Trans Power Pvt. Ltd. and Another vs State of Tripura and Others

M.L. Singhal, J.—Heard Mr. U. Bhuyan, learned Counsel for the Petitioners and Mr. U.B. Saha, learned Government Advocate assisted by Mr. D.C. Nath, learned Counsel for the Respondents.

With the consent of the parties, the writ petition is finally disposed of.

The Respondent Chief Engineer (Power Project), Department of Power, Government of Tripura, Agartala invited rate tender for completion of the work related to supply, erection and commissioning of 132 KV single circuit transmission line of Steel Towers etc. form 79 Tilla (Agartala) to Udaipur. Undisputedly in compliance with the said invitation the Petitioner submitted tender. The Petitioner submitted his own drawing and design as per the tender specification. The Petitioner offered the same sets of rates, arriving at two total amount--one as per the tender specification and the other as per its own design. According to the Petitioner the new design submitted by the Petitioner would entail saving of Rs. 43 to 44 lakhs. Learned Counsel for the Petitioner urged that the Petitioner desires that his own design may be fairly considered by the Respondent department By order dated 27th August, 1999 the Power Committee of the Respondent has rejected the Petitioner''s tender. Learned Counsel for the Petitioner further contended that Section 2 of the Notice of Inviting Tender (NIT) is mandatory, the Petitioner has submitted design and made compliance with the said provision. The action of the Respondents in refusing to consider the new design submitted by the Petitioner does not satisfy the test of reasonableness and public interest. Learned Counsel for the Petitioner relied upon the decisions of the Hon''ble Supreme Court in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, para 21 Kasturi Lal Lakshmi Reddy, Represented by its Partner Shri Kasturi Lal, Jammu and Others Vs. State of Jammu and Kashmir and Another, para 11 Ram and Shyam Company Vs. State of Haryana and Others, para 12 and 14 Raunaq International Limited Vs. I.V.R. Construction Ltd. and Others, para 19 International Ltd. v. I.V.R. Construction Limited and Ors. and 1992(2) GLR 43 Thermax Ltd. and Anr. v. North Eastern Electric Power Corporation Ltd. and Ors. 4. Undisputedly the Petitioner has submitted new design in the tender. Para 4 of the Item Rate Tender and Contract for Works provides that any person who submits a tender shall fill up the usual printed form stating what rate he is willing to undertake each item of the work. Tenders which propose any alteration in work specified in the said form of invitation to tender or in the time allowed for carrying out the work which contains any other conditions of any sort will be liable to rejection. In view of this paragraph of the Item Rate Tender and Contract for Works, since the Petitioner has submitted the review proposal, it is liable to be rejected. The Petitioner cannot force the Government to accept its own design. The Respondents have to execute the project according to their own scheme and design specified in the tender floated by it.

It has been observed by the Supreme Court in Tata Cellular Vs. Union of India, that the principles of judicial review would apply to the exercise of contractual powers by Government bothes in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 of the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. Further, the Government has the freedom of contract. In other words a fair play in the joints is a necessary concommitant for an administrative body frunctioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of wednesbury principle of reasonableness (including its other facts pointed above) but must be free from arbitrariness not affected by bias of actuated by malafides.

In Raunaq International Limited Vs. I.V.R. Construction Ltd. and Others, the Supreme Court has observed that when a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the Court must be satisfied that there is some elements of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the Court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. By Court''s intervention the proposed project may be considerably delayed thus escalating the cost far more than any saving which the Court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the Court is satisfied that there is a substantial amount of public interest, or the transaction is entered into malafide the Court should not intervene under Article 226 in disputes between two rival tenderers.

In the instant case, the Power Committee of the Respondents in refusing to consider the new design submitted by the Petitioner in deviation of the terms of the item rate tender & contract for works, cannot be said to have acted with arbitrariness or with, unreasonableness.

It may also be observed that the Respondents have simply invited tenders. The submission of the tender of the Petitioner is a mere proposal, no contract has yet been entered into between the parties. The Petitioner absolutely has no right to come to the Court by way of this writ petition under Article 226 of the Constitution of India.

The writ petition does not lie and accordingly it is dismissed. The interim order dated 6.9.99 stands vacated. Costs on parties.