Judgment : The subject matter of challenge in the instant writ petition is a decision of the State Government contained in Memo No. 1035-M.I-I/3T-4/93 dated 31.3.93 being annexure 'D' to the writ petition whereby contrary to the recommendation of the Tender Committee the State Government has decided to accept the tender of M/s. Hind General Agency and M/s. Tapan Kumar Das instead of that of the petitioner. 2. It has been submitted by Mr. Pal, Learned Advocate for the petitioner that by the said Memo the State has arbitrarily decided to accept the tender offered by M/s. Hind General Agency and M/s. Tapan Kumar Das for supply of certain spare parts for Diesel Engine instead of accepting the tenders submitted by the petitioner although the Tender Committee comprising experts had unanimously recommended the acceptance of the tender of the petitioner for the same spare parts. 3. For the purpose of appreciation of the question involved the relevant facts are set out hereinbelow :- 2. THE FACTS : The Government of West Bengal issued a Notice inviting Tender No.2 of 1992-93 dated 27.8.92 (hereinafter refened to as NIT) for supply of spare parts for Diesel Engines. The items to be supplied were grouped under fourteen groups. Each group included a number of items and the notice provided that the tenders would be considered separately for each item within the group. The following clause of the NIT are relevant and, therefore, extracted : 1. INVITATION ...... ….. .…. …… Manufacturers/their authorised distributor(s)/authorised Dealer(s)/authorised stockist (s) and other reputed suppliers in the trade are eligible to participate in the tender. The term "manufacturers" will mean the manufactures of reputed brand of Diesel Engines of 20 H. P. and above and the manufacturers of spare-parts which are being used as original equipments parts in the manufacture or reputed brands or diesel engines of 20 H.P. and above." "2. FOR SPECIAL ATTENTION : All tenderers are to note that tenders containing any deviation from the contractual terms and conditions, specifications and other requirements are liable to be rejected. The tenders which do not meet the appropriate standard of capability and financial resources, shall not be considered." 4. The following terms and conditions of the Special Conditions were appended to the NIT : "4. The tenders which do not meet the appropriate standard of capability and financial resources, shall not be considered." 4. The following terms and conditions of the Special Conditions were appended to the NIT : "4. Qualification of Tenders : i) The tenderers must submit the following along with the tender, to determine their capability (both financial and technical). ii) (a) The manufacturers' direct authorised distributors/dealers/stockists, who are participating in the instant tender, shall have to submit a certificate directly from the manufacturers in respect of the spares quoted in the tender, extending an undertaking to make the spares available to their authorised distributors/dealers/stockists for supply within the stipulated delivery period as well as requisite guarantee for such spares within the warranty period, and a guarantee certificate as stated in clause No. 13 of Special conditions along with the tender or if not submitted at that time, within 15 (fifteen) days from the date of opening of the tender as per forma enclosed. (b) In case of participating tender other than those mentioned, above (a) shall have to produce similar certificate either from the manufacturers or from the authorised distributors/dealers/stockists, along with the tender or within 15 (fifteen) days from the date of opening the tender. It may be clearly noted here that except the manufacturers' certificate issued by authorised distributors/dealers/stockists shall have to be backed by manufacturers authentication in manner as mentioned in the above (a) including guarantee certificate as required in Clause-13 of Special Conditions to ensure genuineness of the spares and supply within delivery period. Failure to provide such certificate as prescribed in above (a) and (b) or any deviation thereof shall render the tender informal and the decision of Govt. authorities in this respect shall be final. v) The term "manufacturers" will mean the manufacturers of reputed brand of diesel engines of 20 H.P. and above and also the manufacturers of spare parts which are being used as original equipments/parts in the manufacture of reputed brands of diesel engines of 20 H P. and above Spares which are being used in the manufacture of reputed brands of diesel engines of 20 H.P. and above category as original equipments/parts, shall be accepted subject to production of documentary evidence by such manufacturers along with the tender." The dispute in this application is with regard to decision to award contracts for Groups 7 and 8. The impugned decision of the Government dated 31.3.83 shows that the Government has decided to accept the offers of Hind General Agency and Tapan Kumar Das for all items of Group 7 and Hind General Agency for items 1 to 3 of Group 8 only. Hind General Agency quoted inter alia, for Group 7 (all items) and Group 8 (Items 1, 2 and 3). Tapan Kumar Das quoted inter alia, for Group 7 (all items). Agrico (writ petitioner) quoted for, inter alia, Group 7 (all items) and Group 8 (items 1, 2, 3, 4, 5 and 6) The Tender Committee found that the tenders submitted by Hind General Agency and Tapan Kumar Das were informal for non-compliance with Condition 4(ii) (a) and (b) of the NIT. The reasons why the Tender Committee considered the tenders of Hind General Agency and Tapan Kumar Das informal are as follows : 1. Hind General Agency According to the Tender Committee Hind General Agency did not submit the certificate as required by Clause 4 (ii) (a) or (b). The relevant documents submitted by Hind General Agency Are :- Group A/O Pge. 7 41 45 46 8 23 25 27 28 29 31 32 38 It will appear from these documents that the certificates did not mention that the spares manufactured by the manufacturer giving the certificates were used as original equipments. The brands for which the spare manufacturers claimed that their spares were being used were not reputed brands. The documentary evidence required as per clause 4 (v), namely evidence from manufacturers of reputed brands of diesel engines showing that such spares as original equipments were being used by them were not produced. 