WP(C) 5743/2009 BEFORE THE HON’BLE MRS JUSTICE ANIMA HAZARIKA The grievance made and relief claimed in the writ petitions being same, both the writ petitions were heard together and are being disposed of by this common jud gment and order. 2. The first writ petition being W.P.(C) No. 5741/2009 has been filed chall enging the communication dated 02.09.2009 whereby the Deputy Inspector General o f Police (MPC), Assam had conveyed the Principal Secretary to the Government of Assam, Home and Political Department to the effect that in view of the release o f fund by the Government of India, in the Ministry of Home Affairs for procureme nt of Non-Bullet Proof Vehicles, Bullet Proof Vehicles and FRP Speed Boat, vide letter dated 08.08.2008, tender was floated as per the decision of the Technical Committee for procurement of these items and the Purchase Committee in its meet ing held on 09.06.2009 under the Chairmanship of Director General of Police (DGP ), Assam have accepted the rates of Mahindra SUV quoted by M/S Mahindra Defence System and of Bullet Proof Tata Sumo quoted by M/S Abhishek Motors Private Limit ed, authorized dealer of Tata Motors Limited at the rate quoted by them. Hence, the Government was requested for sanction of total amount of Rs. 1,25,92,537/- f or purchase of these vehicles so that the Bullet Proof vehicles could be procure d in the financial year of 2009-10. 3. The second writ petition being W.P.(C) No. 5743/2009 also has been filed by the same petitioner challenging the same order dated 02.09.2009. The first w rit petition is relating to the tender submitted by the writ petitioner for supp ly of Bullet Proof Mahindra SUV, the second writ petition relates to the tender submitted by the writ petitioner for supply of Bullet Proof Tata Sumo. 4. Basic facts of both the writ petitions being same, brief narration there of is given herein below:- By two notice inviting tenders (NIT for short) issued by the Deputy Inspector Ge neral of Police (MPC), Assam, sealed tenders were invited for supply/procuremen t of 25 (Twenty Five) Nos. of Mahindra SUV under DGS & D rate contract if availa ble and Bullet Proofing/Armouring of the same (in WP(C) No.5741/2009) as well a s 16 (Sixteen) Nos. of Tata Sumo vehicles with 3 Liter DICOR with 30 Kg-m Torqu e and 115 PS under DGS & D rate contract if available and Bullet Proofing / Armo uring of the same (In WP(C) No.5743/2009) for Assam Police during the year 2008 -2009 from suppliers, Dealers, Distributors, Manufacturers or their Authorized A gents. The tenderers were requested to submit tenders in two bid system i.e., Te chnical bid and Commercial bid in separate sealed cover along with attested copi es of certificates as required under the tender notice. It is further stipulated in Clause 9 of both the Notice Inviting Tenders that Tenders quoting rates as Dealer / Distributor / Authorized Agent etc. must submit authority letter for th e item(s) quoted for from their manufacturers. 5. The writ petitioner No. 1 in both the writ petitions described itself as a company registered under the Companies Act 1956 of which the petitioner No. 2 is the Executive Officer representing the company. It has been further stated i n both the writ petitions that the writ petitioner No. 1 is the oldest original manufacturer of Bullet Proof vehicles with in house facility to manufacture Bull et Proof glass and armour steel from their principal in Germany on any manufactu rer chassis and are regularly supplying the products to different agencies since 1972 including Army, State Government, Defence and Paramilitary forces. The com pany is the Industrial partners of Defence Research and Development Organization (DRDO), Ministry of Defence for supply of manufacturing of Bullet Proof product s. The company’s Bullet proof products have been approved by the V.R.D.E. (Vehic le Research and Development Establishment), Ministry of Defence. The said Bullet proof materials including Bullet proof glass and armour sheet are also approved by TBRL (Terminal Ballistic Research Laboratory), Ministry of Defence Governmen t of India, Chandigarh. The company is a reputed company for supplying of Bullet proof materials as well as Bullet proof vehicles not only in India but to the f oreign countries also. 6. In the first writ petition i.e., in W.P.(C) No. 5741/2009 five tenders i ncluding the writ petitioners’ and that of respondent No. 5 were received by the authority for supply of Bullet Proof Mahindra SUV and in respect of second writ petition i.e., in W.P.