IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,

MANIPUR, MIZORAM, TRIPURA AND ARUNACHAL PRADESH)

WP(C) No.5741/2009

1. M/S. JEET & JEET GLASS AND CHEM. P. LTD., represented by the Executive Officer, V.K. Industrial Area, Jaipur, (Rajasthan) India, Pin: 302013. 2. SRI GURVENDER JIT SINGH, Executive Officer, Jeet & Jeet Glass and Chem. P. Ltd., V.K. Industrial Area, Jaipur, (Rajasthan), India, Pin: 302013.

PETITIONERS

Versus

1. THE STATE OF ASSAM, represented by the Principal Secretary to the Govt. of Assam, Home and Political Department, Dispur, Guwahati: 6. 2. THE DIRECTOR GENERAL OF POLICE, Assam, Guwahati. 3. THE INSPECTOR GENERAL OF POLICE, (Security), Guwahati. 4. THE DEPUTY INSPECTOR GENERAL OF POLICE, (MPC), Guwahati. 5. M/S. MAHINDRA DEFENCE SYSTEM, A Division Tower, 2-A, Bhikaji Cama Place, New Delhi.

RESPONDENTS

2

WP(C) No.5743/2009

1. M/S. JEET & JEET GLASS AND CHEM. P. LTD., represented by the Executive Officer, V.K. Industrial Area, Jaipur, (Rajasthan) India, Pin: 302013. 2. SRI GURVENDER JIT SINGH, Executive Officer, Jeet & Jeet Glass and Chem. P. Ltd., V.K. Industrial Area, Jaipur, (Rajasthan), India, Pin: 302013.

PETITIONERS

Versus

1. THE STATE OF ASSAM, represented by the Principal Secretary to the Govt. of Assam, Home and Political Department, Dispur, Guwahati: 6. 2. THE DIRECTOR GENERAL OF POLICE, Assam, Guwahati. 3. THE INSPECTOR GENERAL OF POLICE, (Security), Guwahati. 4. THE DEPUTY INSPECTOR GENERAL OF POLICE, (MPC), Guwahati. 5. M/S. ABHISHEK MOTOR PVT. LTD., Tata Motors, M.R.D., Road, Shilpukhuri, Guwahati: 3.

RESPONDENTS

B E F O R E THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA

Advocates for Petitioners : MR. BC DAS,

Sr. Advocate MR. N ZAMAN, MR. PC DEY, MR. A GANGULY,

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MR. B CHANDA MR. J CHOUDHURY MR. A OJAH MR. K KALITA Advocates for Respondents : MS. V. L . SINGH

Govt. Advocate For Respondent Nos. 1 to 4.

MR. AM MAZUMDAR Sr. Advocate, Mr. SS Dey MR. M NATH Mr. DP Bora Mr. A Roy

For respondent No. 5 (In WP(C) No.5741/2009)

MR. D GOSWAMI Mr. PC Das

For respondent No. 5 (In WP(C) No.5743/2009)

Date of hearing : 11.03.2011 Date of judgment : 25.04.2011

JUDGMENT & ORDER

The grievance made and relief claimed in the writ

petitions being same, both the writ petitions were heard

together and are being disposed of by this common judgment

and order.

2. The first writ petition being W.P.(C) No. 5741/2009 has

been filed challenging the communication dated 02.09.2009

whereby the Deputy Inspector General of Police (MPC), Assam

had conveyed the Principal Secretary to the Government of

Assam, Home and Political Department to the effect that in

view of the release of fund by the Government of India, in the

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Ministry of Home Affairs for procurement of Non-Bullet Proof

Vehicles, Bullet Proof Vehicles and FRP Speed Boat, vide

letter dated 08.08.2008, tender was floated as per the

decision of the Technical Committee for procurement of these

items and the Purchase Committee in its meeting held on

09.06.2009 under the Chairmanship of Director General of

Police (DGP), Assam have accepted the rates of Mahindra SUV

quoted by M/S Mahindra Defence System and of Bullet Proof

Tata Sumo quoted by M/S Abhishek Motors Private Limited,

authorized dealer of Tata Motors Limited at the rate quoted

by them. Hence, the Government was requested for sanction

of total amount of Rs. 1,25,92,537/- for purchase of these

vehicles so that the Bullet Proof vehicles could be procured in

the financial year of 2009-10.

