WP(C) 433/2007 BEFORE THE HON’BLE MR JUSTICE I A ANSARI JUDGEMENT AND ORDER (ORAL) By this common judgment and order, I propose to dispose of all these thr ee writ petitions, for, all these writ petitions are inextricably linked with ea ch other and the decision, if rendered in any of these three writ petitions, wou ld have a bearing on the out-come of the remaining writ petitions. 2. The respondent No. 4, namely, Golaghat Development Authority (in short, ’ G.D.A’) published, on 31.10.2006, Notice Inviting Tender (N.I.T.) for constru ction of two Storm Water Drains in two different localities of Golaghat town. T he project in respect of one such drains is called GMSD-I, the approximate value whereof is Rs. 1.29 Crores, and the other project of the drain is called GMSD-I I, the approximate value whereof is Rs. 81 lakhs. While offering their bids, th e bidders were required to quote their rates on percentage basis up to digits of two decimals only. The tender documents were opened on 21.11.2006. The summer y sheets for evaluation of tender documents were prepared and signed by the cont ractors/their authorized representatives. The tender documents and bids offered were examined by the Tender Evaluation Committee. The respondent No. 5, namely , Chairman, G.D.A., forwarded, vide his letter, dated 30.11.2006, to the Directo r, Town and Country Planning, Government of Assam, the findings recorded by the Tender Evaluation Committee and all other relevant documents. By his letter, da ted 19.12.2006, Deputy Secretary to the Government of Assam, Urban Development D epartment, conveyed to respondent No. 5 the decision of the Government to allot the work as mentioned in the said letter. While WP(C) No. 433/2007 challenges t he said allotment order made, in respect of the project, which is known as GMSD- II, in favour of the private respondent (i.e., respondent No. 6 in WP(C) No. 433 /2007), WP(C) No. 434/2007 challenges the allotment of work of the project, name ly, GMSD-I in favour of the private respondent (i.e., respondent No. 6 in WP(C) No. 434/2007), this private respondent having been made respondent No. 4 in WP(C ) No. 555/2007, wherein also the allotment order, dated 19.12.2006, aforesaid st ands challenged. In short, thus, and as already indicated hereinbefore, the allo tment of the work of the project, namely, GMSD-II, made in favour of respondent No. 6 stands impugned in WP(C) No. 433/2007 and the allotment of the work of the project, namely, GMSD-1, made in favour of the private respondent stands challe nged in the remaining two writ petitions, namely, WP(C) No. 434/2007 and WP(C) N o. 555/2007, the allottee having been made, in these two Writ Petitions, respond ent No. 6 and respondent No. 4 respectively. What is also worth pointing out is that while the offer of the writ petitioner in WP(C) No. 433/2007, in respect o f GMSD-II, was 10% below the schedule of the estimated rate, the offer of the pr ivate respondent (i.e., respondent No. 6 in WP(C) No. 433/2007) was at par the e stimated rate. Similarly, while the rate offered by the writ petitioner in WP(C ) No. 434/2007, in respect of GMSD-I, was 10% below the schedule of the estimate d rate and that of the writ petitioner in WP(C) No. 555/2007 was 6% below the sc hedule of the estimated rate, the offer, made by the private respondent (i.e. re spondent No. 6 in WP(C) No. 434/2007 and respondent No. 4 in WP(C) No. 555/2007) , was at par the estimated rate. 3. While issuing Notice of Motion, on 31.01.07, the High Court directed the parties to maintain status-quo as on the date of the passing of the said order, i.e. 31.01.2007. The parties to these three writ petitions, thereafter, comple ted their pleadings expeditiously and, on the request made on their behalf, all these three writ petitions have been taken up for final disposal at the admissio n stage. 4. I have heard Mr. P. K. Goswami, learned Senior counsel, appearing on beh alf of the petitioners in WP(C) No. 433/2007 and WP(C) No. 434/2007, and Mr. Y. Doloi, learned counsel for the petitioner in WP(C) No. 555/2007. I have also he ard Ms. B. L. Sinha, learned Government Advocate, appearing on behalf of the St ate Government, and Mr. D.K. Mishra, learned Senior counsel appearing on behalf of the G.D.A. Mr. G. N. Sahewala, learned Senior counsel, has been heard on beh alf of the private respondents in all the three writ petitions. 