Gauhati High Court
Purbottar Trade And Marketing ... vs State Of Assam And Ors. on 8 March, 2000
JUDGMENT
1. On 19.6.1999 a notice was issued inviting tender for different articles of police personnel for the year 1999-2000. There are as many as 145 items mentioned in that notice along with the quantity of the items. It may be stated herein that in the Police Manual it is provided the life of each of the item and the period of life is different from item to item. In pursuance to this notice inviting tender, the petitioners in all the Civil Rules as well as respective respondents in the Civil Rules along with some others submitted tenders along with samples of each item. The last date for submission of tender was 22.7.1999, but that was extended upto 9.8.1999 and the date for reopening of the tender was fixed on 10.8.1999. After opening of the tenders, a Committee was constituted in the name and style of 'Departmental Purchase Board' and the following are the members of that Committee -
1. Shri P.V. Sumant, IPS ... Chairman Director General of Police, Assam, Guwahati.
2. Shri R.N. Mathur, IPS .... Member Inspector General of Police (A) Assam, Guwahati.
3. Shri G. Bhuyan, IPS ... Member Dy. Inspector General of Police (A) Convenor Assam, Guwahati.
4. Shri K. Choudhury ... Member Dy. Inspector of Industries Assam, Guwahati.
5. Shri A. Bordoloye, ACS .... Member Dy. Secretary, Home (A) Department Dispur.
6. Shri AP Rout, IPS .... Member Commandant, 4th AP Battalion Guwahati.
7. Shri PC Neog, IPS ... Member Asstt. Inspector General of Police (T), Assam, Guwahati.
8. Shri S. Bordoloi .... Member Senior Financial Adviser, Home Department, Dispur
9. Shri AR Barua Senior F.A.O., DGPs Office, Guwahati .... Member
2. This committee met on 11th and 12th October, 1999 and accordingly made the selection of the tenderers for these different items considering the price quoted, quality of goods on the basis of samples furnished. The minutes of the Purchase Board have been produced by the Govt. Advocate. He has also brought the different samples of the items.
3. Being aggrieved by that decision of the Purchase Board not allotting certain items, these writ applications have been filed. The items involved in each of the writ applications are as follows :
WP(C) 5981/99 - 1, 13,15, 20, 22, 25 & 30.
WP(C) 6160/99 - 29, 31, 33, 34, 37, 40, 41, 42, 50, 51, 52, 55, 58 & 92.
WP(C) 6197/99 - 1, 4, 5, 6, 60, 108, 109, 111, 130 & 134.
WP(C) 6232/99 - 10, 11, 14, 16, 24, 25, 26, 27, 40 & 47.
WP(C) 6271/99 - 4, 5, 6, 8, 17, 18, 19, 101 & 102.
4. This court admitted the writ applications and stay orders were granted on 1.12.1999, 8.12.199 and 10.12.1999 in all the Civil Rules. Private respondents filed their affidavit-in-oppositions and an affidavit-in-opposition also has been filed on behalf of respondent-State of Assam. Records also have been produced by the State of Assam along with comparative statements and the proceedings of the Departmental Purchase Board.
5. I have heard Mr. B.K. Sharma, learned counsel for petitioners in WP(C) 5981/99, 6160/99 and 6197/99, Mr. C. Baruah, learned counsel for the petitioners in WP(C) 6232/99 and 6271/99, Mr. P.K. Goswami, learned counsel for respondents 4, 5 & 7 in WP(C) 5981/99, for respondents 4 & 8 in WP(C) 6160/99, for respondents 4 & 6 in WP(C) 6197/99, for respondents 4,5,6,7 & 8 in WP(C) 6232/99, Mr. P.K. Kalita, learned counsel for respondents 5 & 6 in WP(C) 6160/99. I have also hearing Mr. B. Choudhury and Mr. H. Rahman, learned GA.
6. It may be stated that affidait-in-reply also has been filed on behalf of petitioners. Mr. B.K. Sharma, learned counsel along with Mr. C. Baruah, learned counsel makes the following submissions:
(i) By giving the contract to respondents, State has incurred a huge loss as indicated at Annexure-'F' to Civil Rules and as such, the said offer is liable to be set aside.
(ii) There is no reason as to why the State should incur loss by offering the contract to respondents at a higher rate when the same brand and quality of products are offered by the petitioners at a lower rate.
