Bentex Electricals vs Punjab State Electricity Board

R.L. Anand, J.—M/s Bentex Electricals, carrying on business at Naraina Industrial Area, New Delhi, has filed the present writ petition under Articles 226/227 of the Constitution of India seeking directions against Punjab State Electricity Board, Patiala (for short `the Board'') (Respondent No. 1), to consider its case for grant of tender for supply of Energy Meters against Tender No. G3636/9697/PO1; by impleading Shri Y.P. Mehra, Member (Operation) of the Board (respondent No. 2); Jaipur Metals & Electricals Limited, Railway Road, Jaipur (Respondent No. 3), Dass Hitachi Limited, Sahidabad (respondent No. 4), KEI Electricals, Phagwara (respondent No. 5); Sheroff Industries, Rampura Phul, District Bathinda (respondent No. 6); Shanghai Chine, Shanghai China (respondent No. 7); Counti Meters & Electricals, New Delhi (respondent No. 8); Capital Meters, Noida (U.P.) (respondent No. 9); Capital Power System, Noida (U.P.) (respondent No. 20); Towers & Transformers, New Delhi (Respondent No. 11) and EIymer Electronics (Havels), New Delhi (respondent No. 12).

The case set up by the petitioner is that it is a sole proprietorship concern of Shri R.L. Chopra, which is engaged in the manufacture of Electricity Energy Meters and M.C.B.''s for the last about 7 years. The Energy Meters manufactured by the petitionerconcern are approved by the Indian Standards Institute and bear `ISI'' mark. The petitioner concern submitted the tender for the supply of single phase energy meters manufactured by it to the Board in response to Tender No. Q3636/9697/POIII. The petitioner concern has a modern works at Naraina, New Delhi, where the energy meters are manufactured with the latest technology. It has its customers in various States. It supplies the energy meters to the State Electricity Boards, such as Maharashtra State Electricity Board, West Bengal State Electricity Board, Gujarat State Electricity Board, Assam State Electricity Board, Rajasthan State Electricity Board etc. It also supplies Energy Meters to various Government departments. The energy meters have been supplied to the various State Electricity Boards pursuant to purchase orders placed with it from time to time. Recently the petitioner has supplied large number of energy meters to the Chandigarh Administration during the year 199596. It has also received an order for the supply of 2000 energy meters from the Chandigarh Administration in the year 199697. The tender was publicly opened on 26.3.1996. 21 parties submitted the tender. The Board placed purchase orders with respondents Nos. 3 to 12 for the supply of energy meters as enumerated in the writ petition at pages 5 and 6. However, the tender of the petitioner was rejected by the Board wholly in an illegal and arbitrary manner. It has been, inter alia, pleaded that the Board invited tenders for the purchase of energy meters in October 1995. The last date for submission and opening of the tenders was 15.11.1995. The petitioner concern purchased the tender documents on payment of Rs. 200/ and submitted the tender for the supply of energy meters. Along with the tender a sample Energy Meter was also submitted. The tender was opened on 15.11.1995. The sample energy meter was duly inspected and tested by the Board. Thereafter a team of Inspection Engineers of the respondentBoard was deputed to inspect the workshop of the petitioner concern. On inspection the team of experts found that all the relevant testing facilities were available at the works of the petitioner concern. The Inspection Team was fully satisfied with the equipment. The petitioner concern has latest make 2 RSS Calibration Meters imported from Switzerland and Germany.