2. Tapan Kumar Das. According to the Tender Committee Tapan Kumar Das did not submit the certificates as required by Clause 4(ii) (a) or (b). The documents submitted by Tapan Kumar Das are the same as those of Hind General Agency. The Tender Committee noted the same deficiencies as in Hind General Agency's case in respect of these documents submitted by Tapan Kumar Das. According to the Tender Committee Tapan Kumar Das did not submit the certificates as required by Clause 4(ii) (a) or (b). The documents submitted by Tapan Kumar Das are the same as those of Hind General Agency. The Tender Committee noted the same deficiencies as in Hind General Agency's case in respect of these documents submitted by Tapan Kumar Das. Inspite of such recommendations of the Tender Committee, the Joint Secretary to the Government of West Bengal by the impugned Memo dated 31.3.93 informed the Superintending Engineer that the Government has decided to accept the lowest rate offered by both Hind General Agency and Tapan Kumar Das of Group 7 and of Hind General Agency for items 1 to 3 of Group 8 on the stipulation that only 20% of the total tendered quantity will be procured from these firms for the present and decision on the procurement of remaining 80% shall be taken after receipt of the performance reported in respect of the 20% supplied by them. Subsequently, by a letter dated 27th April, 1993 written by the Joint Secretary to the Superintending Engineer, the 20% was reduced to 10%. At the hearing the learned advocate for the State Government produced records and relied on a Note Sheet which was the basis for the decision contained in the impugned Memo dated 31st March, 1993. This Note sheet is signed by B. D. Moullick (Chief Engineer CADP) and D. M. Kanwar (Secretary) for the Department. B.D. Moullick was one of the members of the Tender Committee which was unanimously of the view that the Tender submitted by Hind General Agency and Tapan Kumar Das could not be considered as substantially responsive and formal because sufficient documents were not submitted by the firms along with their tenders to fulfil clause 4 of the Special Conditions of the tender. The Note sheet signed on 30th March, 1993 dealt with Group No.7 and Group No.8 as follows :- "Group No. 7. Tender Committee did not recommend the lowest offers of M/s. Tapan Kumar Das and M/s. Hind General Agency for all the 15 items, for same reasons as indicated against Group No.6. In case of this group also M/s. Banara Bearings P. Ltd., the manufacturer of the items in question have authorised both the above firms as their dealers. Tender Committee did not recommend the lowest offers of M/s. Tapan Kumar Das and M/s. Hind General Agency for all the 15 items, for same reasons as indicated against Group No.6. In case of this group also M/s. Banara Bearings P. Ltd., the manufacturer of the items in question have authorised both the above firms as their dealers. Manufacturers of diesel engines like M/s. Moonlight Auto Industries and M/s. Singhal Industrial Corporation have certified that they have been using Banara Brand spares in their diesel engines upto 28 H.P. It appears from the papers furnished that Banara Brand spares have been used by the State Road Corporations of Gujrat, Madhya Pradesh and Uttar Pradesh. The relevant documents placed in this file may kindly be persued. The lowest offers of M/s. Hind General Agency and M/s. Tapan Kr. Das may perhaps be accepted and the quantities of the spares may be distributed between the two dealers equally as far as practicable. Transport charge applicable is 5% of the basic rates. Group No.8. The Tender Committee did not recommend the lowest offer of M/s. Hind General Agency for items 1, 2 and 3. For items 4, 5 and 6 M/s. Agrico offered the lowest rates. In view of the documents furnished as indicated against Group No.6, where in it seems that '"Meta" bran spares in items 1, 2 and 3 are used in reputable brand of diesel engines of 5 to 28 H.P., the lowest offer of M/s. Hind General Agency may perhaps be accepted. Regarding items 4, 5 and 6, recommendations of the Tender Committee for acceptance of lowest rates for these items only may please be approved. Transport charge @ 5% of basic rates as recommended by the Tender Committee may also please be approved." It is also necessary to set out the noting in this Note Sheet with regard to Group No.2 which is as follows:- "Group 2. As per clause 4(ii)b of the Tender Documents, it was required to furnish the manufacturers certificate issued by authorised distributors/dealers/stockists, including the guarantee certificate as required in Clause-13 of the special conditions to ensure the genuineness of the spares and supply within the delivery period. As M/s. Hind General Agency failed to comply with the said requirements, their tender against this group is to be treated as informal. As M/s. Hind General Agency failed to comply with the said requirements, their tender against this group is to be treated as informal. Hence recommendation of the Tender Committee in this group may please be accepted including the recommendation for Transport charge of 5% of the quoted rates." 5. It has been submitted that the main decision contained in the said letter dated 31st March, 1993, is arbitrary. 6. It has been submitted that there was an apparent deviation from conditions mentioned in the notice inviting tender. 7. It has also been submitted that in the matter of accepting tenders the Government cannot arbitrarily deviate from its own norms. 8. In support of his contention Mr. Pal, Learned Advocate for the petitioner relied upon the judgment and decision in the case of (1) Ramana Dayaram Shetty v. International Airport Authority of India and others reported in AIR 1979 SC 1628 . 9. In the aforesaid decision it was held that the Tender Notice stated in clear terms that "sealed tenders in the prescribed form are hereby invited from Registered IInd Class Hoteliers having at least 5 years' experience for putting up and running a IInd Class Restaurant and two Snack Bars at this Airport for a period of 3 years," It was held that on a proper construction what the notice required was that only a person running a registered IInd Class hotel or restaurant and having atleast 5 years experience as such should be eligible to submit a tender. This was a condition of eligibility and it is difficult to see how this condition could be said to be satisfied by any person who did not have five years experience of running a IInd Class hotel or restaurant. The test of eligibility laid down was an objective test and not a subjective one. 10. It was held that the deviation from the standing prescribed in tender condition is not permissible and even in administrative action the Court is entitled to interfere and check every kind of arbitrariness. The Supreme Court in this connection in paragraph 10 of the said judgment at page 1635 & 1636 of the said report observed as follows:- "10. Now, there can be no doubt that what para (1) of the notice prescribed was a condition of eligibility which was required to be satisfied by every person submitting a tender. The Supreme Court in this connection in paragraph 10 of the said judgment at page 1635 & 1636 of the said report observed as follows:- "10. Now, there can be no doubt that what para (1) of the notice prescribed was a condition of eligibility which was required to be satisfied by every person submitting a tender. The condition of eligibility was that the person submitting a tender must be conducting or running a registered IInd Class hotel or restaurant and he must have at least 5 years experience as such and if he did not satisfy this condition of eligibility, his tender would not be eligible for consideration. This was the standard or norm of eligibility laid down by the 1st respondent and since the 4th respondents did not satisfy this standard or norm, it was not competent to the 1st respondent to entertain the tender of the 4th respondents. It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated by Mr. Justice Frankfurter in (2) Vilarelli v. Seaton (1959) 359 US 535 : 3 L Ed 2d 1012 where the learned Judge said : "An executive agency must be rigorously held to the standards by which it professes its action to be judged......... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed............... