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Calcutta High Court · body

1990 DIGILAW 381 (CAL)

Rajesh Shipping And Clearing Agency v. UNION OF INDIA

1990-09-13

Kalyanmoy Ganguli

body1990
Judgment 1. IN the instant application under article 226 of the Constitution of India, the petitioners, inter alia, pray for a writ in the nature of mandamus commanding the respondents to appoint the petitioner No. 1 as the Handling and Transport Contractor pursuant to tender notice No. F5 (14)/89. Cont. dated 29th August, 1989 being annexure 'a' to the petition. 2. THE short case of the petitioners is that the Food corporation of India hereinafter referred to as the P. C. I., Calcutta invited tenders for appointment of Handling and Transport Contractor for transport of. food grains and allied materials etc. in and around Abada Railway Siding for a period of two years from the date of appointment by tender notice No. F5 (14)/89 Cent dated August 2 9, 1989. The petitioner No. 1 submitted its tender form on October 17, 1. 989 and the petitioners contend that they fulfilled all the terms and conditions of the tender form and submitted all relevant, documents asked for by the authorities. 3. IT is the admitted case of the parties that all together six persons submitted tenders. Out of these six persons we are concerned only with the 'petitioner and the added respondent. The quotation of the petitioners was 27% below the scheduled rate whereas the quotation of the added: respondent, Mahabir Transport Company was 37% above the scheduled rate. From time to time the period of the validity of the tender was extended. 4. THE petitioners contend that the respondent no. 3 by his letter dated March 16, 1990 requested the petitioner to attend his office in connection with the requirement of the petitioner's antecedent, financial soundness, business capacity, capacity to pay wages to labourers and capacity to arrange trucks etc. for appointment of Handling cum Transport Contractor at Abada Railway Siding and the petitioner submitted all such documents by November 10, 1989. It is the contention of the petitioners that as the petitioners fulfilled all the requirements of the tender notice and as his quotation was the lowest, his tender should have been accepted by the F. C. I. 5. IT is the further contention of the petitioners that the petitioners were given to understand that their tender, being the lowest would be accepted but suddenly on June 1, 1990 the petitioners were informed that the proposed appointment was going to be given to the added respondent. IT is the further contention of the petitioners that the petitioners were given to understand that their tender, being the lowest would be accepted but suddenly on June 1, 1990 the petitioners were informed that the proposed appointment was going to be given to the added respondent. The petitioners contend that such appointments were made in a clandestine manner and principles of natural justice were violated in not giving the appointment to the petitioner without assigning any reasonable cause for non acceptance of the tender of the [petitioner no. 1]. 6. THE petitioner stops with such advertisements and on the basis of the pleadings in the petition there would not be much substance in the contention of the petitioners inasmuch as the authorities concerned are not bound to accept the lowest tender and are not also obliged to communicate the reasons for non acceptance of tender to the unsuccessful tenderers. During the course of hearing the records relating to the processing of the tenders concerned were called for, produced and given inspection of to the parties concerned. After the inspection of the records the petitioners virtually jettisoned their original case and placed reliance on the nothings the file with a view to pointing out that even before the petitioners ware directed to submit all supporting documents to prove their worth, the respondents concerned had already made up their minds to give the appointment to the added respondent. It may be mentioned here that no clear or specific case of any factual malaise has been alleged against any officer of the F. C. I. but a vague allegation of malafide had been made. 7. THE file of the department concerned was also closely perused by the court. It appears from the Memo No. F5 (14)/89 cent, dated 13. 2. 89, on which much reliance was placed v the petitioners, that local finance was of the opinion that the lowest rate of 27% BSCR offered by M/s. Rajesh shipping and Clearing Agency may not be considered workable specially when in Abada Siding there is heavy transit loss and an efficient contractor its required to be appointed. Thus the second lowest tender of M/s. Mahabir Transport company whose rate is 37% ASCR may be considered for appointment after negotiations. 8. Thus the second lowest tender of M/s. Mahabir Transport company whose rate is 37% ASCR may be considered for appointment after negotiations. 