(C) No. 5743/2009 all together 4 tenders were received by the authority including the writ petitioners and the respondent No. 5 for suppl y of Bullet Proof TATA Sumo. Admittedly, the Technical Committee in both the cas es selected the respondent No. 5 as first preference bidder while the writ petit ioners were adjudged as the second preference bidder. The proceedings of the sel ection is contained in the Minutes of the Technical Committee meeting dated 2.02 .2009. Thereafter, on the opening of the financial bid it was found that the wri t petitioners have quoted lower price in comparing to the private respondents. S ubsequently, on 16.05.2009 the Purchase Committee headed by its Chairman, the th en Director General of Police, Assam, Guwahati held a meeting and came to the co nclusion that the Respondent No. 5 in the first cases i.e. M/S Mahindra Defence System is manufacturer of the vehicle and in second case the Respondent No. 5 i. e. M/S Abhishek Motors Private Limited is the Authorized Dealer of the manufactu rer. The other firms are not concerned with manufacture of vehicles. Hence, the Committee decided to approve the rates of the manufacturers due to the following reasons:- & & &(1) Their B.P. vehicles are already in use of the Assam Police and erformance has been found upto the mark. (2) Although the rates furnished by M/S. Jeet & Jeet Glass and Chem Pvt. Ltd. are lowest, their rates can not be considered as their vehicles have not b een tested. The Committee has accepted the rates of Mahindra SUV quoted by M/S Mahin dra Defence System and the rates of B.P. Tata Sumo quoted by M/S Abhishek Motors Pvt. Ltd. authorized dealer of TATA Motors Ltd. 7. The writ petitioners appear to have submitted numerous representations t o the higher authorities inter alia protesting the selection of the private resp ondents in both the cases overlooking the lower rate quoted by the writ petition ers as well as the quality of products being offered by them. Moreso, bullet pro of glass is their own product which is of world standard. It appears that pursua nt to the petitioners’ representation dated 21.05.2009, the Principal Secretary to the Government of Assam, Home & Political Department directed the Director Ge neral of Police, Assam to place the representation of the petitioners’ before th e Purchase Committee for its consideration and to take a decision with regard to its claim etc. Accordingly, the Purchase Committee again held its meeting on 9. 06.2009 as per the direction of the Principal Secretary to the Government of Ass am, Home & Political Department and after thread bare discussion, the Committee upheld the decision taken in its earlier meeting held on 16.05.2009. The opinion of the Purchase Committee is quoted herein below:- & & &(1) The vehicles already procured from the manufacturer or authoriz d dealer are running satisfactorily and performance has been found upto the mark & & & & & & &. (2) Since fabrication of body of a B. P. vehicle also require some modification/ strengthening of the chassis, the manufacturer is in the best position to incorp orate the modification in the chassis at the production stage itself keeping in view the extra load that would be put on it on fabrication of the B. P. body. An y fabrication done on a normal chassis would make the vehicle structurally weak. It is, therefore, advisable to purchase a B.P. vehicle from the manufacturer/au thorized agent rather than from a body fabricator. Moreover, the manufacturer ab ove would be in position to give a guarantee to quality of the entire vehicle. (3) Although M/S Jeet & Jeet Glass & Chem Pvt. Ltd. quoted the lowest price, the y are not the manufacturer / authorized dealer of the vehicles. So the lowest pr ice was not considered as the sole criteria for procurement of the B.P. vehicles . (4) The manufacturer/authorized dealer will be called for negotiation of the rat e of the B.P. Vehicles for procurement at a lesser price than the quoted price. 