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword". This Court accepted the rule as valid and applicable in India in (3) A. S. Ahluwalia v. State of Punjab, (1975)3 SCR 82 : AIR 1975 SC 984 and in subsequent decision given in (4) Sukhdev v. Bhagatram, (1975) 3 SCR 619 : AIR 1975 SC 1331 , Mathew, J., quoted the above-referred observations of Mr. Justice Frankfurter with approval. It may be noted that this rule, though supprotable also as emanating from Article 14, does not rest nerely on that article. It has an independent existence apart from Article 14. Justice Frankfurter with approval. It may be noted that this rule, though supprotable also as emanating from Article 14, does not rest nerely on that article. It has an independent existence apart from Article 14. It is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority. If we turn to the judgment of Mr. Justice Frankfurter and examine it, we find that he has not sought to draw support for the rule from the equality clause of the United States Constitution but evolved it purely as a rule of administrative law. Even in England, the recent trend in administrative law is in that direction as is evident from what is stated at pages 540-41 in Prof. Wade's Administrative Law 4th Edition. There is no reason why we should hesitate to adopt this rule as a part of our continually expanding administrative law. Today with tremendous expansion of welfare and social service functions increasing control of material and economic resources and large scale assumption of industrial and commercial activities by the State, the power of the executive Government to affect the lives of the people is steadily growing. The attainment of socio-economic justice being a conscious end of State policy, there is a vast and inevitable increase in the frequency with which ordinary citizens come into relationship of direct encounter with State power-holders. This renders it necessary to structure and restrict the power of the executive Government so as to prevent its arbitrary application or exercise. Whatever be the concept of the rule of law, whether it be the meaning given by Dicey in his "The Law of the Constitution" or the definition given by Hayek in his "Road to Serfdom" and "Constitution of liberty" or the exposition set forth by Herry Jones in his "The Rule of Law and the Welfare State", there is, as pointed out by Mathew, J., in his article on "The Welfare State, Rule of Law and Natural Justice" in Democracy, Equality and Freedom "substantial agreement in justice thought that the great purpose of the rule of law notion is the protection of the individual against arbitrary exercise of power, wherever it is found". It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege". 11. It has further been argued by Mr. Pal that in this case it was the bounden duty of the Government to reject the tender by reason of the express provisions of clause 2 of NIT which provides, inter alia, as follows : "2. FOR SPECIAL ATTENTION : All tenderers are to note that tenders containing any deviation from the contractual terms and conditions specifications and other requirements are liable to be rejected. The tenders which do not meet the appropriate standared of capability and financial resources, shall not be considered." 12. It has been submitted that the aforesaid principle will be applied with strict rigour when the norms are of substantial importance. 13. Admittedly the stipulation in clauses 4(ii) (a) and 4(ii) have been engrafted to ensure that the spare parts which are supplied to the Government are genuine and of tested quality. 14. The finding of the Tender Committee was that tenders of Hind General Agency and M/s. Tapan Kumar Das were rendered informal because they did not submit the requisite documents per clause 4(ii)(a) & (b) and 4 (v). 15. The Government has annexed to its affidavit in opposition the documents which were submitted by Hind General Agency & Tapan Kumar Das. For Group 7 Hind General Agency submitted documents from : Banara Bearings Pvt. Ltd. Moonlight Auto Industries. Singhal Industrial Corporation. 16. It has been submitted that none of these documents complied with the relevant provisions of Clause 4 of notice inviting tender (hereinafter referred as NIT) because- (a) Banara Bearings Pvt. Ltd's purported certificate does not purport to certify that the bearings manufactured by them are being used as original equipment/parts in the manufacture of reputed brand of Diesel Engines. It alleged that it manufactures bearing suitable for Ruston and other reputed brand of engines i.e. not that they are used in reputed brands. It alleged that it manufactures bearing suitable for Ruston and other reputed brand of engines i.e. not that they are used in reputed brands. In fact the second paragraph of the certificate purports to certify that Banara supplies spare parts as original equipments to different engine manufacturers. (b) The certificates of Moonlight Auto Industries and Singhal Industrial Corporation are totally de hors the NIT. Both are not reputed manufacturers of diesel engines. The Government of West Bengal has no diesel engines manufactured by Moonlight or Singhal. This is admitted in paragraph 4(k) of the State's affidavit-in-opposition. (c) No documentary evidence like invoice, challan etc. has been produced to actually establish that and diesel engine manufacturer has purchased and used bearings from Banara Bearings in the manufacture of their diesel engines. (d) The documents of State Transport (Gujrat) & Others at pages 47, 50, 52, 54, 56, 58, 60 and 61 are totally de hors the NIT because- (i) None of them have been issued by any diesel engine manufacturer. (ii) They only show that some Transport authorities have purchased from a different firm, namely, Banara Udyog Pvt. Ltd. and not Banara Bearings Pvt. Ltd. For Group-8 Hind General Agency furnished the following documents : (1) Certificate of Metafab Engineering Associates (2) Singhal Industrial Corporation (3) Doneria Engineering Company (4) Atul Engineering Udyog. Metafab Engineering Associate's certificate is in identical language as the certificate of Banara Bearings Pvt. Ltd., in respect of Group No.7 mentioned above. It, therefore, suffers from the same vice. The other certificates of Singhal, Doneria and Atul are also de hors the NIT for the same reason as the certificates of Moonlight and Singhal in relation to Group-7 above Non-submission of necessary certificates is a valid ground for exclusion of tenderer. Learned Advocate relied upon the judgment & decision in the case of (5) M/s. G. S. Fernendez v. State of Karnataka & Ors, reported in AIR 1990 SC 958 , 962 (para 8). 