# M/s S.U. Builders and another v. Vice Chairman, A.D.A.,Allahabad. and others

- **Citation:** High Court of Judicature at Allahabad #39488
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-02-04
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-s-u-builders-and-another-v-vice-chairman-a-d-a-allahabad-and-others-39488
- **Pages:** 6

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000
62
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By the Court

1. The petitioners by means of this writ
petition under Article 226 of the Constitution
seek indulgence of this court for issuing a writ
nature of certiorari quashing the tender
proceedings, which tool place pursuant to the
tender notice dated 18.8.1998 published in
local News paper "Dainik Jagran". Further
seeking a writ of certiorari that the work order
regarding High Tension, Low Tension line
and Street Light of Trivenipuram Avas
Yojana in favour of the respondent nos. 5 & 6
may also be quashed. It is further prayed that
the respondents may be commanded by a writ
or order in the nature of mandamus to
negotiate with the petitioners who have
offered over all lowest tender in pursuance of
the tender notice dated 18.8.1998.

2. Allahabad Development Authority
(hereinafter referred to as the Authority)
floated the tender notice inviting the offers
from the contractors who were registered with
the Authority and were having certificate
from
the
Director
Electrical
Safety
Directorate, State of UP Lucknow as Class-A
approved
contractors.
Considering
it
a
sensitive and specialised technical work the
Authority gave priority to those contractors
who posses requisite know how, technical
competence and the equipment's, capital etc.
to undertake such specialised work and
therefore, required the tenderers to submit a
technical offer and financial offer as well.
Among the tenderers only 5 could fulfil the
requirements, hence they were allowed to
tender their offer. The tenders were opened on
28.9.98. The Executive Engineer, considering
the rates offered by respondent no.5 for the
HT & L.T. line work, being the lowest, started
negotiation vide his letter dated 11.12.1998
suggesting the respondent no.5 to reduce the
rate offered by him. The respondent no.5 vide
his letter dated 18.12.1998 showed his
willingness to reduce his rate by 0.15 %. The
Executive engineer was not satisfied with
such an offer in reduction of the rate,
therefore, he wrote again a letter on 27.1.1999
to respondent no.5 to further reduce his rate.
On this the respondent no.5 by his letter dated
28.1.1999 offered to reduce the rate to 12.49
% above the scheduled rate. The petitioner on
having information about the reduction of the
rates by the respondent no. 5 wrote a letter
dated 4.2.1999 contained in Annexure-6 to the
counter affidavit of Shailendra Singh offering
to work at the rates submitted by respondent
1ALL] M/s S.U. Builders and another V. Vice Chairman, A.D.A.,Allahabad. and others

63
no.5. So, the other tenders also expressed
their willingness to reduce the rate to the
extent offered by the respondent no.5. In
pursuance to the offers made by the tenderers
and also having regard to the fact that the
work has to be completed within a period of 8
months, a Committee consisting of Executive
Engineer, Superintending Engineer, Chief
Accounts Officer and the Secretary of the
Authority was constituted. The Committee
submitted
its
report
dated
18.2.98
recommending
the
distribution
of
work
among all the tenderers. The Secretary of the
Authority dissented with the recommendation.
He refused to sign the report. Consequent
upon this report into consideration by the
higher authorities. However, the tender which
was opened on 28.9.98 was accepted on
4.6.99 and by work order dated 5.6.99 the
respondent no.5 was directed to carry out the
work and submit the stamp papers for
agreement. The respondent no.5 executed
deed on 7.6.99 and then completing the
formalities the respondent no. 5 started work.

3. We heard Sri C.B. Yadav, learned
counsel appearing for the petitioner and Sri
A.K. Misra, learned counsel appearing for the
respondent nos. 1 to 4 and Sri Bhagwati
Prasad, learned counsel appearing for the
respondent no.5.

