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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, MIZORAM, TRIPURA AND ARUNACHAL PRADESH)
WP(C) No.5741/2009
1. M/S. JEET & JEET GLASS AND CHEM. P. LTD., represented by the Executive Officer, V.K. Industrial Area, Jaipur, (Rajasthan) India, Pin: 302013. 2. SRI GURVENDER JIT SINGH, Executive Officer, Jeet & Jeet Glass and Chem. P. Ltd., V.K. Industrial Area, Jaipur, (Rajasthan), India, Pin: 302013.
PETITIONERS
Versus
1. THE STATE OF ASSAM, represented by the Principal Secretary to the Govt. of Assam, Home and Political Department, Dispur, Guwahati: 6. 2. THE DIRECTOR GENERAL OF POLICE, Assam, Guwahati. 3. THE INSPECTOR GENERAL OF POLICE, (Security), Guwahati. 4. THE DEPUTY INSPECTOR GENERAL OF POLICE, (MPC), Guwahati. 5. M/S. MAHINDRA DEFENCE SYSTEM, A Division Tower, 2-A, Bhikaji Cama Place, New Delhi.
RESPONDENTS
2
WP(C) No.5743/2009
1. M/S. JEET & JEET GLASS AND CHEM. P. LTD., represented by the Executive Officer, V.K. Industrial Area, Jaipur, (Rajasthan) India, Pin: 302013. 2. SRI GURVENDER JIT SINGH, Executive Officer, Jeet & Jeet Glass and Chem. P. Ltd., V.K. Industrial Area, Jaipur, (Rajasthan), India, Pin: 302013.
PETITIONERS
Versus
1. THE STATE OF ASSAM, represented by the Principal Secretary to the Govt. of Assam, Home and Political Department, Dispur, Guwahati: 6. 2. THE DIRECTOR GENERAL OF POLICE, Assam, Guwahati. 3. THE INSPECTOR GENERAL OF POLICE, (Security), Guwahati. 4. THE DEPUTY INSPECTOR GENERAL OF POLICE, (MPC), Guwahati. 5. M/S. ABHISHEK MOTOR PVT. LTD., Tata Motors, M.R.D., Road, Shilpukhuri, Guwahati: 3.
RESPONDENTS
B E F O R E THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA
Advocates for Petitioners : MR. BC DAS,
Sr. Advocate MR. N ZAMAN, MR. PC DEY, MR. A GANGULY,
3
MR. B CHANDA MR. J CHOUDHURY MR. A OJAH MR. K KALITA Advocates for Respondents : MS. V. L . SINGH
Govt. Advocate For Respondent Nos. 1 to 4.
MR. AM MAZUMDAR Sr. Advocate, Mr. SS Dey MR. M NATH Mr. DP Bora Mr. A Roy
For respondent No. 5 (In WP(C) No.5741/2009)
MR. D GOSWAMI Mr. PC Das
For respondent No. 5 (In WP(C) No.5743/2009)
Date of hearing : 11.03.2011 Date of judgment : 25.04.2011
JUDGMENT & ORDER
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 judgment
and order.
2. The first writ petition being W.P.(C) No. 5741/2009 has
been filed challenging the communication dated 02.09.2009
whereby the Deputy Inspector General of 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 of fund by the Government of India, in the
4
Ministry of Home Affairs for procurement 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 meeting 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 Limited,
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/- for purchase of these
vehicles so that the Bullet Proof vehicles could be procured 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 writ petition is
relating to the tender submitted by the writ petitioner for
supply 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 thereof is given herein below:-
By two notice inviting tenders (NIT for short) issued by
the Deputy Inspector General of Police (MPC), Assam, sealed
tenders were invited “for supply/procurement of 25 (Twenty
Five) Nos. of Mahindra SUV under DGS & D rate contract if
available and Bullet Proofing/Armouring of the same” (in
WP(C) No.5741/2009) as well as “16 (Sixteen) Nos. of Tata
Sumo vehicles with 3 Liter DICOR with 30 Kg-m Torque and
5
115 PS under DGS & D rate contract if available and Bullet
Proofing / Armouring 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
Agents. The tenderers were requested to submit tenders in
two bid system i.e., Technical bid and Commercial bid in
separate sealed cover along with attested copies 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 the 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 in 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 Bullet Proof glass and armour steel
from their principal in Germany on any manufacturer chassis
and are regularly supplying the products to different agencies
since 1972 including Army, State Government, Defence and
Paramilitary forces. The company is the Industrial partners of
Defence Research and Development Organization (DRDO),
Ministry of Defence for supply of manufacturing of Bullet Proof
products. The company‟s Bullet proof products have been
approved by the V.R.D.E. (Vehicle 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 Government of India,
6
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 foreign countries also.