3. The second writ petition being W.P.(C) No. 5743/2009

also has been filed by the same petitioner challenging the

same order dated 02.09.2009. The first writ petition is

relating to the tender submitted by the writ petitioner for

supply of Bullet Proof Mahindra SUV, the second writ petition

relates to the tender submitted by the writ petitioner for

supply of Bullet Proof Tata Sumo.

4. Basic facts of both the writ petitions being same, brief

narration thereof is given herein below:-

By two notice inviting tenders (NIT for short) issued by

the Deputy Inspector General of Police (MPC), Assam, sealed

tenders were invited “for supply/procurement of 25 (Twenty

Five) Nos. of Mahindra SUV under DGS & D rate contract if

available and Bullet Proofing/Armouring of the same” (in

WP(C) No.5741/2009) as well as “16 (Sixteen) Nos. of Tata

Sumo vehicles with 3 Liter DICOR with 30 Kg-m Torque and

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115 PS under DGS & D rate contract if available and Bullet

Proofing / Armouring of the same” (In WP(C) No.5743/2009)

for Assam Police during the year 2008-2009 from suppliers,

Dealers, Distributors, Manufacturers or their Authorized

Agents. The tenderers were requested to submit tenders in

two bid system i.e., Technical bid and Commercial bid in

separate sealed cover along with attested copies of

certificates as required under the tender notice. It is further

stipulated in Clause 9 of both the Notice Inviting Tenders that

“Tenders quoting rates as Dealer / Distributor / Authorized

Agent etc. must submit authority letter for the item(s)

quoted for from their manufacturers.”

5. The writ petitioner No. 1 in both the writ petitions

described itself as a company registered under the Companies

Act 1956 of which the petitioner No. 2 is the Executive Officer

representing the company. It has been further stated in both

the writ petitions that the writ petitioner No. 1 is the oldest

original manufacturer of Bullet Proof vehicles with in house

facility to manufacture Bullet Proof glass and armour steel

from their principal in Germany on any manufacturer chassis

and are regularly supplying the products to different agencies

since 1972 including Army, State Government, Defence and

Paramilitary forces. The company is the Industrial partners of

Defence Research and Development Organization (DRDO),

Ministry of Defence for supply of manufacturing of Bullet Proof

products. The company‟s Bullet proof products have been

approved by the V.R.D.E. (Vehicle Research and Development

Establishment), Ministry of Defence. The said Bullet proof

materials including Bullet proof glass and armour sheet are

also approved by TBRL (Terminal Ballistic Research

Laboratory), Ministry of Defence Government of India,

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Chandigarh. The company is a reputed company for supplying

of Bullet proof materials as well as Bullet proof vehicles not

only in India but to the foreign countries also.

6. In the first writ petition i.e., in W.P.(C) No. 5741/2009

five tenders including the writ petitioners‟ and that of

respondent No. 5 were received by the authority for supply of

Bullet Proof Mahindra SUV and in respect of second writ

petition i.e., in W.P.(C) No. 5743/2009 all together 4 tenders

were received by the authority including the writ petitioners

and the respondent No. 5 for supply of Bullet Proof TATA

Sumo. Admittedly, the Technical Committee in both the cases

selected the respondent No. 5 as first preference bidder while

the writ petitioners were adjudged as the second preference

bidder. The proceedings of the selection is contained in the

Minutes of the Technical Committee meeting dated 2.02.2009.

Thereafter, on the opening of the financial bid it was found

that the writ petitioners have quoted lower price in

comparing to the private respondents. Subsequently, on

16.05.2009 the Purchase Committee headed by its Chairman,

the then Director General of Police, Assam, Guwahati held a

meeting and came to the conclusion that the Respondent No.

