Gauhati High Court
M/S. Anupam Nirman Pvt. Ltd. & Anr vs The State Of Assam & 4 Ors on 10 August, 2017
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND
ARUNACHAL PRADESH)
WP(C)No.4001/2017
1. M/s Anupam Nirman Private Limited.
A company registered under the provisions of Companies Act, 1956
having its registered office at Bhakar Nagar, by lane No.2, behind BS
Publications Zoo-Narengi Road, Guwahati: 781021, Assam and is
represented by its Director, Sri Anupam Sarma.
2. Sri Anupam Sarma
Son of Late Aswini Kumar Sarma,
Resident of Bhaskar Nagar, By lane No.2, behind B.S. Publication Zoo-
Narengi Road, Guwahati: 781021, Kamrup(Metro), Assam.
...Petitioners
-Versus-
1. The State of Assam
Represented by the Commissioner
And Special Secretary to the Govt. of Assam
Public Works Building and NH Department,
Dispur, Guwahati: 781006, Assam.
2. The Chief Engineer,
PWD (NH Works), Assam, Chandmari, Guwahati
781003, District: Kamrup(Metro).
3. The Bid Evaluation Committee,
Constituted for the purpose of the NIT dated 17.03.2017
Represented by the Chief Engineer, PWD (NH Works), Assam
Chandmari, Guwahati: 781003, District: Kamrup (Metro), Assam.
4. M/S. G. LA-MA(Jr.)
C/o. GL Agarwalla, G.S. Road
Ulubari, Guwahati: 781007, Kamrup (Metro), Assam.
5. Shree Gautam Construction
Co.Ltd., 4th Floor, Amaze Shopping Mall, AT Road,
Paltan Bazar, Opp.to Paltan Bazar overbridge,
Beat No.14, Guwahati: 781 001, Kamrup(M), Assam.
... Respondents
2
BEFORE
HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Advocates for the Petitioners : Mr. KN Choudhury
Senior Advocate
Mr. J Patowary
Ms. R Kakati
Mr. M Choudhury
Mr. M Mahanta
Mr. DM Nath
Advocates for the Respondents : Mr. D Saikia
Senior Additional
Advocate General, Assam
Ms. VL Singh
Govt. Advocate
Mr. TJ Mahanta
Senior Advocate
For Respondent
No.4
Date of hearing & Judgment : 10.08.2017
JUDGMENT & ORDER (ORAL)
Heard Mr. KN Choudhury, learned Senior counsel, assisted by Ms. R Kakati, learned counsel for the petitioners. Also heard Mr. D Saikia, learned Senior Additional Advocate General, Assam, assisted by Ms. VL Singh for the State respondents and Mr. TJ Mahanta, learned Senior counsel for the respondent No.4.
2. Office note dated 30.06.2017 indicates that notice upon respondent No.5 has been sent by registered post with A/D on 10.07.2017. No further indication is available as to whether notices have been served or not. But considering the urgency of the matter, inasmuch as, the project of repairing of a National Highway had been kept in abeyance due to an interim order passed by this Court and further that the interest of respondent No.5 is same 3 as that of the respondent No.4 who are represented by Mr. TJ Mahanta, learned Senior counsel, this Court in the interest of justice, deems it appropriate that the matter can be taken up for final conclusion by invoking the relevant provisions of the CPC and accept the service of notice of respondent No.5.
3. The petitioner No.1, herein is a registered class IA contractor having wide experience of successfully completing contract works both in the Central Government as well as the State Government, more particularly, in respect of construction of roads. The Government of Assam, through the Office of the Chief Engineer, PWD(NH) had issued an invitation for bids (IFB) under No.NHR.83/2016/Pt./04 dated 17.03.2017, inviting bids from the interested contractors for the work of strengthening with paved shoulder in KM 13 to Km 15, Km 20 to Km 23, Km 35, Km 36 and Km 57 to Km 63 of NH-15 (Total Length = 16.870 Km) under Annual Plan 2016-17 of the Rangia National Highway Division.The work was classified as JOB No.015/AS/2016-17/169) under Package No.PWD-NH(R) RAN/2016-17/06 for an approximate value Rs.74,76,75,166/-. The bids were invited on a two bid bidding process, being the technical and financial bids which were required to be submitted online after downloading the bid documents from the concerned websites.
