WP(C) 3413/2010 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY The decision of the Gauhati Municipal Corporation, Guwahati (hereafter referred to as the Corporation) to award the work of Construction of Drain cum Footpath from Ganesh Mandir to Lakhimijan at Hatigaon with culverts/drain for trapping su rface water at Kahilipara junction under devolution of fund of 3rd Assam State F inance Commission (Non-salary component) for the year 2009-2010 in favour of th e respondent No. 4 herein in a process initiated by the short tender notice date d 17/5/2010 issued by it is the subject matter of impugnment in the instant proc eeding. The petitioner has been one of the participating contenders for the work . This Court by order dated 18/6/2010 has directed maintenance of status quo wit h regard to the execution of the work in question. 2. I have heard Mr. A.K. Goswami, Sr. Advocate for the petitioner, Ms. H.M. Phukan, learned State Government, for the respondent No. 1, Mr. S. Bora , learned Standing Counsel for the Corporation and Mr. K. Agarwal, Advocate for the respondent No. 4. 3. The pleaded version of the petitioner is that he is a registered Class-I(A) contractor under the Public Works Department, Government of Assam an d has meanwhile successfully completed various projects awarded to him by this D epartment along with other departments of the Government, in particular the cons truction/improvement works of Roads/Drains/Culverts/Box-culvert for a tender amo unt of Rs. 7,55,74,118/- in the year 2009. He has claimed long experience in han dling big contracts apart from being equipped with necessary resources to mobili se all types of equipments and machineries for successful and timely execution o f such works. In response to the tender notice dated 17/5/2010 issued by the Com missioner of the Corporation inviting sealed tenders in prescribed forms from re puted bonafide/registered contractors of various departments having experience i n civil construction of Roads/Drains/Buildings etc. for the above captioned work , the petitioner submitted his tender in compliance with all conditions stipulat ed therein. The NIT inter alia mentioned the estimated value of the work to be R s. 2,22,76,975/-. All together five tenderers including him were in the fray. Ev entually on 26/5/2010, the tenders submitted were opened and a comparative state ment on the basis thereof was prepared which reflected the bid amounts vis-à-vis the contenders as hereinbelow. Sl. No. Name of Contractor/Firm Tender quoted amount (In Rs.) 1 Durgamal Jain Contract Pvt. Ltd. 2,36,38,838.20 2 Nizara Construction 2,24,28,278.00 3 Young Construction, Respondent No. 4. 2,22,62,796.00 4 Maicreom Builders 2,00,49,278.00 5 Muslim Ali, Petitioner 2,00,49,277.50 4. The above figures therefore disclose that the bid offered by the petitioner was the lowest amongst the valid tenderers. The petitioner thus was while under the bonafide expectation that in view of his experience and capabili ty, the settlement would be made in his favour, he came to learn that on 5/6/201 0 the works had been awarded in favour of respondent No. 4 who was the 3rd highe st tenderer by disregarding his bid. The petitioner has stated that inspite of h is sincere efforts, he could not obtain a copy of the preliminary work order and , therefore, could not annex the same to the writ petition. The petitioner has a ssailed the decision to be malafide, unreasonable and arbitrary thus seeking jud icial intervention. 5. The Corporation in its affidavit has elaborated that the princip al objective of the project is to relieve the campus of the Assam Secretariat an d the areas adjoining thereto from artificial water logging due to heavy showers with the onset of monsoon. In order to prevent such water logging and to allevi ate the inconveniences and impediments caused as a result thereof, the construct ion of a drain cum footpath from Ganesh Mandir to Lakhimijan at Hatigaon with co nstruction of culverts/drains for trapping surface water at Kahilipara junction under was contemplated and accordingly a public participatory process was initia ted for selecting the most suitable contractor for execution thereof. 6. According to the answering respondent, out of the valid tenderer s, the respondent No. 4, M/s Young Construction was identified to be the only bi dder out of them having the experience in construction of similar nature of drai ns, culverts etc. in the environment existing in Guwahati city to the tune of Rs . 