c ^rlO O I. ._- ®iMRJF Rs-%i;r BEFORE THE HON'BLE HIGH COURT OF JUDICATURE AT BILASPUR ^^ IN THE MATER OF W.PNo 2006 PETITIONER: ^ BHIKAM LAL YADAV, S/0 KUSLU YADAV, GRAM BHAWARMARA POST SINGHAULA, DISTRICT, RAJNANDGAON. VERSUS <« •^. RESPONDENTS: , ..<':.AK;;'7..1|.CHHATnSGARH RAJYA o..-;'*\9'v-"' .-••'' SAHKARI VIPNAN SANGH .^^•'•n^7':' ..-•"'- MARYADIT, 880, CIVIL LINES, K>;:-:':'QX"^1''"" EAIPUR. ^•" ../'^^ . ^•\^''' ^^^ ^ ^yy^. >-""-;s;- ^& .A. V, ^•fe®'"J ^T3' '"'wta i ..^; ^ 2..THE DISTRICT MARKETING OFFICER, CHHAmSGARH RAJYA SAHKARI VIPNAN SANGH MARYADIT, PURANA GANJ CHOWK, RA.JNANDGAON (C.G). ^ 3.CHETRAM DEHRIYA, ADHYAKSH, JAI BAJRANG HAMAL MAJDOOR SANGH, PURANA GANJ CHOWK RAJNANDGAON (C.G) • 4.CHOTELAL DUBEY, S/0 LATE SHRI SOMDATT DUBEY, AGED 57 YEARS R/0 CHHATTISGARH RAJYA SAHKARI VIPNAN SANGH MARYADIT, PURANAGANJ CHOWK,RAJNANDGAON (C.G) / WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF AN APPROPRIATE WRIT/ORDER OR DIRECTION AS DEEM FIT /irt Writ Petitlon No.566/200( Bhikain Lal Yadav Vs. Chhattisgarh Rajya Sahkari Vipnan Sangh Maiyadit Shri Pra.deep Saxena, counsel for the petitioncr. Dr. N.K. Shutela, Sr. Advocate with Sliri Dilip Dubey, couiisel for respondents no. 1, 2 & 4. Shri Anoop Majumdar, counsel respondent no.3, (24,7.2006) (1) By way of fhis writ petition, the petitioner has chaUenged the legalily ofawaKling contract to respondent no.3 bv work orier Annexure P-IV which relates to labour work (Haxnali Kaiya) in Dhan Bhandaran Center (hereiaafter refen-ed to as the '"CoHection Centei^) at Rajnandgaon perteining to the year 2005-2006, (2) The brief facts are fhat icspondent no. 1 floated a notice in\riting tendeis, on 10.10.2005, from. licensed contractors for laboiu- work (Haiaali Kaiya) for fheir coUection centers situated in the State of C.G. The proposed work was for the period coininencing from 01.10.2005 and ending on 30.9.3006 (one yeaij. The tender form. shows fhat fhe ra.te.s were called for 16 different iteins referred to thereui. The petition.er siibinitted his tender (Aiuiexure P-III) and quoted his rates acconliagly. The respondent no.3 also subinitted the tender and he quoted a rate ofRs. 0.96 paise for iteia no. 14 and against ofher 15 itenis he quoted as "00 (no claini for fhe said worksj. After receiving the teader, the lespondent aufhoiily scrutmized the saine aud / thereafter the work at Rajuandgaon collection center was awaided to isspondeut no.3 nainely Chaitram Dahana. (3) Reply filed by respondents uo.l, 2 and 4, vide para 9, would show fhat the respondent no.3 has quoted the lowest i-ate and fhe teuder coininittee after considering the coinpaiatiye rates has i^comiaended to award the contract to hua. Acconding to thein, fhe criteria adopted by thc tender conimittee and process of selection thereon is conteined in Anaexure R/ 1-1. A perusal offhe said docuinent would show fhat after receiving the tenders for 8 coUection centeis of district Rajaandgaon, they were opened and scrutmized by the coinniittee. After scrutiny, it was found fhat no tenderer had quoted lowest rate for aB the 16 work iteins for which fhe tendeis were called, It was observed by the Coiniaittee that out of 16 itenis, only fhree items are importaat ia which aknost 90-95°<>oflabourwork (Hamali Karya) was proposed to be done throughoiit the yeaj". These works were (i) weigliuig of paddy, (n) canying of paddy bags and arrangmg fhem in order scad (iu) filling of stiaw iiito bags aud ananging thein. Keeping in \'iew the possibilily fhat ahnost about entire work is to be done for the above 3 iteins, fhe rates quoted by the tenderers for above 3 iteins we.re scrutinized for each center and on the basis of such scrutiny, L-l, L-2 and L-3 for each center were selected. In center at Rajnandgaon, fhe rate of respondent no.3 was Rs.0.96 paise. The rate of the petitioiier was Rs. 1.65 P. and fhe rate ofone Prakash Yadav was Rs. 2.10 P. Therefoic, after consideriag that fhe rate of respondent uo.3 was the lowcst, work orier was issued in his favour. (4) Leanied counsel for the petitiQner argued that the tender form. of respondent no.3 would show fhat he has not quoted any rate for any other ite.in except iteia no. 14 as he has writteu "OO"' against aU other iteias, ttiei^fore, his rate iviU be natui-ally low and in this niaruier, he has removed the possibiBty of coinpetition aiid the work has wrongly been awarded to hini. He submitted that the decision taken by the respondent authorities is arbitrary, unjust, in^tional aad is not in accordance wifh law. He referrcd to vadous paragraphs of the decision rendered by fhe Apex Court in fhe matter of Tata Cellultv-Vs- Unlon. ofihdtaAIR 1996 S.C. 11. He further argued that when the coinpaiative chart of lates quoted was prepai^d, a note was m.ade at the foot of fhe chart fhat fhe litigations have been filed b;/ persons placed at Serial No.2 & 4 before Hon'ble fhe Hieh Court aad