IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 WP(C).No. 15570 of 2008(C) -------------------------------------- PETITIONER: ------------------- M/S.ZOOM DEVELOPERS PVT.LTD., 5TH FLOOR, 'C' BLOCK, DEVCHAND HOUSE, SHIVSAGAR ESTATE, DR.ANNIE BESANT ROAD, WORLI, MUMBAI - 400 018, REPRESENTED BY ITS VICE PRESIDENT, MR.MINOO PARDIWALLA. BY ADV. SRI. A.M. SHAFFIQUE (SR), ADV. SRI. SANTHOSH MATHEW, ADV. SRI.SATHISH NINAN. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PORTS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. VIZHINJAM INTERNATIONAL SEAPORT LTD., 115, 3RD FLOOR, TANS TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014 REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER. 3. IL & FS INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED, IST FLOOR, AUM PLAZA, # 76, 3RD CROSS, NEAR HOTEL BALLAL RESIDENCY, RESIDENCY ROAD, BANGALORE - 560 025 REPRESENTED BY ITS SENIOR VICE PRESIDENT SAIBAL K DE. 4. LANCO KONDAPALLI POWER PVT LTD. LANCO HOUSE, 141 AVENUE, 8 BANJARA HILLS, HYDERABAD, ANDHRA PRADESH, REPRESENTED BY ITS MANAGING DIRECTOR. W.P.(C). NO.15570/2008-C: *ADDL.R5. PORTIA MANAGEMENT SERVICES LTD., MARITIME CENTRE, PORT OF LIVERPOOL, L 21, ILA, U.K. REPRESENTED BY ITS POWER OF ATTORNEY HOLDER MINOO PARDIWALLA. *IS IMPLEADED VIDE ORDER DATED 17/06/08 IN I.A. NO. 7587/08. R1 BY ADVOCATE GENERAL SRI. C.P. SUDHAKARA PRASAD, R1 BY GOVT.PLEADER SRI. T.B. HOOD, R2 BY ADV. SRI. K. GOPALAKRISHNA KURUP, R3 BY ADV. SRI. V. CHITHAMBARESH (SR.) R3 BY ADV. SRI. JACOB SEBASTIAN, R4 BY ADV. SRI.RAJEEV NAYYAR (SR.), R4 BY ADV. SRI. ABRAHAM VAKKANAL (SR.), ADDL.R5 BY ADV. SRI.M.K.DAMODARAN (SR.). ADDL.R5. BY ADV. SRI. GILBERT GEORGE CORREYA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/06/2008, THE COURT ON 03/07/2008 DELIVERED THE FOLLOWING: W.P.(C). NO.15570/2008-C: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REQUEST FOR PROPOSAL FOR CONSTRUCTION OF INTERNATIONAL DEEPWATER SEAPORT & CONTAINER TRANSHIPMENT TERMINAL. EXT.P.2: COPY OF THE QUALIFICATION CRITERIA FOR DEVELOPMENT OF VIZHINJAM PORT. EXT.P.3: COPY OF THE NOTIFICATION EXTENDING BID SUBMISSION. EXT.P.4. SERIES: COPY OF THE REQUEST FOR PROPOSAL ISSUED BY THE GOVERNMENT OF KERALA. EXT.P.5: COPY OF THE REQUEST FOR PROPOSAL SUBMITTED BY THE PETITIONER DT. 31/01/2008. EXT.P.6: COPY OF THE STATEMENT OF QUALIFICATION FORM SUBMITTED BY THE PETITIONER. EXT.P.7: COPY OF THE TECHNICAL PROPOSAL SUBMITTED BY THE PETITIONER DTD. NIL. EXT.P.8: COPY OF THE LIST OF CONSORTIUMS SUBMITTED BIDS FOR THE VISHINJAM PORT PROJECT DTD. 31/03/2008. EXT.P.9: COPY OF THE COMMUNICATION OF THE R.3. DTD. 03/03/2008. EXT.P.10: COPY OF THE PETITIONER TO MR. SAIBAL K. DE, SR. VICE PRESIDENT OF THE R.3. DT. 10/03/2008. EXT.P.11: COPY OF THE COVERING LETTER OF THE PETITIONER TO THE R.3 DTD. 13/03/2008. EXT.P.12: COPY OF THE BOARD RESOLUTION OF THE PETITIONER COMPANY HELD ON 27/09/2007. EXT.P.12.A: COPY OF THE BOARD RESOLUTION OF PORTIA MANAGEMENT SERVICES LTD. HELD ON 01/10/2007. EXT.P.12.B: COPY OF THE BOARD RESOLUTION OF PETER FRAENKEL & PARTNERS LTD. HELD ON 12/09/2007. EXT.P.13: COPY OF THE OLD CONSORTIUM AGREEMENT DTD. 04/10/2007. EXT.P.14: COPY OF THE LETTER OF THE R.3. TO THE PETITIONER DT. 17/03/2008. EXT.P.15: COPY OF THE LETTER OF THE R.3. TO THE PETITIONER DT. 19/03/08. EXT.P.16: COPY OF THE REQUEST OF THE R.3. TO THE PETITIONER DT. 20/03/2008. EXT.P.17: COPY OF THE COMMUNICATION ISSUED BY THE R.3. TO THE PETITIONER DTD. 27/03/2008. W.P.(C). NO.15570/2008-C: EXT.P.18: COPY OF THE COVERING LETTER SUBMITTED BY THE PETITIONER TO THE R.3. DTD. 02/04/2008. EXT.P.19: COPY OF THE LETTER OF THE PETITIONER TO THE REGISTRAR/SUB REGISTRAR DT. 24/03/2008. EXT.P.20: COPY OF THE POWER OF ATTORNEY DTD. 18/10/2008. EXT.P.21: COPY OF THE CONSORTIUM AGREEMENT DT. 18/10/2007. EXT.P.22: COPY OF THE COVERING LETTER DTD. 07/04/2008. EXT.P.23: COPY OF THE LETTER WITH THE BOARD RESOLUTION SUBMITTED BY THE PETITIONER DTD. 09/04/2008. EXT.P.24: COPY OF THE NEWS ITEM PUBLISHED BY `THE HINDU' DAILY DTD. 15/05/2008. EXT.P.25: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DTD. 19/05/2008. EXT.P.26: COPY OF THE NEWS ITEM PUBLISHED IN `BUSINESS LINE' DTD. 24/05/2008. EXT.P.27: COPY OF THE BOARDING PASS