4. Clause 4.5.9 of the tender conditions provides that an applicant who meets the minimum qualification criteria would be qualified only if their available bid capacity, at the time of bidding, is more than the total estimated cost of the works. Under the said clause a formula have been provided as to how the bid capacity would be calculated, which is as follows:
Assessed available bid capacity = (A*N*2-B), where A = Maximum value of works executed in any one year during the last five years (updated to the current price level) rate of inflation may be taken as 10% per year which will take into account the completed as well as works in progress.4
B = Value at current price level of the existing commitments and ongoing works to be completed during the next 1.67 years (period of completion of work for which bids are invited); and N = Number of years prescribed for completion of the works for which bids are invited.
5. Further Clause 4.5.10 provides that even though an applicant may meet the prescribed criteria, but still they are subjected to be disqualified if they have made any misleading or false representation in the forms, statements submitted along with the bid.
6. In the aforesaid premises, the petitioners had submitted their bid, but the same was not found acceptable as per the minutes of the Bid Evaluation Committee (for short, BEC) held on 02.05.2017. In the said minutes, it was also recorded that none of the bidders had turned up for the pre-bid meeting which was held on 11.04.2017. In the minutes of the BEC, it was further noted that in respect of the present petitioners, a complaint was received from certain quarters that the petitioners had a huge work load, accordingly, the BEC had noticed that the six works under the Chief Minister's Special Package which was earlier awarded to the petitioners have not been mentioned by them in the tender document submitted. Consequent thereof, by the letter dated 14.06.2017 of the Chief Engineer, PWD(NH) a clarification was sought from the petitioners as to why their technical bid should not be disqualified under Clause 4.5.10 of the IFB for making misleading or false representation, to the effect that the writ petitioners had not made any mention of the aforesaid six works under the Chief Minsiter's Special Package, which were earlier awarded to them. Against such clarification being sought for by the letter dated 14.06.2017, the writ petitioners by their letter dated 19.06.2017 had stated that although the inclusion of the aforesaid six works could have been in their favour for the purpose of qualification, but the said works had been kept in abeyance rendering them into nullity, and, therefore, there was no possibility for the petitioners for filling up the columns 6, 7 and 8 5 of the prescribed format under clause 1.4(A) of the bid document. It was further stated that the six works could neither be commenced by them nor do they have any commitment as of now, inasmuch as, as the concerned work has been kept in abeyance. The petitioner on the other hand also states that if they would have included the six works in the prescribed bid format, the same would have resulted in the authorities being misled.
7. The petitioners, accordingly, were informed by the letter dated 29.06.2017 of the Chief Engineer that as the six works earlier awarded to the petitioners are still in existence, therefore, they ought to have disclosed the relevant information as per clause 1.4(A) of the IFB and the same having not been done, the BEC was of the opinion that the technical bid of the petitioners was non-responsive.
8. The decision of the BEC rejecting the bid of the petitioners was made in its meeting held on 23.06.2017, wherein the Committee was of the view that as the said six works, which were awarded to the writ petitioners, are not terminated as yet, therefore, the contract agreement of such work is still in existence. Accordingly, the Committee was of the view that the petitioner ought to have disclosed all the relevant information about the six works as per Clause 1.4(A) and it having not been done, the petitioner has invited disqualification under Clause 4.5.10.
9. In this writ petition, the petitioners have assailed the aforesaid disqualification of their bid by the BEC.
10. Mr. KN Choudhury, learned Senior counsel for the petitioner contends that the aforesaid decision of the BEC to disqualify the petitioner is arbitrary and unreasonable. Mr. Choudhury in order to substantiate his contention refers to Clause 1.4 of the format in which the bids are required to be submitted. According to the learned Senior counsel the format provided in 6 clause 1.4(A) has 8 columns wherein column. 6 pertains to the stipulated period of completion, column. 7 pertains to the value of the works remaining to be completed and column.8 pertains to the anticipated date of completion, in respect of the exiting commitments and the ongoing works of the bidders.
11. The learned Senior counsel accordingly refers to an Office Memorandum dated 30.06.2017 of the Finance (Establishment-B) Department of the Govt. of Assam, which provides that in view of certain ongoing consultations of the Review Committee on planning and budgeting in Assam, the Governor of Assam as an interim measure was pleased to keep in abeyance temporarily the existing Delegation of Power Rules 1999, issued from time to time. As a consequence, it was provided in the said office memorandum, that all works which could not be started till such office memorandum was issued, be kept in abeyance until further orders.