the Labour Court and fhe judgiaents are awaited. This has prejudiced the decision takers to cxclude those persons from conipetition and they have not been considered. It was also argued that the authorities of respondent No. 1, iii fact, coUuded with lespondent uo.3 and the ivspondent no.3, who has quoted "00" for as niany as 15 iteins, was awanled fhe work in coUiisiye inanner. (5) On fhe other hand, learned counsel for the respondents opposed these argunients aad siibinitted that fhe decision is just aiid proper which cannot be interfered in writ jiuisdiction of fhls Court. They also argued that fhe contract period is at the fag eud and it would not be just a-nd proper to disturb the situation pi^vEuUng froni such a long period which is to complete on 30.9.2006. (6) I have heajd leamed counsel for the partiea at length and have also perused the iccords ofthe ^isrit petition. (7) Whfle dealtng with fhe Tata Cellular case (supia), the Apex Coiirt held fhat the principles of judicip.1 review would apply to the exei'cise of contractual powers by Goveminent bodies in orier to pievent arbitrariness or favouritism. Howcver, there are iaherent luiutations in exercise of that power of judicial review. Govemment is fhe guardiaa of the finances of the State. It is expectsd to protect the financial interest of fhe State. The right to refuse fhe lowest or ajiy ofher tender is abvays avaHable to fhe Goveminent. But, fhe principles laid down in Article 14 ofthe Constitution have to be kept in view while accepthig or refusing a tender. The Apex Court further held fhat there can be no question of infriiigeTnent of Article 14 if the Qovemm.ent tries to get fhe best person or fhe best quotation. The right to choose cannot /, ^. be considened to be an arbiteuy power. Of coiu-se, if fhe said pcnver is exercised for any collateral piupose fhe exercise of (hat power ^vill be struck down. The Apex Coiut further held that the duty of fhe court is to confine itself to fhe question of legality- Tts concem should be : 1 Whefher a decision makuig aufhorit}' exceeded its power ? 2 coniinitted an error oflaw; 3 coiruaitted a breach of the rules of natural justice; 4 reached a decision which no reasonable Tribiinal would have reached; or 5 abused its powers. The Apex Court said that it is not for fhe Court to detemiine whether particular policy or particular decision taken in fhe fulfilhnent of fhat policy is fair. It is ouly concenied with the inauner in which those decisions have been taken. The extent of fhe duty to act fairly wfll vary froni case to case. The Apex Court said that shorfly putting the broad grounds subject to addition of further grounds in course of time, upon which an adininistrative action is siibject to control by judicial review can be classified as follows: (i) lUegaUty: This ineaus the decision uiaker taust understand con'ectly the law fhat regulates tiis decision- luakitig power aad uiust give efFect to it (ii) IiTationaUty, nainely, Wednes- bviy uareasonableness /' (iii) Proceduial impropriely The Apex Court also held that the principles deductible relating to scope of jiidicial review of adininistrative decisions and exercise ofcontractual powers by govenuneiit bodies are : (1) (2) The Modem trend poiats to judicial restraiiit in adnuaistrative action. The Court does not sit as a cozirt of appeal but nierely revie'ws fhe /^- inaaner ia which ths made. decision was (3) The court does not have fhe expertise to correct the adininistrative decision. If a review of the adininistrative decision is permitted it will be substitutiug its own decision, wifhout the necessaiy expertise which itselfinay be faUible. (4) The tenas of the invitation to teader caTinot be open to judicial scrutiny because fhe invitations to teader is in the i^aka of contract. NomiaUy speakiug, fhe decision to accept fhe tender to award the contract is reached by process of negotiations through several ders. More ofiten than not, sucli decisions are niade qualitatiyely by experts. (5) The Goyemiaent niust have fieedoin of contract. In ofher words, a fau'- play in fhe joiiits is a necessary concoxaitant for au. adiuiaistrative body flinctioniag ia an adniitustrative sphere or quasi administrative sphere. However, the decision must not only be tested by the appUcation of Wednesbuiy principle of reasonableness (iiicluduig its ofher facts) but Diust be lice from arbitrariness not affected by bias or actuated by inala ndes. (6) Quashing decisious inay impose heavy admiaistrative burden on fhe admiaistration and lead to increased and unbudgeted expenditure. (8) If we apply the above principles, for testing fhe action undertaken by the respondents, iu-relation to point no.l, it would appear that a geaeral notice for the entire state was issued by thein on 10. 