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Allahabad High Court · body

2007 DIGILAW 1469 (ALL)

LAPRO SALES 3RD FLOOR RAJ RAM KUMAR PLAZA LUCKNOW v. STATE OF UTTAR PRADESH

2007-05-15

PANKAJ MITHAL, U.K.DHAON

body2007
PANKAJ MITHAL, J. The petitioner has challenged the grant of annual maintenance contract of Laproscope/ Laprocator sets to the respondent No. 6. The impugned order dated 8. 2. 2007 granting the above maintenance contract at the rate of Rs. 3,600 per Laproscope/ Laprocator for one year, has been fled as Annexure 1 to the writ petition. 2. Heard Mrs. Tehmina Punwani, learned senior advocate assisted by Sri Dhruv Mathur for the petitioner and Sri S. B. Pandey for the respondent No. 6 and learned standing counsel for respondents 1 to 3 and Sri Deepak Seth for respondent No. 4. 3. Gyrus A. C. M. I. International Limited, U. K. is said to be a pioneer company manufacturing and maintaining K. L. I. brand of Laprocator/laproscope sets which is an equipment used for female sterlisation. M/s. Aravali International as an exclusive nominee of Gyrus A. C. M. I. International Limited U. K. for K. L. I, brand Laprocators/laproscopes and accessories having. rights of distribution and maintenance of Laprocator/laproscope sets in India. The petitioner M/s. Lapro Sales is the authorised Agent for the supply/ maintenance of Laprocators/ laproscopes of M/s. Aravali International in the State of Uttar Pradesh. M/s. Aravali International is undisputedly a recognised and a registered dealer for the supply and maintenance of the Laprocator/ laproscope sets in U. P. 4. The Director of Family Welfare Uttar Pradesh, respondent No. 3, vide letters dated 10. 1. 2006 and 18. 1. 2006, addressed to only three of the firms namely, M/s. Aravali International Limited, M/s. Pregna International Limited (respondent No. 6) and M/s. Delhi Hospital Company Ltd. , invited quotations for the annual maintenance of the Laprocator/ laproscope sets in U. P. and to notify the name of their authrised Agent in U. P. 5. It appears that in pursuance of the above letters, the respondent No. 6 submitted its quotation at the rate of Rs. 3,600 per Laprocator/ laproscope set per annum whereas M/s. Aravali International quoted the rate of Rs. 4,000 (inclusive of all taxes) per set per annum and named the petitioner M/s. Lapro Sales as its authorised Agent/distributor. On negotiations, M/s. Aravali International vide letter dated 22. 2. 2006 offered a discount of Rs. 300 per annum per set for the next three years and quoted Rs. 3,700 per set per annum as against the quoted rate of Rs. 4,000 per set per annum. On negotiations, M/s. Aravali International vide letter dated 22. 2. 2006 offered a discount of Rs. 300 per annum per set for the next three years and quoted Rs. 3,700 per set per annum as against the quoted rate of Rs. 4,000 per set per annum. This offer was further reduced to Rs. 3,600 per set per annum vide letter dated 27. 11. 2006 which is also recorded in the letter of the Director respondent No. 3, dated 5. 12. 2006. Thus, on the date of finalisaton of contract i. e. , 8. 2. 2007 the offer of both the parties stood at par at the rate of Rs. 3,600 per set per annum. Finally, it appears that the quotation of the respondent No. 6 was accepted on 8. 2. 2007 without having further negotiations or allowing the parties to reduce their respective offers. 6. On behalf of the petitioner only two contentions have been raised. First, the respondent No. 1 to 3 have not followed a fair and reasonable procedure in awarding the aforesaid contract. Secondly, on the date of the award of contract both the petitioner and the respondent No. 6 have quoted the same amount of Rs. 3,600 per Laproscope/ Laprocator per annum. Therefore, the respondent No. 1 to 3 acted arbitrarily in picking up the respondent No. 6 and in awarding contract to it without calling the petitioner for any further negotiations more particularly when the petitioner had been maintaining the Laproscopes/laprocator sets for a continuous period of past 24 years. 7. Learned standing counsel appearing for the respondent Nos. 1 to 3 submits that quotations were invited only from three parties as mentioned above. He accepts that no advertisement or any notice was published in any newspaper for inviting tenders or the quotations. The respondents under policy of the Central Government has adopted the procedure of inviting quotations from registered contractors/dealers and the contract has been awarded rightly on the basis of the quotations received in favour of the respondent No. 6 whose rate was found to be the lowest. 8. Sri S. B. Pandey learned counsel appearing for the respondent No. 6 has contended that the respondent No. 6 has rightly been awarded the contract as it had quoted the lowest rate of Rs. 3,600 per set per annum whereas, the rate quoted by M/s. Aravali International was Rs. 8. Sri S. B. Pandey learned counsel appearing for the respondent No. 6 has contended that the respondent No. 6 has rightly been awarded the contract as it had quoted the lowest rate of Rs. 3,600 per set per annum whereas, the rate quoted by M/s. Aravali International was Rs. 4,000 per set per annum which was not reduced and only a discount was offered reducing and bringing the amount to Rs. 3,600 per set. Therefore, the rate quoted by the principal of the petitioner continued to be much higher than the rate quoted by the respondent No. 6. 