—~ -^-J , 1, \). ^•^ ^? ^v-" ^ f ^' IN THE HIGH COURT OF JUDICATURE AT BILASPUR fCHHATTISGARHl W.P.NO.J^230F 2005 03 PETITIONER ^'^'1 ^ Bhajan Gaba, S/o Shri Surjit Gaba, aged about 37 years, Occupation-Business in Sale & ^f" Purchase of Cattle, R/o Near Itwari Bazar, Daru Bhatti Road, Korba, Tahl & Dist Korba (CG) VERSUS RESPONDENTS ^ G^"^ 1. State of Chhattisgarh through Secretary, Department of Agriculture, Mantralaya, Dau Kalyan Singh Bhawan/ Raipur National Dairy Development Board, ProjectCell, Raipur/ C/o Raipur Dugdha Sangh Sahakari Maryadit, Shop No.2, Abhyuday Parisar, Nagar Ghadi Chowk, Raipur through its Project Director, Raipur (CG) 3. Project Director Project Cell, ^ N D D B, C/o Raipur Dugdha | ^ Sangh Sahakari Maryadit, Shop 1 No. 2, Abhyuday Parisar, Nagar ' Ghadi Chowk, Raipur, Tahsil & District Raipur (Chhattisgarh) <' WRIT PETITION UNDER ARTICLE 226/227 OF TH E CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT IN 1ATURE OF CERTIORARI, MANDAMUS. PROHIBITION AND OTHER SUITABLE WRIT OR WRITS, DIRECTION OR DIRECTIONS, ORDER OR ORDERS: a |r 69 HI©HCOURT OF JUDICATURE AT BILASPUR (CHHATriSSARH) Writ Petjtion No. 1523 of 2005 Bhajan &oba "Versus- State of Chhattisgcrh & others NJ) POST FOR ORDER ON 2^"AU6UST, 2005 Sd/- L.C. Bhadoo Judge ^ 70 HIGH COURT OF JUDIC^TURE AT BILASPUR (CHHATTIS^ARH) Wrlt Petltion No. 1523 of 2005 Bhajan GabQ -Versus- State of Chhattisgarh & others y' Present: Shri Manindra Shrivastava, Senior Advocote with Shri Amrito Da5 Advoccrt-e: For the petitioner, Shri Y* S Thakur, 6ovt. Advocote: Shrl P.S Koshy, Advocate: For respondent No.l< For respondents No<2 & 3. ORDER (Passed on 2--2." ' August, 2005) L.C. BHADOO, J. 1. By this writ petition under Articie 226/227 of the Constitution of India the petitioner cails in question th@ decision of respondents No.2 and 3 whereby tender submitted by the petitioner was not considered on the ground that the same was not submitted within the stipulatect time i.e. by 2 pm cn 4-4-2005. 2. Brief facts necessary for disposal of the writ petition are that respondent No.3 is^ued notice inviting tender on 5-3-2005, which was published in Dainik Bhaskar on 10-3-2005, for supp!y of milch animais in number 10,000 of different indigenous breeds of milch cattie viz. Gir, Tharparkar, Kankrej, Rathi, Sahiwal, Ongoie, Haryana etc.. It was atso made ciear in the said notice that the tender documents can be obtdned from the office of the Project Director on payment of Rs.500/- up to 1 pm of 4-4-2005 on any working day during office hours. The tender documents were to be submitted duiy filted in and compieted so as to reach to the office on or before 2 pm of 4 April 71. -r \ n 2005. The tenders were to be opened on the same date at 3 pm in the presence of tenderers and/or their authorized representatives. 3. The case of the petitioner is that on the fateful day he reached the respondents' office. On enquiry, it was informed that Mr. Lingam wouid accept the tender. Accordingiy, he submitted his tender to Mr. Lingam at 1.35 pm and he asked for the receipt but the same was not given to him. A chart was prepared jn which the names of tenderers were written and al! of them were asked to put their signatures. The petitioner put his signature. The petitioner made an enquiry from Mr* Lingam whether any register was maintained showing receipt of tender form, time and date so that he can put his countersignature on it. The petitioner was informed that there is no such system. No tender box was also kept. The entire system of acceptance of tender was highly unusuai. The petitioner found that at the pbce of tender some persons had gathered around and some of the tenderers were aiso standing in front of the office. Tiit 5/ o clock tenders of others were opened and discussions were going on. In the meointitne, the Project Director also came. The petitioner oraiiy submitted to the Managing Director that his tender has not been opened. The petitioner resisted that he had submitted tender weil in time. Immediately the project officer toid him that the matter wii! be looked into. The petitioner prepared a representation and reached the office at about 5.30 pm, but nobody was avaitabie. On the next day aiso nobody was available. In the evening at about 4 pm, the petitioner was able to hand over his representation to a peon. Therefore, the petitioner's challenge is that he submitted his tender within time but the respondents deiiberatefy did not include his tender for consideration.t 4. Return has been filed on behalf of respondents No.2 and 3 in which preliminary objection has been raised that after tenders were opened on the same day and proceedings were drawn, the matter was r 72 adjourned for the next day i.e. 5-4-2005. On that day after scmtiny of 7 tenders submitted by various parties, contract was awarded to 4 persons whose tenders were found lowest, therefore, this writ petition has become infruclzious. This writ petition involves disputed questions, therefore, the same may be dismissed.It has further been mentioned that the tender process was conducted in a transparent manner. Ti!! 2 pm on 4 Apri! 2005 the petitioner had not submitted his tender documents and he had not participated in the tender process. The petitioner's tender could not be considered as the same was submitted at about 2.30 pm. Other tenderers objected in writing not to accept any tenders received after stipuiated period, Copy of the said objection is Annexure-Rn2/3* The time of receipt of the petitioner's tender i.e. 2.30 pm is mentioned in the register Annexure- R-2/1 in which receipt of tender was entered. After completion of the tender process, the Committee adjoumed proceeding for 5-4-2005 on which date the lowest quoted rates were made known to the participating bidder and it was a!so suggested to al! the bidders as to whoever are agreeable for the lowest offered rates would be considered for awarding of the said contract, In th©process, all the three participating bidders who had earlier quoted higher rates also accepted lowest rate and accordingly the tender was finalized. The aliegation ieveiied by the petitioner has been denied and ultimately, it has been prayed that the petition be dismissed. 