ISSUED TO MR. ARUN ALTAKER FOR TRAVELLING TO MUMBAI TO LONDON AS WELL AS THE TRAIN TICKETS AND THE HOTEL BILLS. RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE NOTIFICATION PUBLISHED IN THE HINDU-BUSINESS LINE DTD. 08/08/2007. EXT.R2.B: COPY OF THE MINUTES OF THE MEETING OF THE BID OPENING COMMITTEE DTD. 31/01/2008. EXT.R2.C: COPY OF THE POINTS CONSIDERED IN RESPECT OF THE PETITIONER. EXT.R2.D: COPY OF THE MINUTES OF THIS MEETING. EXT.R2.E: COPY OF THE MINUTES OF THIS BID EVALUATION COMMITTEE MEETING DTD. 08/04/2008. EXT.R2.F: COPY OF THE MINUTES OF THE COMMITTEE DTD. 06/05/2008. //TRUE COPY// prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).No.15570 of 2008-C = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of July, 2008. JUDGMENT 1.The second respondent, a Government of Kerala undertaking, hereinafter referred to as “Sponsor”, was appointed by the Government of Kerala as the Nodal Agency for development of a modern, all weather, deep-water seaport and container transshipment hub at Vizhinjam in Thiruvananthapuram District, Kerala, with focus on International Container Transshipment on BOOT (Build, Own, Operate and Transfer) basis. The Government of Kerala is the Licensor for that project. The Sponsor accordingly invited proposals from private developers/investors. The third respondent, hereinafter, the “Advisor”, for short, was appointed the Strategic Advisor for project development, bid process management and WP(C)15570/2008 -: 2 :- selection of developer. M/s.L&T-RAMBOLL Consulting Engineers Limited, in association with ROGGE Marine Consulting GMBH, Germany, RAMBOLL, Denmark and L&T Capital Company Limited were appointed Technical Consultants, having carried out feasibility studies. 2.The petitioner was one among those who submitted proposals in terms of Ext.P1 Request for Proposals. This writ petition is filed seeking a declaration that the stand taken by respondents 1 to 3 treating the proposal submitted by the petitioner's consortium as non-responsive is arbitrary and illegal and violative of Articles 14 and 19(1)(g) of the Constitution of India. A further direction commanding those respondents to open the technical bid and financial bid submitted by the petitioner and to take steps to award the tender to the consortium which has submitted most competitive bid, is also sought for. WP(C)15570/2008 -: 3 :- 3.In paragraph 9 of the writ petition, it is pleaded that the proposal by the petitioner's consortium consisting of Zoom Developers as the Lead Member, Portia Management Services and Peter Frankel and Partners as members was submitted on 31-1-2008. According to the petitioner, five consortia submitted bids on that day, as is evidenced by Ext.P8. The petitioner contends that the third respondent evaluated the bids submitted by the petitioner and issued Ext.P9 communication making six observations, including that Portia Management Services has signed the consortium agreement on behalf of Peel Ports Limited but Peel Ports Limited is not a member of the consortium and that necessary documentations from various consortium members authorizing the signatories of the different documents have not been submitted along with the bid. It is contended that in terms of the direction contained in Ext.P9, the petitioner collected the WP(C)15570/2008 -: 4 :- documents from the third respondent and as per Ext.P11, the petitioner forwarded the documents enumerated therein and reiterated in paragraph 15 of the writ petition. Thereafter, according to the petitioner, the third respondent had granted time to place further materials as were required, which, according to the petitioner, were provided and hence, the petitioner bona fide believed that in view of the clarifications/supporting documents submitted by it and because the third respondent did not call for any further clarification, the Statement of Qualification of the petitioner's consortium would be found to be substantially responsive to the requirements set forth in the proposal and that the bid submitted by the petitioner would be found to be in order leading to their technical and financial proposals also being opened. The petitioner says that Ext.P24 brought home the information that the fourth respondent has been selected for the work and that the petitioner thereupon had WP(C)15570/2008 -: 5 :- certain discussions with the Minister for Ports in the Government of Kerala and also with different other authorities. The writ petition is hence filed challenging the exclusion of the petitioner's consortium by treating its proposal as non-responsive. 