5 in the first cases i.e. M/S Mahindra Defence System is

manufacturer of the vehicle and in second case the

Respondent No. 5 i.e. M/S Abhishek Motors Private Limited is

the Authorized Dealer of the manufacturer. The other firms

are not concerned with manufacture of vehicles. Hence, the

Committee decided to approve the rates of the manufacturers

due to the following reasons:-

“………(1) Their B.P. vehicles are already in use of

the Assam Police and performance has been found upto

the mark.

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(2) Although the rates furnished by M/S. Jeet &

Jeet Glass and Chem Pvt. Ltd. are lowest, their rates

can not be considered as their vehicles have not been

tested.

The Committee has accepted the rates of

Mahindra SUV quoted by M/S Mahindra Defence System

and the rates of B.P. Tata Sumo quoted by M/S Abhishek

Motors Pvt. Ltd. authorized dealer of TATA Motors Ltd.”

7. The writ petitioners appear to have submitted numerous

representations to the higher authorities inter alia protesting

the selection of the private respondents in both the cases

overlooking the lower rate quoted by the writ petitioners as

well as the quality of products being offered by them. Moreso,

bullet proof glass is their own product which is of world

standard. It appears that pursuant to the petitioners‟

representation dated 21.05.2009, the Principal Secretary to

the Government of Assam, Home & Political Department

directed the Director General of Police, Assam to place the

representation of the petitioners‟ before the Purchase

Committee for its consideration and to take a decision with

regard to its claim etc. Accordingly, the Purchase Committee

again held its meeting on 9.06.2009 as per the direction of the

Principal Secretary to the Government of Assam, Home &

Political Department and after thread bare discussion, the

Committee upheld the decision taken in its earlier meeting

held on 16.05.2009. The opinion of the Purchase Committee is

quoted herein below:-

“………(1) The vehicles already procured from the

manufacturer or authorized dealer are running

satisfactorily and performance has been found upto the

mark………………….

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(2) Since fabrication of body of a B. P. vehicle also

require some modification/strengthening of the chassis,

the manufacturer is in the best position to incorporate

the modification in the chassis at the production stage

itself keeping in view the extra load that would be put

on it on fabrication of the B. P. body. Any fabrication

done on a normal chassis would make the vehicle

structurally weak. It is, therefore, advisable to

purchase a B.P. vehicle from the

manufacturer/authorized agent rather than from a

body fabricator. Moreover, the manufacturer above

would be in position to give a guarantee to quality of

the entire vehicle.

(3) Although M/S Jeet & Jeet Glass & Chem Pvt.

Ltd. quoted the lowest price, they are not the

manufacturer / authorized dealer of the vehicles. So

the lowest price was not considered as the sole criteria

for procurement of the B.P. vehicles.

(4) The manufacturer/authorized dealer will be

called for negotiation of the rate of the B.P. Vehicles

for procurement at a lesser price than the quoted

price.”

8. Thereafter, the petitioners submitted various

representations to the Director General of Police against the

abovementioned decision of the Purchase Committee and

prayed for reconsideration of its claim. However, the

authorities without taking into consideration the

abovementioned representations, issued the impugned order

dated 02.09.2009.

Thus, it is the case of the petitioners that the

respondent authorities without considering the objection

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made by the petitioner in its various representations

proceeded to finalize the matter as per the purported

decision of the purchase committee and thereafter, the

Deputy Inspector General of Police vide its letter dated

02.09.2009 requested the Principal Secretary to the

Government of Assam, Home and Political Department to

communicate the Government to sanction Rs. 1,25,92,537/-

for purchase of Bullet Proof vehicles and further requested to

allow the Director General of Police, Assam to draw the said

amount and it is this letter dated 2.09.2009 which is under

challenge in both the writ petitions. It is the further case of

the petitioners that vide letter dated 24.09.2009, the Joint

Secretary to the Government of Assam, Home (A) Department

wrote to the Director General of Police, Assam seeking

clarification whether rates approved by the Purchase

Committee with the authorized dealer have been negotiated

or not and to communicate the reply urgently. Pursuant to the

aforesaid letter dated 24.09.2009, the Assistant Inspector

General of Police vide his letter dated 19.10.2009 informed

the Joint Secretary to the Government of Assam, Home(A)