17. In the aforesaid decision the contract pertained to the construction of a Main Station Building of a Power House. Tenders were invited from registered contractors of appropriate class. Paragraph I of the notification inviting tenders (NIT) listed three "Minimum qualifying requirements" viz. 17. In the aforesaid decision the contract pertained to the construction of a Main Station Building of a Power House. Tenders were invited from registered contractors of appropriate class. Paragraph I of the notification inviting tenders (NIT) listed three "Minimum qualifying requirements" viz. that the intending tenderer: (1) should have executed civil and architectural works including insulation in a power plant/industrial complex, preferably in power plant (2) should have executed at least 1000 cubic metres per month of concrete pouring and at least 300 cubic metres per month of brick work at one site and should have had an annual turnover of at least one crore for each of the preceding three years Para V of NIT required the intending tenderers to furnish the following information "along with the application for issue of blank tender books" namely (a) Audited Balance Sheet/Certificate from Chartered Accountant for preceding three years (b) Latest Income-tax clearance (c) Copy of the Registration Certificate (d) Annual output of the works of all the above nature at any site accompanied by a certificate from the organisation for whom the tenderer had carried out the works furnishing details such as rate of pouring of concrete, manufacturing of hollow concrete blocks, precast concrete blocks.....etc., and period of completion scheduled/engisaged, equipments and their deployment i.e. man months etc. The question was whether the requirement of furnishing documents/certificates as contained in Para V of notification inviting tender (NIT) was a pre-condition for supply of tender books or the documents could be furnished at any time. 18. It was held that the supply of documents as per para V of NIT was also a pre-condition for supply of tender books along with requirements of Para I of NIT. An intending tenderer could be kept out of consideration if the documents/certificates as required under para V of NIT were not furnished. A common thread runs through Paras I and V of NIT and they are really meant to supplement each other. It is in order to satisfy itself that the requirements of para (I) and (2) are fulfilled that the authority issuing tenders had called for the certificates mentioned in Para V and the fulfilment of the requirement in para 1(3) has obviously to be verified by reference to the audited balance sheets called for under cl. (a) of Para V. The reference in Cl. (a) of Para V. The reference in Cl. (d) of para V to the "annual output of the works of the above nature" is also obviously a reference to the works of the nature described in Para I. It is clear that at least some, if not all, of the documents referred to in Para V, are intended to verify the fulfilment of the three pre-qualifying requirements of Para I. The stipulation of the time element within which the information asked for in para V should be supplied is also of some signifance. It specifically requires the information to be supplied along with the application for tender forms. It would, therefore, not be correct to read para I in isolation and treat it as the only condition precedent for the supply of forms of tender. The more-harmonious and practical way of construing the NIT is by saying, that, before the tender books can be supplied, an intending tenderer should satisfy the authority issuing the tenders by supplying such of the documents called for in para V as are material in assessing the fulfilment of the condition in para I, that he fulfils the three conditions set out in para I. Since Hind General Agency and Tapan Kumar Das failed to comply with the requirements of clause 4 of the NIT relating to submission of certificates, their tenders ought to have been rejected for Groups 7 and 8. 19. Mr. Pal, Learned Advocate for the petitioner, also submitted that merely because the tender is highest or lowest is not conclusive. 20. In support of his contention the Learned Advocate for the petitioner relied upon the judgment and decision in the case of Trilochan Mishra etc. v. State of Orissa and Others reported in AIR SC 733 & 739. 21. It has been argued that the condition in the notice inviting tender does not provide that a successful tenderer would be given the option of supplying 10% of the required spares and the balance 90% after the performance of the 10% supply is found to be satisfactory. But the Government decision contained in the impugned Memo dated 31st March, 1993 subsequently modified by the letter dated 27th April, 1993 makes this relaxation in favour of Hind General Agency and Tapan Kumar Das. This is arbitrary and the decision to accept the tender of these two parties is also vitiated on this ground. But the Government decision contained in the impugned Memo dated 31st March, 1993 subsequently modified by the letter dated 27th April, 1993 makes this relaxation in favour of Hind General Agency and Tapan Kumar Das. This is arbitrary and the decision to accept the tender of these two parties is also vitiated on this ground. 22. In support of his contention Mr. Pal referred to the decision in the case of Ramana Dayaram Shetty v. The International Airport Authority of India und Others reported in AIR 1979 SC 1628 and 1651 (para 34) and also to the decision in the case of (6) Shri Harminder Singh Arora v. Union of India and Others reported in AIR 1986 SC 1527 . 23. In the aforesaid decision it was held that it is true that the Government may enter into a contract with any person but in so doing the State or its instrumentalities cannot act arbitrarily. Tenders were invited and the appellant and milk Scheme submitted their tenders. The tenders were to be adjudged on their own intrinsic merits in accordance with the terms and conditions of the tender notice. 24. The Supreme Court in this connection at paragraph 19 of the said judgment at page 1532 of the said report inter alia observed as follows : "If the terms and conditions of the tender have been incorporated in the tender notice itself and that did not indicate any preference to the Government undertakings of giving 10 percent price preference to Government undertaking, the authority concerned acted arbitrarily in allowing 10% price preference to respondent No.4. The only facility provided to the Government undertakings was provided in paragraph 19 which contemplates that the Central or State Government Departments or purely Government concerns need not pay tender forms fees and earnest money. This was the only concession available to the Central/State Government or to the purely Government concerns, and no other concession or benefit was contemplated under the terms of the tender notice. If the appellant had known that 10 per cent price preference to Government undertaking was to be given to respondent No. 4 the appellant would have taken every precaution while submitting the tender. In support of his contentions, Shri S. N. Kacker, appearing for the appellant strongly relied upon Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628 . In support of his contentions, Shri S. N. Kacker, appearing for the appellant strongly relied upon Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628 . In that case, the first respondent by a public notice invited tenders for putting up and running a Second Class Restaurant and Two Snack Bars at the International Airport at Bombay. The notice, inter alia, stated in paragraph I that sealed tenders in the prescribed from were invited from Registered Second Class Hoteliers having at least five years experience for putting up and running a Second Class Restaurant and two Snack Bars at the Bombay Airport for a period of three years. Paragraph 8 stated that the acceptance of the tender would rest with the Airport Director who does not bind himself to accept any tender and reserve to himself the right to accept or reject any tender received without assigning any reason therefor. Out of the six tenders received only the tender of the 4th Respondent was complete and offered the highest amount as licence fee. All the other tenders were rejected because they were incomplete. As the 4th respondent did not satisfy the description of a Registered Second Class Hetelier having at least five years experience prescribed in paragraph (1) of the tender notice, the first respondent called upon the 4th respondent to produce documentary evidence whether they were registered second class hoteliers having at least five years experience. The Fourth Respondent stated once again that they had considerable experience of catering for various reputed commercial houses, clubs, messes and banks and that they hold an Eating House Catering Establishment (Canteen) Licence. On being satisfied by the information given by the 4tb respondent, the first respondent accepted the tender on the terms and conditions set out in its letter." 