4.In pith and substance, the plea of the petitioner is that the consortium led by it had submitted the proposal which was responsive in terms of the requirements of Ext.P2 Qualification Criteria and all relevant requirements in terms of the invitation for proposals and that the petitioner's consortium having answered all the queries of the third respondent and having provided all clarifications and further supporting documents, there was no reason to treat the proposal of the petitioner's consortium as non-responsive, thereby excluding it from the zone of consideration after the initial stage. WP(C)15570/2008 -: 6 :- 5.The relief sought for in the writ petition is essentially for a direction that the proposal of the petitioner's consortium be treated as responsive and hence, for appropriate direction, to have the evaluation of the technical bid on the basis of which the financial bid could also be considered. 6.As directed by this Court, the first respondent has placed on record the report of the High Level Committee, constituted for the purpose of evaluating the bids in so far as it related to the petitioner's bid. 7.The second respondent Sponsor has filed a counter affidavit. It is has contended that as per a Government Order dated 23-1-2008, the Government constituted a Bid Opening Committee to open the bids and constituted an Evaluation Committee chaired by the Chief Secretary, as per Government Order dated 19-2-2008 to evaluate the bid WP(C)15570/2008 -: 7 :- proposals. The bids were received from five consortia. The Outer Cover and Cover No.1 (Statement of Qualification) of the bids were opened on 31-1-2008 by the Bid Opening Committee in the presence of the representatives of the bidders and the contents of the Outer Cover were read out. The Evaluation Committee met jointly with the Advisor, on 25-2-2008, 13-3-2008, 8-4- 2008, 6-5-2008, 7-5-2008 and 14-5-2008 for evaluation of the bid proposals. The Bid Evaluation Committee, along with the Advisor, considered the bid received from the petitioner's consortium along with those of the other bidders, at the meeting held on 25-2-2008. The Bid Evaluation Committee, sitting jointly with the Advisor, as evidenced by Exts.R2(c) and R2(d), found that further additional informations from the petitioner in respect of three different matters were required, namely, the Annual Reports of last three years with all schedules up to December, 2008; the Annual Reports for the last WP(C)15570/2008 -: 8 :- three years relating to Portia Management Services Limited; and Annual Report of Peter Frankel & Partners, UK. After the receipt of further documents as resubmitted, a meeting of the Committee was again held jointly with the Advisor, on 8-4-2008 and remarks were submitted by the Advisor to the Bid Evaluation Committee as regards the petitioner. The comparison made between the original documents submitted and the observations made thereon and the revised documents obtained and the observations regarding compliance are noted in a tabular form in paragraph 9 of the counter affidavit of the second respondent, the Sponsor. The Advisor also pointed out the matters which needed to be considered by the Law Department of the Government of Kerala. Those are also enumerated in paragraph 9 of that counter affidavit. On 8-4- 2008, the Bid Evaluation Committee found it necessary to consider the reasonableness of the bids submitted by the consortium led by the WP(C)15570/2008 -: 9 :- petitioner, keeping in view the agreement dated 4-10-2007. The Committee also took note of the remarks of the Law Firm consulted by the Advisor and decided to seek the views of the Secretary (Law) in the Government of Kerala. A detailed examination was required to ascertain whether the documents submitted would comply with the provisions of law and the bid documents. That