(iii) Private negotiation with respondent No. 7 in respect of Item No. 25 ought not have been carried on to the exclusion of others.
(iv) The selection Board have assigned no reason in respect of rejection of tenders so also with regard to acceptance of tenders.
7. Mr. P.K. Goswami, learned counsel for respondents makes the main argument and joins in issue with regard to all the submissions made by Mr. B.K. Sharma, learned counsel for petitioner.
8. Mr. P.K. Kalita, learned counsel draws my attention to the affidavit filed by him wherein it has been stated that the contentions put forward by Mr. B.K. Sharma, learned counsel are not correct. Mr. B. Choudhury, learned GA appearing for the State of Assam and other official respondents in all CRs submits that the quality of samples of the petitioners and accepted tenderers are not same. The quality of the accepted tenderers are better and superior.
9. Before we go further, let us have a look at certain things which will be material for the decision of this case. It should be borne in mind that these petitioners got the benefit of some of the items by virtue of same selection process. That will be evident from the fact that the petitioner Smti. Nirmal Choudhury in WP(C) 6160/99 got the allotment in respect of item No. 91, The petitioner Basant Kumar Agarwalla in WP(C) 6197/99 got the allotment in respect of item Nos. 70, 86, 88 and 110. The petitioner Purbattor Trade Marketing Society Limited in WP(C) 5981/99, Smti. Manju Agarwalla, the petitioner in WP(C) 6232/99, Satyanarayan Agarwalla, the petitioner in WP(C) 6271/99 did not get anything. This is relevant because of the fact that they are challenging the act of official respondents with regard to selection process. They got some benefits in that selection process and because of not getting certain benefit with regard to certain items they cannot challenge with regard to constitution of the selection committee, unless there is mala fide on the part of the selection committee. There is no allegation of arbitrariness and mala fide as against the selection committee.
10. The another submission which was forcefully made by Mr. B.K. Sharma, learned counsel that the Stsate will incur a huge loss by giving allotment to certain persons and on that count the selection process shall fall through. This is also not correct inasmuch as the chart which is produced below will show that Basanta Kumar Agarwalla, the petitioner in WP(C) 6197/99, who got item No. 70. He got it at a price of Rs. 3.29 per pair, but the lowest rate was Rs. 2.40 and the total value of it quoted by the petitioner Was Rs. 17,351.00, but the lowest value will be Rs. 12,658.00. All these are refelcted in the chart quoted below:
STATEMENT SHOWING ALLOTMENT AT HIGHER PRICE TO THE PETITIONER AND OTHER RELATION OF THE PETITIONER :
WP(C) NO.
Name of the petitioner Tender item No. and description Petitioner's rate as allotted Lowest rate quoted Total value of highest rate Total value of lowest rate 1 2 3 4 5 6 7 8 6197/99 Basanta Kr. Agarwalla Prop. BK Industries Item No.70 Boot laces leather qty 5274 pairs 3.29 per pair 2.40 17.351.00 12.658.00 3.7.07% Item No.86 Water bottle with web carrier qty 8310 nos 104.00 each 63.94 8.64.240.00 5.31.341.00 62.65% Item No.88 Line bedding qty 10942 nos
11.70 each 10.00 1.28.021.00 1.09.420.00 17% Item No.110 Whistle cord blue qty 5678 nos 8.49 each 5.75 48.206.00 32.648.00 47.65% 6160/99 Smti. Nirmata Choudhury Prop. M/s P&P Climb Industry Item No.91 Flasher Red &Blue qty 3049 nos 5.50 each 4.90 each 16.769.00 14.940.00 12.24% Sri Chittaranjan Agarwalla. Prop. Purbanchal Leather Industry. Petitioner's Husband Item No.7 Civil Shoe Black qty 1342 pairs 311.00 per pair 251.00 4.17.362.00 3.36.842.00 23.90% Item No.59 Kit bag qty 8142 nos 67.90 ech 61.00 5.52.842.00 4.96.662.00 11.31% Item No.63 Brown leather belt for ASI/HC qty 692 nos 94.00 each 92.00 65.048.00 63.664.00 2.17% Item No. 64 Black leather belt for ASI qty 149 nos 94.00 each 91.00 14.006.00 13.559.00 3.29% Item No 65 Brown leather belt const, qty 1377 nos.
97.00 each 93.00 1.33.569.00 1,28,061.00 4.30% Item No. 66 Black leather belt for const, qty 370 nos.