5. I have heard learned counsel for the parties. 6. Shri Manindra Shrivastava, learned Senior Counsel for the petitioner argued that the petitioner submitted his tender documents at 1.30 pm haif a hour before the prescribed time, but no register was maintained. No signatures of the parties were being obtdned. Eyen no -tender box was kept and the whole system was irregular. The petitioner oniy came to know at about 4 pm when his tender was not considered. The petitioner contacted the Director but to no avdi. 4 73 Then he immediateiy prepared a representation, but by the time the petitioner returned to the office, office was closed. On the next day nobody was avdlabie. In the evening he was able to hand over representation to a peon who was standing there, He further argued that respondents ought to have maintained a fair and tronsparent procedure in processing the tenders and maintaining the record of the tender process. He further argued that document Annexure-R-2/1 submitted by respondents No.2 and 3 along with return shows that even signGtures of the tenderers were not obtained. When the petitioner did not submit his tender within time, why his tender was accepted at 2.30 pm. It shows that record was not properiy maintained. In the ordinary course after prescribed time, tenders are not accepted. 7. On the other hand, Shri P.S. Koshy, learned counsel for respondents No.2 and 3, argued that all the tenders which were submitted up to 2 pm were considered by the committee, even tender of the petitioner was received, but on account of written representation and objection raised by other tenderers, the tender documents of the petitioner couid not be considered as the same was submitted after expiry of prescribed time, which is evident from Annexure-aR'-2/l. He further argued that tender committee examined everything and it is evident frorn Annexure-BR"2/2 that proceeding of opening of tender and decision was taken thereon by the committee that the tender of the petitioner was not considered as only 7 tender documents were found to be submitted up to 2 pm. There is mention in the proceedlng that tender document of the petitioner was submitted after 2 pm. He aiso drew attention of the Court towards Xerox copy of the representation submitted by other tenderers Annexure-R-2/3 in which they mentioned that only 7 tenders were submitted up to 2 pm, therefore, oniy those tenders shoutd be considered. 74 8. Now, coming to the question of scope of interference with an administrative action, the same has been considered by the Honjb!e Apex Court. The basic principie of judiciat review to judge the validity of the administrative action, which is being followed is known as 'Wedne^bury Principle' which is expounded in Assoc§at@d Provlncsal Pictur®Houses Limited V. W@dn@sbury Corporation. (1948) 1 SCB 223. The Hon'ble Apex Court in the matter of Tata Cellvlar V. Union of IndJa reported in AZR 1999 SUPREME COURT 11 while observing that the principles of Judicial review wouid appty to the exercise of contractual powers by &overnment bodies in order to prevent arbitrariness or fayouritism held that 'the judiciat review is concerned not with the merits of the decision but with the manner in which the decision was made/ In para-94 of the said judgment the Hon'ble Apex Court heid that: ll(i) IIIegality : This means the decision maker must understand correctly the iaw that regulates his decision making power and must give effect to it. (ii) irrationality, nameiy, unreasonableness, (iii) Procedural impropriety." Wednesbury 9. Again, in the matter of Apparel Export- Promotion Counci! V. A. K. ChoppG reported in AIR 1999 SC 625. the Hon'ble Apex Court held that; "Judicial review, not being an appeai from a decision, but a review of the manner in which the decision was arrived at, the Court, white exercising the power of judiciGl review, must remain conscious of the fact that if the decision has been arrived at by the administrative authorit^ after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute its judgment for that of the administrative authority on a matter which fell 75 /» squarely within the sphere of jurisdiction of that authority." 10. Similarly, in Chairman and Managing Director. United CommerciGl Bank V. P.C. Kakkar reported in AIR 2003 SC 1571 on a review of various earlier decisions of the'Hon'bie Apex Court and Engiish Courts, the scope of judicial review has been succinctiy summed up as follows: <- "The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was iilogical or suffers from procedurat improprlety or was shocking to the conscience of the Court, in the sense that it was in defiance of iogic or morai standards. In view of what has been stated in Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision." 