25. It has been submitted by the Learned Advocate for the petitioner that there was no such stipulation in the NIT for relaxation. If the writ petitioner had known that this trial method would be adopted it could have submitted a different tender. 26. It has further been submitted that the re1axation establishes that the Government was not satisfied with the tender of Hind General Agency and Tapan Kumar Das. If the writ petitioner had known that this trial method would be adopted it could have submitted a different tender. 26. It has further been submitted that the re1axation establishes that the Government was not satisfied with the tender of Hind General Agency and Tapan Kumar Das. The reason for placing 10% of the quantity initially in case of Hind General Agency and Tapan Kumar Das is to be found in the letters dated 31st April, 1993 and 27th April, 1993 i.e. to check the performance of the spares in question and depending on the reports of performance, the decision for the balance 90% was to be taken. It is to be noted that no such stipulation was made in case of acceptance of any of the tenders in respect of any other Group or Item of any other Group. 27. In other words, where the requisite tender documents as per clause 4 had been duly submitted the Government did not think it necessary to adopt the trial and test method. This relaxation. therefore, establishes beyond doubt that there has been non-compliance of Clause 4 by Hind General Agency and Tapan Kumar Das and the same is acknowledged by the Government by adopting the trial and test method since the Government is fully aware that the spares which will be supplied by Hind General Agency and Tapan Kumar Das are not used as original equipments of reputed brands. 28. It has been urged by the Learned Advocate for the petitioner that it is well settled that although the Government is not bound to accept the recommendation of an Expert Committee it must have and disclosed good reasons for not accepting such recommendation. 29. In support of this contention the Learned Advocate for the petitioner relied upon the judgment and decision in the case of (7) A. Pandurangam Rao v. State of Andhra Pradesh and Others, reported in AIR 1975 SC 1922 & 1924 (para 9). 30. It has also been submitted that the tender committee consisted of experts i.e. Chief Engineers and the Joint Secretary of the Department. The presence of Chief Engineers (comprising majority of the members) not only lent expertise to the body but ensured objectivity and impartiality. 31. An affidavit has been affirmed by one Tapan Kanti Chakraborty being the affidavit-in-opposition filed on behalf of the State and also on behalf of Respondent Nos. The presence of Chief Engineers (comprising majority of the members) not only lent expertise to the body but ensured objectivity and impartiality. 31. An affidavit has been affirmed by one Tapan Kanti Chakraborty being the affidavit-in-opposition filed on behalf of the State and also on behalf of Respondent Nos. 2, 3, 4 and 5. 32. In paragraphs 4(h) (i) (j) and (k) of the said affidavit-in-opposition it is stated as follows :- "From the record, it is evident that the firm M/s. Hind General Agency and M/s. Tapan Kumar Das submitted all the documents, as required under clause. 4 (2)(v) and 13 of the special terms and conditions well ahead of the first meeting of the tender committee which was held on 6th January, 1993". 33. The tender Committee found that Hind General Agency and Tapan Kumar Das did not submit the requisite documents. This assertion in the affidavit is totally contrary to the finding of the tender committee without even alleging that the tender committee erred in any manner in arriving at that finding. In paragraphs 4(1) and (j) of the affidavit-in-opposition the Government has merely repeated from the notings in the note sheet dealing with Groups 7 and 8. Submissions have already been made with regard to the insufficiency of the documents submitted by Hind General Agency and Tapan Kumar Das and as such they are not repeated. The averments in paragraph 4(k) of the affidavit-in-opposition demonstrate the arbitrariness of government action. In this sub-paragraph the government admits :- (a) The brand of spares which Hind General Agency and Tapan Kumar Das tendered to supply have never been used in the Government Department uptil now. (b) The object of allocating 10% to these two parties was to Judge the performance of these brands which were being used for the first time. In other words, the government is admitting in this sub-paragraph that it is replacing the total scheme of Condition-4(ii)(a) and (b) and Condition 4 (v) of the NIT and accepting tenders for any brand of spares, whether reputed or not and whether used as original equipments for reputed Diesel Engines or not by giving trial orders. Infact the entire tender scheme is rendered nugatory by this process of awarding contract. 34. Infact the entire tender scheme is rendered nugatory by this process of awarding contract. 34. In paragraph 4(k) of the affidavit-in-opposition it has been stated that the brand of spares which have been offered by Hind General Agency and Tapan Kumar Das "have not yet been used in M. I. Department of this Government until now. The objective is to Judge the performance of this brand or spares in our own organisation, being first time introduced, after 3 months from the date of supply and will be reviewed before allocation of balance quantity. This action is fair and logical. It cannot be construed that the above two brands namely "Meta" and" Banara" are inferior in quality". 35. It has been submitted that the aforesaid statement in the affidavit amounts to admission which establish : 1. The brand to be supplied are unknown brands as far as their performance is concerned and as far as the Government of West Bengal is concerned. 2. Because of the absence of fulfilment of clause 4, the Government had to make this minor deviation from the tender norms in order to ostensibly minimise the risk. "Ostensibly" because there is no knowing as to the nature of performance report that would be forthcoming after 3 months. It is possible that on the basis of incorrect or fake reports balance 90% allotment would be placed for inferior spare parts. 