92.00 each 89.00 34.040.00 32.930.00 3.37% Item No. 71 Web belt qty 4924 nos.
34.00 each 29.00 1.67.416.00 1,42.796.00 17.24% Item No. 72 Web Anklet qty 5862 nos.
21.00 each 18.00 1.23,102.00 1,05,516.00 16.66% Item No. 73 Web Haver sack qty 2612 nos.
67.00 each 49.00 1.75.004.00 1,27.988.00 36.73% Item No. 74 Strap for Haver sack qty 6918 nos.
27.90 each 21.00 1,93.012.00 1.45.278.00 32.85% Item No.75 Web pack qty 1880 nos 68.90 each 54.00 1.29.532.00 1.01.520.00 27.59% Item No.76 Web Strap for pack qty 3300 pair 11.40 pair 9.00 37.620.00 29.700.00 26.66% Item No.77 Web Braces qty 3953 pairs 19.00 14.00 75.107,00 55.342.00 35.71% Item No.78 Web Basic pouch qty 7257 nos 40.00 each 29.00 2.90.280.00 2.10.453.00 37.93% Item No.80 Web Sten Magazene Puch 27.70 each 21.00 84.984.00 64.428.00 31.90% Item No.81 Web rifle sling qty 11,123 nos 13.10 each 11.00 1.45.711.00 1.22,353.00 19.09% Item No.82 Sten Gun Sling qty 2868 nos
10. 10 each 7.90 28.967.00 22.657.00 27.85% Item No.83 Revolver holder qty 241 nos 34.40 each 26.20 8.290.00 6.314.00 31.29% Item No.87 LMG Sling (Web) qty 160 nos 29.00 each 19.00 4.640.00 3.040.00 52.63% item No. 103 Khaki tap newar 255 mtrs 8.40 per mtr.
6.40 2.142.00 1.632.00 31.25% Item No.107 Sishal Rope qty 720 nos 94.00 each 79.00 67.680.00 56,880.00 18.98% Item No. 135 SLR Sling qty 6798 nos 29.00 each 15.20 1.97.142.00 1.03,329.00 90.78% Item No. 137 Magazine Pouch qty 6251
41. 00 each 21.00 2.56.291.00 1,31,271.00 95.23% Item No. 139 Magazine pouch qty 252 nos 169.00 each 94.00 42.588.00 23,688.00 79.78% Item No. 140 AK 47 Rifle qty 746 nos 91.00 each 19.00 67.886.00 14.174.00 378.94% M/s. Leather Tax Industries Prop. Pradip Kr. Bajaj Jayanagar, Beltola. Guwahati Item No. 45 Brown ladies saldoc Qty 697 pairs 199.00 pairs 135.20 1.38.703.00 94,095.00 47.18% Item No. 61 Body protector qty 1115 nos 219.00 each 181.00 2.44.185.00 2.01.815.00 20.99% M/s. Assam Hosiery and Water Proof Works Panjaban,- Guwahati Prop. Dilip Kumar Item No.38 Hand Glove qty 11,132 pairs 26.00 pair 21.00 2,89.432.00 2.33.772.00 23.80% Item No.53 Barrent Cap red qty 8198 nos 27.00 nos 22.00 2.21,346.00 1,80.356.00 22.72% Item No.54 Barret cap navy blue qty 6295 nos 25.00 21.00 1.57.375.00 1.32.195.00 19.04% B.K. Industeis 10,57,818.00 6,86,067.00 16,769.00 14,940.00 33,14,261.00 25,40,077.00 3,82,888.00 2,95,910.00 6,68,153.00 5,46,323.00 54,39,889.00 40,83,317.00 Difference 13,56,572.00 Accepted rate (average) 33.22% above from the lowest rate.
11. Of course, this chart quoted above is prepared by respondent No. 4 on the basis of the pleadings of the parties. It has not been shown that it is incorrect. Certian arguments were advanced by the learned counsel for petitioners as well as on behalf of respondents that there is some deviation with regard to payment of earnest money as required under Clause 6(a) of the tender notice. Clause 6(a) provides as follows:
"6(a). The registered dealers, genuine and recognised manufacturers or their authorised agents must submit along with their tenders EARNEST MONEY @ 2% of the value of the tendered items/item. The tender will summarily be rejected outright unless the EARNEST MONEY at the estimated value of item/items are deposited. The earnest money must be in the shape of Post Office N.S.C./KVS (No call deposit/any other form will be accepted) shall be pledged in favour of undersigned. No cheque or cash or bank guarantee will be accepted as EARNEST MONEY. Security deposit Earnest money deposited earlier in connection with earlier tender/ tenders will not be accepted under no circumstances as earnest money for this tender.