5. Presenting the case, on behalf of the petitioners (in WP(C) No. 433 and 434 of 2007), Mr. P.K. Goswami, learned Senior counsel, has submitted that in te rms of the provisions of Rule 22 of the Assam Town and Country Planning (Constit ution of Authority) Rules, 1961 (in short, the ’Constitution Rules’), a contract , which involves an expenditure exceeding rupees one lakh, shall not be made by the Chairman of the Development Authority without previous sanction of the Devel opment Authority and the State Government. Rule 24 of the Constitution Rules fu rther makes it clear, submits Mr. P.K. Goswami, that while seeking sanction for acceptance of tenders, where the value of the contract work is above one lakh ru pees, the development authority shall specify the particular tender, which the d evelopment authority proposes to accept. Thus, the role of the development auth ority, while seeking, in such a case, sanction from the State Government, is, ac cording to Mr. Goswami, that of a primary authority, though the State Government may or may not sanction or approve the proposal of the development authority. 6. In the present case, points out Mr. Goswami, the G.D.A. merely forwarded the findings of the Tender Evaluation Committee, Summary-sheets, etc. to the S tate Government without specifying the tender, which the G.D.A. proposed to acce pt and it (G.D.A.) wanted the Government to accord sanction to. The G.D.A. have , thus, contends Mr. Goswami, abdicated, in the present case, their authority in favour of the State Government, though the role of the G.D.A. is that of a stat utory authority and the law did not permit the GDA to abdicate the authority in the manner as the GDA has done in the present case. On the other hand, the Stat e Government, points out Mr. Goswami, took upon the responsibility of dischargin g the functions of the primary authority, namely, G.D.A. and, thus, ushurped the reby the power, which, otherwise, belonged to the G.D.A., by according sanction to the acceptance of the tenders of the private respondents, without there being any decision of the GDA, as the primary authority, indicating as to which tende r they had found fit for acceptance and proposed to accept. Hence, the sanction granted by the government suffers from, submits Mr. Goswami, serious infirmity o f law and the impugned orders need to be held as illegal and ineffective. Suppo rt for the submissions, so made, are sought to be derived by Mr. Goswami from th e decisions in Commissioner of Police vs. Gordhan Das Bhanji(AIR 1952 SC 16) and The Purtabpore Co. Ltd. vs. Cane Commissioner of Bihar & ors, reported in (196 9) 1 SCC 308. 7. Persuing further his arguments, Mr. Goswami submits that Rule 20 read wi th Rule 25 of the Assam Town and Country Planning (Financial) Rules, 1962 (in sh ort, the ’Financial Rules’) makes it clear that, ordinarily, the award of a cont ract shall be to the lowest tenderer and exception to this general rule is permi ssible only when it is found by the authority concerned that it is undesirable t o accept the lowest tender. Rule 25, however, requires, submits Mr. Goswami, th at when the lowest tender is not accepted, reason be recorded, in writing. This apart, the Office Memorandum, dated 15.12.03, issued by the Finance (Esstt-A) D epartment, Government of Assam, directs all concerned that lowest tenderer shoul d be allotted the work and, in the case of any exception thereto, reasons should be invariably recorded and should be signed by the appropriate authority. In t he face of the provisions of the Financial Rules and the Office Memorandum, date d 15.12.03, aforementioned, it is, contends Mr. Goswami, obligatory, on the part of the Development Authority and the State Government, not to accept any tender other than the lowest tender and if the lowest tender is not accepted, reasons must be clearly assigned. In the present case, points out Mr. Goswami, no reaso n whatsoever was assigned at the time of taking the decision, on 19.12.06, for a llotment of the work of the said two projects to the private respondents and tha t the reasons, in this regard, have been assigned much later, i.e. on 06.01.07; whereas the decision was taken on 19.12.2006. Thus, according to Mr. Goswami, t he reasons for not awarding the contract to the eligible lowest tenders have bee n discovered by the State Government subsequent to the making of the orders of a llotment in favour of the private respondents. This approach of the authority c oncerned is, submits Mr. Goswami, wholly illegal and such allotment of work may not be sustained. 