11. Further in the matter of Duti'a Assocsates Pvt. Ltd., Versus Indo Merchantiles Pvt. Ltd, and others reported in (1997) 1 Supreme Coyrt Cases 53 the Hon'ble Apex Court heid that: "Whatever procedure the ^overnment proposes to foiiow in accepting the tender must be ctearly stated in the tender notice. The consideration of the tenders received and the procedure to be followed in the matter of acceptonce of a tender should be transparent, fair and open. While a bona fide error or error of judgment wouid not certainly matter/ any abuse ofpower for extraneous reasons would expose the authorities concerned." 12.Thus, the position which emer9es out of these decisions is that judicial review under Article 226 of the Constitution cannot be exercised as a Court of appeal. Judiciai review must be confined to the examination of the decision-making process. Where an administrative action is questioned as arbitrary under Article 14 of 76 tt' the Constitution, the roie of the Court is confined to "Wednesbury principles". The Court has to examine whether the decision is rationai or reasonable and has been arrived at after following the principles estabiished by law and by taking into account all the retevant factors and is not manifestly unreasonabie that no reasonable authority, entrusted with the power in question, could reasonabiy have made such a decision. The whoie procedure to be foiiowed in the matter of acceptance of a tender must be transparent, fairw\d open. 13. Based on the aboye principles, if we examine the facts of the present case, the petitioner's case is that he submitted his tender on the hst date at 130 pm half a hour before expiry time, whereas, case of the respondents is that tender documents were submitted by the petitioner by 30minutes tate i.e. 2.30 pm, therefore, the petitioner's tender documents were not considered. In this case, the chaiienge of the petitioner is that copy of register Annexure-R/2-l, which has been produced, do not bear the signatures of the tenderers who submitted tenders, whereas, on the other hand, apart from this register, minutes of the proceeding of committee who scrutinized the tenders and finalized tender documents have also been produced by respondents. Copy of representation of other tenderers has aiso been produced, Annexure-R-2/3, which is Xerox copy of representation made by 7 tenderers, has been annexed with the return in which it has been mentioned that oniy 7 tenders were received in time up to 2 pm, therefore, those tenders ^hould be considered and that representation bears signatures of 7 tenderers. This fact has not been denied by the petitioner and no rejoinder has been filed to this effect, therefore, there is no reason before this Court to discard thls document. Moreover, perusa! of the minutes of the proceeding regarding scrutiny of tenders and decision taken Itiereon by the committee shows that on!y 7 tenders were received in time. The petitioner's tender was received at 2.30 pm, therefore, the same was a 8 77 t— not considered. Tenders were opened on the same day and then proceedings were deferred for the next day, and 3 parties submitted their iower rates and based on that tender documents of 4 parties were accepted, and the six members of the committee were there. The petitioner has not been abte to bring on record any material upon which this Court can consider that atl the members of committee were blased towards the petitioner. There is no reason as to why ali the 6 members were against the petitioner. 14.Lookin9 to the totaiit/ of the above circumstances placed on record, the point raised by the petitioner does not seem to be ptausibie and believable. It is true that respondents being a public authorit/, when they are dealing with public money and as per the various decisions of the Hon'bie Apex Court, they were required to conduct whoie proceeding of tender process in a transparent, fair and open manner. They ought to haye devised transparent, fair and open system for accepting scrutiny and further processing of the tender in such a way / that thei^ should not have ieft any room, which makes the process doubtful in any manner. Normaily, in such a situation, ^overnment instrumentaiities are required to either accept tender only through post office or courier service ahd then to enter the same in the register maintained for the purpose. They shouid aiso enter time of receiving. In case, tenders are permitted to be submitted in person, then the person who has submitted the tender, his signatures ought to have been obtained. The entries in such register must be signed by some Senior Officer. The other procedure which can be adopted is that to keep a sealed tender box in the office so that tenderers can drop their tenders in the sealed box and such sealed tender box must be opened in the presence of the parties so as to leave no room for any doubt. Unfortunateiy, in the present case, no fuli proof system was adopted by respondents cxnd that gave room to the petitioner to level allegations against respondents. But, as has been mentioned 9 78 above, looking to the totalit^ of the facts and circumstances, i.e. representation made by other tenderers, minutes of proceeding recorded by tender committee and aiso register Annexurea-R/2-l, cumuiative effect of alt these documents shows that the petitioner's ailegations are not established. 15.In the result, the petitioner has not been able to make out a case for ^ judicial review in the matter by this Court by invoking extraordinary jurisdiction under Articie 226/227 of the Constitution of India. The writ petition is liable to be dismissed and the same is dismissed. Barve Sd/- L.C. Bhadoo Judge