A statement showing the calculation of earnest money payable is enclosed at Appendix-II which should be furnished alongwith the tender."
12. The admitted position in the case in hand is that the petitioner in WP(C) 5981/99 did not pay the earnest money whatsoever and he claimed exemption on the basis of a certificate issued by the Joint Registrar of Coop. Societies vide Annexure-C. That annexure is quoted below:
"GOVERNMENT OE ASSAM OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES::: GUWAHATI ZONE:: DISPUR:: GUWAHATI-6.
No. NCT. 1/97/2 Dtd. Dispur 8th May/97 TO WHOM IT MAY CONCERN This is to certify that Purbottar Trade & Marketing Cooperative Society Ltd. Rajgarh Road Guwahati-7(Assam) is registered under Assam Coop: Societies Act, 1949 (Assam Act.I of 1950) bearing Registration No. G-4/97-98, dtd.6.5.1997. For the interest of Cooperative movement, the Cooperative Societies are generally exempted from the payment of earnest and security money deposit and priority over allotment may also be given to the registered cooperative society for contract and supply of articles.
Sd/- Illegible Joint Registrar of Cooperative Socieities, Guwahati Zone, Dispur, Guwahati-6."
13. I asked the learned counsel for petitioner specifically to show any provison under the Assam Cooperative Societies Act which gives such an exemption to the Cooperative Society when they come to compete in a field beyond the object enumerated in their by-laws. Further, the learned counsel for petitioner fails to draw my attention to any such provision either in the Coop: Societies Act and/or rules. So, this certificatre cannot grant any exemption to the petitioners' society. On that count alone, this tender of the petitioner could have been rejected by the Purchase Board. But that was not donees the Board decided to grant exemption to other cooperative societies also and accordingly all the tenders have been taken into consideration. This exemption is available only to an Unit registered as SSI Unit. The petitioner herein is not registered SSI Unit. That is the admitted position.
14. Be that as it may, on that ground tenders were not rejected and the authority took into account all the tenders submitted and thereafter, decided the matter in the meeting held as indicated above.
15. The Ground Nos. 1 and 2 can be taken up together for decision.
16. It has been pointed by the apex court in (1994) 6 SCC 651 (Tata Cellular v. Union of India) where in para 69 of the judgment the Apex Court considered the scope of judicial review. The power of judicial review is available in order to prevent arbitrariness or favouritism. It was further pointed out by the Apex Court that the Govt. is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Govt. 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. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. The judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself.
17. In para 94, the principles deducible from the cases considered by the Apex Court have been summarised, wherein the limitation with regard to power of judicial review, has been laid down. The Supreme Court has further pointed out that before quashing an administrative decision, the court must take into account that such an action on the part of the court may impose heavy administrative cost on the administration and lead to increased and unbudgeted expenditure. That also is to be avoided.
18. This aspect of the matter came up for consideration in a recent decision of this court reported in (2000) 1 GLR 454 (Transpower Pvt. Ltd. and Anr. v. State of Tripura and Ors.) wherein the learned Single Judge of this court relying on different decisions laid down the law as follows:
"Right to choose cannot be considered to be an arbitrary power."
19. The law was further enunciated by the learned Single Judge relying on the decision reported in AIR 1999 SC 393 (Raunaq International Ltd. v. I.V.R. Construction Ltd.) which we shall discuss later on. In that case the Supreme Court held that unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide the court should not intervene under Article 226 in disputes between two rival tenderers.
20. It is on this background of law, we must decide the present controversy.
21. Learned counsel for petitioners places reliance on the following decisions:
1. 1999(3) GLT 195 (Ansal Properties and Industries Ltd. v. State of Assam and Ors.). That was a case where the tender and selection committee recommended the petitioner in that case. The Minister i/c ignoring the recommendation of the tender and selection committee awarded the contract to respondent No. 4. No reason was assigned for preference shown to respondent No. 4 and this court did not upheld the propriety of awarding contract to respondent No,4 and the matter was referred back toe the Minister i/c for reconsideration. This case does not help the petitioner.