8. Moreover, points out Mr. Goswami, while the petitioners in the two wri t petitions, namely, WP(C) No. 433/2007 and WP(C) No. 434/2007, quoted rates, wh ich were 10% below the estimated rates, the rates quoted by the private responde nts were at par the estimated rate. The State Government has, however, further points out Mr. Goswami, allotted the work to the private respondents at a higher value ignoring the lowest bid of the said two writ petitioners. The act of ign oring the lowest bid of the said two writ petitioners and acceptance of the high er bids offered by the private respondents, without assigning any reason whatsoe ver, in this regard, is, contends Mr. Goswami, nothing, but arbitrary and needs to be struck down. For the submissions, so made, Mr. Goswami places reliance on the case of FCI vs. M/s Kamdhenu Cattle Feeds Industries, reported in (1993) 1 SCC 71. 9. Assailing further the allotment of work of the said two projects to the private respondents, Mr. Goswami submits that the private respondent No. 6 in WP (C) No. 433/2007 did not, contrary to Clause 1.1 of the tender documents, submit Bar Chart, which was mandatory for the purpose of determining as to how the wor k of the project would be carried out by the tenderer within the given time-fram e. Similarly, both the private respondents in WP(C) Nos. 433/2007 and 434/2007 did not submit, contrary to the requirement of Clause 3.3 of the tender document s, the certificates, which were to be furnished by a bank declaring that it (the bank) would provide credit facility or over draft to the tenderer concerned. Ig noring, however, the failure of the private respondents to submit these certific ates, which were, contends Mr. Goswami, mandatory in nature, the State Governmen t has allotted the work to the private respondents. It has also been pointed ou t by Mr. Goswami that the reason assigned, though belatedly, by the State Govern ment, to the effect that the awarding of the contract at a rate lower than the e stimated rate may lead to poor quality of work is wholly unreasonable in the con text of the facts of the present case inasmuch as the Government has allotted si milar contract work, on 06.10.2006, in the adjoining district of Jorhat at a rat e, which was 10% lower than the estimated rate. Similarly, even as late as on 0 7.02.2007, the State Government allotted the work of a similar project in the di strict of Barpeta, at a quoted rate, which was 10% below the estimated rate. Th e reason, thus, assigned by the State Government for not awarding the contract a t the rates, which were 10% lower than the estimated rate, is not bona fide and cannot be sustained. This apart, points out Mr. Goswami, the State Government ha s assigned no reason as to why it has concluded that the allotment of work at a rate, which was 10% lower than the estimated rate, would lead to poor quality of construction. Thus, the reason assigned for not allotting the wok to the writ petitioners is, according to Mr. Goswami, not a reason at all, but mere conclusi ons, which are not supported by reasons. The approach of the State Government t o the whole process of selection of the bidders is, thus, contends Mr. Goswami, arbitrary, most unreasonable, non-transparent, mala fide and needs to be interfe red with by this Court in exercise of this Court’s powers under Article 226 of t he Constitution of India. 10. Adopting the above submissions, made by Mr. Goswami, Mr. Y. Doloi, learn ed counsel for the petitioner in WP(C) No. 555/2007, has submitted that the priv ate respondent, who has been allotted the work of GMSD-I, never carried out the work of the nature, which the said projects required. Though, under the tender documents, the tenderer was, according to Mr. Y. Doloi, required to have the exp erience of having executed the work of storm water drain, the authorities concer ned have selected the private respondent, on extraneous consideration, ignoring the legitimate claim of the writ petitioner, who had done similar work in the r ecent past. 11. Controverting the submissions made on behalf of the writ petitioners, Ms . V. L. Sinha, learned Government advocate, has merely submitted that the State Government has acted in accordance with law and in the interest of the general p ublic in accepting the bids of the private respondents and, hence, the allotment s of work in favour of the private respondents need no interference. 