Department, inter alia, stating that the negotiations with

respondent No. 5 firms in both the cases were held on

13.10.2009 wherein both the firms have agreed to reduce

their prices.

9. Heard Mr. B.C. Das, learned Senior Counsel assisted by

Mr. PC Dey, Advocate appearing for the writ petitioners. Also

heard Mr. A. M. Mazumder learned Senior Counsel assisted by

Mr. M Nath, Advocate and Mr. D. Goswami learned Counsel for

the private respondents as well as Ms. VL Singh, learned State

counsel, for respondent Nos. 1 to 4.

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10. Mr. Mazumder, learned Sr. Counsel appearing for

respondent No. 5 in the first writ petition has raised a

preliminary objection at the very outset contending that the

writ petitioners have not specifically challenged the decision

making process either in the pleadings or in the prayers

contained in the writ petition. Consequently, this Court should

desist itself from interfering with the writ petition, inasmuch

as, it is the decision making process and not the decision

which is a subject matter of judicial scrutiny.

11. On the preliminary objection so raised by Mr. Mazumdar,

Mr. Das learned Senior Counsel appearing for the writ

petitioners in both the cases, has drawn the attention of this

Court to the judgment reported in AIR 1951 SC 41(1)

[Charanjit Lal Chowdhury –Vs.- Union of India & Ors.], (1981) 3

SCC 528 [B.R. Ramabhadriah Vs. Secretary, Food and

Agriculture Departments Andhra Pradesh & Ors.] and 2000 (2)

GLT 222 [Mandira Singh Vs. State of Assam & Others] to the

effect that the Court in the interest of justice can mould

relief in a given situation even in the absence of specific

pleadings. While in various judgments, the Supreme Court has

held that the pleas not raised in a petition should not be

looked into, yet there are equal numbers of judgments to the

effect that High Court can very well decide a petition even on

pleas not raised in a petition as a case of exception. If

contention regarding glaring irregularities not specifically

raised in a pleadings of writ petition in a given case yet when

it is self evident on the face of the record, the High Court can

take notice of such fact and proceed to decide the dispute

before it. Mr. Das learned Senior Counsel has further

contended that the minutes of the proceedings leading to the

selection of the private respondents are parts of writ petition

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and hence the Court can very well look into the same. In the

instant case, for the ends of justice, I would proceed to

decide the dispute on merit.

12. The main thrust of submission advanced by Mr. Das

learned Senior counsel is that the firm of the writ petitioners

has offered better products with lower prices but the

purchase committee minutes go to show that the members of

the committee proceeded with their mind already tilted

towards the private respondents in view of the fact that they

were the manufacturers in respect of W.P.(C) No. 5741/2009

and authorized dealer of the manufacturer in W.P.(C) No.

5743/2009. The further fact that the Bullet Proof vehicle of

the private respondents are already in use of Assam Police,

performance of which have already found upto the mark has

heavily tilted the decision making process in favour of the

private respondents. In addition, the finding of the purchase

committee to the effect that although the rates furnished by

the writ petitioners “….are lowest, their rates can not be

considered as their vehicles have not been tested”, is

according to the learned counsel for the petitioners is vitiated

by non-consideration of the materials on record including the

test certificates produced by the writ petitioners and other

claims regarding the superior quality of their products.

