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Judgment
Syed Shah Mohammed Quadri, J.—This Writ Appeal is directed against the order of our learned brother P. Ramakrishnam Raju, J. passed in Writ Petition No. 16176 of 1994, dated 11-11-1994.
The unsuccessful petitioner is the appellant. The Government decided to supply Pattadar Pass Books to the ryots duly laminating the first page of the said books. For that purpose, the 2nd respondent issued Tender Notice No. 4/94-95 / ROR-D, dated 3-6-1994 inviting tenders for the following:
_____________________________________________________________________________________ SI. Tender Notice number and E.M.D. to be Closing time Opening No. particulars of work deposited & date time & date _____________________________________________________________________________________ 1. (a) Flat rate (including all taxes) for Rs. 25,000 25-6-94 25-6-94 each sheet of Polyester Co- 12.00 noon 12.00 noon polymer heat sealing film with 50 Microns (25 Microns polyester + 25 micron copolymer) with a size of 20 cms./17 cms. (b) Flat rate for each Laminating Machine for laminating first page of R. A-5 size title deed book of 3 to 5 mms. thickness with tempera- ture control ranging from 140 to 200 degrees centigrade with serial number indicator and having capacity to laminate atleast 5,000 copies per day. The flat rate quoted should include all taxes including transportation cost for delivery to Collectors in the State. _____________________________________________________________________________________
The tenders were to be submitted on or before 24-6-94, which were to be opened on 25-6-1994. There were 6 tenderers including the petitioner and respondents 5 and 6. The rates quoted by the tenderers will be evident from the following statement:
_______________________________________________________________________________ SI. Unit Price quoted Price quoted for No. for each each laminating laminating film sheet of machine required specification _______________________________________________________________________________ 1. M/s. Modi CBC Ltd., New Delhi Rs. 7,990/- Rs. 1.40 2. M/s. Kare Corporation, Madras Rs.l 1,500/- Rs. 0.77 3. APSSIDC,Hyderabad Rs. 12,500/- Rs. 0.90 APGST 4. Jasti Mallikarjunudu and Sons, Rs. 6,000/- Rs. 1.27 Eluru, West Godavari, A.P. 5. M/s. Vishnu Plastics Rs. 7,500/- Rs. 0.90 (Model PP l0X) Rs. 8,500/- (Model PP l0 DX) Rs. 9,500/- (Model PP l0 FR) 6. M/s. Avanti Business Machines Rs. 10,000/- Rs. 0.65 Pvt. Ltd., Hyderabad (Model DP 300) Rs. 11,500/- (Model D1 450) _______________________________________________________________________________
So far as the machines are concerned, the 5th respondent was the lowest tenderer and so far as the films are concerned, the petitioner was the lowest tenderer. For finalising the tenders of the machines and films, a Selection Committee was constituted by the Government in G.O.Ms. No. 412, Revenue (A & R) Department, dated 12-5-1994. The Selection Committee found that the machines proposed to be supplied by the 5th respondent were not to their satisfaction. However, they selected the machines proposed to be supplied by the petitioner as well as the 6th respondent and invited them for negotiations. As both of them agreed to supply the machines at the rate of Rs. 7,900/- per machine, the authorities placed orders for 50 machines with the petitioner and for 50 machines with the 6th respondent. To that extent, there is no serious dispute.
However, order for supply of films was placed on respondents 5 and 6 at the rate of Re.0.77 ps. per sheet. It is, this part of their order, that prompted the appellant-petitioner to file the Writ Petition challenging the validity of the proceedings of the 2nd respondent dated 3-9-1994 in not giving order to it to supply the films also.
Three contentions were raised by the appellant before the learned single Judge. The first contention was that the authorities are not justified in splitting the tender and placing separate orders for machines and films. The second contention was that the authorities ought not to have invited the tenderers for negotiations as the tender notice does not mention anything about negotiations and the third contention was that there was no provision in the tender notice for sending the samples for testing to any agency and that this method adopted by the authorities is quite contrary to the conditions stated in the tender notice and, therefore, illegal. All these contentions were rejected by the learned single Judge. The very same contentions are reiterated before us.