On the other hand, learned counsel for respondents on this point places reliance on the following;
1. 1999(1) GLT 183 (Amar Hazarika v. State of Assam and Ors.). That is a judgment of the learned Single Judge of this court wherein this court after relying on the different cases pointed out that the lowest price is not the only criteria.
To the same effect is the decision reported in (1999) 1 SCC 492 (Raunaq International Ltd. v. LVR Construction Ltd. and Ors.) wherein para 11 and 16 the law has been laid down as follows:
"11. When a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of open tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenderers.
16. It is also necessary to remember that price may not always be the sole criterion for awarding a contract. Often when an evaluation committee of experts is appointed to evaluate offers, the expert committee's special knowledge plays a decisive role in deciding which is the best offer. Price offered is only one of the criteria. The past record of the tenderers, the quality of the goods or services which are offered, assessing such quality on the basis of the part performances of the tenderer, its market reputation and so on, all play an important role in deciding to whom the contract should be awarded. At times, a higher price for a much better quality of work can be legitimately paid in order to secure proper performance of the contract and good quality or work - which is as much in public interest as a low price. The court should not substitute its own decision for the decision of an expert evaluation committee."
22. In 2000(1) SCALE 346 (Air India Ltd. v. Cochin Int. Airport Ltd. and Ors.) the Supreme Court pointed out that State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender. It is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. The decision is not amenable to judicial review. The court can examine decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. Court should always keep larger public interest in mind to decide whether its intervention is called for or not.
23. That being the position of law, the first two points urged by Mr. B.K. Sharma, learned counsel has no force and as such the same shall stand rejected.
24. The next point urged by Mr. B.K. Sharma, learned counsel is regarding private negotiation with respondent No. 7 in respect of Item No. 25. Item No. 25 as will be evident from the tender notice is 'Khaki mosquito netting cloth'. A bare perusal of the decision with regard to item No. 25 by the Departmental Purchase Board depicts the following situation and I quote the decision on this item rendered by the Purchase Board - "25. Kakhi mosquito netting cloth : (Item No. 25) requirement -1,18,216 mtrs. 7 firms have submitted tenders for this item. After examining all the samples furnished by the firms, the Board for quality 'C' at Rs. 20.75 per metre. But it is seen that there was some doubt on the trading licence furnished by this firm. The Board decided to enquire into it and hence the rate quoted by this firm for this item has not been accepted. However, the same quality was accepted for white mosquito netting by a different firm and accordingly the Board decided to direct M/s. Cosmos, Guwahati for supplying Khaki mosquito net also at the same rate for the same quality as for white mosquito net."
25. This contention of Mr. B.K. Sharma, learned counsel for petitioner is not factually correct. There is no question of having any negotiation with the petitioner as his tender was rejected for this particular item. So, the authority had two options either to go for fresh tender or to have the commodity from somebody who has submitted the tender for same item but colour is different. In allotting item No. 25 to respondent No. 7 there is no arbitrariness and/or capriciousness inasmuch as the tender for white mosquito netting cloth (item No. 26) submitted by respondent No. 7 was accepted and in item No. 25 article is same but colour is different and the Purchase Board made bona fide exercise of power in allotting the item No. 25 to respondent No. 7.
26. So, this 3rd point also has not force and as such the same shall fall through.
27. The 4th point as urged by Mr. B.K. Sharma, learned counsel for the petitioner is that the Purchase Board has not given any reason whatsoever regarding acceptance and/or rejection of the tender.
28. Before we go to that aspect of the matter, we should bear in mind one thing that the Purchase Board is not writing a judicial judgment. Minutes should be made in such a manner so as to understand that they acted in a fair and transparent manner. If that aspect of the matter can be gathered from the minutes of the Purchase Board, the argument that no reasons were made available, will have no legs to stand upon. On that count, the allotment made cannot be quashed.
29. Regarding negotiation, following decisions have been relied on by the learned counsel for petitioner :
(i) 1996 (2) GLT 504
(ii) 1986(3) SCC 247
(iii) GLR 2000 Vol.I 44 There is no need to discuss all these decisions in view of that fact that in 2000(1) SCALE 346 (supra) the Supreme Court pointed out that in a situation where the tenders of others were rejected the authority can have a negotiation with the person whose tender was accepted by following a fair and transparent manner.