12. Appearing on behalf of the G.D.A. and its Chairman, M. D.K. Mishra, lear ned Senior counsel, has submitted that though the responsibility to publish the N.I.T. was given to the G.D.A., the projects, in question, were not covered by t he master plan of Golaghat town and, hence, the provisions of the Constitution R ules, which the writ petitioners have relied upon, are not at all attracted to t he facts of the case at hand. Drawing this Court’s attention to the language us ed in Rule 24(3) of the Constitution Rules, Mr. Mishra has submitted that Sub-Ru le (3) makes it clear that the Development Authority may or may not specify, whi le seeking sanction of the State Government, any particular tender, which it pro poses to accept and wants the State Government to accord sanction thereto. In t he face of the provisions of Rule 24(3), it cannot be said, contends Mr. Mishra, that any illegality was committed by the G.D.A. and/ or its Chairman in not tak ing any decision as to which tender should be accepted and in leaving it entirel y to the discretion of the State Government to decide as to which tender is acce ptable to the State Government and to grant sanction to the tender, which is acc eptable by the State Government. Pointing out to the provisions of Rule 25 of t he Financial Rules, Mr. Mishra has submitted that the requirement of assigning r eason for acceptance of a tender, other than the lowest tender, is an internal m atter of the Department and is really meant for its own auditing and, hence, if no reason is assigned for not accepting the lowest tender, the sanction, accorde d by the State Government, cannot be treated to have become illegal. In the cas e at hand, submits Mr. Mishra, the work to be allotted was meant for the use of the general public and the quality of construction of work was one of the prime considerations of the Government and it is in this context that the acceptance o f the tenders of the private respondents, who had quoted rates at par the estima ted rate, needs to be viewed. 13. The State Government has, according to Mr. Mishra, given cogent reasons for not accepting offers of the writ petitioners inasmuch as their offers were, if accepted, contends M. Mishra, likely to lead to poor quality of work. Referr ing to the requirements of submission of Bar Chart and certificates of credit fa cility/overdraft, Mr. Mishra contends that submissions of these documents are no t mandatory and, in the facts and circumstances of the present case, the accepta nce of the tenders of the private respondents by the State Government cannot be said to have suffered from any infirmity, legal or factual. 14. As far as Mr. G. N. Sahewala, learned Senior counsel, appearing on behal f of the private respondents, is concerned, his submission, in tune with the sub missions of Mr. Mishra, is that the Constitution Rules do not make it mandatory for the Development Authority to propose acceptance of any of the tenders and, h ence the G.D.A., contends Mr. Sahewala, committed no wrong in not taking decisio n as to which tender should be accepted and in leaving the matter entirely in th e hands of the State Government. In the present case, the State Government, con tends Mr. Sahewala, assigned good reasons fo acceptance of the offers of the pri vate respondents, for, allotment of work to the writ petitioners, contends Mr. S ahewala, was likely to lead to poor quality of work inasmuch as the rates, quote d by them, were not found workable. It is also contended by Mr. Sahewala that t he submission of Bar Chart was not necessary nor was it a mandatory requirement for the tenderer to furnish certificate by any banker promising to provide cred it facility or overdraft to the tenderer. In such circumstances, submits Mr. Sa hewalla, the private respondents could not have been held to be ineligible to pa rticipate in the tender process. The State Government has, thus, according to M r. Sahewala, acted within the ambits of its powers in accepting the offers of th e private respondents and in making the allotment orders in their favour. 15. Reacting to the submissions, made on behalf of the respondents, Mr. Gosw ami has submitted that the documents on record clearly reveal that the projects are financed by the Central Government under Golaghat Master Plan. In such circ umstances, contends Mr. Goswami, the function of the G.D.A. has to be in tune wi th the relevant provisions of law; but in the present case, points out Mr. Goswa mi, the G.D.A. as well as the State Government have not adhered to the mandatory requirements of law and the conditions of the tender documents and have, thus, acted arbitrarily in accepting the offers of the respondent Nos. 6. No good reas on, insists Mr. Goswami, has been assigned by the State Government for accepting the offers of the private respondents. The reasons assigned are, contends Mr. Goswami, mere conclusions, for, the State Government has not assigned any reason as to why it had come to conclude that the allotment of work to the writ petiti oners would lead to inferior quality of work. Referring to the tender documents and