6. In the first writ petition i.e., in W.P.(C) No. 5741/2009
five tenders including 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 supply of Bullet Proof TATA
Sumo. Admittedly, the Technical Committee in both the cases
selected the respondent No. 5 as first preference bidder while
the writ petitioners were adjudged as the second preference
bidder. The proceedings of the selection 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 writ petitioners have quoted lower price in
comparing to the private respondents. Subsequently, on
16.05.2009 the Purchase Committee headed by its Chairman,
the then Director General of Police, Assam, Guwahati held a
meeting and came to the conclusion 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 manufacturer. 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 performance has been found upto
the mark.
7
(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 been
tested.
The Committee has accepted the rates of
Mahindra SUV quoted by M/S Mahindra 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 to the higher authorities inter alia protesting
the selection of the private respondents in both the cases
overlooking the lower rate quoted by the writ petitioners as
well as the quality of products being offered by them. Moreso,
bullet proof glass is their own product which is of world
standard. It appears that pursuant to the petitioners‟
representation dated 21.05.2009, the Principal Secretary to
the Government of Assam, Home & Political Department
directed the Director General of Police, Assam to place the
representation of the petitioners‟ before the 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 Assam, 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 authorized dealer are running
satisfactorily and performance has been found upto the
mark………………….
8
(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 incorporate
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. Any 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/authorized agent rather than from a
body fabricator. Moreover, the manufacturer above
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, they are not the
manufacturer / authorized dealer of the vehicles. So
the lowest price 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 rate of the B.P. Vehicles
for procurement at a lesser price than the quoted
price.”
8. Thereafter, the petitioners submitted various
representations to the Director General of Police against the
abovementioned decision of the Purchase Committee and
prayed for reconsideration of its claim. However, the
authorities without taking into consideration the
abovementioned representations, issued the impugned order
dated 02.09.2009.
Thus, it is the case of the petitioners that the
respondent authorities without considering the objection
9
made by the petitioner in its various representations
proceeded to finalize the matter as per the purported
decision of the purchase committee and thereafter, the
Deputy Inspector General of Police vide its letter dated
02.09.2009 requested the Principal Secretary to the
Government of Assam, Home 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 the Director General of Police, Assam to draw the said
amount and it is this letter 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
Secretary to the Government of Assam, Home (A) Department
wrote to the Director General of Police, Assam seeking
clarification whether rates approved by the Purchase
Committee with the authorized dealer have been negotiated
or not and to communicate the reply urgently. Pursuant to the
aforesaid letter dated 24.09.2009, the Assistant Inspector
General of Police vide his letter dated 19.10.2009 informed
the Joint Secretary to the Government of Assam, Home(A)
Department, inter alia, stating that the negotiations with
respondent No. 5 firms in both the cases were 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, Advocate appearing for the writ petitioners. Also
heard Mr. A. M. Mazumder learned Senior 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
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 contending that the
writ petitioners have not specifically challenged the decision
making process either in the pleadings or in the prayers
contained in the writ petition. Consequently, this Court should
desist itself from interfering with the writ 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 the attention of this
Court to the judgment reported in AIR 1951 SC 41(1)
[Charanjit Lal Chowdhury –Vs.- Union of India & Ors.], (1981) 3
SCC 528 [B.R. Ramabhadriah Vs. Secretary, Food and
Agriculture Departments Andhra Pradesh & Ors.] and 2000 (2)
GLT 222 [Mandira Singh Vs. State of Assam & Others] to the
effect that the Court in the interest of justice can mould
relief in a given situation even in the absence of specific
pleadings. While in various judgments, the Supreme Court has
held that the pleas not raised in a petition should not be
looked into, yet there are equal numbers of judgments to the
effect that High Court can very well decide a petition even on
pleas not raised in a petition as a case of exception. 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 face of the record, the High Court can
take notice of such fact and proceed to decide 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 respondents are parts of writ petition
11
and hence the Court can very well look into the same. In the
instant case, for the ends of justice, I would proceed to
decide 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 committee 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. The further fact that the Bullet Proof vehicle of
the private respondents are already in use of Assam Police,
performance of which have already found upto the mark has
heavily tilted the decision making process in favour of the
private respondents. In addition, the finding of the purchase
committee to the effect that although 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 materials 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 Assam Electrical –Vs- North Eastern
Electric Power Corporation Ltd. & Others reported in 2001 (1)
GLT 604, it is alleged by Mr. Das that in the absence of any
specific indication in the NIT to give weightage to the original
manufacturer or their authorized agents, no preference could
have been given to respondent No. 5 of both the writ petitions
12
on the ground of they being original manufacturer of Mahindra
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 has also been pressed
by Mr. Das to fortify his above contention to the effect that
the tender conditions having not specified any reservation for
special consideration in favour of the original manufacturer or
authorized agent of the original manufacturer, the
proceedings of the purchase committee suffers from the vice
of bias against the petitioner and undue favour to the private
respondents in both 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 manufacturer of the items sought to be procured
through NIT in question. It is pleaded that Mahindra Defence
Systems (MDS) is a division of Mahindra And Mahindra Limited
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
subsequently changed to Mahindra And Mahindra Limited.