3.48 Crores in a single work. It has been asserted that construction of work o f drains, culverts, footpaths etc. in the busy road like R.P. Road and Hatigaon Road without interrupting normal traffic and handling of overhead electrical lin es/electrical post/underground cables/water pipes etc. demand past experience in similar working conditions for timely completion of the work. Though the petiti oner and M/s Maicreom Builders were lowest and second lowest bidders respectivel y, it was in the above perspective decided that a tenderer possessing past simil ar experience in executing similar works in Guwahati city ought to be extended t he preference so as to avoid future hassles and delay in the execution of the wo rk. 7. The answering respondent further clarified that the petitioner a nd M/s Maicreom Builders as their credentials disclose had their experience in c onstruction of drains and roads in rural and national highways but none for simi lar works at busy roads of Guwahati City area. While denying the allegations of malafide and collateral considerations levelled by the petitioner, the Corporati on admitted to have issued the formal work order in favour of the respondent No. 4 after due evaluation of all the bids as well as on obtaining the approval of its Administrator on 5/6/2010. Execution of formal agreement in Form-2 with the respondent No. 4 on the same date inter alia covenanting for completion of the w ork within 180 days has also been mentioned. The Corporation has further stated that the respondent No. 4 meanwhile has commenced its work in view of the time f rame necessitated by the insistence of the House Committee of the State Assembly to obviate water logging in the capital area. 8. The respondent No. 4 in its counter while recording its claim of being a reputed contractor with 33 years of experience in civil construction of roads, drains, embankments etc. has reiterated the Corporation’s averments rega rding issuance of the work order and the agreement in Form-2. It has further ass erted that pursuant thereto it had commenced the work from 6/6/2010 and by 18/6/ 2010, the day on which the order of status quo had been passed by this Court, it had executed works valued at Rs. 5,70,694/-. It has mentioned that by that time building materials worth Rs. 15 Lakhs have been mustered and that due to the su spension of the work, not only the members of the general public are suffering g reat difficulties and hardship besides being exposed to lingering and potential risk of accidents in the busy area the situation has been compounded by frequent rains resulting in flash floods and water logging. The answering respondent too has refuted the imputation made by the petitioner bearing on the validity of th e impugned decision and has inter alia referred to the following works in its fa vour fortifying its preferential claim over the other tenderers for the project in question. Sl. No. Name of work Department Value of work (Rupees) Status 1 R.C.C. Drain cum Footpath at Khanapara Narengi Express Highway. P.W.D. 3,45,1700/- Completed within time. 2 Improvement of G.N.B. Road (providing GSB, WBM, BM, SDBC including sourc e drain from Ch. 4,700.00 to Ch. 6080.00M) widening and strengthening of four la ne under GDD during 2008-09. DO 2,88,36,000/- DO 3 Improvement of Narangi Chandrapur Road (providing stone masonry guard wa ll cum open drain, cross drainage and approach culvert at 6th K.M.) of Guwahati City Division No. III under Annual Plan (General) 2008-09. Do DO 9. It has contended that having regard to the terms and conditions contained in the NIT and the nature of the work to be executed, the lowest bid p er se was not decisive and thus has dismissed the petitioner’s challenge as misc onceived. 10. In his affidavit in reply, the petitioner while reaffirming his averments in the writ petition, has repudiated the justification offered by the Corporation to endorse the impugned settlement as purported, ostensible, brazenl y arbitrary and against public interest. He has pleaded inter alia that neither such a criteria had been disclosed in the NIT nor the same was relevant and has denounced the same to be a collateral consideration to favour the respondent No. 4. 11. Mr. Goswami has persuasively argued that as admittedly the petit ioners tender was valid in all respects, having regard to the covenants in the N IT, he on the basis of his experience in the execution of similar works ought to have been settled with the contract. As the NIT did not indicate even remotely the relevance of the experience of the bidding contractors in execution of simil ar works in Guwahati city in the process of their comparative evaluation for sui tability, the Corporation in acting on the same has resorted to a hidden criteri a rendering the whole process non-transparent, arbitrary and unfair, he urged. M r. Goswami argued that as the NIT with the terms and conditions embodied therein had professed the norms to guide the selection process, no flexibility mutilati