36. It has been submitted that the documents submitted by Hind General Agency to fulfil clause 4 included documents which were common for Group 2 and Group 7 e.g. Documents Groups covered Affidavit-in- & Items Opposition, pages. Certificate of Banara 2 (Bushes) 41 Bearings Pvt. Ltd. 7 (Bearings) Again at page 43 of the affidavit-in opposition is a document submitted by Hind General Agency purporting to be a certificate issued by a firm called "PARCO". It purports to certify that Rocker Lever (Inlet), Rocker Lever (Exhaust) and Rocker Shaft (all included in Group-2) which is similar to the certificate issued by Singhal (page 27 of affidavit-in-opposition) was found to be informal for Group 2 but-formal for Group 8. In paragraph 4(i) of the affidavit-in-opposition the procedure adopted from invitation to final acceptance of tender is stated. In paragraph 4(i) of the affidavit-in-opposition the procedure adopted from invitation to final acceptance of tender is stated. After stating that the tenders are evaluated by a tender committee and the report of the tender committee with its recommendation are forwarded to the Government, the affidavit states as follows :- "The Government consider the evaluation report, Tender Committee's recommendation and any other connected documents as may be required before acceptance is given." The note sheet will disclose that the Government did not consider the evaluation report of the Superintending Engineer. The note sheet will also disclose that no other connected documents were considered by the Government. In fact all the documents which are referred to in the note sheet were also before the Tender Committee and considered by the Tender Committee. The arbitrariness and/or unreasonableness of the decision contained in the impugned letter dated 30th April, 1993 is also clear from the fact that Shri B. D. Moulick (the then Jt. Secretary of the Department) was a member of the tender committee and was a party to the unanimous view expressed by the tender committee that the tenders submitted by Hind General Agency for Groups 2, 6, 7 and 8 and Messrs Tapan Kumar Das for Groups 6 and 7 were informal. The said Shri B. D. Moulick, however, in his capacity as the Chief Engineer CADP, as co-author of the note sheet found the. tender of Messrs Hind General Agency and Tapan Kumar Das for Group 7 and Hind General Agency for items Nos. 1, 2, 3 of Group 8 should be accepted. Shri B.D. Moulick has not recorded any reason in the note sheet as to why he has taken a different view from the view expressed by him in the tender committee report. It has been submitted that the High Court, in exercise of its power under Article 226 of the Constitution, has power to pass such orders as the interest of justice require including an order which the Government itself could pass. In this connection Learned Advocate relied upon the judgment & decision in the case of (8) The Comptroller & Auditor General of India, Gian Prakash, New Delhi & Another v. K. S. Jagannathan & Another reported in AIR 1987 SC 537 . 37. In this connection Learned Advocate relied upon the judgment & decision in the case of (8) The Comptroller & Auditor General of India, Gian Prakash, New Delhi & Another v. K. S. Jagannathan & Another reported in AIR 1987 SC 537 . 37. The Supreme Court in this connection in paragraph 20 of the said judgment at page 546 of the said report observed as follows :- "There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object or conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226 issue a writ of mandamus of a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercise its discretion". 38. Considering the facts and circumstances of the case it appears to me that the decision of the Government contained in the impugned letter dated 30th March, 1993 was not proper and suffers from inherent infirmity. The question is whether the matter should be remitted back to the government for further consideration or should the Court direct the government to follow a particular course of action in the facts and circumstances of the case. 39. The question is whether the matter should be remitted back to the government for further consideration or should the Court direct the government to follow a particular course of action in the facts and circumstances of the case. 39. It has also been argued that it is open to the High Court in writ jurisdiction to pass orders directing the government to accept the tender of the petitioner since the other tenders namely Hind General Agency and Tapan Kumar Das do not fulfil the requirement. In support of his contention Learned Advocate for the petitioner relied upon the judgment and decision of the Supreme Court in the case of Shri Harminder Singh Arora v. Union of India and Others, reported in AIR 1986 SC 1527 & 1534 (para 28) wherein the Supreme Court directed the authorities to accept the lowest tender instead of remitting back the case for further consideration. 40. In the instant case it has been argued that the Government has not been able to produce any material to demonstrate that the tender committee was in error in arriving at any of the findings regarding the insufficiency of the documents forwarded by Hind General Agency and Tapan Kumar Das. 41. It has been submitted that Remitting the matter to the government would, therefore, be and idle formality and has the potential risk of creating grounds by the application of an after thought for once again throwing the doors open to Hind General Agency and Tapan Kumar Das. Hence it is a fit case for issuance of mandamus directing the government to act in accordance with the tender committee recommendations and award the work of supplying spares in respect of Group 7 and item Nos. 1, 2 and 3 of Group 8 to the writ petitioner. 42. In support of his contention Mr. Pal relied upon the judgment and decision in the case of (9) Best and Crompton Engineering Ltd. v. Damodar Valley Corporation, reported judgment of Umesh Chandra Banerjee, J. in C. O. No. 10307 (W) of 1989 delivered on 19.2.1991. 43. Mr. Arun Prakash Chatterjee learned Advocate for the State Government submitted that the Tender Committee made obvious mistake in saying that the documents were not sufficient to fulfil Clause 4. 44. In fact the tender committee did not look at the documents properly-it was somnolent. 45. 43. Mr. Arun Prakash Chatterjee learned Advocate for the State Government submitted that the Tender Committee made obvious mistake in saying that the documents were not sufficient to fulfil Clause 4. 44. In fact the tender committee did not look at the documents properly-it was somnolent. 45. He has further submitted that the documents annexed to the affidavit-in-opposition will in fact show that they were sufficient documents. 46. It has further been contended that the document of Metafab at page 23 of the affidavit-in-opposition shows that they are manufacturers of Metafab diesel engines. 47. Mr. Chatterjee also argued that relaxation was by abundant caution and cannot be a cause of grievance for the writ petitioner although it might be for Hind General Agency and Tapan Kumar Das. 48. Learned Advocate for the State also submitted that the tender committee recommendation on Group-6 shows that they did not specify why the documents were not sufficient. 49. I have considered the submissions of the parties and decisions cited from the bar. In my view the contention of the State that the tender committee did not consider the documents properly does not appear to be correct. 