13
Mahindra And Mahindra Limited is also the registered Trade
Mark owner of the name „RAKSHAK‟ in respect of apparatus
for locomotion by land, air or water, Motorland vehicles,
Utility Vehicles, Automobiles, Tractors, Tractor Engines &
Parts, Fitting & Accessories thereof including implements
therefor, accessories and parts used in assembling of
Motorland Vehicles, Utility Vehicles, Automobiles, Tractors all
being goods included in Class 12; vide Certificate No. 401194
dated 18.7.2005 issued by the Registrar of Trade Marks under
the Trade Marks Act, 1999. Bolero series of vehicles i.e.
Bolero DX 4WD & Bolero SLX 4WD (the Bolero Models quoted
by the petitioners) were/are also manufactured exclusively by
Mahindra And Mahindra Limited having registered 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 division 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,
Government 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 And Mahindra Limited, the original
manufacturer of Mahindra SUV Vehicles of all models
(inclusive of Bolero), grades and standards including the
“Ready Built Bullet Proof Mahindra Rakshak” and “Ready Built
Up Armoured Mahindra Scorpio” and neither the Respondent
No. 5, i.e. the Mahindra Defence Systems nor its parent
Company, viz. Mahindra And Mahindra Limited who are the
manufacturers of Mahindra SUV have authorized or appointed
any Company or concern including the Writ Petitioner M/S
Jeet & Jeet Glass and Chem. P. Ltd. to represent it as the
14
dealer/ distributor/ authorized Agent or in any other capacity
to quote the rates of the vehicles of the Respondent No. 5
Company in any manner or for any purpose whatsoever.
Further, Mahindra And Mahindra Limited has also been
granted statutory industrial licence under the Industries
(Development And Regulation) Act, 1951 (Central Act 65 of
1951), inter-alia, for manufacture of „light armoured multi
role vehicle‟ by the Ministry of Commerce & Industry,
Government of India vide No. CIL:11(2008) dated 19.9.2008
issued by the Under Secretary to the Government of India.
Armoured fighting vehicle is included under Item No.
13(87.10) of Schedule– II list prescribed under Section 29B of
the Industries (Development And Regulation) Act, 1951
whereby all items included in the said Schedule– II list can be
manufactured only under licence issued by the statutory
authority under the aforesaid Act.
14. It is contended by Mr. Mazumder that with this
background the claim of writ 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
contended that the proven performance of the product
manufactured and offered for supply 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 control of insurgency problem with a view
to safeguard the life and property of the common citizen as
well safety and security of the security forces using those
products. Such consideration, according to Mr. Mazumder
cannot be viewed or interpreted to infer undue bias or pre-
conceived mind of the purchase committee members. Mr.
Mazumder further submitted that one of the items i.e. Bolero
15
SLX 4WD which has been quoted by the writ petitioners in its
tender document is out of production by its manufacturer i.e.
