WP(C) 980/2011 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA Challenging the action of the official respondents, the writ petitioner has raised a question in the instant writ petition, as to whether the tender of the respondent No. 4 can be accepted subsequently on withdrawing from participat ion in the quotation and if the answer is in the negative then the contract is t o be issued in favour of the petitioner being the next lowest valued tenderer. 2. Heard Mr. AC Borbora, learned Sr. counsel assisted by Mr. M Smith, learn ed counsel appearing for the petitioners. Also heard Mr. BJ Talukdar, learned St ate counsel appearing for respondent Nos.1 and 2, Mr. BD Das, learned Sr. counse l assisted by Mr. HK Sharma, learned counsel appearing for respondent No.4. 3. In order to answer the question, a brief facts of the case is summarized hereinbelow: A Notice Inviting Quotation (’NIQ’ for short) was issued by the Director, Munici pal Administration, Government of Assam, Dispur (hereinafter referred to as resp ondent No. 2) vide advertisement dated 24.12.2010 published in four newspapers i ncluding The Assam Tribune in its issue dated 24.12.2010 whereby sealed quotat ions in prescribed form was invited from the manufacturers/authorized distributo rs/dealers of Philips/Bajaj/Crompton/Havells for supply of T-5 Fluorescent Stree t lights luminaries with 2X28 watt tube, fixing last date for submission of quo tation on 4.1.2011 with the condition that the quotation would be opened on the same day in presence of all the tenderers. 4. In pursuant to the advertisement as aforesaid altogether six (6) bidders had participated in the tender process including the manufacturers and distribu tors and submitted their quotations. The rate quoted by the bidders are as follo ws: i) Hi-tech Corporation Rupees 1997/- ii) Mecove Power Works Rupees 1648/- iii) Satpal Industrial Rupees 2694/- iv) Philips Light Rupees 827/- v) TT Project Rupees 1025/- vi) Power Tools & Engineering Rupees 2100/- 5. As scheduled, the quotation alongwith the accompanying documents were op ened by the respondents in presence of all the participants. However, out of six competing quotations offered by the bidders, three were cancelled for not compl ying with the terms of the NIQ and contract documents. The rest three were in th e fray which includes respondent No.4 (who offered lowest rate), the petitioner (second lowest) and Satpal Industries (third lowest). The Purchase Committee the reafter, after completing all the formalities as required, in its meeting held o n 02.02.2011 had accepted the rate offered by the private respondent No.4 being the lowest rate. However on 04.02.2011 the private respondent No.4 issued a co mmunication to the respondent No.2 seeking for withdrawal their participation in the aforesaid quotation and release of Bid Security of Rs. 13,00,000/-. The gro und of withdrawal from the participation as communicated would reveal that due t o part renovation of their factory, they will not be able to supply 50,000 numbe rs of T-5 Fluorescent street light luminaries suitable for 2X28 Watt Tube, if or der placed in favour of them. 6. On receipt of the aforesaid communication dated 04.02.2011, the responde nt No. 2 issued a communication on 11.02.2011 to the respondent No.4 enquiring w ith the Regional Sales Manager, M/s Phillips Electronics India Ltd. Kolkata requ esting him to confirm whether they want to actually withdraw from the tender pro cess intimating the respondent No. 2 further making it clear therein that Clause 8 of the bid documents would be attracted which relates to forfeiture of securi ty deposit. As a consequence to the letter dated 11.2.2011 respondent No.4 vide letter dated 14.02.2011 withdrew their earlier letter dated 04.02.2011 and infor med that they have agreed to supply the required 50,000 numbers of T-5 fluoresce nt street light luminaries with 2X28 watt tubes informing further that due to pa rt renovation of their factory, they may not be able to supply entire 50,000 qua ntity within thirty days from the date of agreement as stated earlier. Hence, re quested to give them some more days to complete the supply. However, respondent No.2 vide communication dated 15.2.2011 had issued an acceptance letter to respo ndent No.4 requiring them to sign the Contract Agreement. The aforesaid action o f the authority has been challenged in the instant writ petition. 7. Advancing the argument on behalf of the petitioner Mr. Borbora, learned Sr. counsel has drawn the attention of the Court to the communication dated 04.0 2.2011 issued by the respondent No. 4 whereby the bidder unambiguously withdrawn from the process of quotation and submit that after the aforesaid communication there is no scope for further communication persuading the respondent No.4 to k eep intact their quotation and the same is, therefore, arbitrary, illegal and wi thout jurisdiction requiring judicial review of the entire matter. 8. Mr. Borbora has further contended that in view of the communication dat ed 04.02.2011 the respondent authorities have no option but to forfeit the bid security furnished by the respondent No. 4 and ought to have taken recourse to follow up actions on the basis of the remaining valid quotations which is the correct proposition under public tender system and competitive bidding, whereas in the instant case, the respondent No.2 went ahead after withdrawal from the pr ocess of quotation by the respondent No. 4 and made unwarranted persuasion to r emain in the fray by allowing the respondent No. 4 to withdraw the withdrawal co mmunication dated 04.02.2011 thereby violating Article 14 of the Constitution of India which deserves to be interfered with under judicial review. 