It is alleged that thereafter the Board floated a fresh global tender No. Q3636/9697/POIII for the supply of four lacs energy meters of single phase of the range 5 to 20 Amps. and 10 to 40 Amps. The earlier tender No. 3609/95 96/POIII merged with this Global Tender. It is also alleged by the petitioner that all the orders placed with it by the various electricity boards have been duly executed to the entire satisfaction of the purchasers and there has been no rejection of the energy meters supplied by it. Total sale of the petitioner during the year 199596 was to the tune of about five crores. The petitioner concern submitted the tender for the supply of Single Phase Electricity Energy Meters to the Board in pursuance of its global tender No. 3636/9697/POIII (Annexure P1). The list of testing equipment and the facilities available with the petitioner concern was also attached with the tender. 20 other companies also submitted their tenders. The tenders were opened on 25.3.1996 in the office of the Chief Engineer (MM) of the Board at Patiala. The petitioner concern quoted the rates of single phase energy meters at Rs. 484/ per meter, inclusive of excise duty, sales tax and freight etc. While the rates quoted by some of the private respondents were much higher than the rate quoted by the petitioner, even then the purchase order has not been placed with it by the Board. The petitioner concern was not called for price negotiation illegally and in a male fide manner with the vested interest of placing the order for supply of electric energy meters with M/s Elymer Electrics, M/s Capital Meters, M/s Capital Power System and M/s Towers & Transformers at a higher rate. The reputation of the petitioner concern is far better than the reputation of the aforesaid concerns and the whole object and purpose of noncalling the petitioner concern for price negotiation was to benefit the aforesaid industrial concerns. In case the petitioner had been called for price negotiation, it would have agreed for the supply of energy meters to the Board at lower price. In that eventuality it would have become impossible for Mr. Y.P. Mehra, Member (Operation) of the Board, respondent No. 2, to recommend to the Board to place an order with the aforesaid companies/concerns for the supply of energy meters at the rate of Rs. 485/ per meter. The whole purpose of the Member (Operation) (Shri Y.P. Mehra) not to call the petitioner concern for price negotiation was to cause wrongful gain to the aforesaid industrial concerns. In case either petitioner had agreed to supply the energy meters at the rate of Rs. 420/ per meter, the Board would have saved a sum of Rs. 1.25 crore. Showing its performance, the petitionerconcern has alleged that in view of the high quality of the energy meters manufactured by it, the Electricity Boards of various States had placed orders with it for the supply of energy meters running into thousands/lacs.

On learning that the tender of the petitioner had been rejected by the Board, the petitionerconcern made a representation dated 26.5.1996 to the Chairman of the Board wherein it was stated that the Board had rejected the tender of the petitioner despite the fact that no deviations were observed during the site inspection or sample meter testing. It was also pointed out to the Board that the purchase orders placed with the petitionerconcern by the various State Electricity Boards were executed within the delivery period and there was no rejection. Shri Ashok Gupta, representative of the petitioner concern, met Shri Y.P. Mehra, Member (Operation) on 28.5.1996. By that time Mr. Mehra had already rejected the tender of the petitionerconcern. However, in order to justify his illegal action, he deputed a team consisting of Mr. Harjit Singh, C.P.O., and Mr. Gill, S.E., to inspect the works of the petitionerconcern on 12.6.1996. Mr. Gill informed the petitionerconcern that in view of the clear instructions of Mr. Mehra it was not possible for them to submit a report regarding the availability of the testing facilities at the works of the petitioner. A report has presumably been obtained by Mr. Y.P. Mehra that testing facilities were not available at the works of the petitioner and this report was absolutely bogus and sham. Two more representations were submitted to the Board and it was brought to its notice about the bulk orders for the supply of 1,05,000 Energy Meters placed by the Maharashtra State Electricity Board to the petitioner concern.