30. Regarding reason to be recorded by the Purchase Board, Mr. B.K. Sharma, learned counsel relies on -
1. 1995 (III) GLT 124 (Progoty Supply and Co-operative Society Ltd. and Anr. v. State of Assam and Ors.). That case instead of helping the petitioner helps the respondents inasmuch in para 27 and 45 the law has been laid down as follows:
'The Government must have the freedom of contract. In other words, a free play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tests by the application of Wendesbury Principle of reasonableness, but must be free from arbitrariness not affected by bias or actuated by mala fides.
Administrative authority while awarding contract must have the right to choose the best tenderer and at the best price. The authority may also look to the capacity of the tenderers as to whether the tenderer would not be able to complete the job. The administrative authority is also required to consider about the consequence of the tenderer failure to perform the job. It is, therefore, all the more necessary for the administrative authority to have some free play at the joints. If so much of freedom is not given it may sometimes lead to a chaotic condition."
31. In the case in hand also in the Govt. affidavit there is a statement that the petitioner in WP(C) 6197/99 Basanta Kr. Agarwalla failed to perform the job given to him earlier and that aspect of the matter also was taken into consideration.
2. 1994(1) GLJ 124 (Smti. Zuchibeni Lotha and 29 Ors. v. State of Nagaland and Ors.). In that case nowhere I find that in awarding a contract reasons are to be given.
3. 1997(1) GLT 266 (Chavalier Enterprise v. The State of Assam and Ors.). There is an observation that the reason why the lower price was not acceptable, it should be spelt out by the settling authority and be reflected in the order of settlement or on record.
32. In the case in hand, as indicated above, there is a Manual which gives the life for each and every items and durability must have been taken into consideration by the Purchase Board and on that count, that reasons to the satisfaction of the petitioner was not given, cannot be accepted. A bare reading of the minutes will show that sufficient materials have been provided as to why allotment was made to a particular person. Further the case cited by Mr. Sharma, learned counsel was a case of settlement not on the basis of samples. When it is an allotment on the basis of samples, the approach will be different.
33. Mr. B.K. Sharma, learned counsel further relies on (1997) 2 GLR 215 (Bhagya Kalita v. State of Assam & Ors.). There the finding was that the action of the State Govt. in giving the contract to respondent No. 8 was not transparent, just and fair. That is not the position in the case in hand. Accordingly, this case also does not help the petitioner.
34. Further, he relied on (1983) 1 GLR (NOC) 66 (Prag Saikia and Ors. v. Bishnu Ram Bora and Ors.). That was a case with regard to settlement of an excise shop. Excise shop is governed by a set of Rules. That is not the case in hand. Here it is governed by the Executive instructions and/or Procedure in the Manual prescribed. So, this case is of no help to the petitioner. In view of that, this contention also shall fall through.
35. The power of the Court to interfere, in the field of contract by Government or instrumentality of State has crystallised. The Court does not act as Court of appeal but merely reviews the manner in which the decision was made, particularly as the court does not have the expertise to correct the administrative decision. If a review of the administrative action is permitted it will be substituting its own decision which itself may be falliale. The duty of the court is to confine itself to the question of legality. It concern should be (i) whether the decision making authority exceeded its powers, (ii) committed an error of law in decision making process, (iii) committed a breach of the rules of natural justice, (iv) reached a decision which no reasonable man could have reached, (v) abused its powers (see Mausukhbal v. State of Gujarat : 1997 (7) SCC 622). In Wednesbury case it was pointed out that the decision could be one of many choices open to the authority, but it was for that authority to decide upon the choice and not for the court to substitute its view. To characterise on administrative decision as irrational the court has to hold on materials, that it is a decision so outrageous as to be in total defiance of logic or moral standards. The Supreme Court in 1997 (7) SCC 463 (Union of India v. G Anunyatham) pointed out that in India the position of administrative law where no fundamental right is involved that courts will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and C.C.S.V. principles as stated by Lord Diplock (reported in para 13 of the judgment) respectively to find if the executive or administrative authority has reasonably arrived at its decision as the primary authority. The Supreme Court in 1997(1) SCC 738 (Asia Fondation v. Trafalgar House) lays down that though the principle of judicial review cannot be denied so far as exercise of contractual powers of Government bodies are concerned. But it is intended to prevent arbitrariness or favouritism and it is exercised in the larger public interest or if it is brought to the notice of the court that in the matter of award of a contract power has been exercised for collateral purpose. It is not within the permissible limits of the court of law, particularly when there has been no allegation of malice or ulterior motive and particulary when court has not found any mala fide or favouritism in the grant of contract in favour of a successful bidder.