ng against the same was permissible and, therefore, the departure has rendered t he pursuit irreversibly invalid. The learned Sr. Counsel has insisted that thoug h some leeway in favour of the Corporation in the exercise of its discretion may be allowable observance of the basic parameters cannot be departed from and thu s the impugned decision is void. Not only Mr. Goswami has maintained that the wo rking experience in Guwahati city having regard to the Grade-I contractors in th e fray, is impertinent to tilt the balance in favour of one of them, the decisiv e status accorded to it is not only a concerted act of favour towards the respon dent No. 4 but is stigmatic as well qua the petitioner. Referring to the various clauses of the NIT, the learned Sr. Counsel has also urged that the preference extended to the respondent No. 4 is in disregard thereof thus vitiating the impu gned settlement. To endorse his submissions, Mr. Goswami has placed reliance on the decision of the Apex Court in Ramana Dayaram Shetty versus International Air port Authority of India and others, (1979) 3 SCC 489, Shivsagar Tiwari versus Un ion of India and others, (1996) 6 SCC 558, Assam Electrical (M/S) versus North E astern Electric Power Corporation Ltd. and others, 2001 (1) GLT 604. 12. Reiterating the pleaded stand of the Corporation, Mr. Bora has c ontended that the impugned decision is on a valid consideration to further publi c interest and that, therefore, having regard to the limited scope of scrutiny b y this Court in the exercise of its writ jurisdiction, no interference is called for. 13. Mr. Agarwal while stoutly contending against the indictment of m alafide and collateral purpose has maintained that as experience has been prescr ibed to be a measure of suitability, the Corporation was perfectly justified in choosing the best amongst the eligible tenderers by extending preference to the respondent No. 4 who admittedly was the only candidate possessing considerable e xperience of executing projects with the working conditions attendant thereon. T he learned Counsel has urged that pursuant to the settlement, the respondent No. 4 meanwhile has made huge investment and that any interference with the impugne d order would not only result in irreparable loss and prejudice to him but would stall the prosecution of a public venture. As no challenge worth the name and e ntertainable in the yardstick of public interest is discernible, the petition is liable to be dismissed, he pleaded. He sought to draw sustenance from the decis ions of the Apex Court in Tata Cellular versus Union of India, AIR 1996 SC 11 an d BSN Joshi and Sons Ltd. versus Nair Coal Services and others, (2006) 11 SCC 54 8. 14. The rival pleadings and the arguments founded thereon have engag ed the cautious attention of this Court. That the tenders lodged by the parties contending for the works are valid and inconformity with the NIT stipulations is not disputed. As a matter of fact, it is apparent from the affidavit of the res pondent Corporation that the decision tilted in favour of the respondent No. 4, for being the only tenderer with the past experience of executing identical work s in the city of Guwahati. Reading between the lines, the tender notices (short and detailed) relate to the work of construction of drain cum footpath at a loca tion within the city limits of Guwahati. The estimated value of the work as per the Corporation is Rs. 2,22,76,975/-. That the project is a time bound one is al so obvious. The successful tenderer is expected to complete the works within a p eriod of 180 days from the date of the issue of the formal work order subject, h owever, to extensions that may be granted depending on the site conditions as we ll as the time required for statutory permission like earth cutting etc. For a t enderer to be eligible to be considered for the ultimate selection he/it has to be a bonafide/registered contractor of various State Departments having experien ce in civil constructions of roads/buildings etc. The detailed tender notice ind icates that it would be imperative for each tenderer to inform/familiarise himse lf with the location and site conditions, which may have any affect on the execu tion of the work and that in the evaluation of the offers it would be construed that all such factors have been investigated and considered. The duration clause in the tender notice signifies that time is the essence of the contract and the successful contractor has to start his work within seven days of handing over o f the site to him/it, Clauses 10 and 15 of the tender notice, which have a vital bearing, deserve to be extracted. 