4. The contention of the learned counsel
appearing for the petitioner is that the tender
notice was floated for the combined work of
H.T. & L.T. Line and the Street light work.
There has been no bifurcation of the work in
two parts. Subsequently, with the object to
defeat the interest of the petitioner the work
has been bifurcated. Petitioner had offered
lowest rate for the work of H.T.& L.T. line
and
Street
Light
to
the
tune
of
Rs.1,59,16,451.78 while respondent no. 5 had
offered second lowest rate to the tune of
Rs.1,59,16,461.03.
Thus,
the
petitioner
tendered the lowest rate for the execution of
the work, that the negotiation ought to have
been done between the lowest tendered and
the Authority, whereas, the negotiation has
been made with the respondent no.5, who is
the second lowest tendered, that the tender of
respondent no.5 has been illegally, arbitrarily
and unreasonably by the Tender Committee,
without showing any cogent reason. It is
further contended that the Authority has not
framed any rule / policy regulating the
contract.

5. On the other hand, the learned counsel
appearing for the respondents urged that the
work was divided into two parts. One relates
to the laying of H.T.& L.T. line and other for
Street Light and a schedule of the work was
furnished in advance with the tender form.
The petitioner and other tenderers thus were
aware of the division of the works in two
parts. So also all the tenderers, including the
petitioner and the respondent no.5 & 6 have
furnished rates for the execution of the work
separately under two heads i.e. H.T.& L.T.
and Street Light. The petitioner himself
offered to complete the work of H.T. & L.T.
for Rs.1,45,34,713.28 and to complete the
work of street light for Rs.13,81,738.50. The
petitioner is, therefore, stopped from raising
plea that the work has been bifurcated
detrimental to his interest. Besides that all
tenderers tendered the costs of works H.T. &
L.T. line and street light separately.

It is further urged that the petitioner
offered the cost of Rs.1,45,34,713.28. for the
work of H.T.& L.T. whereas, the respondent
no. 5 offered Rs.1,45,33,454.88. Thus, the
rate of the respondent no.5 was the lowest
among the tenderers and the rate of the
petitioners was next lowest rate. For the work
of street light the petitioner tendered to
execute
the
work
for
Rs.13,81,738.50,
whereas the respondent no.6 offered to
complete the work of Street Light for
Rs.13,79,203.20. Thus, the petitioner can not
claim to be lowest tenderer on both the items.
The rate tendered by the petitioner was
Rs.1,59,16,451.78 where as rates tendered by
the respondent no.5 & 6 for the completion of
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
64
both the works comes to Rs.1,59,12,658. On
negotiation the respondent no.5 had agreed to
work at the rate of 12.49 % above the
schedule rate. Thus, both the works are to be
completed for Rs.1,55,35132/-. Thus, the
petitioner cannot be said to be lowest
tenderer. In regard to the third contention it is
urged by the counsel for the respondent that it
may be stated that the negotiation could only
be entered into by the Authority with the
lowest tenderer and not with any other
tenderer. The Authority therefore has not
acted unreasonably, arbitrarily or illegally.

6. We perused the relevant papers on
record. The respondents have filed the Tender
Forms supplied to the petitioner and the
respondent nos.5 & 6 and other two tenderers.
The Tender Forms indicate that the work
proposed to be completed by the contractors,
was bifurcated in H.T. & L.T. line and Street
Light. The Scheduled rates have been
indicated therein. A comparative table of the
financial rates offered by the technically
qualified tenderers for the contract was
prepared as below :-
7. In the above table the contractors have
offered district rates for the two separate
works. It is all indicative of the facts that the
entire work was bifurcated in two parts. The
contention of the petitioner's counsel is that
the work was bifurcated later to give benefit
to the respondent nos. 5 & 6 and to defeat the
interest of the petitioner, is not sustainable.
8. The rates offered by the petitioner and
the respondent nos. 5 & 6 are compiled in the
above table. Which demonstrates that the
petitioner offered to complete the work of HT
& LT line for Rs.1,45,34,713.28, whereas the
respondent no.5 offered to complete the same
work for Rs.1,45,33,454.88. Thus, the rate
offered
by
the
respondent
no.
5
for
completion of the work of HT & LT line was
lowest among the offers made by the
petitioner and the other contractors. The table
further
demonstrates
that
the
petitioner
offered to complete the work of Street Light
for Rs.13,81,738.50, whereas the respondent
no. 6 agreed to complete the same work for
Rs.13,79,203.20.
The
rate
offered
by
respondent no.6 is lowest among the offers
made by the other contractors including the
petitioner. The total amount for completion of
the work offered by the respondent nos.5 & 6
was Rs.1,59,12,658. Therefore, the Authority
committed no irregularity or illegality in
considering
the
rates
offered
by
the
respondent nos. 5 & 6 which were the lowest.
Apart that the respondent no.5, on have
negotiations with the Executive Engineer,
Sl.
No. Name of Contractor
H.T. & L.T.
Street Light
Total
1.