While placing reliance on paragraphs 8 and 9 of the

judgment of this Court in Assam Electrical –Vs- North Eastern

Electric Power Corporation Ltd. & Others reported in 2001 (1)

GLT 604, it is alleged by Mr. Das that in the absence of any

specific indication in the NIT to give weightage to the original

manufacturer or their authorized agents, no preference could

have been given to respondent No. 5 of both the writ petitions

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on the ground of they being original manufacturer of Mahindra

vehicles and authorized agents of Tata Motors respectively.

The decision in Ansal Properties and Industries Ltd., Vs.

State of Assam and Ors., rendered by a Division Bench of this

Court and reported in 1999 (3) GLT 195 has also been pressed

by Mr. Das to fortify his above contention to the effect that

the tender conditions having not specified any reservation for

special consideration in favour of the original manufacturer or

authorized agent of the original manufacturer, the

proceedings of the purchase committee suffers from the vice

of bias against the petitioner and undue favour to the private

respondents in both the cases.

Regarding judicial review of the Court in the matter of

settlement of tenders by the state or its instrumentalities, Mr.

Das has placed reliance to the decision in Tata Cellular Vs.

Union of India, reported in (1994) 6 SCC 651. There is no

dispute about the settled proposition of law as cited by

learned counsel for the petitioners in support of his case.

13. Per contra, Mr. Mazumder, learned Senior counsel for

respondent No. 5 in the first writ petition while inviting the

specific attention of this Court to the affidavit-in-opposition

filed by respondent No. 5 in W.P.(C) No. 5741/2009 i.e.

Mahindra Defence System has contended that this company is

the original manufacturer of the items sought to be procured

through NIT in question. It is pleaded that Mahindra Defence

Systems (MDS) is a division of Mahindra And Mahindra Limited

which is a Company originally incorporated under the Indian

Companies Act, 1913 with the Registrar of Joint Stock

Companies, Bombay in the year 1945. The original name of

the Company was Mahindra And Mohammed Limited which was

subsequently changed to Mahindra And Mahindra Limited.

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Mahindra And Mahindra Limited is also the registered Trade

Mark owner of the name „RAKSHAK‟ in respect of apparatus

for locomotion by land, air or water, Motorland vehicles,

Utility Vehicles, Automobiles, Tractors, Tractor Engines &

Parts, Fitting & Accessories thereof including implements

therefor, accessories and parts used in assembling of

Motorland Vehicles, Utility Vehicles, Automobiles, Tractors all

being goods included in Class 12; vide Certificate No. 401194

dated 18.7.2005 issued by the Registrar of Trade Marks under

the Trade Marks Act, 1999. Bolero series of vehicles i.e.

Bolero DX 4WD & Bolero SLX 4WD (the Bolero Models quoted

by the petitioners) were/are also manufactured exclusively by

Mahindra And Mahindra Limited having registered trade marks

in the name of Mahindra & Mahindra Ltd. Giving a picture of

its global presence, it is also pleaded that the Mahindra

Defence System is a division of the Mahindra And Mahindra

Limited, formed in July, 2000 as a Single Point Contract for all

dealings of the Company with the Ministry of Defence,

Government of India as well as other Government Security

Agencies for supply of special vehicles to the Security Forces

of the country since the year 1947.

It is further pleaded that Mahindra Defence Systems is a

division of Mahindra And Mahindra Limited, the original

manufacturer of Mahindra SUV Vehicles of all models

(inclusive of Bolero), grades and standards including the

“Ready Built Bullet Proof Mahindra Rakshak” and “Ready Built

Up Armoured Mahindra Scorpio” and neither the Respondent

No. 5, i.e. the Mahindra Defence Systems nor its parent

Company, viz. Mahindra And Mahindra Limited who are the

manufacturers of Mahindra SUV have authorized or appointed

any Company or concern including the Writ Petitioner M/S

Jeet & Jeet Glass and Chem. P. Ltd. to represent it as the

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dealer/ distributor/ authorized Agent or in any other capacity

to quote the rates of the vehicles of the Respondent No. 5

Company in any manner or for any purpose whatsoever.