Now the petitioner concern has come to know that the purchase orders have been placed by the Board with respondents Nos. 3 to 12 for the supply of energy meters and this action on the part of the Board has been challenged on various pleas, such as, that the sample energy meter was duly approved by the Board, that the rate quoted by the petitioner was on the lower side; that the reputation and the performance of the petitionerconcern was upto the mark; that the inspecting team after inspecting the works of the petitioner concern had reported that all the testing and other facilities were available; that the Board had not communicated the reasons for not calling the petitioner for price negotiation; that in December 1995 the Engineers of the Board found that all the relevant testing facilities to test the energy meters were available at the works of the petitioner; that the entire exercise had been done with an oblique motive in order to accommodate the private respondents with which the orders were placed and this has been done by Shri Y.P. Mehra; that the second report regarding the nonavailability of the testing facility had been obtained by Shri Y.P. Mehra in a clandestine manner. This report has been obtained after rejecting the tender of the petitioner only in order to justify his illegal and arbitrary action. Such inspection team was not sent for the second time to the works of any other tenderer; so much so, the works of Shanghai China was not even inspected once by the representative of the Board. It has further been alleged by the petitioner that no other manufacturer of energy meters, with whom the purchase order has been placed by the respondentBoard, has more or better inhouse testing facilities at their works than those available at the works of the petitionerconcern. Only M/s. Elymer Electronics, M/s Jaipur Metals and M/s Capital Meters have testing facilities, which are at par with the testing facilities, available with the petitioner. It is alleged that the senior officer of the respondentBoard has mala fide and by his partisan attitude caused serious loss to the Board with a view to cause wrongful gain to M/s Elymer Electricals etc. This firm had tendered to supply the same type of meters to Maharashtra State Electricity Board in January 1996 at the rate of Rs. 360/ and Rs. 368/ per meter and at the rate of Rs. 341/ in April 1996 to D.E.S.U., but now the order has been placed at a higher price by the Board at the instance of Shri Y.P. Mehra, Member (Operation).

In nutshell, the petitionerconcern has challenged the allotment of the tenders and the placement of the orders with some of the private respondents on the grounds of alleged mala fides of Shri Y.P. Mehra, Member (Operation)respondent No. 2, who had serious prejudices against the petitionerconcern, and in this manner a wrongful gain has been caused to the privaterespondents with whom the orders have been placed, and a loss has also been caused to the Board running into Rs. 1.25 crore.

Notice of the writ petition was given to the respondents and different sets of written statements have been filed, which I am taking up one by one.

Respondent No. 1, i.e., the Board, has filed the written statement through its Purchase Officer, and submitted that the matter regarding the purchase of material is within the exclusive purview of the competent authority and is not amenable to judicial review as the decision of the Board did not violate any provisions of law and is based on relevant and germane considerations. The present writ petition relates to purely a contractual matter and is liable to be dismissed. According to this respondent, the Board floated tenders against tender Enquiry No. Q3609 for the purchase of 1.0 lac units of 520 Amps and 50,000 units of 1040 amps. single phase electro mechanical meters. Last date for the receipt of tender was 5.10.1995 and the tenders were to be opened on the same day, but later on this date was extended upto 15.11.1995. Consequently, on reconsideration of the matter and in order to ensure best possible quality of material and competitive bids, the Board floated a global tender vide Tender Enquiry No. 3636 for the same type of meters with increased quantity of 3.0 lac units of 520 amps and 1.0 lac units of 1040 Amps. The last date for the receipt of the tender was fixed as 26.3.1996 and the tenders were to be opened on the same date. Against this tender enquiry also the petitioner, apart from 21 other firms, submitted its quotation. The matter regarding tender enquiry No. 3636 was put up for consideration of the Board vide Memorandum No. 33 dated 4.4.1996.