Insofar as the first contention is concerned, viz., that the splitting of tender is illegal and unjustified, we must hold that the learned single Judge has rightly rejected this contention and we are also unable to accept the said contention. A reading of the tender notice does not suggest that the tenders were called for both the items as a single unit as both the items were notified in different paras separately though under a single serial number. The rates to be quoted for them are separate and they were also dealt with separately by all the tenderers. Secondly, the petitioner-appellant itself addressed a letter to the Commissioner for Survey, Settlements and Land Records, Hyderabad - 2nd respondent herein, on 2-9-1994 agreeing to the supply of laminating machines at the rate of Rs. 7,900/- per machine by fixing cooling fan in the machine and for supplying of the films as a separate and independent item. Even if there was any such condition in the tender notice, we are inclined to think that the same was waived by the petitioner-appellant. Be that as it may, in our view, if in a tender notice offers are invited for more items than one for which separate rates have to be quoted, they are independent items and it is open to the authorities to treat each item independently and finalise the tender with reference to each item without clubbing them together, which does not amount to splitting the tender. In this view of the matter, the first contention is rejected.
Regarding the contention that the negotiations were not contemplated by the tender notice, we are unable to accede to this contention for the simple reason that the petitioner itself participated in the negotiations and had the benefit of negotiations by supplying 50 laminating machines at the negotiated rate, which is, admittedly, lesser than the rate quoted by it.
Now the only contention that remains is the third contention, that the samples ought not to have been sent for tests before considering the tenders. To our minds, this contention appears to be wholly without any substance. If the Government or any other authority intends to have the supply of any material, which is of technical nature and it is not possible for that authority to judge the quality of the samples, it is not only proper but also incumbent on the authority to have an expert opinion before making up its mind on the question whether the material to be supplied, is upto the standard or not. But, this contention is raised on the premise that the tender notice contains a clause enabling the authorities to reject the supplies on the ground that the material supplied is not upto the specification. Here, what is done is that the variety of the films which is proposed to be supplied, was sent for testing as to its quality, because it is with reference to this quality, which is to be ascertained by the Expert, the petitioner will have to be bound over for the supplies. This is an anterior step and which, in the public interest, ought to be taken. Merely because the authority has the power, under tender notice, the right to reject the sub-standard goods, it cannot be legitimately contended that the action of the 4th respondent to have the samples tested by an Expert so as to form an opinion as to whether they are as per specification, does not suffer from any lack of power or any violation of tender notice. We, therefore, do not find any illegality in the approach of the authorities in sending the samples of machines of films for testing.
There is yet another submission of the petitioner; that it ought to have been given the order with reference to 50% of the films as the 5th respondent has backed out and has not supplied the material for which order was placed with it. We would have considered this request had respondents 2 and 4 been satisfied with the sample of the film of the petitioner. On a close examination of the record, we found that the samples given by the petitioner were sent to three experts. First, it was sent to M/s. Vimta Labs Limited. The Lab opined that the samples are not according to the specification. The petitioner having come to know of this, filed a representation, on 6-9-1994, requesting the authorities to send the sample to a Government Laboratory; to maintain secrecy and impartiality, it also suggested to the authorities to code the sample film sheets of all the tenderers while sending them to the laboratories and to decode them after receipt of reports. As suggested by the petitioner, the authorities sent the samples to the University Department of Chemical Technology, Bombay*. The authorities noticed great variation between the reports of the two Labs and decided to send the samples to the third Lab, namely Indian Institute of Chemical Technology, Hyderabad. The report of the said Institute shows that the sample of the petitioner was not according to the specifications. So, there were three reports before the Committee; two of them were against the petitioner and one was in favour of the petitioner. On the basis of the said reports, the authorities decided not to place order with the petitioner for supply of films as the samples were sub-standard. This action of the authorities cannot, by any stretch of imagination, be said to be arbitrary and capricious so as to warrant interference of this Court under Article 226 of the Constitution of India and direct them to place order for 50% of the films or for the balance of unsupplied films with the petitioner. Therefore, we find no justifiable ground to issue the direction to respondents as prayed for.
For the above reasons, we find no merit in this Writ Appeal and accordingly we dismiss it, but, in the circumstances of the case, without costs.