8. IT was also contended by the learned counsel appearing for the petitioners that the respondents had already made up there mind to appoint the added respondent even before the said respondents asked the petitioners to submit documents to prove their worthiness to handle the volume of the contract. The petitioners contended that the negotiation with the petitioners were merely an 'eyewash' and that the respondents have already made up their minds. First of all, the paragraph) quoted above is not a decision of the authorities but merely a suggestion made to the Zonal Manager (East) of F. C. I. on the advice of the legal finance on which the appropriate authority in to judge the workability of a contract by aspiring contractors. There were other nothings in the file and exchange of another departmental communication from which it would appear that the matter was given a very serious thought before switching over from an offer which was 27 below the schedule of rates to one which was 37% above the schedule of rates. A person with a myopic vision may option for immediate economy which may in the long run prove to be made more costlier. The authorities are experts in the field and if in their wisdom they want a somewhat costly contractor for the ultimate benefit, the court should not, sitting as a court of appeal, compel the authorities and the experts is the field to have a myopic vision 9. IT has been held, inter, in the. case of M/s Shri Sitaram Sugar Co. Ltd. and Anr. vs. Union of India ors., reported in AIR 1990 SC 1277 by a five judge bench of the Hon'ble Supreme Court that "judicial review is not concerned with matters of economic policy. The court does not substitute its judgment for that of the legislative or its agents as to matters within the province of either. The court does not supplant the "feel of the expert" by its own views. When the legislature acts within the sphere of its authority and delegates powers to an agent, it may empower the agent to make findings of fact which are conclusive, provided that such findings satisfy the test of reasonableness. The court does not supplant the "feel of the expert" by its own views. When the legislature acts within the sphere of its authority and delegates powers to an agent, it may empower the agent to make findings of fact which are conclusive, provided that such findings satisfy the test of reasonableness. In all such cases, judicial inquiry is confined to the question whether the findings of fact ware reasonably based on evidence and whether such findings are consistent with the laws of the land. As stated by Jagannath shetty, J. in Gupta Sugar Works ( AIR 1987 SC 2351 at page 2352) (supra) : "the court does not act like a chartered accountant- nor acts like an income tax officer. The court is not concerned with any individual case or any particular problem. The court only examines whether the price determined was with due regard to considerations provided by the statute. And whether extraneous matters have been excluded from determination." (para 57). The Hon'ble Supreme Court further held as follows :- "58 price fixation is not within the province of the courts. Judicial function in respect of such matters is exhausted when there is found to be a rational basis for the conclusions reached by the concerned authority. As stated by justice Cardose in Mississippi valley Barge Line Company vs. United States of America 1933) 292 US 282-290 78 Law ed 1260, 1265 : "the structure of a rate schedule calls in peculiar measure for the use of that enlightened judgment which the commission by training and experience is qualified to form. . . . . . . . It is not the province of a court to absorb this function to itself. . . . . . . . . The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the Administrative body." 10. THE above cast sets out a self imposed restraint on the power of the court of judicial review of administrative acts. The omnipotence of the court should be mellowed down by such self imposed restrictions. . . The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the Administrative body." 10. THE above cast sets out a self imposed restraint on the power of the court of judicial review of administrative acts. The omnipotence of the court should be mellowed down by such self imposed restrictions. As I have already observed that from a perusal of the file of the department it appeared that anxious considerations was given to all the aspects of the matter including the workability of the rates quoted before finally deciding up- the proper candidate on which the largesse was to be granted. 11. I find from the file that there was no malafide or arbitrariness in the selection of the candidate concerned to be awarded the contract. Although the contract may cost a little more money at the inception, yet it is for the experts to say as to whether the incurring of such extra cost is justifiable. The court should not pose as the expert in the matter and try to meddle. 12. IN the circumstances, I hold that there was neither any irregularity nor any malafide on the part of the respondents in selecting the added respondents for giving appointment as a Transport and Handling Contractor. In the circumstances,, this application fails and is rejected and all interim orders are vacated. There will, however, be no order as to costs. Application rejected.