8. Thereafter, the petitioners submitted various representations to the Dir ector General of Police against the abovementioned decision of the Purchase Comm ittee and prayed for reconsideration of its claim. However, the authorities with out taking into consideration the abovementioned representations, issued the imp ugned order dated 02.09.2009. Thus, it is the case of the petitioners that the respondent authorities without considering the objection made by the petitioner in its various representations proceeded to finalize the matter as per the purported decision of the purchase c ommittee and thereafter, the Deputy Inspector General of Police vide its letter dated 02.09.2009 requested the Principal Secretary to the Government of Assam, H ome and Political Department to communicate the Government to sanction Rs. 1,25, 92,537/- for purchase of Bullet Proof vehicles and further requested to allow th e Director General of Police, Assam to draw the said amount and it is this lette r dated 2.09.2009 which is under challenge in both the writ petitions. It is the further case of the petitioners that vide letter dated 24.09.2009, the Joint Se cretary to the Government of Assam, Home (A) Department wrote to the Director Ge neral of Police, Assam seeking clarification whether rates approved by the Purch ase Committee with the authorized dealer have been negotiated or not and to comm unicate the reply urgently. Pursuant to the aforesaid letter dated 24.09.2009, t he Assistant Inspector General of Police vide his letter dated 19.10.2009 inform ed the Joint Secretary to the Government of Assam, Home(A) Department, inter ali a, stating that the negotiations with respondent No. 5 firms in both the cases w ere held on 13.10.2009 wherein both the firms have agreed to reduce their prices . 9. Heard Mr. B.C. Das, learned Senior Counsel assisted by Mr. PC Dey, Advoc ate appearing for the writ petitioners. Also heard Mr. A. M. Mazumder learned Se nior Counsel assisted by Mr. M Nath, Advocate and Mr. D. Goswami learned Counsel for the private respondents as well as Ms. VL Singh, learned State counsel, for respondent Nos. 1 to 4. 10. Mr. Mazumder, learned Sr. Counsel appearing for respondent No. 5 in the first writ petition has raised a preliminary objection at the very outset conten ding that the writ petitioners have not specifically challenged the decision mak ing process either in the pleadings or in the prayers contained in the writ peti tion. Consequently, this Court should desist itself from interfering with the wr it petition, inasmuch as, it is the decision making process and not the decision which is a subject matter of judicial scrutiny. 11. On the preliminary objection so raised by Mr. Mazumdar, Mr. Das learned Senior Counsel appearing for the writ petitioners in both the cases, has drawn t he attention of this Court to the judgment reported in AIR 1951 SC 41(1) [Charan jit Lal Chowdhury -Vs.- Union of India & Ors.], (1981) 3 SCC 528 [B.R. Ramabhadr iah Vs. Secretary, Food and Agriculture Departments Andhra Pradesh & Ors.] and 2 000 (2) GLT 222 [Mandira Singh Vs. State of Assam & Others] to the effect that t he Court in the interest of justice can mould relief in a given situation even i n the absence of specific pleadings. While in various judgments, the Supreme Cou rt has held that the pleas not raised in a petition should not be looked into, y et there are equal numbers of judgments to the effect that High Court can very w ell decide a petition even on pleas not raised in a petition as a case of except ion. If contention regarding glaring irregularities not specifically raised in a pleadings of writ petition in a given case yet when it is self evident on the f ace of the record, the High Court can take notice of such fact and proceed to de cide the dispute before it. Mr. Das learned Senior Counsel has further contended that the minutes of the proceedings leading to the selection of the private res pondents are parts of writ petition and hence the Court can very well look into the same. In the instant case, for the ends of justice, I would proceed to decid e the dispute on merit. 12. The main thrust of submission advanced by Mr. Das learned Senior counsel is that the firm of the writ petitioners has offered better products with lower prices but the purchase committee minutes go to show that the members of the co mmittee proceeded with their mind already tilted towards the private respondents in view of the fact that they were the manufacturers in respect of W.P.(C) No. 5741/2009 and authorized dealer of the manufacturer in W.P.