12. By referring to the said Office Memorandum, the learned Senior counsel states that six of the works, which were allotted to the petitioner, under the Chief Minister's Special Package, and having a cumulative value of Rs.48,79,300/- were kept in abeyance. In the circumstance as the said six works were kept in abeyance, the petitioners were of the view that the Clause 1.4(A) of the bid format, more particularly, column 6, 7 and 8 thereof, could not have been duly filled up by the petitioners. As column 6 pertains to the stipulated period of completion, the said information is not known to the petitioners as to when the petitioners can complete the six works, inasmuch as, the same had been kept in abeyance. Similarly, as the works have been kept in abeyance, column 7 pertaining to the value of works remaining to be completed and column 8 pertaining to the anticipated date of completion, also could not have been filled up by the petitioners.
13. In view of the above, it is the contention of the learned Senior counsel that as in the given facts and circumstances, it was not possible for the 7 petitioners to fill up column 6, 7 and 8 of Clause 1.4(A) of the format, the petitioners thought it appropriate that they are not required to disclose that they have been awarded the aforesaid six works.
14. The learned Senior counsel by referring to a statement prepared by the Additional Director Design in the Office of the Chief Engineer, PWD(NH), as annexed in the writ petition, wherein in the remarks column, it has been referred that the aforesaid six works may not be considered as ongoing projects, raises a contention that even as per the view taken by the respondent authorities, the six works are not to be considered as ongoing projects. Therefore, as clause 1.4(A) of the format pertains to ongoing works, the petitioners further thought it appropriate that they are not required to disclose that they have been awarded the aforesaid six works.
15. Further contention of the learned Senior counsel is that as the six works have been kept in abeyance and the petitioners were not allowed to work on the same, a right had also accrued in favour of the petitioners to repudiate such award of the work at their instance and, as such, the six works would be in the nature of a voidable contract as envisaged under Section 53 of the Indian Contract, Act.
16. Accordingly, it is the contention that the said six works will not reduce the bid capacity of the petitioners in any manner, as in the event of the present work being allotted to the petitioners, the petitioners have the option to repudiate the award of the six works and, thereby, retain their bid capacity to perform the work.
17. The learned Senior counsel also contends that the respondent authorities, through the BEC, having not taken into account the aforesaid factors have acted in an arbitrary and unreasonable manner, in arriving at a 8 decision to disqualify the petitioners in the bidding process and rendering their bid to be a non-responsive bid.
18. Mr. D Saikia, learned Senior Additional Advocate General appearing on behalf of the State respondent authorities, on the other hand, contends that whatever reasons the petitioners may have but in order to establish their bona fide credentials, ought to have disclosed the information that they have existing commitments of the aforementioned six works and, if necessary, leave it upon the respondent authorities to take a decision on the implication of the same. As such, by not disclosing the information as regards the six works, the petitioners have indulged in misleading the authorities and made false representation in the forms and statements submitted, by withholding vital information.
19. It has further been contended by Mr. Saikia that the Clause 1.4(A) of the format requires information to be given as regards existing commitments and ongoing works and, therefore, even if the six works allotted to the petitioners are not ongoing works, still the same would amount to an existing commitment of the petitioners, and, therefore, a requirement was cast on the petitioners to provide the said information. Be that as it may, Mr. Saikia also contends that the statement prepared by the Additional Director, Design in the Office of the Chief Engineer, which had been relied upon by the learned Senior counsel for the petitioners to insist upon that the six works are not ongoing works, does not reflect the view of the State Government and it was merely a personal opinion of the concerned Additional Director, Design. Mr. Saikia, also contends that the stand of the petitioners that they could not have filled up columns 6, 7 and 8 of Clause 14(A) of the format and, therefore, they have not provided the information regarding the six works, is also not tenable, inasmuch as, even if the works have been kept in abeyance, the petitioners could have indicated the information in Columns 6, 7 and 8 to be indeterminable.
920. Mr. Saikia also states that in the event the value of the six works are taken into consideration, the bid capacity of the petitioners are found to be below the required critical level and, hence, their bids would be non- responsive. Accordingly, Mr. Saikia contends that the petitioners have deliberately avoided mentioning the six works in their bid format so as to disenable the respondent authorities to take into consideration the value thereof for determining the bid capacity.
21. The further contention of Mr. Saikia is that prior to the submission of the tendered bids, a pre-bid meeting was held and the petitioners could have availed the opportunity of participating in the pre-bid meeting and got themselves clarified as to whether the information regarding the six works were required to be mentioned in the bid format and, in such manner, the petitioners could have avoided the confusion in their mind as to whether, in view of the requirements of Columns 6, 7 and 8 of Clause 14(A) of the bid format, the petitioners are required to mention about the six works and thereby not take the unilateral decision not to provide the said information in the bid format.