36. In the case in hand tenders were invited, all the tenders including those of the petitioners were considered, comparative statements were prepared, samples submitted along with the tenders were scrutinised, and taking into account durability (as life of each item is, prescribed), colour and quality of the goods allotments were made. No doubt in that process always the lowest bid was not accepted. But the question is whether that itself is such an arbitrary action to strike down the process? In the case where Shri P.K. Kalita, advocate appears for the respondent it has been pointed out in the affidavit-in-opposition that the total requirement of kicces is 24,000 (twenty-four thousand), but the production capacity of the petitioner in that Civil Rule for that item is 10,000 (ten thousand) annually and that aspect was rightly taken into consideration. Even with regard to the cloth in Item No. 9, though not strictly permissible, I examined the samples of cloth of the petitioner, submitted with the tender and of the successful bidder. The cloth is from the same Mill 'Binny', but the sample of the successful bidder is a later product as certified by the Mill and on feel as a layman I found it to be a better material and of a better colour. The learned Govt. Advocate boldly submitted that he is ready and willing to produce each and every sample accepted to be compared and examined by the court but I feel that as a layman this will be a futile exercise on my part. I examined one sample only to satisfy myself with the plea put forward that quality of goods of the same mill will be same and there is no justification to accept the higher bid. That is not the situation, one sample is of earlier period, the accepted sample is of later period and a much better quality,
37. In the Asia Foundation case (supra) the Apex Court also pointed out that court must keep in mind the cost escalation as a result of delay that would be caused by its interference, and should avoid order of rebidding if it is against public interest.
38. It is further the law to establish mala fide exercise of power it must be shown by the petitioner that the power was exercised with an ulterior motive and with an object to defeat the claim of the person interested. But when valid reason/ground can be discerned in the action of the authority from the materials it shall not be mala fide exercise. A decision must not be the rules of thumb. If it can be gathered or demonstrated that the foundation of the decision is for wrong motives or on irrelevant grounds or arbitrary or unreasonable the court may exercise the power. Regarding reasons to be recorded/ stated I quote below a passage from Administrative Law by Wade 7th Edn. Page 402 "Reasonabless does not require reasons to be stated. The only significance of withholding reasons is that if the facts point overwhelmingly to one conclusion, the decision maker cannot complain if he is held to have had no rational reason for deciding differently and in the absence of reasons he is in danger of being held to have been acted arbitrarily". The writ court must guard and give protection to a citizen against transgression made by the executive. But the court must be prudently cautious in such a matter, in the garb of affording such protection, the Court must not take the virtual control of the administration. For each and every infraction the court must not step in to set at naught an administrative action arrived at by the deliberation and proper application of mind, such a decision though may not be perfect yet it does not call for interference if otherwise it is not arbitrary and absurd. It is that yardstick/measuring rod which I have applied in the matters and I find that the decision making process does not suffer from avice which calls for interference at the hand of the court. In this connection I quote a passage from the Book Freedom under the Law by Lord Denning (page 102) "one of the most important tasks of the courts is to see that the powers of the executive are properly used, that is used honestly and reasonably for the purposes authorised by Parliament and not for any ulterior motive". In the case in hand the Purchase Board had to select a large numbers of items for its Police Fora and it did so by looking at the samples submitted with the tender according to quality and durability. The exercise was honest and reasonable. A person not given/bestowed a benefit by the authority may always approach a forum and advance hair splitting arguments to establish/demonstrate some mistake/deviation in the decision making process, but that itself is not adequate/sufficient to strike down the process, there must be something more, it must lead to injustice in general. A mala fide exercise of power does not necessarily imply any moral turpitude as a matter of law. It only means that the power is exercised for purposes foreign to those for which it is intended vested. In other words the power vested utilised/ used for some indirect purpose not connected with the purpose or object. It must be such exercise from which law will imply evil intent. The exercise of power must be without just cause or excuse or for want or reasonable or probable cause. The courts may declare administrative acts to the invalid for manifest unreasonableness.
39. All these writ applications shall stand dismissed. Stay order, passed earlier shall also stand vacated. No costs.