(C) No. 5743/2009. Th e further fact that the Bullet Proof vehicle of the private respondents are alre ady in use of Assam Police, performance of which have already found upto the mar k has heavily tilted the decision making process in favour of the private respon dents. In addition, the finding of the purchase committee to the effect that alt hough the rates furnished by the writ petitioners &.are lowest, their rates can not be considered as their vehicles have not been tested , is according to the learned counsel for the petitioners is vitiated by non-consideration of the mate rials on record including the test certificates produced by the writ petitioners and other claims regarding the superior quality of their products. While placing reliance on paragraphs 8 and 9 of the judgment of this Court in As sam Electrical -Vs- North Eastern Electric Power Corporation Ltd. & Others repor ted in 2001 (1) GLT 604, it is alleged by Mr. Das that in the absence of any spe cific indication in the NIT to give weightage to the original manufacturer or th eir authorized agents, no preference could have been given to respondent No. 5 o f both the writ petitions on the ground of they being original manufacturer of M ahindra vehicles and authorized agents of Tata Motors respectively. The decision in Ansal Properties and Industries Ltd., Vs. State of Assam and Ors ., rendered by a Division Bench of this Court and reported in 1999 (3) GLT 195 h as also been pressed by Mr. Das to fortify his above contention to the effect th at the tender conditions having not specified any reservation for special consid eration in favour of the original manufacturer or authorized agent of the origin al manufacturer, the proceedings of the purchase committee suffers from the vice of bias against the petitioner and undue favour to the private respondents in b oth the cases. Regarding judicial review of the Court in the matter of settlement of tenders by the state or its instrumentalities, Mr. Das has placed reliance to the decision in Tata Cellular Vs. Union of India, reported in (1994) 6 SCC 651. There is no dispute about the settled proposition of law as cited by learned counsel for the petitioners in support of his case. 13. Per contra, Mr. Mazumder, learned Senior counsel for respondent No. 5 in the first writ petition while inviting the specific attention of this Court to the affidavit-in-opposition filed by respondent No. 5 in W.P.(C) No. 5741/2009 i .e. Mahindra Defence System has contended that this company is the original manu facturer of the items sought to be procured through NIT in question. It is plead ed that Mahindra Defence Systems (MDS) is a division of Mahindra And Mahindra Li mited which is a Company originally incorporated under the Indian Companies Act, 1913 with the Registrar of Joint Stock Companies, Bombay in the year 1945. The original name of the Company was Mahindra And Mohammed Limited which was subsequ ently changed to Mahindra And Mahindra Limited. Mahindra And Mahindra Limited is also the registered Trade Mark owner of the name ’RAKSHAK’ in respect of appara tus for locomotion by land, air or water, Motorland vehicles, Utility Vehicles, Automobiles, Tractors, Tractor Engines & Parts, Fitting & Accessories thereof in cluding implements therefor, accessories and parts used in assembling of Motorla nd Vehicles, Utility Vehicles, Automobiles, Tractors all being goods included in Class 12; vide Certificate No. 401194 dated 18.7.2005 issued by the Registrar o f Trade Marks under the Trade Marks Act, 1999. Bolero series of vehicles i.e. Bo lero DX 4WD & Bolero SLX 4WD (the Bolero Models quoted by the petitioners) were/ are also manufactured exclusively by Mahindra And Mahindra Limited having regist ered trade marks in the name of Mahindra & Mahindra Ltd. Giving a picture of its global presence, it is also pleaded that the Mahindra Defence System is a divis ion of the Mahindra And Mahindra Limited, formed in July, 2000 as a Single Point Contract for all dealings of the Company with the Ministry of Defence, Governme nt of India as well as other Government Security Agencies for supply of special vehicles to the Security Forces of the country since the year 1947. It is further pleaded that Mahindra Defence Systems is a division of Mahindra An d Mahindra Limited, the original manufacturer of Mahindra SUV Vehicles of all mo dels (inclusive of Bolero), grades and standards including the Ready Built Bull et Proof Mahindra Rakshak and Ready Built Up Armoured Mahindra Scorpio and ne ither the Respondent No. 5, i.e. the Mahindra Defence Systems nor its parent Com pany, viz. Mahindra And Mahindra Limited who are the manufacturers of Mahindra S UV have authorized or appointed any Company or concern including the Writ Petiti oner M/S Jeet & Jeet Glass and Chem. P. Ltd. to represent it as the dealer/ dist ributor/ authorized Agent or in any other capacity to quote the rates of the veh icles of the Respondent No. 5 Company in any manner or for any purpose whatsoeve r. Further, Mahindra And Mahindra Limited has also been granted statutory industria l licence under the Industries (Development And Regulation) Act, 1951 (Central A ct 65 of 