50. In this connection I may take note of the relevant extract from the report of the tender committee which is set hereinbelow :- (1) "The member-convenor placed all the Original tenders of the participating tenderer, original, comparative statements for each group/each item, last (89-90) accepted rate of each item, with accepted brand, manufacturers price list of each item, the documents submitted with the tenders by different participating tenderers as well as the documents and papers submitted by the different tenderers till date of meeting of the Tender Committee before the Members. After detailed discussion and scrutiny of all the documents, the Tender Committee unanimously made the following recommendations". (2) The aforesaid extracts show that recommendations of the Tender Committee were made after taking into consideration, all the documents, records and after deliberation. The Tender Committee consisted of experts and technical persons and were eminently competent to deal with this matter. The Government note-sheet contains the basis of the decision is by non-experts. (2) The aforesaid extracts show that recommendations of the Tender Committee were made after taking into consideration, all the documents, records and after deliberation. The Tender Committee consisted of experts and technical persons and were eminently competent to deal with this matter. The Government note-sheet contains the basis of the decision is by non-experts. (3) Not only the Tender Committee but also the evaluation by the officer directly responsible for the tender namely Superintendent-Engineer (Agri-mech) contained in the note-which was placed before the Tender Committee clearly stated as follows as against groups 7 and 8 : "M/s. Hind General Agency and M/s. Tapan Kumar Das, tenderers for this group for all items but their offer cannot be treated as formal since they failed to submit requisite papers. Please see remarks against these two firms in groups 2 & 6 above. M/s. Hind General Agency has participated in this tender and has quoted Meta Brand for items 1, 2 & 3. The papers submitted by the firm does not convince that this brand has been used in reputed brand of diesel engine of 20 H. P. and above. As such, quality of the brand is questionable and the offer is to be considered as informal for this reason." (4) Since remarks against groups 2 and 6 are incorporated they are also extracted below: M/s. Hind General Agency bas participated in this group for all items but his offer is treated as informal as the firm has not submitted documents and authentication certificates from the manufacturers as per the Clause 4 (2b). It is to be noted that M/s. Vedilal M. Mehta bas certified that their brand is Allwyn and not Trisul as mentioned by M/s. Parco Engineering Corpn. whose paper has been submitted by M/s. Hind General Agency. Letter of M/s. Vedilal M. Mehta, Manufacturer of Allwyn brand, authorising M/s. Agrico (India) is to be seen in this connection. For item 4 M/s. Hind General Agency has quoted Banara brand but no supporting paper indicating that this brand is used in reputed brand diesel engine of 20 H. P. above has been furnished with the tender as per Clause 4 (v). "M/s. Golcha Engineering Enterprises did not submit requisite earnest money along with the tender M/s. Hind General Agency and M/s. Tapan Kumar Das have quoted rates for items 1, 2, 3 and 4 and respectively. "M/s. Golcha Engineering Enterprises did not submit requisite earnest money along with the tender M/s. Hind General Agency and M/s. Tapan Kumar Das have quoted rates for items 1, 2, 3 and 4 and respectively. But the firms did not submit documents indicating that their quoted brands are used in reputed brand of diesel engine of 20 H.P. and above. Also they have not submitted from the manufacturers authentication certification. As such, brands quoted by them are questionable. Their tender is naturally to be considered as informal as per terms of the tender conditions. The dealer of M/s. Greaves Cotton & Co., quoted rates for items 2, 3 and 4 of brand R & H and they have not furnished requisite paper from the manufacturers. As such their offer also cannot be accepted." 51. The other submission made on behalf of the State Government is that a document annexed to the affidavit-in-opposition will show that the said document are sufficient and the tender committee committed error in holding that the documents produced by the other tenderers namely, Hind General Agency and Tapan Kumar Das, are not sufficient documents cannot be said to be correct for the following reasons. 52. Clause 4(V) is set out hereinbelow:- (a) Who are manufacturers of spare parts used as original equipments in reputed brands of Diesel Engines. (b) Who can give documentary evidence of the fact that the Diesel Engine manufacturers are in fact using these spares. 53. No documents have been disclosed to satisfy these two conditions. 54. The other contention made on behalf of the State Government to the effect that the documents of 'Metafab' at page 23 of the affidavit-in-opposition shows that they are manufacturers of Metafab Diesel Engines, cannot also be accepted. 55. The said documents only shows that they claim to be manufacturers of spare parts suitable for reputed brand of Diesel Engines not that they have been used in reputed brands of Diesel Engines which is requirement under the condition of the tender. 56. The other submissions made on behalf of the State Government to the effect that relaxation was by abundant caution and cannot be a cause of grievance for the writ petitioner although it might be for Hind General Agency and Tapan Kumar Das cannot also be accepted for the following reasons. 56. The other submissions made on behalf of the State Government to the effect that relaxation was by abundant caution and cannot be a cause of grievance for the writ petitioner although it might be for Hind General Agency and Tapan Kumar Das cannot also be accepted for the following reasons. The question of the party in whose favour a favourable relaxation has been given expressing any grievance does not arise. Relaxation affects all tenderers and even non-tenderers because of the principle that had the tenderers or others known about the relaxation they could have submitted a different tender particularly as regards price. The question of abundant caution arose only in the case of Hind General Agency/Tapan Kumar Das obviously because the documents which pertained to ensuring quality of supply were not furnished by them. 57. It has also been submitted on behalf of the State Government that the Tender Committee recommendation en Group-6 shows that they did not specify why the documents of others were not sufficient. i) This submission in my view, ignors concluding remarks of the tender committee wherein it has been mentioned that the documents do not fulfil clause 4 of the tender condition with regard to Groups 2, 6, 7 and 8 in the case of Hind General Agency in Group 7 in the case of Tapan Kumar Das. ii) It may be pointed out that inspite of tender committee recommendations and views the Government file now discloses that the Government is about to grant the work for item 1 of Group 6 to Hind General Agency/Tapan Kumar Das. This will be highly arbitrary and illegal in the face of the recommendation of the Tender Committee that their tenders were informal for the same reason applicable to Groups 7 and 8. The Superintending Engineer's evaluation report also gives details as to why the tender of Hind General Agency/Tapan Kumar Das were informal in respect of Group 6. 58. No valid reason, in my view, appears to have been disclosed with regard to non-acceptance of the recommendation of the tender committees. It may be that the Government in a particular case is not bound to accept the recommendation of the tender committee but the Government must disclose good reasons for not accepting such recommendation. 59. 58. No valid reason, in my view, appears to have been disclosed with regard to non-acceptance of the recommendation of the tender committees. It may be that the Government in a particular case is not bound to accept the recommendation of the tender committee but the Government must disclose good reasons for not accepting such recommendation. 