The matter regarding tender enquiry No. 3609 was subject matter of Memorandum No. 25 dated 4.4.1996. Memorandum No. 25 was made part of Memorandum No. 33 and thus both the memoranda were put up to the competent authority, i.e., Whole Time Members of the Board (for short `W.T.M.'') for consideration. The W.T.Ms. of the Board (5 Member body out of a total 7 Members of the Board) considered this matter in its meeting dated 23.4.1996 (Annexure R1) and after due deliberations it decided to drop the tender enquiry No. 3609 and to consider the purchase of meters only against Tender Enquiry No. 3636 mainly due to the reason that the rates received against Tender Enquiry No. 3636 were on the lower side as compared to those received against Tender Enquiry No. Q 3609. It was also decided in the said meeting that some of the bids were liable to be rejected at the outset keeping in view the circumstances mentioned in the said decision. During the deliberations the W.T.Ms. came to know that the quality control arrangements of the petitioner''s works were not upto the mark. Accordingly, after due consideration, it was decided to ignore the petitioner for placing the purchase orders so as to ensure supplies of best quality of material, and further it was decided that some of the firms which have offered higher rates be contacted by the Chief Engineer/M.M. for asking them to reduce their prices to the maximum extent for an order quantity of 40,000 meters (1040 Amps) each and the matter be brought to the notice of the Whole Time Members (W.T.Ms.) again. The list of such firms has been given in the written statement itself. It was further pleaded that during the meeting dated 13.5.1996 the W.T.Ms. amended the above decision to the extent that the Indian manufacturers, except M/s Jaipur Metals (respondent No. 3), be offered firm rates of M/s Shanghai Safeco China (respondent No. 7), inclusive of excise duty, Central Sales Tax and F.O.R. destination, i.e., at the rate of Rs. 457.50 for 520 Amps and Rs. 469.31 for 1040 Amps because the same rate quoted by M/s Jaipur Metals for both ratings (520 and 1040 Amps) is not logical.

It was also decided that prior concurrence of manufacturers for these rates be obtained. It was further decided that meter rating qua Dass Hitachi (respondent No. 4) who was earlier vide Annexure R1 decided to be given order for 5000 meters for 1040 Amps was now decided to be the same quantity of 520 Amps as per its entitlement on account of earnest money deposited by it. As per directions of the Board counter rates of Rs. 457.50 and 469.31 for 520 and 1040 Amps meters were offered to respondents Nos. 4 to 6 and 8 to 12. Only respondents Nos. 4, 5 and 8 agreed to these rates and were accordingly placed orders in June 1996, respectively, for 5,000 units (520 Amps), 10,000 units (1040 Amps) and 10,000 units (1040 Amps). The factum of respondent Nos. 6, and 9 to 12 having declined the above offered rates of Rs. 457.50 for 520 Amps was brought to the notice of W.T.Ms. in the meeting dated 4.6.1996 when the Chief Engineer/MM was directed to put up alternative proposals. In the meeting dated 17.6.1996 the Whole Time Members reviewed the position arising out of refusal of counter offered rates by respondents Nos. 6 and 9 to 12 and decided that apart from ordering additional 10,000 units of 520 Amps meters from Contimeters Electricals (respondent No. 8), works appraisal of M/s Jaipur Metals and Dass Hitachi, respondents Nos. 3 and 4, respectively, be carried out to explore the possibility of enhancing the quantities of their orders. In the meanwhile, the petitioner, who came to know about its having been ignored, made representation dated 26.5.1996. Upon considering the above request and with an open mind and with a view to afford reasonable opportunity and fair play to the petitioner, Member (Operation) of the Board ordered fresh appraisal of the petitioner''s works through higher powered committee of senior officers of the rank of Superintending Engineer. Accordingly, two senior officers of the Board of the rank of Superintending Engineer, namely, one concerned with the purchase, i.e. Chief Purchase Officer and the other concerned with Material Services, particularly regarding the inspection of material and works appraisal of new firms, i.e., Superintending Engineer (M.S.), were deputed to carry out works appraisal of the petitioner firm. This high powered committee visited the petitioner firm on 12.6.1996 and submitted its report on 18.6.1996 (Annexure R4) and it was observed that the quality of material being manufactured by the petitioner firm was not upto the mark and various deficiencies were pointed out by the committee.