Mahindra & Mahindra Ltd. and if at all the tender 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 count alone the writ petition is liable to be
dismissed. Mr. Mazumder further submitted that so far the
decision of the Apex Court reported in (1994) 6 SCC 651 [Tata
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 petitioners in the instant cases
rather, it helps the private respondents. In support of 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 decision 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 arbitrariness, irrationality,
unreasonableness, bias and malafides. Its purpose is
to check whether choice or decision is made
“lawfully” and not to 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 special features should
be borne in mind. A contract is a commercial
transaction. Evaluating tenders and awarding
contracts are essentially commercial functions.
Principles of equity and natural justice stay at a
distance. If the decision relating to award of contract
16
is bona fide and is in public interest, Courts will not,
in exercise of power of judicial review, interfere
even if a procedural aberration 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. Attempts by
unsuccessful tenderers with imaginary grievances,
wounded pride and business rivalry, to make
mountains out of molehills of some
technical/procedural violation or some prejudice to
self, and persuade Courts to interfere by exercising
power 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
thousands and millions and may increase the project
cost manifold. Therefore, a Court 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 malafide or intended to
favour someone;
OR
Whether the process adopted or decision made
is so arbitrary and irrational 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.
17
If the answers are in the negative, there should
be no interference under Article 226. Cases involving
blacklisting or imposition of penal consequences on a
tenderer/contractor or distribution of State largesse
(allotment of sites/shops, grant of licenses,
dealerships and franchises) stand on a different
footing 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 ground of malafides. The
whole contention was that once the writ petitioner
meets the requirements in accordance with the terms
and conditions of the IFB and once technically
qualified and its offer being the lowest ought to have
been accepted without making any further relative
assessment as to which tractor is technically more
suitable and viable for the purposes of awarding the
purchase order. We are unable to accept the said
contention for the simple reason that none of the
terms and conditions referred to hereinabove
precludes the purchaser from selecting and choosing
the best out of the available. Price may not always
be the sole criteria for awarding a contract. The
quality of the goods which are offered, which is
assessed on the basis of the technical qualifications
made available, play an important role in deciding to
whom the contract should be awarded. It is well
recognised that even a higher price for much better
quality of work can be legitimately paid in order to
18
secure proper performance and good quality. Taking
such parameters into consideration in no manner
would be detrimental to public interest. The Expert
Committee took the decision after taking the
relevant parameters into consideration. It is not
open for this court to substitute its own decision
unless it is clearly established that the decision of
the Expert Committee is based on no material or it
has taken irrelevant factors into consideration and
had left relevant factors from consideration such is
not the case set up by the writ petitioner. The
principle of awarding contract to the lowest tenderer
applies when all things are equal. The quality of the
goods to be purchased cannot be sacrificed only for
the purposes of awarding contract to the lowest
bidder. The writ petitioner cannot succeed and insist
for awarding the contract on the sole ground of being
the lowest bidder.”
15. Mr. D. Goswami learned counsel appearing for
respondent No. 5 in W.P.(C) No. 5743/2009 while broadly
adopting the submission made by Mr. Mazumder learned
Senior Counsel for respondent No. 5 in W.P.(C) No. 5741/2009
has reiterated that the writ petitioners do not fall within the
category of either a dealer or distributor or authorized agent
of the manufacturer of TATA Sumo vehicles as per the tender
notice. According to Mr. Goswami the writ petitioner is at best
a fabricator who procures vehicle chassis and fabricate them
with the Bullet Proof vehicles. Hence, the rate quoted by the
petitioners which is lower than the rates quoted by the
manufacturer is itself suggestive of quality of products offered
by the writ petitioners.
19
16. Ms. V. L. Singh, learned State Counsel has produced the
original records pertaining to the tender process of both the
cases for scrutiny of this court.
17. I have given my anxious consideration to the rival
submissions made during the hearing of the petitions and
perused the entire materials and original record of the case.
18. Procurement of materials i.e. “25 (Twenty Five) Nos. of
Mahindra SUV under DGS & D rate contract if available and
Bullet Proofing/Armouring of the same” as well as “16
(Sixteen) Nos. of Tata Sumo vehicles with 3 Liter DICOR with
30 Kg-m Torque and 115 PS under DGS & D rate contract if
available and Bullet Proofing / Armouring of the same” for use
of State Machinery in the cases of the Assam Police fall within
the ambit of distribution of State largess whereby rights of
private parties are involved. Hence, any decision by State
instrumentalities has to be fair, equitable, transparent and
qualify the touchstone test of Article 14 of the Constitution of
India. While writ court in doing so will not sit on appeal over
the decision of the authority procuring the materials,
nonetheless the process of decision making which ultimately
culminates into a decision in favour or against a party is
amenable to judicial review. The right of the State authorities
to make a fair decision in due exercise of its power in public
interest is also duly recognized. The ambit of judicial review
is aimed at ascertaining fairness and transparency adopted
and maintained by the authorities in the entire process of
decision making so as to deny any intrusion of
unreasonableness or arbitrariness.