9. Having heard the learned counsel for the parties and having perused the record we note that undisputedly, no wide publicity was given in the matter of notifying the tenders/quotations for the award of the maintenance contract of 800 sets of Laprocator/ laproscope. Only three firms were invited to submit their quotations in January, 2006. On the date of the award of the contract, i. e. , 8. 2. 2007, both the petitioner and the respondent No. 6 have offered Rs. 3,600 per Laprocator/ laparoscope per annum as the maintenance charge. Even though, on behalf of the petitioner, the rate earlier quoted was Rs. 4,000 inclusive of all taxes per set per annum but the said amount was initially reduced by Rs. 300 per annum per set and later, to Rs. 3,600 per set per annum. Therefore, in any case, the offer of both the rival firms was at the same rate, may be after discount in case of the petitioner. The grant of contract was kept pending for over a year. In such a situation, the respondent Nos. 1 to 3 could not have picked up the respondent No. 6 for the award of the contract without any further negotiations. 10. In Ramana Dayaram, Shetty v. International Airport Authority of India, AIR 1979 SC 1628 , it has been clearly observed that where a Government is dealing with the public, whether by way of giving jobs or entering into contracts, the Government cannot act arbitrarily like a private individual and it must act in public interest. It means, the Government must act with an element of public interest with an obligation to secure the best rate to preserve and protect the public money. 11. It means, the Government must act with an element of public interest with an obligation to secure the best rate to preserve and protect the public money. 11. The Honble Supreme Court in Tata Cellular v. Union of India, AIR 1996 SC 11 , has held that the principles of judicial review would also apply to the contractual powers of Government bodies in order to prevent arbitrariness and favouritism, however, with certain inherent limitations. It is through exercise of power of judicial review that the financial interest of the State or the wastage of public money can be protected. 12. In Sterling Computers Ltd. v. M/s. M. & N. Publications Ltd. , AIR 1996 SC 51 , the Honble Apex Court while considering the power of judicial review in grant of Government contracts held that generally Government contracts should not be granted without inviting tenders and the grant of fresh contract for additional years in the garb of extension without inviting tenders was invalid. Applying the same principle in the present case the respondent No. 1 to 3 in all fairness of public interest ought to have called for fresh tenders or quotations as more than a year has lapsed since the quotations were earlier invited and during this period both the parties have come to offer the same rate for the maintenance of the Laproscopes/ Laprocator sets. Apparently, there is nothing on record to show that any opportunity was given to the parties after 27. 11. 2006 for submitting fresh offers or for negotiation so as to reduce their quotations which stood at par. 13. The respondent Nos. 1 to 3 have not followed a fair and reasonable procedure in the matter of award of the above contract. Even in order to maintain transparency in public dealings, the respondent Nos. 1 to 3 ought to have invited tenders from the eligible firms by giving a public notice and the method of notifying the quotations/negotiations ought to have been followed if necessary, thereafter. 14. Above all, the respondent Nos. 1 to 3 have failed to take into consideration one most relevant aspect of the matter i. e. , the petitioners are working as the contractor for an uninterrupted period of 24 years in the past. 14. Above all, the respondent Nos. 1 to 3 have failed to take into consideration one most relevant aspect of the matter i. e. , the petitioners are working as the contractor for an uninterrupted period of 24 years in the past. In all reasonableness, the respondent No. 1 to 3 were supposed to take the decision of awarding contract on the basis of over all view of the transaction after weighing various relevant factors and having regard to commercial viability. 15. The decision to grant of the impugned contract in favour of respondent No. 6 under the facts and circumstances, appears to be unjust and unreasonable. First, the procedure for inviting tenders was not followed nor even wide publicity for inviting quotations was given in any newspaper. Secondly, the decision making process was delayed for a year and even then no fresh invitation was issued and lastly, on the date of decision making the rate quoted by both the rival parties stood at par therefore, decision should have been taken after considering host of other relevant factors which were not at all considered. Therefore, the process of decision making stood vitiated under law. We are of the opinion that the respondent Nos. 1 to 3 acted unfairly and in an arbitrary manner in awarding the contract in favour of the respondent No. 6. 16. In view of the above discussions, we allow the writ petition and issue a writ in the nature of certiorari quashing the impugned order dated 8. 2. 2007 (Annexure 1 to the writ petition) with liberty to the respondent Nos. 1 to 3 to take appropriate steps in accordance with law for the award of a fresh contract for the maintenance of the Laprocator/ laparoscope sets. No order as to costs. .