The master meter with which other meters are calibrated was itself inaccurate, the quality of jewel bearing being used by the petitioner was also very poor, rotor discs of the meter already put to sustained accuracy test was found vibrating. In totality this high powered committee felt that in case any order is placed with the petitioner, the Board may not get good energy meters from it. The Board considered the entire situation arising out of refusal of five firms to agree its offer. The report dated 18.6.1996 submitted by the high powered committee relating to the petitioner and the appraisal report regarding exploring possibility of enhanced quantities on respondents Nos. 3 and 4, and after consideration of the entire matter, the Board decided in its meeting dated 25.7.1996 that no order be placed for the purchase of meters from the petitioner keeping in view the observations of the committee regarding quality etc. It was also found that for the time being no additional order could be placed with respondents Nos. 3 and 4 as well as respondent No. 7. In this view of the matter, the Board was left to negotiate the rates with respondents Nos. 6 and 9 to 12 and it was compelled to take the decision keeping in view the emergent necessity of the meters without which the supply of electricity is not possible to the consumer public. Therefore, keeping in view the paramount consideration of public interest, the Board decided in its meeting dated 25.7.1996 itself that the rates with respondents Nos. 6 and 9 to 12 be negotiated by a twomember committee consisting of one technical member and another member dealing with finance. Pursuant to the aforesaid decision of the Board, these members held negotiations with respondents Nos.6 and 9 to 12 on 1.8.1996 and after protracted negotiations, the aforesaid five firms (respondents Nos. 6 and 9 to 12) agreed to accept the rates of Rs. 485/ for 520 Amps meters, and Rs. 497/ for 1040 Amps. meters. Consequently, this Committee vide report dated 6.8.1996 (Annexure R6) decided to place orders of 40,000 meters of 520 Amps on each of respondents Nos. 6, and 9 to 12. In view of nonreduction of price of M/s Krizik Slovak and V.X.L. Calcutta, quantities of 40,000 each envisaged for them vide Annexure R1, was redistributed. The purchase orders have been placed on these firms on 19.8.1996, in addition to the orders placed on other firms, namely, M/s Shanghai Safeco (40,000 units of 520 Amps), Jaipur Metals (10,000 units of 520 Amps), K.E.I. (10,000 units of 1040 Amps), Dass Hitachi (5,000 units of 520 Amps) and Contimeters (10,000 units of 520 Amps and 10 40 Amps) in June 1996. In this manner, the orders for 3.65 lac meters have been placed on various firms. It was also maintained by respondent No. 1 that its action in ignoring the petitioner for consideration for placing purchase orders was a bona fide exercise within the statutory powers of the Board and was based on relevant considerations.

The decision of the Board does not suffer from any infirmity and is not amenable to judicial review under Article 226 of the Constitution of India. The petitioner has been ignored on rational considerations that the quality of material being manufactured by it was not upto the mark. The material ordered to be purchased by the Board is not at the rates higher then those offered by the petitioner. The decisions of the Board dated 23.4.1996 and 25.7.1996, Annexures R1 and R5, respectively, declining to orders for purchase of meters from the petitioner are based on the report of the high powered committee consisting of the experts of the rank of Superintending Engineers who vide report (Annexure P4) dated 18.6.1996 pointed out the deficiencies regarding the works of the petitioner. The decision by the Board has been taken in vital public interest to secure best quality of material at most competitive rates. When the decision of the competent authority is based on rational and reasonable considerations and on genuine application of mind, the same is not amenable to judicial review under Article 226 of the Constitution of India. The Court is neither an expert body equipped to examine the intricacies of particular trade nor can it substitute for the bona fide opinion of the competent authority, unless such opinion is patently perverse, irrational or mala fide. The executive authorities should be given the choice to select the best offers on terms and conditions prescribed by it by taking into account the various relevant factors, including the economical and social interests of the nation.