20
19. The cases in hand relate to procurement of special
Bullet Proof vehicles to the Assam Police for use by its
personnel for meeting special challenges. This court is neither
the forum to adjudicate or decide the contesting rival claims
of the parties regarding the relative superiority of these
products nor the court will tread into the arena for technical
expertise. Having said so, this court also cannot shut its eyes
to some facts glaring at it. If the State wants to procure a
product which is exclusively manufactured by a particular
manufacturer under its brand name with exclusive licence for
manufacturing the same, there is nothing in law of
distribution of public largesse preventing it from directly
acquiring such products from the manufacturers at its
scheduled rates. In the instant case the NIT clearly reveals the
product brand name of vehicles which itself denote even the
names of their respective exclusive manufacturers. However,
inspite of this position the respondent authorities opted to
float open tenders for procuring these branded products by
inviting tender from intending Suppliers, Dealers, Distributors,
Manufacturers or their Authorized Agents for
supply/procurement of “25 (Twenty Five) Nos. of Mahindra
SUV under DGS & D rate contract if available and Bullet
Proofing/Armouring of the same” as well as “16 (Sixteen) Nos.
of Tata Sumo vehicles with 3 Liter DICOR with 30 Kg-m Torque
and 115 PS under DGS & D rate contract if available and Bullet
Proofing / Armouring of the same”. The fact that these
products supplied by their original manufacturers are already
in use of the procuring agency to the satisfaction of its real
user is obviously a very relevant consideration for the
procuring agency while arriving at a subjective satisfaction for
selecting a product. Such consideration in my opinion is truly
a relevant one and cannot be in any manner vitiate the
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decision making process. The original records made available
before this court reveals as follows:-
“……the committee was also apprised that the BP
vehicles which were procured from the bodybuilders /
fabricators earlier are not functioning properly and
most of these vehicles are lying idle while the vehicles
bought from manufacturer are running smoothly.”
20. There is nothing on record or materials placed before
the court by the parties specially the writ petitioners to
suggest that the aforesaid facts considered by the purchase
committee either non-existent or calculated to infuse bias
against the writ petitioners. Further, price of the product is
definitely a relevant consideration but certainly not the
ultimate determining factor, more so when quality of the
product has to be given prime consideration. In the instant
cases, the purchase committee has accepted the price of the
product quoted by its Original Manufacturer/Authorized
Agents; there is nothing on record to suggest that such prices
are unduly inflated. Hence, the mere fact that such rates are
higher than the price quoted by the writ petitioners, who
admittedly do not manufacture such vehicles and merely
fabricates those vehicles, cannot in any manner, vitiate the
decision making process. In fact, on the face of
uncontroverted stand of respondent No. 5 in both the cases
that neither the Mahindra Defence System nor Tata Motors,
the Original Manufacturers of products sought to be acquired
through the two NITs have, in any manner authorized the writ
petitioners to quote products in its brand name tilts against
the very credibility of the tenders submitted by the writ
petitioners. Hence, taking the totality of the facts and
circumstances revealed on materials on record placed before
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this court, the challenge of the writ petitioners cannot be
sustained and accordingly both the writ petitions fail. This
court by its order dated 4.05.2010 passed in Misc. Case No.
1097/2010 in W.P.(C) No. 5741/2009 and order dated
9.06.2010 passed in Misc. Case No. 1555/2010 in W.P.(C) No.
5743/2009 recorded its prima facie finding in favour of the
impugned orders of the authorities and vacated the interim
order passed earlier. On final determination of the issues at
length, I do not find any reason to defer from the prima facie
findings as recorded above.
21. For the foregoing discussions and reasons, both the writ
petitions are found to be devoid of merit. In the result, the
writ petitions are dismissed. No order as to costs.
JUDGE
Shivani