was provided by the Secretary (Law). The Bid Evaluation Committee met thereafter and considered the opinion of the Secretary (Law) that the changes made by the petitioner in the agreement dated 11-3-2008 make it a totally new agreement and that M/s.Portia Management Services Limited had signed on behalf of M/s.Peel Ports Limited, which is the principal contracting agency as per the agreement dated 4-10-2007 and that no document was produced in support of the authorization of M/s.Portia Management Services by M/s.Peel Ports Limited in that regard, while the new agreement dated 11-3-2008 produced by the WP(C)15570/2008 -: 10 :- petitioner had changed the contracting party by substituting M/s.Portia Management Services Limited as the contracting party instead of M/s.Peel Ports Limited. Accordingly, the view taken was that there was a change in the constituents of the consortium and hence, the bidding parties, as per the new agreement created after the opening of the bids for the project, which change of bidding parties after submission and opening of bids is not permissible. It is also contended that the Secretary (Law) had opined that the new consortium agreement of the petitioner's consortium did not answer the requirement as stipulated in the request for proposal and that the Committee, with the Secretary (Law) participating in the deliberations as a Special Invitee along with the Advisor, considered the opinion and after due deliberations had unanimously concluded that the bid submitted by the petitioner was non- responsive/non-admissible as per the bid WP(C)15570/2008 -: 11 :- provisions. 8.Portia Management Services Limited applied for impleadment in the writ petition as per I.A.7587/2008. That has been allowed listing it as the additional fifth respondent. 9.Pleadings are also on record in the form of reply affidavit and statement on behalf of the additional fifth respondent. 10.In considering the case, the nature of the invitation for bids needs to be clearly understood. The Request for Proposal, hereinafter referred to as “RFP”, provides for the submission of the proposal along with a covering letter in the format given at Annexure-3 to the RFP. The bidders are to submit their completed, detailed proposal in accordance with the THREE-cover system in terms of Clause 15 of Section IV of Ext.P4; Cover 1 containing the Statement of WP(C)15570/2008 -: 12 :- Qualification with supporting documents, Cover 2 containing Technical Proposal and Cover 3 containing the Financial Proposal. The said three separate envelopes are to be sealed by the bidders superscribing on them the identity of the cover in terms of that clause of Ext.P4. Clause 21 of Section IV of Ext.P4 provides for opening of proposals by Sponsor. It enjoins that Cover 2 (Technical Proposal) of only those bidders who have passed the Qualification Criteria shall be opened and evaluated and Cover 3 (Financial Proposal) of only those bidders who become eligible after the evaluation of technical proposals shall be opened. Thus, the Outer Cover and Cover 1 containing the Statement of Qualifications of all the bidders who submitted the proposals are to be opened before consideration of Cover 2(Technical Proposal). Clause 22 of Section IV of Ext.P4 provides that the Sponsor shall examine the proposals to determine whether they are complete and any WP(C)15570/2008 -: 13 :- proposal found to be non-responsive for different reasons mentioned in Clause 22.1 will be rejected and not included for further consideration. This includes, among other reasons, inconsistencies between the proposal and the supporting documents. 11.In its meeting held on 8-4-2008 with the Secretary (Law) as Special Invitee, in so far as the consortium led by the petitioner is concerned, the Bid Evaluation Committee noted that the reasonableness of that bid needs to be ascertained keeping in view the consortium document dated 11-3-2008. The Secretary (Law), after scrutiny of the documents submitted, informed that a detailed examination was required to ascertain whether the documents submitted would comply with the provisions of law and the RFP documents. In view of that, Clauses 4.2 and 4.3 of the Minutes of the 3rd Meeting of the Bid Evaluation Committee held on 8-4-2008 show WP(C)15570/2008 -: 14 :- that it was decided that the Committee will decide on evaluation of the Qualification Criteria for the consortium led by the petitioner and opening of their Technical Bid, after receiving the opinion of the Secretary (Law) and that the Technical Bid of the three consortia who have been found to comply with the provisions of RFP (Outer Envelope submissions) and meet the Qualification Criteria, be opened. 