In para No. 3 of the written statement on merits it has been averred by the Board that all those firms which are new to the Board and have never been placed any order earlier are subject to works appraisal as a matter of routine, for the purpose of processing of their tenders as per Regulation 19(i) of the Punjab State Electricity Board Purchase Regulations, 1981. Accordingly, the works appraisal in respect of the petitioner was also carried out and the petitioner was recommended for consideration for placement of a trial order. However, the Board considered the entire matter along with the above report and recommendation etc. which formed part of Memorandum No. 25, in its meeting dated 23.4.1996, and during the course of deliberations, it came to the notice of the Board that the works of the petitioner was deficient in material respects. Accordingly, after due deliberations, the Board decided to ignore the petitioner. Subsequently, the petitioner submitted representation (Annexure P5) on the basis of which the high powered committee consisting of two officers of the rank of Superintending Engineers was appointed which actually visited the premises of the petitioner and submitted report Annexure R4. Keeping in view the report the Board decided to ignore the petitioner. The Board specifically took the stand that the tender of the petitioner was not rejected at the instance of Shri Y.P. Mehra. Rather the matter was placed before the Board in the meeting dated 23.4.1996 and the Board decided to ignore the petitioner. The said committee which visited the premises of the petitioner was never directed to submit a report against the petitioner. The inspection team was totally independent in all respects. The report of the inspection team was again placed before the Board and vide its decision dated 25.7.1996 (Annexure P5) the Board decided to ignore the petitioner for the purpose of placing purchase orders. The purchase orders to respondents Nos. 4, 5, 7 and 8 were placed in June 1996 in pursuance of the decision of the Board dated 23.4.1996 while the purchase orders in respect of respondents Nos. 6 and 9 to 12 have been placed in pursuance to the decision of the Board dated 25.7.1996 and that of the committee dated 6.8.1996.

As regards the first inspection team, the stand of the Board is that it was a routine inspection and was carried out in respect of all the new firms and could not be said to be sacrosanct especially in view of the report of the senior officers pointing out various deficiencies in the works of the petitioner. There is no infirmity in the decision of the Board, which was based on relevant considerations. It has also been stated in para No. 4, sub para (p), of the written statement, that as regards the prices offered by the Board, the same are firm and inclusive of all charges, including excise duty, salestax, packing etc. and are F.O.R. destination. Keeping in view the price concern of the Board to purchase the best possible material at the most reasonable prices, it floated global tenders and explored every possibility with the above main defence, justifying the purchase orders, the Board prayed for the dismissal of the writ petition.

Respondent No. 2 Shri Y.P. Mehra has also filed a separate written statement and submitted that the decision of the Board dated 23.4.1996 and 25.7.1996 was taken in the exercise of the statutory powers as a collective body and that he had nothing against the petitioner nor anything in favour of any of the tenderers. The Board which consists of 7 members decided on the basis of relevant considerations not to place purchase orders on the petitioner. This respondent has also refuted the other material averments regarding bias etc., levelled by the petitioner, and has also placed on record the affidavit of Dr. Harjit Singh, Superintending Engineer, who was a member of the inspection team, along with Shri S.S. Gill, ExSuperintending Engineer (deceased), and in this affidavit Er. Harjit Singh has categorically stated that he did not receive any directions from any quarter, whatsoever, against the petitioner. His report along with Shri S.S. Gill was based on facts. Certain deficiencies were noticed, including the quality of the product being manufactured by the petitioner concern.

Respondent No. 8, i.e. M/s Contimeters & Electricals, has denied the averments of the writ petition in its written statement. The additional plea that has been taken is that this respondent has already taken the steps in executing the orders. The raw materials have been purchased and the work is in progress. The material is lying ready for inspection. This respondent has invested huge amount in procuring the raw material and for this reason the writ petition is also liable to be dismissed. In all other respects this respondent has supported the averments of respondent No. 1.

Separate written statement has been filed by respondents Nos. 9 and 10. These respondents have also supported the stand of respondent No. 1 with the additional ground as adopted by respondent No. 8.

Separate written statements have also been filed by respondents Nos. 11 and 12, in which they have supported the decision of respondent No. 1 and have further stated that there was no oblique motive on the part of Mr. Y.P. Mehra nor in the deal there was any extraneous considerations, as is tried to be depicted by the petitioner.

Two short replications one to the written statements filed by respondents Nos. 1 and 2 and the other to the written statement filed by respondent Nos. 9 and 10 have also been filed by the petitioner, in which the petitioner reiterated the averments made by it in the writ petition by denying those made in the written statements.