2.

3.

4.

5.
M/s Shree Bhawani

M/s S.U. Builder

M/s R/G Traders

M/s Rajesh Electricals

M/s Vilayti Ram
Mittal
15.49%(above)
Rs.1,45,33,454.88

15.5%
(above)
Rs.1,45,34,713.28

17.5%(above)
Rs.1,47,86,396.68

18%(above)
Rs.1,48,49,317.48

20.7%(above)
Rs.1,51,89,089.98
9.1
(above)
Rs.13,83,006.15

9.0%
(above)
Rs.13,81,738.50

8.8%(above)
Rs.13,79,203.20

10%(above)
Rs.13,94,415.00

20.7%(above)
Rs.15,30,053.55
Rs.1,59,16,461.03

Rs.1,59,16,451.78

Rs.1,61,65,599.88

Rs.1,62,43,732.48

Rs.1,67,19,143.33
1ALL] M/s S.U. Builders and another V. Vice Chairman, A.D.A.,Allahabad. and others

65
agreed to complete work of H.T. & L.T. line
at the rate 12.49 % above the schedule rates.
Thus, both the works are to be completed by
the respondent nos. 5 & 6 for Rs. 1,55,35,132.
The petitioner, therefore, cannot be said to be
the lowest tenderer. As for contention of the
petitioner's counsel that the petitioner also
offered to complete the work at the rate,
offered by the respondent nos. 5 & 6. In para
18 of the writ petitioner himself admits that
Article 364 of the Financial Hand Book Vol.
VI Chapter 12 provides that-

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In para 19 of the writ petition the petitioner
has admitted that negotiations take place with
the lowest tenderer only. We are, therefore, of
the view that the respondent no.1 has rightly
with all diligence executed its contractual
power considering the rates offered by the
respondent nos. 5 & 6 as lowest and has
reasonable without detrimental to the interest
of any body has negotiated with the
respondent no. 5 as far relates to the work of
H.T.& L.T. line.

9. It may also be mentioned here that the
Executive engineer did not negotiate with the
petitioner perhaps for the reasons; firstly, that
the tender submitted by the petitioner was not
lowest; secondly, because, as stated in the
affidavit filed by Sri B.K. Singh on behalf of
the respondent nos. 1 to 4 that in the past
under Agnipath Scheme the petitioner was
awarded a contract work of L.T. line. He
could complete a part thereof, even despite of
the expiry of the extended time allowed to
him for the completion of the work. The
petitioner has not controverted this fact in his
rejoinder affidavit.

10. In the case of G.B.Mahajan Vs.
Jalgaon Municipal Council AIR 1991 SC
1153 Hon'ble Supreme Court has observed
that :-

"while it is true that principle of judicial
review apply to the exercise by a government
body of its contractual powers, the inherent
limitations on the scope of the inquiry are
themselves a part of those principles. For
instance, in a matter even as between the
parties, there must be shown a public law
element to the contractual decision before
judicial review is invoked."

11. In the present case, the material placed
before the Court does not indicate that the
authorities have accepted the tenders of
respondent nos. 5 & 6 for irrelevant
consideration or on self misdirection or
violated the public law in the contractual
decision. Hence the administrative exercise of
power by the respondents does not fall within
the purview of the judicial review.

In Raunaq International Ltd. V. I.V.R.
construction Ltd. AIR 1999 SC 397 the
Hon'ble Supreme Court held 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 element 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
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
66
transaction. It is important to bear in mind that
by Court 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 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."