12.Agenda notes for the 4th Meeting of the Bid Evaluation Committee held on 6-5-2008 were circulated with the opinion of the Secretary (Law) and on 6-5-2008, after considering the opinion of the Secretary (Law), the Committee including the Special Invitee, Secretary (Law) unanimously concluded that the bid submitted by the consortium led by the petitioner is non- responsive/non-admissible in terms of RFP provisions. WP(C)15570/2008 -: 15 :- 13.Though materials are placed to refer to the financial status of Portia Management Services Limited and Peel Ports Limited, independently and collectively, and different submissions are made to show that Portia Management Services Limited is essentially a subsidiary of Peel Ports Limited and therefore, the financial status of Peel Ports Limited and Portia Management Services Limited have to be considered and applied accordingly, such considerations do not really arise for decision in this case for the simple reason that the Bid Evaluation Committee has not rested its decision on that aspect at all. This is unequivocally clear from the fact that the decisions in the meeting of the Bid Evaluation Committee on 8-4-2008, as regards the consortium led by the petitioner, never rested on any consideration regarding the financial status of either Peel Ports Limited or Portia Management Services Limited. This is abundantly explicit from the fact that as evidenced by Clause 2.5 of WP(C)15570/2008 -: 16 :- the Minutes of the Meeting dated 8-4-2008, the Bid Evaluation Committee had decided that the decision regarding evaluation of Statement of Qualifications as regards the consortium led by the petitioner can be taken after the opinion of the Secretary (Law) is obtained. Thus, what fell for the opinion of the Secretary (Law) was the consortium agreement and it was such opinion that was to be considered by the Bid Evaluation Committee which met subsequently on 6-5-2008. It is also apparent from the opinion given by the Secretary (Law) that the opinion was confined to the consortium agreements, including the supplemental agreement and the terms of the consortium agreement. Therefore, even if the petitioner succeeds in this writ petition, the process will have to commence from the stage of the decision of the Bid Evaluation Committee recorded at Clause 4.2 of the Minutes of the Meeting of the Bid Evaluation Committee held on 8-4-2008 to the effect that the Committee will WP(C)15570/2008 -: 17 :- decide on evaluation of Qualification Criteria for the consortium led by the petitioner and opening of their technical bid, after receiving the opinion of the Secretary (Law). So much so, the controversy raked up in this writ petition, on either side, with reference to the financial status of either Portia Management Services Limited or Peel Ports Limited, is not germane for a decision in the case in hand. 14.The decision of the Bid Evaluation Committee on 6-5-2008 concluding that the bid submitted by the consortium led by the petitioner is non- responsive/non-admissible in terms of RFP provisions, is founded on three limbs of the opinion given by the Secretary (Law). The first is that the consortium agreement dated 4-10-2007 was signed by M/s.Portia Management Services Limited on behalf of M/s.Peel Ports Limited, though no such authorization is found issued in that regard by M/s.Peel Ports Limited. The WP(C)15570/2008 -: 18 :- second is that in the new consortium agreement dated 11-3-2008, M/s.Peel Ports Limited, the party to the consortium as per the consortium agreement dated 4-10-2007 has disappeared and M/s.Portia Management Services Limited has come in the picture as a party to the consortium agreement and that such a change has been made after