In support of their respective cases, the parties have placed documents on the record. On behalf of the petitioner an attempt has been made through the documents to show about the performance of the petitionerfirm and also that the respondentfirms at the relevant time had been supplying the energy meters at a lower rate to the different purchasers, but strange enough the energy meters have been purchased by respondent No. 1, i.e., the Board, at a higher rate and according to the petitioner, there is a prima facie bungling in the deal on the placement of the orders, for which necessary directions are sought from this Court. On the contrary, the respondents have placed documents on the record to show that all the decisions have been taken by the Board in a collective manner in the larger interests of the Board and no mala fides are there. The Board is a statutory body, which consists of 7 members. Every decision of an individual officer was put before the Board, which took the conscious decision keeping in view the best interests of the Board, public and the consumers. The rates on which the electric meters were purchased were not on the higher side. No special instructions were given to the inspecting team to give an adverse report against the petitioner. The earlier inspection was a routine inspection conducted by the team of the Board with regard to those firms upon which the orders were never placed. Mr. Y.P. Mehra had no prejudice against the petitioner and his opinion has been given due weight by the members of the Board. Even the report of the second inspection of the works of the petitionerfirm was considered by the Board, which took an independent decision without any bias and came to the conclusion that the petitionerfirm may be ignored in the placement of the orders. I need not refer to all the documents which have been placed on record by the parties in respect of their case, but I will make a brief mention with regard to the relevant documents in the subsequent portion of this judgment.

This writ petition has been disposed of with the assistance of Shri Arun Nehra, Advocate appearing on behalf of the petitioner, and Sarvshri M.L. Sarin, Senior Advocate, Govind Goel, P.S. Rana, Pardeep Bedi, Gopal Mittal, Ajay Tewari, R.K. Battas Advocates and Shri R.S. Mittal, Senior Advocate, appearing on behalf of the respondents.

The present is a case where the Board had floated tenders for the purchase of the electric meters, which is an electrical appliance. In such like cases the opinion of the expert/experts carries a lot of weight. While making such purchases the Board has to see several aspects on the part of a supplier, such as manufacturing skill, quality of the material to be used by the supplier, whether such supplier has the necessary testing equipment, its market reputation, capacity to honour the orders if placed, past performance, its standing in the market, its viability to honour the commitment in case of a concluded contract, bank dealings and other similar and allied criteria, which can only be adjudicated by the experts of the Board by joining hands of the Heads of Departments of different wings. Self praise is no recommendation is a wellknown maxim. If the petitioner concern had done good business with other Electricity Boards of the country and had not given any chance of complaint in its dealings, it does not confer any right upon it to say in a valid manner that in the present case the Board had acted in a prejudicial manner, so as to cause wrongful gain to those concerns upon which the orders have been placed by the Board for the supply of electric meters. This Court cannot lose sight of the fact that the Board is a statutory body which functions through its 7 Members, who are of highest calibre from different walks of life and the Whole Time Members include, experts, finance wizards and administrative heads of the Government Departments. The statutory Board is supposed to and is presumed to work in the best interests of the Board. The entire case of the writ petitioner is that at one point of time a team of experts had found its works upto the mark. There was hardly any justification on the part of Mr. Y.P. Mehra to comment that the works of the petitionerfirm is not upto the mark. According to the petitioner, the bias of Mr. Mehra had led to the ignoring of the petitionerconcern in the supply of the present goods and a fair opportunity of competition has been deprived to the petitioner. If at one point of time a team of two Engineers had approved the working of the petitioner''s works, that report cannot bind an independent assessment of Mr. Mehra, who also at one point of time inspected the works of the petitioner along with others and formed his own independent view about the quality and working capacity of the petitioner concern with regard to the manufacturing of the goods. If Mr. Mehra in the Board meeting had given his individual assessment of his earlier inspection and his opinion has been accepted by the Board in ignoring the tenders of the petitioner, it is difficult on the part of this Court to infer and to conclude that the second inspection team which, in fact, had gone to inspect the workshop of the petitioner after its representation, wanted to vindicate the alleged stand of Mr. Mehra. Rather in the opinion of this Court the sending of the second inspection team by Mr. Y.P. Mehra, after the representation of the petitioner, would itself suggest that Mr. Mehra acted in a most fair manner and that he had no prejudice against the petitioner. In the affidavit given by Shri Harjit Singh, S.E., it is prima facie proved that the second report was an independent one and was not a manoeuvred one at the instance of Mr. Mehra.