22. Mr. TJ Mahanta, learned Senior counsel for respondent No.4 while adopting the stand taken by Mr. D Saikia, also contends that the respondent No.4 was found to be the highest valid bidder, whose bid was found to be responsive in all manner and hence, the authorities have rightly awarded the work to the respondent No.4.
23. Upon considering the respective contentions of the petitioners and the respondents, one of the issues for determination would be as to whether the decision of the respondent authorities in arriving at a conclusion that the bid of the petitioners is non-responsive for not providing the required information as regards the six works discussed hereinbefore is arbitrary, unreasonable and against the Wednesbury principles, so that no other possible view could have 10 been taken so as to warrant an interference in a proceeding for judicial review. As a corollary, a further issue would be as to whether keeping in abeyance of the six works makes the same to be non-existent or the works continues to remain as existing commitments of the petitioners. Also was there an opportunity available to the petitioners in the pre-bid meeting to get it clarified from the Department, as to whether they were required to mention about the six works in the bid format, in view of the fact that the petitioners found it difficult to provide the information as required under Clause 6, 7 and 8 of the bid format as the works were kept in abeyance.
24. As already noticed Clause 4.5.9 of the tender conditions provides that a bid would be non-responsive if the bidder is unable to meet the bid capacity at the time of bidding where the value of the existing commitments and ongoing works to be completed during the next 1.67 years would reduce the bid capacity to the extent of the value of such existing commitments and ongoing works. In view of such provision of Clause 4.5.9, the value of the existing commitments and ongoing works constitutes a vital component for determining the bid capacity of a bidder and any incorrect information on the exiting commitments and ongoing works would render the calculation of the bid capacity to be inaccurate.
25. It is noticed that the bid capacity of a bidder is made dependent on 2(two) aspects, i.e., the existing commitments and the ongoing works, meaning thereby, that both the aspects are to be included in determining the bid capacity. In such view of the matter, the contention of the State respondents that even though the six works awarded to the petitioners which were kept in abeyance, may not be an ongoing work, but the same definitely do constitute an existing commitment, deserves some consideration. Further Clause 1.4A of the bid format, where such information are required to be provided, clearly mentions that the information regarding both existing commitment and ongoing works are to be mentioned. In such view of the 11 matter, the reliance of the petitioners on the statement of the Assistant Director, Designs that the six works are not ongoing works have no relevance, as in any view, the petitioners have to provide the information about existing commitments.
26. In this respect, the contention of the petitioners that as per the Clause 1.4A of the bid format the information sought in Columns 6, 7 and 8 regarding the duration of the works could not have been provided in respect of the six works, which were kept in abeyance, is also found to be unacceptable. If the duration of the work, or as a matter of fact, the duration of the remaining work cannot be quantitatively assessed, the same can easily be stated to be indeterminable as because the works have been kept in abeyance. But when the format requires the information to be given in respect of all existing commitments and ongoing works, the aspect that the duration of the remaining works cannot be quantitatively assessed, cannot be an acceptable reason for not providing the information at all.
27. Abeyance has been defined in Black Law's Dictionary to mean 'temporary inactivity or suspension'. Temporary inactivity means that the required activity would not be carried out for a given period, but the same by itself cannot be construed to mean that the requirement or the existing commitment to perform such activity ceases to exist. In such view of the matter, keeping the six works in abeyance is a temporary phenomenon keeping the same as inactive but it by itself does not mean that the six works ceases to exist and it does not constitute an existing commitment.
28. If the petitioners had a confusion in their mind that as because the information required to be provided in Column 6, 7 and 8 of clause 1.4A of the bid format, pertaining to the period relating to the six works cannot be quantified, the same by itself cannot be construed to be a reason for the petitioners to not provide the required information at all in the bid format.
1229. In such view of the matter, as the six works awarded to the petitioners, which have been kept in abeyance, cannot be construed not to be an existing commitment, it was incumbent upon the petitioners to mention about the same in Clause 1.4A of the bid format. It is more so, when Clause 1.4A of the bid format requires the information pertaining to both, existing commitments as well as ongoing works, and the six works are existing commitments of the petitioners.