Further, Mahindra And Mahindra Limited has also been

granted statutory industrial licence under the Industries

(Development And Regulation) Act, 1951 (Central Act 65 of

1951), inter-alia, for manufacture of „light armoured multi

role vehicle‟ by the Ministry of Commerce & Industry,

Government of India vide No. CIL:11(2008) dated 19.9.2008

issued by the Under Secretary to the Government of India.

Armoured fighting vehicle is included under Item No.

13(87.10) of Schedule– II list prescribed under Section 29B of

the Industries (Development And Regulation) Act, 1951

whereby all items included in the said Schedule– II list can be

manufactured only under licence issued by the statutory

authority under the aforesaid Act.

14. It is contended by Mr. Mazumder that with this

background the claim of writ petitioners who had quoted rates

for supply of Bolero SLX 4WD and Bolero DX 4WD both branded

products of respondent No. 5 have to be judged. It is also

contended that the proven performance of the product

manufactured and offered for supply by respondent No. 5 is

very much a relevant consideration, more so when the

product in question is sought to be acquired by the State

Police for effected control of insurgency problem with a view

to safeguard the life and property of the common citizen as

well safety and security of the security forces using those

products. Such consideration, according to Mr. Mazumder

cannot be viewed or interpreted to infer undue bias or pre-

conceived mind of the purchase committee members. Mr.

Mazumder further submitted that one of the items i.e. Bolero

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SLX 4WD which has been quoted by the writ petitioners in its

tender document is out of production by its manufacturer i.e.

Mahindra & Mahindra Ltd. and if at all the tender of the writ

petitioners is accepted by the authorities, the writ petitioners

will not be able to supply the same to the procuring agency.

Hence, on this count alone the writ petition is liable to be

dismissed. Mr. Mazumder further submitted that so far the

decision of the Apex Court reported in (1994) 6 SCC 651 [Tata

Cellular Vs. Union of India] is concerned, there is no dispute

regarding the settled proposition of law. However, the said

case no way helps the writ petitioners in the instant cases

rather, it helps the private respondents. In support of his

argument, Mr. Mazumder has cited decisions of the Apex Court

reported in (2007) 14 SCC 517 [Jagadish Mandal Vs. State of

Orissa & Others] as well as decision of this Court reported in

(2006) 2 GLR 187 (Escorts Ltd., Vs. International Tractors Ltd.,

& Ors.)

In the case of Jagadish Mandal, the Apex Court at Para

22 observed as thus;

“ 22. Judicial review of administrative action is

intended to prevent arbitrariness, irrationality,

unreasonableness, bias and malafides. Its purpose is

to check whether choice or decision is made

“lawfully” and not to check whether choice or

decision is “sound”. When the power of judicial

review is invoked in matters relating to tenders or

award of contracts, certain special features should

be borne in mind. A contract is a commercial

transaction. Evaluating tenders and awarding

contracts are essentially commercial functions.

Principles of equity and natural justice stay at a

distance. If the decision relating to award of contract

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is bona fide and is in public interest, Courts will not,

in exercise of power of judicial review, interfere

even if a procedural aberration or error in

assessment or prejudice to a tenderer, is made out.

The power of judicial review will not be permitted to

be invoked to protect private interest at the cost of

public interest, or to decide contractual disputes.

The tenderer or contractor with a grievance can

always seek damages in a Civil Court. Attempts by

unsuccessful tenderers with imaginary grievances,

wounded pride and business rivalry, to make

mountains out of molehills of some

technical/procedural violation or some prejudice to

self, and persuade Courts to interfere by exercising

power of judicial review, should be resisted. Such

interferences, either interim or final, may hold the

public works for years, or delay relief and succour to

thousands and millions and may increase the project

cost manifold. Therefore, a Court before interfering

in tender or contractual matters in exercise of power

of judicial review, should pose to itself the following

questions:

(i) whether the process adopted or decision

made by the authority is malafide or intended to

favour someone;

OR

Whether the process adopted or decision made

is so arbitrary and irrational that the Court can say;

“ the decision is such that no responsible authority

acting reasonably and in accordance with relevant

law could have reached”;

ii) Whether public interest is affected.