9. Refuting the argument advanced by the Advocate representing the petition er, Mr. Talukdar, learned State counsel representing the respondent Nos. 1 and 2 would contend that the quotations submitted by the respondent No. 4 is in comp liance of NIQ wherein quotation was invited from the manufacturers/authorized d istributors/dealers of Phillips/ Bajaj/Crompton/Havells for supply of T-5 fluo rescent street light luminaries with 2x28 watt tubes and the rate quoted by the petitioner at Rs.2100/- is in higher side than the respondent No. 4 who has qu oted Rs.827/- and in order to save the public money the contract was awarded to the respondent No. 4. The same therefore do not call for judicial review, more s o, the matter being awarding of state largesse. Learned State counsel would furt her contend that the action on the part of the respondent official informing the forfeiture clause in case of withdrawal is bona fide thereby saving the respond ent No. 4 from the forfeiture of bid security money amounting to Rs. 13,00,000/- as the ground shown for withdrawal is part renovation of the factory by the res pondent No. 4. The respondent No.4 company overlooked the clause 8, i.e. forfeit ure clause and that cannot be faulted as alleged. Moreover, from the pleadings o f the writ petition it would disclose that the contract agreement had already be en singed by the official respondent and the respondent No. 4 on 16.02.2011 and vide supply order dated 16.02.2011 the respondent No. 4 was asked to supply 50,0 00 sets of T-5 fluorescent street luminaries with 2X28 watt tubes to 88 numbe rs of the Urban Local Bodies, i.e. the Municipal Board and the Town Committees of the State which the respondent No. 4 had supplied as sample on 22.02.2011 a s per clause 12 of the agreement was done in public interest to save the public money and the subsequent developments/events are not being challenged in the wri t petition, the petition deserves to be dismissed with costs. 10. Mr. BD Das, learned Senior counsel appearing for the respondent No. 4 wo uld contend that admittedly the offer of quotation was withdrawn which was commu nicated on 04.02.2011 without going through the provision of clause 8 of the quo tation document regarding forfeiture of the bid security amount of Rs.13,00,000/ - which was deposited by the respondent No.4 and after receipt of the communicat ion dated 11.2.2011 from the respondent No.2, respondent No.4 confirmed the supp ly of 50,000 numbers of street light within the period of 30 (thirty) days as stipulated in the agreement and the bid amount of Rs. 13,00,000/- has been conv erted to performance guarantee and in the meantime, supplied as sample 88 sets o f street light within a period of 5 days and the rests would be supplied within the stipulated period. Moreover, the respondent No. 4 offered Rs. 827/- per uni t whereas the writ petitioner offered Rs. 2100/-. The rate offered by the respon dent No. 4 would come to Rs.4,13,50,000/- whereas the rate offered by the writ p etitioner would come to Rs.10,50,00,000/- and there would be a difference of aro und Rs.6,37,50,000/- if the quotation as offered by the petitioner is accepted thereby huge pubic money is saved and therefore, this is not a case of judicial review requiring any interference. 11. Learned State counsel has produced the original record of the case. I ha ve perused the pleadings of the parties set forth alongwith the records produced . Admittedly three bidders were in the fray. The lowest bid of Rs. 827/- was off ered by the respondent No. 4 whereas the petitioner offered Rs. 2100/- It is als o an admitted fact that the respondent No. 4 has sent communication dated 04.02. 2011 for withdrawal from the quotation overlooking the clause 8 of the NIQ where by an amount of Rs. 13,00,000/- deposited as bid security would automatically be forfeited if withdrawn from the bid. However, the respondent No. 2 informed the respondent No. 4 of the forfeiture clause in the event of withdrawal. After rea lizing the consequence of forfeiture of huge amount, respondent No. 4 has withdr awn the offer made on 04.02.2011 on 14.02.2011. On the other hand, from the minu tes of the meeting of the purchase committee, it would reveal that taking into c onsideration the fact that if the 50,000 numbers of T-5 fluorescent street light luminaries with 2x28 watt tubes are purchased at Rs.827/- per set with the inst allation charge at Rs.2199/- per unit, there will be involvement of an amount of Rs.15,13,00,000.00 against the allocation of fund of Rs.25,00,00,000.00 and th ere will be a balance of an amount of Rs.9,87,00,000.00. Further considering t he fact that this balance could be utilized for purchase of another 32,617 numbe rs of street light at Rs.827/- at a cost of Rs.2,69,74,259.00 with installation charge at Rs.2199 per unit involving an amount of Rs.7,17,24,783.00 and the ra te quoted by the respondent No.4 being manufacturer found to be reasonable and l owest. Therefore, the purchase committee has resolved that purchase of T-5 fluor escent street luminaries with 2X28 watt tubes be purchased from the lowest bidde r, i.e. the respondent No.4, who offered rate at Rs.827/- per set inclusive of a ll taxes and transportation cost. Thereafter, the agreement was executed on 16.0 2.2011 and on 22.02.2011, the respondent No. 4 supplied 88 sets of samples of st reet lights and to supply the remaining 49,912 sets within a period of 30 days w hich is to be completed within two days. Thus the offer made by the respondent N o. 4 has rightly been accepted by the respondents in public interest saving publ ic money which do not require to be interfered with under judicial review. 12. Principles of judicial review would apply to the exercise of contractual powers by the state, its corporations, instrumentalities and agencies in order to prevent arbitrariness or favoritism. However, there are inherent limitations in exercise of that power of judicial review. The modern trend points to judicia l restraint in reviewing administrative decisions. The court does not sit as a c ourt of appeal but merely reviews the manner in which the decision is made. The award of a contract is a commercial transaction. In arriving at a commercial dec ision, considerations which are of paramount importance is the price at which th e party is willing to work, whether the person tendering has the ability to deli ver the goods as per specification. In the instant case, the respondent No. 4 it self is the Phillips Electronics India Limited (Phillips Lighting Division) and is the manufacturers of T-5 fluorescent street light luminaries with 2X28 watt t ube which cannot be equated with the writ petitioner not being manufacturer, the reby the offer of the bid of the respondent No. 4 has rightly been accepted in public interest and in any case it is not a case of any breach of the tender conditions of the respondent No. 4 and hence, no interference is called for. 14. The writ petition is found to be devoid of merit and the same is accordi ngly dismissed. The parties are left to bear their own costs.