10.2005 and therc after fhe teiider fonns were distributed in ftie manuer described fherein and were re'ceived ia fhe conceraed District OfHces. When fhe tenders pertaining to this district wei'e opened it was found that respondent no.3 has quoted "OO" (fee ofcharge) for other iteins except iteni no.14 and he has quoted Rs,0.96 paise fbr this item. Ofher tenderers had also qiioted various rates and ftie /''o a. petitioner has also quoted his rates accori.ingly. The argument that quotiung no rate for other itenis reinoves competition leadiag to nou-selection of fhe best candidate cannot be accepted in the facts and circuisistaaces of this case. In fact fhis was a teader for 16 items ofwork and the person fiBing the tender is picsuiued to rctaui knowledge about frequency aud densily of particula-r kmd ofwork ajid if, according to his best judgnient, he com.es to fhe conclusion fhat a particular kuid of work wiU be inore in contrast to another kin^dly ofwork, he in oider to get the tender by keeping him at ftie lowest, inay offer that if exigeacy arises, he wiU coiuplete soine work wifhout charging a single pie for tlie same. Ifthe tender is filled is. with the above intention, it cannot be said that the action had impUedly removed fhe competitiou. The niaaner of fiUing fhe tender fonn and atso the inanuer of qiioting the rate as ''0,00"" against various iteins cannot be said to be strange for fhe respondents which is clear frona the com.paiative chart ofrates (Annexure P-1) ffled by the petitioner huiiself, In this chart as inany as 5 tenderers are there who have quoted "00" rate against various iteias aad their tendeis have also been considered. The action of considering the tenders in which the rates are quoted as "00" and fhereafter awanling the tender ou fhe basis of lowest rate quoted,by adopting a criteria of considering the rates in 3 iteins in which ahnost entire work is to tie concluded, cannot be condemned. There appears to be no arbitrariness and the equality claiises are also aot violated in. svch decisions. (9) In general luaruier, acceptiug the teuder of a lowest rate iacluding the offer for working free of charge in soine ininor itenis, even ofherwise appears to be a good poUcy if such a decision is not arbitreuy, inalafide, coUusive or based on extraneous considei'ations. The reason is that in the govemiaent contcact or m fhe contract of statutoiy bodies, hiige amount of public inoney is involved and if the sanie is saved by tfae p-ction of the Goverainent, excluding above factora, tfaat abvays aids ia public iaterest which is oae of the basic concepts of the welfare State. I do not find any such ^•*> factor in fhis case. The first arguinent advanced by learaed counsel for fhe petitioner cannot be accepted. (10) The second arguinent advanced by leamed counsel for the petitioner caa also not be accepted in view of the factual scenario of this case. How the decision for awaj-ding the work has been taken by the respondent authorities has been placed on recoid vide respondeats' docuinent Annexure-R/1-1. This documeut no whei-e contains that any iinportaace has been given to fhe foot note endorseiaent made iu the coinpaiative chart (Annexure P-l) fhat soiue litigatton is pending on the instance of tenderers inentioued in column Nos. 2 and 4. If no decision is given considering these entries, it cannot be said fhat these entries niay have prejudiced tfae decision takers agaiust the persons lefen-ed therem, As stated above, fhe decision was taken -pui-ely on the rates quoted by different teuderers and not on fheir conduct or records etc. This arguinent can also not be accepted and the same fails. (11) So far as fhe argum.ent based on coUusion about quotin^ of i-ates as "00 in raaiiy itenis arc concemed, these are based on no inaterial on i^cord. When as inaay as 5 tenderers out of 8 have qiioted as "00 (free of charge) ^ainst inany iteias haphazardly, how it caja be said that fhe authorities had coUuded with a particular tenderer naiaely respondent no.3 iii fhis case. Moie over, wheu the decision. was to be taken coflectively by a conunittee coniprisia^g of 4 laeinbers and fhe criteria of selection was not known to anybody on the date of fiUuig of tenders, as it was not decided till fhen, it cannot be said that such a coBusion was possible, What process wffl be adopted regarding selection was not one inan's job, but was a coUective decision and unless all the participants of the tender coiumittee had coUuded wifh the respondent no.3, snch an action was not possible. This is not fhe case of the petitioner that ewe.Tv one in the conunittee has colliided nor such aUegations appear to be reasonable. Tb.eie ia uo force in. this arguinent aad the saine caanot be accepted. ^ (12) Considering the facts and circuinstaaces of this case, particularly considering the giuunds raised by fhe petitioner, I do not fiiid any inent in fhis petition. This petition is disinissed. There shaU be no order as to costs. Sdi- Sunil K"mar sinha judge Rao ^^.- r^