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If the answers are in the negative, there should

be no interference under Article 226. Cases involving

blacklisting or imposition of penal consequences on a

tenderer/contractor or distribution of State largesse

(allotment of sites/shops, grant of licenses,

dealerships and franchises) stand on a different

footing as they may require a higher degree of

fairness in action.”

In Escorts Ltd., (supra) a Division Bench of this Court

held at Para 27 as follows;

“27. This decision of the Expert Committee is

not challenged on any ground of malafides. The

whole contention was that once the writ petitioner

meets the requirements in accordance with the terms

and conditions of the IFB and once technically

qualified and its offer being the lowest ought to have

been accepted without making any further relative

assessment as to which tractor is technically more

suitable and viable for the purposes of awarding the

purchase order. We are unable to accept the said

contention for the simple reason that none of the

terms and conditions referred to hereinabove

precludes the purchaser from selecting and choosing

the best out of the available. Price may not always

be the sole criteria for awarding a contract. The

quality of the goods which are offered, which is

assessed on the basis of the technical qualifications

made available, play an important role in deciding to

whom the contract should be awarded. It is well

recognised that even a higher price for much better

quality of work can be legitimately paid in order to

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secure proper performance and good quality. Taking

such parameters into consideration in no manner

would be detrimental to public interest. The Expert

Committee took the decision after taking the

relevant parameters into consideration. It is not

open for this court to substitute its own decision

unless it is clearly established that the decision of

the Expert Committee is based on no material or it

has taken irrelevant factors into consideration and

had left relevant factors from consideration such is

not the case set up by the writ petitioner. The

principle of awarding contract to the lowest tenderer

applies when all things are equal. The quality of the

goods to be purchased cannot be sacrificed only for

the purposes of awarding contract to the lowest

bidder. The writ petitioner cannot succeed and insist

for awarding the contract on the sole ground of being

the lowest bidder.”

15. Mr. D. Goswami learned counsel appearing for

respondent No. 5 in W.P.(C) No. 5743/2009 while broadly

adopting the submission made by Mr. Mazumder learned

Senior Counsel for respondent No. 5 in W.P.(C) No. 5741/2009

has reiterated that the writ petitioners do not fall within the

category of either a dealer or distributor or authorized agent

of the manufacturer of TATA Sumo vehicles as per the tender

notice. According to Mr. Goswami the writ petitioner is at best

a fabricator who procures vehicle chassis and fabricate them

with the Bullet Proof vehicles. Hence, the rate quoted by the

petitioners which is lower than the rates quoted by the

manufacturer is itself suggestive of quality of products offered

by the writ petitioners.

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16. Ms. V. L. Singh, learned State Counsel has produced the

original records pertaining to the tender process of both the

cases for scrutiny of this court.

17. I have given my anxious consideration to the rival

submissions made during the hearing of the petitions and

perused the entire materials and original record of the case.

18. Procurement of materials i.e. “25 (Twenty Five) Nos. of

Mahindra SUV under DGS & D rate contract if available and

Bullet Proofing/Armouring of the same” as well as “16

(Sixteen) Nos. of Tata Sumo vehicles with 3 Liter DICOR with

30 Kg-m Torque and 115 PS under DGS & D rate contract if

available and Bullet Proofing / Armouring of the same” for use

of State Machinery in the cases of the Assam Police fall within

the ambit of distribution of State largess whereby rights of

private parties are involved. Hence, any decision by State

instrumentalities has to be fair, equitable, transparent and

qualify the touchstone test of Article 14 of the Constitution of

India. While writ court in doing so will not sit on appeal over

the decision of the authority procuring the materials,

nonetheless the process of decision making which ultimately

culminates into a decision in favour or against a party is

amenable to judicial review. The right of the State authorities

to make a fair decision in due exercise of its power in public

interest is also duly recognized. The ambit of judicial review

is aimed at ascertaining fairness and transparency adopted

and maintained by the authorities in the entire process of

decision making so as to deny any intrusion of

unreasonableness or arbitrariness.

