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1997 DIGILAW 824 (ALL)

SREE KANT UDYOG v. UNION OF INDIA

1997-07-25

G.P.MATHUR, M.L.SINGHAL

body1997
G. P. MATHUR, J. ( 1 ) THIS petition under Article 226 of the Constitution has been filed praying that a writ of mandamus be issued directing the respondents No. 1 to 4 to issue a work order in its favour and further to cancel and set aside any work order, if issued, in favour of respondents No. 5 and 6. ( 2 ) ACCORDING to the case of the petitioner respondents No. 2, 3 and 4 floated global tender to bid for supply of rock phosphates. The petitioner, claims that it fulfilled all the requirements laid down by respondent No. 3 and in the tender the petitioner quoted lowest rate of S. 52. 57 while the rates quoted by respondent No. 5 and 6 were higher. However inspite of the fact that the rate offered by the petitioner was lowest, no work order has been issued in its favour. ( 3 ) IT is well settled that award of a contract by the State or a public authority can be judicially reviewed but a Court would interfere only if it comes to the conclusion that the award of contract is vitiated by arbitrariness, unfairness, illegality or irrationality. The scope of interference in such matters has been considered in detail in Tate Cellular versus Union of India (1994) 6 SCC 561 ( AIR 1996 SC 11 ) and it has been held as follows :"the duty of the court is to confine itself to the question of legality. Its concern should be :1. Whether a decision making authority exceeded its powers,2. Committed an error of law. 3. Committed a breach of the rules of natural justice,4. reached a decision which no reasonable tribunal would have reached or,5. abused its powers. Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under : (i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it; (ii) Irrationality, namely, wednesbury unreasonableness. (iii) Procedural impropriety. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under : (i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it; (ii) Irrationality, namely, wednesbury unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. " ( 4 ) WE have carefully gone through the petition and we are unable to find anything to show that the case set up by the petitioner comes within the parameters laid down in Tate Cellulars case. We do not find any ground to hold that the decision-making authority has exceeded its power or has committed an error of law or there has been abreach of rule of natural justice or the decision taken is such which is not reasonable. The mere fact that the offer made by the petitioner was lowest cannot be a ground on which this Court would interfere in such a matter. The chart in Para 15 of the writ petition shows that in the offer made by the petitioner the percentage of P2 O5 was 31% while in the case of respondent No. 6 it was 32%. According to the petitioner it would have imported rock phosphate from a firm in China while respondents No. 5 and 6 are importing it from Jordan and Israil respectively. It is possible that the authorities dealing with the matter may not have considered safe to enter into business transaction with a country like China and may have considered more safe and reliable to import the item from Jordan or Israil. Since the petitioner has failed to make out any case for interference by this Court under Article 226 of the Constitution, the writ petition is liable to be dismissed. ( 5 ) THERE is another aspect of the matter which deserves notice. The respondent No. 1 in the writ petition is Union of India. Respondent No. 3 is Pyrites, Phosphates and Chemicals Limited while respondents No. 2 and 4 are the Chairman and Senior Manager of respondent No. 3. ( 5 ) THERE is another aspect of the matter which deserves notice. The respondent No. 1 in the writ petition is Union of India. Respondent No. 3 is Pyrites, Phosphates and Chemicals Limited while respondents No. 2 and 4 are the Chairman and Senior Manager of respondent No. 3. Though the petitioner has prayed for issuance of a writ of mandamus against respondents No. 1, 2, 3 and 4 but in reality the petition is directed against respondent No. 3 only as not a single order passed by Union of India (respondent No. 1) has been assailed. There is no allegation at all against the Union of India. The tenders were invited by respondent No. 3 and the contract has been awarded by it. So far as respondent No. 3 is concerned, the only averments made in para 5 of the writ petition is that it is a company registered under the provisions of Companies Act. The petitioner wants that a writ be issued against a company. Nothing has been shown as to how it is an authority or State within the meaning of Article 12 of the Constitution and how a writ petition is maintainable against it. The respondent No. 3 has not been vested with statutory powers to issue binding directions to a third party the disobedience of which would entail penal consequences. It has no sovereign power to make rules and regulations having force of law. This being the test laid down in Rajasthan State Electricity Board v. Mohan Lal, AIR 1967 SC 1857 . It was held in Som Prakash Rekhai v. Union of India, AIR 1981 SC 212 , at 219 that if the entity is not more than a company under the Company law or a society under the law relating to registered societies or co-operative societies, it cannot be called an authority. The case of Central Inland Water Transport Corporation v. Brojo Nath, AIR 1986 SC 1571 (1986 Lab IC 1312) cited by the learned counsel for the petitioner is clearly distinguishable as the Corporation was performing some public duty and was not merely carrying on a commercial activity. We are unable to find any material in the writ petition to show that the respondent No. 3 is an instrumentality of the State. No writ can therefore be issued against respondent No. 3. We are unable to find any material in the writ petition to show that the respondent No. 3 is an instrumentality of the State. No writ can therefore be issued against respondent No. 3. ( 6 ) FOR the reasons mentioned above, the writ petition lacks merit and is dismissed summarily at the admission stage. Petition dismissed. .