30. In this respect the contention raised by Mr. Saikia, learned Senior Additional Advocate General that in the event of there being a confusion the petitioners could have sought for a clarification in the pre-bid meeting, also has some relevance in the matter. When the Clause 1.4A of the bid format clearly mentions that both existing commitments and ongoing works are to be mentioned, and the petitioners although been convinced that the six works are not ongoing works, but still the possibility that the said works can also be understood to be existing commitments cannot unilaterally be ruled out by the petitioners. Such clarification could have easily be obtained by the petitioners by participating in the pre-bid meeting.
31. A pre-bid meeting is an occasion provided by the tendering authorities to the bidders to get themselves clarified of any confusion or any uncertainty in the mind as regards the terms and conditions of tender or as to the expected requirement of the tenderers while participating in the bidding process. A pre-bid meeting is held to be an occasion where factual aspects of all natures are explained by the tendering authorities as well as any deviations that a particular tenderer intends to take from the required procedure are also clarified.
32. From the aforesaid purpose of a pre-bid meeting, the contention of Mr. Saikia that the present writ petitioners also could have got themselves clarified from the tendering authorities as to whether they are required to 13 mention about the 6 works in Clause 1.4A of the bid format, cannot be held to be unacceptable. It is also noticed from the minutes of the BEC that the writ petitioners had not turned up and participated in the pre-bid meeting held on 11.04.2017. Such non-participation of the petitioners in the pre-bid meeting also indicates that prior to the submission of the bids the petitioners had not availed the opportunity to get it clarified as to whether they are required to provide the information pertaining to the 6 works which were allotted to them but were kept in abeyance.
33. In the aforesaid facts and circumstances, when the decision of the BEC to declare the bid of the petitioners to be non-responsive, is examined, it is noticed that the BEC could have arrived at either of the two conclusions, i.e., to declare the bid of the petitioners to be non-responsive, inasmuch as, the required information under Clause 1.4A of the bid format had not been provided or to declare the bid of the petitioners to be a responsive bid by accepting the stand of the petitioners that as the information required under Column 6, 7 and 8 of the bid format cannot be quantified by the petitioners in respect of the six works, therefore, the said information could not have been provided by them.
34. Both the aforementioned conclusions appears to this Court to be a possible conclusion which meets the requirement of the Wednesbury Principles, meaning thereby that either of such conclusion could have been arrived by any person by making a reasonable application of mind.
35. In the aforesaid premises, this Court is of the view that as two acceptable conclusions could have been arrived at and the tendering authorities having arrived at one such conclusion, the conclusion arrived at cannot be interfered in exercise of the jurisdiction of a judicial review.
1436. In order to interfere with the conclusion arrived at by the BEC, this Court would be required to conclude that only one conclusion could have been arrived at that the petitioners under no circumstance, could have provided the information about the six works in Clause 1.4A of the bid format. As already held, as there were circumstances under which the petitioners could have also provided with the information about the six works or at least could have sought for a clarification as to whether they are required to provide the said information, it is difficult to arrive at a conclusion that the only possible view is that the petitioners under no circumstances could have provided the information of the six works under Clause 1.4A of the bid format.
37. In such view of the matter, as it cannot be conclusively held that the information about the six works were either not required to be provided by the petitioners or that the petitioners could not have provided the same in Clause 1.4A of the bid format, the decision of the BEC to declare the bid of the petitioners to be non-responsive for not providing the said information cannot be held to be a view which could not have been arrived at all in the facts and circumstances of the case.
38. As regards the scope of judicial review the Supreme Court in Tata Cellular v. Union of India, reported in (1994) 6 SCC 651 had held as under:
"79......This summary by Lord Greene has been applied in countless subsequent cases.
The modern statement of the principle is found in a passage in the speech of Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service By "irrationality" I mean what can now be succinctly referred to as "Wednesbury unreasonableness". (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn.) It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at.' "15
80. At this stage, the Supreme Court Practice, 1993, Vol. 1, pp. 849-850, may be quoted:
"4. Wednesbury principle.-- A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn.), per Lord Greene, M.R.)"
81. Two other facets of irrationality may be mentioned.
(1) It is open to the court to review the decision-maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-
maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. Thus, in Emma Hotels Ltd. v. Secretary of State for Environment, the Secretary of State referred to a number of factors which led him to the conclusion that a non-resident's bar in a hotel was operated in such a way that the bar was not an incident of the hotel use for planning purposes, but constituted a separate use. The Divisional Court analysed the factors which led the Secretary of State to that conclusion and, having done so, set it aside. Donaldson, L.J. said that he could not see on what basis the Secretary of State had reached his conclusion.