1951), inter-alia, for manufacture of ’light armoured multi role vehicl e’ by the Ministry of Commerce & Industry, Government of India vide No. CIL:11(2 008) dated 19.9.2008 issued by the Under Secretary to the Government of India. A rmoured fighting vehicle is included under Item No. 13(87.10) of Schedule- II li st prescribed under Section 29B of the Industries (Development And Regulation) A ct, 1951 whereby all items included in the said Schedule- II list can be manufac tured only under licence issued by the statutory authority under the aforesaid A ct. 14. It is contended by Mr. Mazumder that with this background the claim of w rit petitioners who had quoted rates for supply of Bolero SLX 4WD and Bolero DX 4WD both branded products of respondent No. 5 have to be judged. It is also cont ended that the proven performance of the product manufactured and offered for su pply by respondent No. 5 is very much a relevant consideration, more so when the product in question is sought to be acquired by the State Police for effected c ontrol of insurgency problem with a view to safeguard the life and property of t he common citizen as well safety and security of the security forces using those products. Such consideration, according to Mr. Mazumder cannot be viewed or int erpreted to infer undue bias or pre-conceived mind of the purchase committee mem bers. Mr. Mazumder further submitted that one of the items i.e. Bolero SLX 4WD w hich has been quoted by the writ petitioners in its tender document is out of pr oduction by its manufacturer i.e. Mahindra & Mahindra Ltd. and if at all the ten der of the writ petitioners is accepted by the authorities, the writ petitioners will not be able to supply the same to the procuring agency. Hence, on this cou nt alone the writ petition is liable to be dismissed. Mr. Mazumder further submi tted that so far the decision of the Apex Court reported in (1994) 6 SCC 651 [Ta ta Cellular Vs. Union of India] is concerned, there is no dispute regarding the settled proposition of law. However, the said case no way helps the writ petitio ners in the instant cases rather, it helps the private respondents. In support o f his argument, Mr. Mazumder has cited decisions of the Apex Court reported in ( 2007) 14 SCC 517 [Jagadish Mandal Vs. State of Orissa & Others] as well as decis ion of this Court reported in (2006) 2 GLR 187 (Escorts Ltd., Vs. International Tractors Ltd., & Ors.) In the case of Jagadish Mandal, the Apex Court at Para 22 observed as thus; 22. Judicial review of administrative action is intended to prevent ar bitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made lawfully and not t o check whether choice or decision is sound . When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain specia l features should be borne in mind. A contract is a commercial transaction. Eval uating tenders and awarding contracts are essentially commercial functions. Prin ciples of equity and natural justice stay at a distance. If the decision relatin g to award of contract is bona fide and is in public interest, Courts will not, in exercise of power of judicial review, interfere even if a procedural aberrati on or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a Civil Court. Attempt s by unsuccessful tenderers with imaginary grievances, wounded pride and busines s rivalry, to make mountains out of molehills of some technical/procedural viola tion or some prejudice to self, and persuade Courts to interfere by exercising p ower of judicial review, should be resisted. Such interferences, either interim or final, may hold the public works for years, or delay relief and succour to th ousands and millions and may increase the project cost manifold. Therefore, a Co urt before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) whether the process adopted or decision made by the authority is mal afide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irratio nal that the Court can say; the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached ; ii) Whether public interest is affected. If the answers are in the negative, there should be no interference unde r Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/s hops, grant of licenses, dealerships and franchises) stand on a different footin g as they may require a higher degree of fairness in action. In Escorts Ltd., (supra) a Division Bench of this Court held at Para 27 as follows; 27. This decision of the Expert Committee is not challenged on any grou nd of malafides. The whole contention was that once the writ petitioner meets th e