the submission of the original bid documents, without explaining under whose authority such change has been made in the consortium. The third limb of the legal advice was that as per the eligibility criteria for the bidder, as specified in Clause 3.5 of Section IV of RFP, all members of the consortium are required to state that they shall be jointly and severally liable for the execution of the project and a statement to that effect shall be included in the consortium agreement. But, instead of incorporating such a clause in the consortium agreement, it is stated therein that the members of the consortium shall be jointly and severally WP(C)15570/2008 -: 19 :- responsible at every stage of the implementation of the project. The opinion is that “liability is different from responsibility”. Apart from these basic reasons, in the opinion of the Secretary (Law), the consortium agreement dated 11-3-2008 and the earlier one of 4-10-2007, taken together, show that the earlier one became a non-entity by the creation of the latter. 15.Clause 29.1 of Section IV of Ext.P4 states that the law applicable for the RFP documents would be Indian Law. Clause 2 of the said Section provides, among other things, that consortium agreement to be entered into among the members of the consortium is to be submitted on the proposal due date. Clause 3.5 provides that all members of the consortium shall be jointly and severally liable for the execution of the project in accordance with the terms of the Licence Agreement and a statement to that effect shall be included in the Consortium/Share Holder's WP(C)15570/2008 -: 20 :- Agreement. Clause 4.1.e. provides that a copy of the consortium agreement entered into by and among the members of the Consortium and the Lead Member shall be submitted with the proposal and the Consortium Agreement shall be specific to the proposal in question and shall clearly allocate responsibilities and duties between the Members and the Lead Member, including percentage of shareholding and still further, notwithstanding that, the Consortium Members shall be jointly and severally liable to Licensor for implementation of the project. From the aforesaid clauses, two things are clear. The Sponsor and the State Government as the Licensor had clearly called upon the proposer to categorically state that all the members of the consortium shall be jointly and severally liable and that such a statement shall be included in the Consortium/Share Holder's Agreement. Secondly and more importantly, any distinction between the terms “responsibility” and “liability” or any possible WP(C)15570/2008 -: 21 :- identity of meaning between those terms has been clearly understood and contrasted by the Sponsor and the Licensor, while they categorically stated in Clause 4.1.e. of Section IV of Ext.P4 requiring that the Consortium Agreement shall clearly allocate responsibilities and duties between the Members and the Lead Member and notwithstanding such statement, the Consortium Members shall be jointly and severally liable. Therefore, even though the petitioner wants it to be held by this Court that there is really no difference between “liability” and “responsibility” and that therefore, it is of no consequence that the word “liability” was not used in the consortium agreement, I am clear in my mind that the invitation to offer by holding out Ext.P1 Request for Proposal and the issuance of Ext.P4 have been made by the State Government as the Licensor and the second respondent as the Sponsor, understanding that there is a clear cut distinction between the terms “responsibility” WP(C)15570/2008 -: 22 :- and “liability” for the purpose of interpreting the provisions of Ext.P4 RFP Document. The privilege in this regard has essentially to be that of the Sponsor and/or the Licensor. It cannot be left to the reasoning of any bidder or proposer. This is all the more so because, in dealing with a project of international importance, huge public interest and ultimate turnover in public funds, the Sponsor and the Government are expected to act with the greatest sense of responsibility and caution and are, therefore, entitled to require the inclusion of such term as, in their wisdom,