10 & Evolution of BID: The lowest quoted price amongst the qualified tenderers shall be considered as t he preferred tenderer subject to the price quote of the tenderer being nearest t o the minimum benchmark price fixed by the evaluation committee formed for evalu ating the tenderers. Any price quote lower than minimum benchmark price fixed by the evaluation committee shall not considered for selection. The minimum benchm ark price shall be fixed by the evolution committee after submission of the tend erers by the last date of submission to maintain transparency. Though preference will be given to experienced and financially s ound contractors past record of the contractors on timely executing a work will examine and on the basis of his earlier performance preference will be given. 15 & Experience in Similar Nature of Work: The tenderer must submit the details of work complete RELEVANT TO SIMILAR NATURE OF WORK. As per Form-1 of ternder document. As a proof, copied of work order or completion certificate indicating actual executed value and actual date of comp letion shall be submitted by the bidders. If necessary additional sheet may be e nclosed. Similar nature means experience in civil construction of roads/d rains/embankment etc. 15. In terms of hereinabove, the lowest quoted price amongst the qua lified tenderers would be preferred as a qualified tenderer subject to the facto r that the bid is close to the minimum bench mark price fixed by the evaluation committee. Any bid lower than the benchmark price would not be considered for se lection. Though preference is to be extended to experienced and financially soun d contractors, the past record on timely execution of works and earlier performa nce would be taken note of. The tenderer/contractor is required to set out the p rice of similar nature of works executed by him/it in Form 1 in the tender docum ent. Clause 15 in particular clarifies that similar nature would mean experience in civil construction of roads/drains/embankment etc. 16. A cumulative consideration of Clause 10 and 15 thus demonstrates that the lowest bid per se would not be a decisive factor to select a tenderer/ contractor for the work and that preference for his/its experience, financial so undness, past record, timely execution of work and quality of performance would also contribute to the ultimate decision. The pleadings on record, to reiterate disclose that the only ground of conclusive weightage in favour of the responden t No. 4 had been its experience in executing works of civil construction of road s/drains/embankments in the city of Guwahati. The respondent Corporation while a dmitting that the petitioner too has the experience in construction of drains an d roads in rural and national highways, has averred that it has no exposure to s imilar works on drains cum footpath abutting the busy roads of Guwahati city are a with overwhelming traffic and overhead electrical lines/posts/underground cabl es/water pipe lines/cable ducts/private properties/walls etc. to negotiate which some special expertise is warranted more particularly as the works are required to be completed within a time frame. 17. Noticeably that the respondent No. 4 is the only contending firm having such experience of executing projects of the kind similar to the one in hand in Guwahati is not denied by the petitioner. He does not claim as well that he too possesses the same experience qua Guwahati. Both the tenderers are regis tered Grade-I(A) contractors of the P.W.D. of the State and have to their credit successful executions of projects of various other State Departments as well. T hat local conditions would have an overall bearing on the execution of the works had been in the comprehension of the respondent Corporation from the outset is visible from the detailed tender notice requiring the tenderers to apprise and a cquaint themselves therewith in offering their bids. Evidently the tender notice does not indicate any precise term that experience in execution of similar work s in Guwahati City would earn preference for adjudging the ultimate suitability of a tenderer. The emphasis nevertheless is conspicuously on the experience in c ivil construction of roads/drains/embankments etc. At the first place, the exper ience insisted upon, in view of the premium assigned to it, require the contendi ng tenderers to disclose the specifications of all such works including those ex ecuted within the city limits of Guwahati, if any. The omission in the tender no tice to mention in particular about the preference for such works therefore does not have the potential of misleading the tenderers to withhold the particulars of the works if executed by them in Guwahati. As a matter of fact, the petitione r has not claimed any experience of negotiating such works in the City. The loca tion of the work site with the singular features thereof logically would have a vital bearing on the mode/strategy and the scheme of the implementation of the p roject. Past experience of tackling such situational challenges would be of defi nitive advantage vis-à-vis the time of execution and the quality of performance. 