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19. The cases in hand relate to procurement of special

Bullet Proof vehicles to the Assam Police for use by its

personnel for meeting special challenges. This court is neither

the forum to adjudicate or decide the contesting rival claims

of the parties regarding the relative superiority of these

products nor the court will tread into the arena for technical

expertise. Having said so, this court also cannot shut its eyes

to some facts glaring at it. If the State wants to procure a

product which is exclusively manufactured by a particular

manufacturer under its brand name with exclusive licence for

manufacturing the same, there is nothing in law of

distribution of public largesse preventing it from directly

acquiring such products from the manufacturers at its

scheduled rates. In the instant case the NIT clearly reveals the

product brand name of vehicles which itself denote even the

names of their respective exclusive manufacturers. However,

inspite of this position the respondent authorities opted to

float open tenders for procuring these branded products by

inviting tender from intending Suppliers, Dealers, Distributors,

Manufacturers or their Authorized Agents for

supply/procurement of “25 (Twenty Five) Nos. of Mahindra

SUV under DGS & D rate contract if available and Bullet

Proofing/Armouring of the same” as well as “16 (Sixteen) Nos.

of Tata Sumo vehicles with 3 Liter DICOR with 30 Kg-m Torque

and 115 PS under DGS & D rate contract if available and Bullet

Proofing / Armouring of the same”. The fact that these

products supplied by their original manufacturers are already

in use of the procuring agency to the satisfaction of its real

user is obviously a very relevant consideration for the

procuring agency while arriving at a subjective satisfaction for

selecting a product. Such consideration in my opinion is truly

a relevant one and cannot be in any manner vitiate the

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decision making process. The original records made available

before this court reveals as follows:-

“……the committee was also apprised that the BP

vehicles which were procured from the bodybuilders /

fabricators earlier are not functioning properly and

most of these vehicles are lying idle while the vehicles

bought from manufacturer are running smoothly.”

20. There is nothing on record or materials placed before

the court by the parties specially the writ petitioners to

suggest that the aforesaid facts considered by the purchase

committee either non-existent or calculated to infuse bias

against the writ petitioners. Further, price of the product is

definitely a relevant consideration but certainly not the

ultimate determining factor, more so when quality of the

product has to be given prime consideration. In the instant

cases, the purchase committee has accepted the price of the

product quoted by its Original Manufacturer/Authorized

Agents; there is nothing on record to suggest that such prices

are unduly inflated. Hence, the mere fact that such rates are

higher than the price quoted by the writ petitioners, who

admittedly do not manufacture such vehicles and merely

fabricates those vehicles, cannot in any manner, vitiate the

decision making process. In fact, on the face of

uncontroverted stand of respondent No. 5 in both the cases

that neither the Mahindra Defence System nor Tata Motors,

the Original Manufacturers of products sought to be acquired

through the two NITs have, in any manner authorized the writ

petitioners to quote products in its brand name tilts against

the very credibility of the tenders submitted by the writ

petitioners. Hence, taking the totality of the facts and

circumstances revealed on materials on record placed before

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this court, the challenge of the writ petitioners cannot be

sustained and accordingly both the writ petitions fail. This

court by its order dated 4.05.2010 passed in Misc. Case No.

1097/2010 in W.P.(C) No. 5741/2009 and order dated

9.06.2010 passed in Misc. Case No. 1555/2010 in W.P.(C) No.

5743/2009 recorded its prima facie finding in favour of the

impugned orders of the authorities and vacated the interim

order passed earlier. On final determination of the issues at

length, I do not find any reason to defer from the prima facie

findings as recorded above.

21. For the foregoing discussions and reasons, both the writ

petitions are found to be devoid of merit. In the result, the

writ petitions are dismissed. No order as to costs.

JUDGE

Shivani