(2) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. On this basis in R. v. Barnet London Borough Council, ex p Johnson the condition imposed by a local authority prohibiting participation by those affiliated with political parties at events to be held in the authority's parks was struck down.
It is not the function of a judge to act as a superboard, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator.
The result is a theory of review that limits the extent to which the discretion of the expert may be scrutinised by the non-expert judge. The alternative is for the court to overrule the agency on technical matters where all the advantages of expertise lie with the agencies. If a court were to review fully the decision of a body such as state board of medical examiners 'it would find itself wandering amid the maze of therapeutics or boggling at the mysteries of the pharmacopoeia'. Such a situation as a state court expressed it many years ago 'is not a case of the blind leading the blind but of one who 16 has always been deaf and blind insisting that he can see and hear better than one who has always had his eyesight and hearing and has always used them to the utmost advantage in ascertaining the truth in regard to the matter in question'.
The second consideration leading to narrow review is that of calendar pressure. In practical terms it may be the more important consideration. More than any theory of limited review it is the pressure of the judicial calendar combined with the elephantine bulk of the record in so many review proceedings which leads to perfunctory affirmance of the vast majority of agency decisions."
84. We may usefully refer to Administrative Law Rethinking Judicial Control of Bureaucracy by Christopher F. Edley, JR (1990 Edn.). At p. 96 it is stated thus:
"A great deal of administrative law boils down to the scope of review problem; defining what degree of deference a court will accord to an agency's findings, conclusions, and choices, including choice of procedures. It is misleading to speak of a 'doctrine', or 'the law', of scope of review. It is instead just a big problem, that is addressed piecemeal by a large collection of doctrines. Kenneth Culp Davis has offered a condensed summary of the subject:
'Courts usually substitute (their own) judgment on the kind of questions of law that are within their special competence, but on other question they limit themselves to deciding reasonableness; they do not clarify the meaning of reasonableness but retain full discretion in each case to stretch it in either direction.' "
39. Again in Onkar Lal Bajaj v. Union of India reported in (2003) 2 SCC 673, the Supreme Court in respect of two possible views has held as under:
Article 14 guarantees to everyone equality before law. Unequals cannot be clubbed. The proposition is well settled and does not require reference to any precedent though many decisions were cited. Likewise, an arbitrary exercise of executive power deserves to be quashed, is a proposition which again does not require support of any precedent. It is equally well settled that an order passed without application of mind deserves to be annulled being an arbitrary exercise of power. At the same time, we have no difficulty in accepting the proposition urged on behalf of the Government that if two views are possible and the Government takes one of it, it would not be amenable to judicial review on the ground that other view, according to the Court, is a better view.17
40. As laid down by the Hon'ble Supreme Court, this Court is of the view that the decision of the BEC to declare the bid of the petitioner to be non- responsive for not providing the information pertaining to the six works cannot be held to be arbitrary or unreasonable and in violation of the Wednesbury Principles, as the said view is also one of the possible views in the facts and circumstances of the case and also upon considering the requirement and provisions of the terms and conditions of the IFB. Although it can be argued by the petitioners that the view projected by them that they could not have provided the required information of the six existing works as per Clause 1.4A of the bid format is also a possible view but at the same time, it cannot be said that the other view that they had ample opportunity to get themselves clarified or that they could still have provided the information under Clause 1.4A would be absolutely arbitrary, unreasonable and in violation of the Wednesbury principles. Further, merely because another view is possible, as projected by the petitioners, it would be inappropriate for this Court, in exercise of its power under judicial review, to interfere with the view taken by the State respondent authorities.
41. The further contention of Mr. KN Choudhury, learned Senior counsel that the six existing works are voidable contract inasmuch as the petitioners have the discretion to terminate the same at their instance as the work had been kept in abeyance and, therefore, it cannot be termed to be an existing commitment, this Court is of the view that the said argument by itself cannot render the six works not to be an existing commitment. It is more so, when there is no such communication from the petitioners to the respondent authorities that they intend to terminate the allotment of the said six works in order to accommodate themselves to be within the bid capacity for the present work.
42. In such view of the matter, this Court is of the considered view that the writ petitioners have failed to make out any case for interference of the 18 decision of the BEC to declare their bid to be non-responsive for not providing the information as to the six works which are held to be existing commitments of the petitioners, in exercise of its powers of judicial review under Article 226 of the Constitution of India.
43. Accordingly, this writ petition is found to be devoid of any merit and the same is dismissed.
44. Interim order passed earlier stands vacated.
JUDGE Shivani