18. The official records of the respondent Corporation, on a perusal reveals that the past experience of the respondent No. 4 of construction of dra in cum footpath in Guwahati city had been the decisive criteria in its favour as it was noticed that none of the other eligible bidders possessed the same. The concerned authority of the Corporation in its note dated 5/6/2010 observed in ca tegorical terms that construction of drain cum footpath was a specialised work d ifferent from a road or a drain in the rural set up or in the outskirts on a nat ional highway and that therefore the respondent No. 4 ought to be accorded the w eightage of its past experience vis-à-vis Guwahti and to be assigned the work. T he same view, as the record reveals was shared at all the administrative levels culminating in the issuance of the work order in favour of this respondent. 19. A reference of the authorities cited at the Bar at this stage wo uld be expedient. The Apex Court in Ramanna Dayaram Shetty, supra, while dwellin g on the tenets of fairness in administrative action in the matter of distributi on of State largesse propounded that an executive authority must be rigorously h eld to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on the pain of invalidation of an act in th e event of violation thereof. While enunciating that the proposition had been ac knowledged to be a rule of administrative law judicially evolved as a check agai nst exercise of arbitrary power, their Lordships proclaimed that the discretion of authority concerned in the matter of grant of largesse must be confined and s tructured by rational, relevant and non-discriminatory standards or norms and if it departs therefrom, its action would be liable to be struck down unless such a digression is not arbitrary but based on some valid principle which in itself is not irrational, unreasonable or discriminatory. 20. This view, which has since crystallised into the bedrock of admi nistrative law in this realm found reiteration amongst others in Shivsagar Tiwar i, supra, wherein their Lordships of the Apex Court held that the principle was attracted even in a case where no injury to a third party was discernible in as much as the transaction thereof constituted impingement upon the high precept in public law that a public functionary has to use its power for bonafide purpose only and in a transparent manner. 21. In Tata Cellular, supra, the Apex Court while reiterating the co nstricted scope of interference by this Court in the exercise of its power of ju dicial review of the decisions of the State and its instrumentalities in contrac tual matters underlined that the Government being the guardian of its finance ha d the right to refuse the lowest or any other tender and chose the best. Their L ordships had elaborated that such a right could not be construed to be an arbitr ary power resulting in infringement of Article 14 of the Constitution of India u nless the exercise thereof is informed with any collateral purpose. While settin g out three broad invalidating factors permitting interference namely illegality , irrationality and procedural impropriety, the Apex Court emphasised on the cur rent trend of observance of judicial restraint. While elucidating that judicial review is not concerned with the merit of the decision but the decision making p rocess relatable thereto, it was underlined that the Government must have the fr eedom of contract and that a free play in the joint is a necessary concomitant f or an administrative or quasi administrative body functioning in an administrati ve sphere. The decision, however, ought to be reasonable and sans any bias or ma lafide. 22. The decision in BSN Joshi and Sons Ltd., supra, has been introdu ced to underscore that even if a decision is taken by a public authority, not st rictly following the norms recognised by the Courts, yet bonafide, no interferen ce in the exercise of Article 226 ought to be made on the making out of a legal point unless such an intervention is called for in public interest. The essentia lity of play in a joints of the executive was re-emphasised. 23. In Assam Electric (M/s), supra, the respondent No. 3 therein tho ugh not the lowest bidder was settled with the contract in question amongst othe rs on the ground that it had quoted the lowest basic price and that it was a rep uted Government of India undertaking. The challenge to its settlement was on the ground of absence