59. The judgment and decision in the case of A. Pandurangam Rao v. State of Andhra Pradesh and Others reported in AIR 1975 SC 1922 may be taken note of. In the aforesaid decision the question was relating to the appointment of District Judges from the bar, candidates not recommended by the High Court appointed by the State Government. It was held by the Supreme Court that Government was not bound to accept all the recommendations but could tell the High Court its reasons for not accepting the High Court's recommendations. In the instant case no such reason has been assigned. 60. It is on record that the Government rejected the recommendation of the tender committee and accepted the tender of M/s. Hind General Agencies and M/s. Tapan Kumar Das although the required certificate were not produced thus deviation from the conditions of NIT and ignoring the recommendation of tender committee. 61. It is well settled that in the matter of accepting tenders the Government cannot arbitrarily deviate from its own norms. In this connection reliance was made upon the judgment and decision in the case of Ramona Dayaram Shetty v. The International Airport Authority of India and Others reported in AIR 1979 SC 1628 . Paragraph 34 of the said judgment at page 1650 of the said report which was observed as follows :- "It is, therefore, obvious that both having regard to the constitutional mandate of Article 14 as also the judicially evolved rule of administrative law, the 1st respondent was not entitled to act arbitrarily in accepting the tender of the 4th respondents, but was bound to conform to the standard or norm laid down in paragraph 1 of the notice inviting tenders which required that only a person running a registered IInd Class hotel or restaurant and having at least 5 years' experience as such should be eligible to tender. It was not the contention of the appellant that this standard or norm prescribed by the 1st respondent was discriminatory having no just or reasonable relation to the object of inviting tenders, namely to award the contract to a sufficiently experienced person who would be able to run efficiently a IInd class restaurant at the airport. Admittedly the standard or norm was reasonable and non-discriminatory and once such a standard or norm for running a IInd class restaurant should be awarded was laid down, the 1st respondent was not entitled to depart from it and to award the contract to the 4th respondents who did not satisfy the condition of eligibility prescribed by the standard or norm. If there was no acceptable tender from a person who satisfied the condition of eligibility, the 1st respondent could have rejected the tenders and invited fresh tenders on the basis of a less stringent standard or norm, but it could not depart from the standard or norm prescribed by it and arbitrarily accept the tender of the 4th respondents. When the 1st respondent entertained the tender of the 4th respondents even though they did not have 5 years' experience of running a IInd class restaurant or hotel, it denied equality of opportunity to others similarly situate in the matter of tendering for the contract. There might have been many other persons, in fact the appellant himself claimed to be one such person, who did not have 5 years' experience of running a IInd class restaurant, but who were otherwise competent to run such a restaurant and they might also have competed with the 4th respondents for obtaining the contract, but they were precluded from doing so by the condition of eligibility requiring five years' experience. The action of the 1st respondent in accepting the tender of the 4th respondents, even though they did not satisfy the prescribed condition of eligibility, was clearly discriminatory, since it excluded other persons similarly situate from tendering for the contract and it was also arbitrary and without reason. The acceptance of the tender of the 4th respondents was, in the circumstances invalid as being violative of the equality clause of the Constitution as also of the rule of administrative law inhibiting arbitrary action". 62. The acceptance of the tender of the 4th respondents was, in the circumstances invalid as being violative of the equality clause of the Constitution as also of the rule of administrative law inhibiting arbitrary action". 62. In my view there is no basis for relaxation of terms in favour of the Hind General Agency and Tapan Kumar Das whereby they would be given the option of supplying 10% of the required spares and the balance 90% after the performance of the 10% supply is found to be satisfactory. As already noted it is not open for the Government to act in an arbitrary manner deviating from tender condition. Such relaxation amounts to discrimination and violates Article 14 of the Constitution of India. The said principle has enunciated by the Supreme Court in the case of Ramana Dayaram Shetty v. The International Air port Authority of India and others (Supra). 63. It has been contended on behalf of the State that the tenders of Hind General Agency and Tapan Kumar Das being lowest, it was proper on the part of the State Government to accept the lowest offer which would save considerable amount from the public exchequer. It is, however, well settled that merely because the tender is highest or lowest is not conclusive for the purpose of acceptance. 64. The judgment and decision in the case of Sri Harminder Singh Arora v. Union of India and Others reported in AIR 1986 SC 1527 relied upon on behalf of the petitioner may be considered in this connection. In the aforesaid decision it was held by the Supreme Court that it is true that the Government may enter into a contract with any person but in so doing the State or its instrumentalities cannot act arbitrarily. In the instant case, tenders were invited and the appellant and Milk Scheme submitted their tenders. The tenders were to be adjudged on their own intrinsic merits in accordance with the terms and conditions of the tender notice. 65. Considering the facts and circumstances of the case in my view the petitioner should succeed in this writ petition. 66. There will be an order directing the respondents to withdraw the Memo No. 1035-MI-I/3T-4/93 dated 31st March, 1993, being annexure 'D' to the writ petition in so far as it relates to group Nos. 6, 7 and 8 (item Nos. Considering the facts and circumstances of the case in my view the petitioner should succeed in this writ petition. 66. There will be an order directing the respondents to withdraw the Memo No. 1035-MI-I/3T-4/93 dated 31st March, 1993, being annexure 'D' to the writ petition in so far as it relates to group Nos. 6, 7 and 8 (item Nos. 1, 2 and 3) in relation to NIT No.2 of 1992-93. 67. There will be a further order directing the respondents Nos. 1 to 4 to consider afresh the said groups taking into consideration the recommendation of the Superintending Engineer, and the Tender Committee as contained in Memo No. 1035-MI-I/3T-4093 dated 31st March, 1993 being annexure 'D' to the writ petition and also take into consideration the recommendations of the Superintending Engineer as well as the Tender Committee while awarding the contracts and pending such award being made to the successful tenderers, the respondents and each one of them be directed to refrain from purchasing/procuring the tender items from any other source. Such consideration should be made within four weeks from the date of communication of this order. All parties are to act on a signed copy of the operative part of the judgment on the usual undertaking.