also to the Office Memorandum, dated 14.03.01, issued by the Public Works D epartment (Development-A-I branch), Government of Assam, Mr. Goswami has submitt ed that this Office Memorandum makes it clear that the Government has decided no t to accept the rates below 10% of the schedule of estimated rates. This clearl y shows, contends Mr. Goswami, that there is no policy decision of the Governmen t not to accept the rates, which are below the estimated rate. What the Office Memorandum, dated 14.03.01, aforementioned, points out Mr. Goswami, reflects is that the rate, which may be below the schedule of estimated rate, can be accepte d unless the rate quoted is below 10% of the estimated rate. In such circumstan ces, contends Mr. Goswami, non-acceptance of the offers of the writ petitioners and acceptance of the offers of the private respondents, though the private res pondents had quoted higher rates and had not submitted documents, which were ma ndatory to be submitted, rendered the allotment of the work in favour of the pri vate respondents wholly illegal and unsustainable in law. 16. As these writ petitions have been resisted, at its very threshold, by co ntending that the projects, which are the subject-matters of the N.I.T. aforemen tioned, are special projects financed by the Central Government and that the pro jects do not fall under the Master Plan for Golaghat prepared by the Golaghat De velopment Authority (in short, ’the G.D.A.’), it is imperative that one takes no te of the relevant provisions of the Assam Town and Country Planning Act, 1959 ( in short, the Act ), whereunder the development authority is constituted. Sect ion 8A of the Act of 1959 Act clearly shows that it is the State Government, whi ch, by notification in the official Gazette, constitutes, for the purpose of the Act, an authority to be called the development authority with jurisdiction over such area as may be specified in the notification. 17. The functions and powers of the development authority are embodied in Se ction 8D, which reads, 8-D. Functions and powers of the Authority. Subject to t he provisions of this Act, rules and directions of the State Government, the fun ctions of the Authority shall be to promote and secure the development of the ar ea according to the Master Plan and for that purpose it may carry out or cause t o be carried out surveys of the area and to prepare report or reports of such su rveys, and to perform any other function which is supplemental, incidental or co nsequential to any of the functions aforesaid or which may be prescribed. 18. A careful reading of the contents of Section 8D shows that the functions of the development authority shall be to promote and secure the development of the area according to the Master Plan and it may, inter alia, perform any other function, which is supplemental, incidental or consequential to any of the funct ions aforesaid or which may be prescribed. Thus, Rule 8D determines the ambit o f the function of the development authority. The development authority is, in t he face of the provisions of Section 8D, unquestionably, entrusted with the resp onsibility to promote and secure the development of its area according to the Ma ster Plan and its all other functions shall be supplemental, incidental or conse quential to such function and not in supersession thereof. Logically, therefore , the development authority cannot perform any function other than what can prom ote and secure the development of the area according to the master plan. There i s no dispute before me that there is no other rule, notification, etc, which dir ects or prescribes the Development Authority to perform any function other than the function of promoting and securing the development of the area according to the master plan. 19. The provisions, as regard the preparation and publication of master pl an, find place in Sections 9 and 10, which fall found under Chapter 3 of the Act . A combined reading of Sections 9 and 10 clearly reveals that a master plan is nothing, but a plan for development of an area. The master plan, according to S ections 9 and 10, is drawn by the Director, Assam Town and Country Planning, in consultation with the local authority concerned and submitted to the State Gover nment for examination and approval. On receipt of the master plan, the State Go vernment has the obligation of publishing the same inviting public opinion or ob jection, if any, and upon consideration of the objections, suggestions and repre sentations, which may have been received, the State Government shall have the pl an finally prepared by the Director and adopt