authority acting reasonably and in accordance with law could have reached. This is a fit case warranting exercise of power of judicial review under Article 226 of the Constitution by this Court.
44. As per the reports and views of the Revenue and APDCL authorities, the offered sites of Respondent Nos.7 and 8 do not go to fulfil the essential requirements of Clause 21, which are the subject-matter of this case, more particularly in respect of its physical/topographical status. Situated thus, in view of Clause 27 of the NIT, the technical bids of Respondent Nos.7 and 8 warranted summary rejection. The decision to open the Price Bids of Respondent Nos.7 and 8 is an erroneous decision in view of the provisions under Clause 12.2 of the NIT. Accordingly, it is held that the technical bids of Respondent Nos.7 and 8 are bad in law, having suffered rejection and disqualification in view of Clause 21 read with Clause 27 and 12.2 of the Notice Inviting Tender dated 10.4.2014.
45. Not to go unnoticed is also the fact that the price bid of petitioner being Rs.10.50 per Qtl per month, was adjudged as the L-3 bidder. The technical bids of the Respondent Nos.7 and 8 having stood interfered with, it would now be at the discretion of the respondent FCI to either proceed with the NIT dated 10.4.2014 to bring it to its logical conclusion or to invite fresh bids for construction of the godown at Bongaigaon.
46. Before parting with the case, this Court would like to place on record its concern and displeasure on the conduct of the Deputy General Manager (Region), FCI. When trust is reposed by the Court upon an authority to undertake a procedure, a high degree of responsibility and rectitude is expected from the authority in order to faithfully reciprocate the trust 29 reposed. The same utterly fell short in the instant case on the part of the DGM (Region), FCI.
47. For all the facts and reasons above and having regard to the relief(s) sought for, which is only to the extent of questioning the legality and validity of the decision of Food Corporation of India in opening the price bids of Respondent Nos.7 and 8, this writ petition stands allowed. The parties are left to bear their own costs.
JUDGE gunajit