12. In the instant case it is neither pleaded
that in this case public interest is involved nor
from the impending circumstances it may be
inferred that public interest is involved in
awarding the contract in question. On the
contrary the Authority under took the housing
project known as Trivenipuram Housing
Scheme, wherein approximately 1438 plots
were carved out for construction of residential
houses. A number of residential houses have
already been constructed and residents have
been constantly pressing their demands of
electrification of the area at the earliest
possible. So in the public interest and also
undertaking given by the respondent no.5 to
complete the work at the earliest possible, the
contract has been awarded to him. We do not
find illegality or arbitrariness in the action of
the Authority in exercising contractual power
by awarding contract to respondent no. 5 & 6.

13. It is pertinent to mention here that Sri
Om Chand in the supplementary counter
affidavit has stated that in pursuance of
contract awarded on 5th June, 1999 the
respondent
no.5
has
already
completed
substantial work of the project and about half
of the work on the spot has already been
completed. As against the total sanctioned
amount for HT & LT Line the Authority had
already paid a sum of Rs. 36.75 lacs to the
respondent no.5. Therefore, any intervention
by the court, the proposed project, may be
considerably delayed escalating cost and
public interest would be marred.
14. In the Raunaq International Ltd. case
(Supra) The Hon'ble Supreme Court has
further observed that-

"It is also necessary to remember that price
may not always be the sole criterion for
forwarding a contract. Often when an
evaluation committee of experts is appointed
to evaluated offers, the expert committee's
special knowledge plays a decisive role in
deciding which is the best offer. Price offered
is only one of the criteria. The past record of
the tenderers, the quality of the goods or
services which are offered, assessing such
quality on the basis of the past performance of
the tenderers, the quality of the goods or
series which are offered, assessing such
quality on the basis of the past performance of
the tenderer, its market reputation and so on,
all play an important role in deciding to whom
the contract should be awarded. At times, a
higher price for a much better quality of work
can be legitimately paid in order to secure
proper performance of the contract and good
quality of work-which is as much in public
interest as a low price. The Court should not
substitute its own decision for the decision of
an expert evaluation committee."

15. The respondent nos. 5& 6 have been
awarded the contract on the basis that they
offered the lowest rate for the work. The
award of the contract is purely administrative
matter. The Scope of enquiry in judicial
review of an administrative action has been
considered in Tata Cellular case, AIR 1996
SC 11 (paragraphs 85 & 112) and it has been
observed that- (modern trend points to judicial
restrain
while
reviewing
administrative
decisions relating to contractual power of
Government.)

16. In view of above factual and legal
position, we have no other option except to
dismiss the petition.
1ALL] Dilip Kumar V. Family Court, Gorakhpur and others

67
17.

The
petition
is,
accordingly,
dismissed. No order as to costs.

Petition Dismissed.

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By the Court

1. Heard learned counsel for the applicant,
Sri Shankar Suan, learned counsel for the
opposite party, and also learned A.G.A. for
the Stated.

2. On the last date while admitting this
application, clear direction was given to the
State counsel that he shall also prepare
himself on the question whether any court
deciding an application for recovery of the
amount due under section 125 Cr.P.C. to the
wife from the delinquent husband can pass an
order of his confinement for a period of one
year competitively or any other consolidated
period.

3. A perusal of Section 125 (3) Cr.P.C.
very clearly indicates that no such order can
be passed by any court be it a Family Court or
a court of a Judicial Magistrate. The courts are
entitled to pass an order against any
delinquent husband, who has not made the
payment and allowed the wife to lead a
destitute life, in the absence of such payment,
to a confinement or imprisonment for a term
which may extend to one month or until
payment it sooner made. The earlier portion
of this sub-section clearly shows that this
confinement or imprisonment will be against
each month's default section 125 (3) Cr.P.C.
is quoted below:
"(3) If any person so ordered fails
without sufficient cause to comply with the
order, any such Magistrate may for every
breach of the order issue a warrant for levying
the amount due in the manner provided for
levying fines, and may sentence such person,
for the whole or any part of each month's
allowance
remaining
unpaid
after
the
execution of the warrant, to imprisonment for
a term which may extend to one month or
until payment if sooner made.

4. Provided that no warrant shall be issued
for the recovery of any amount due under this
section unless application be made to the