With this background, before I deal with the relevant documents, it would be fair on my part to take into consideration the celebrated pronouncements of the Hon''ble Supreme Court while dealing with such like cases. In Tata Cellular v. Union of India, JT 1994(4) S.C. 532, it was held by the Hon''ble Supreme Court that it is not for the Court to determine whether a particular policy or a particular decision taken in the fulfilment of that policy is fair or not. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under :

(i) Illegality : This means the decisionmaker must understand correctly the law that regulates his decisionmaking power and must give effect to it.

(ii) irrationality, namely, Wednesbury Unreasonableness.

(ii) Procedural impropriety :

In all these cases the test to be adopted is that the court should consider whether something has gone wrong of a nature and degree which requires its intervention.

Summing up, the Hon''ble Supreme Court further held as follows :

(1) The modern trend points to judicial restraint in administrative action.

(2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made.

(3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision, without the necessary expertise which itself may be fallible.

(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.

(5) The Government must have freedom of contract. In other words, a fairplay in the joints is a necessary concomitant for an administrative body functioning 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 out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.

(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."

In Delhi Science Forum and Ors. v. Union of India & Anr., JT 1996(2) S.C. 295, it was held that any decision taken by the public authorities can be questioned primarily on the grounds that (i) the decision has been taken in bad faith; (ii) decision is based on irrational or irrelevant considerations; (iii) decision has been taken without following he prescribed procedure which is imperative in nature. Hon''ble Supreme Court further held that the question of awarding licences and contracts does not depend merely on the competitive rates offered, several factors have to be taken into consideration by an expert body which is more familiar with the intricacies of that particular trade. Unless and until any party aggrieved satisfies the Court that the ultimate decision in respect of the selection has been vitiated, normally courts should be reluctant to interfere with the same. In M/s. Jindal Strips Limited and another v. State of Haryana and others, 1996(1) All Instant Judgments 54, it was held that in order to prove the mala fides, it has to be proved as a criminal charge and beyond a shadow of doubt. In such like cases the Court has to see whether the chain of circumstances is so complete and strong that no other conclusion except for mala fides can be recorded. Mere allegations are not sufficient because suspicion cannot take the place of proof. In L.I.C. of India and another v. Consumer Education & Research Centre and others, 1995(4) Recent Services Judgments 700, Hon''ble the Supreme Court was pleased to lay down the guidelines while dealing with a case of contractual nature that the action on the part of the State must be fair, just and reasonable in consonance with constitutional conscience and socioeconomic justice. Also it was held that contract of the Government or its instrumentality with the private persons would be open to judicial review, if unreasonable, unfair or irrational. The observations of the Hon''ble Supreme Court as contained in A.K. Kraipak and others v. Union of India and others, AIR 1970 S.C. 150, are also relevant in the disposal of the present case when it was held that dividing line between an administrative power and a quasijudicial power is quite thin and is being gradually obliterated. For determining whether a power is administrative power or a quasijudicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised.

Annexure R1 is the first document on record on which I would like to make a reference. It would show that the Whole Time Members in their meeting held on 23.4.1996 decided that Tender Enquiry Q3609 be dropped. The Board was also of the view that although the rates of M/s Krizik Slovak were higher, their workmanship was quite good and comparable with that of M/s VXL (L&G) whose rates were still higher. The Chief Engineer/MM was directed to contact M/s Krizik Slovak and ask them to reduce their prices to the maximum extent and also get their consent to change the method of fixing window glass for an order quantity of 40,000 numbers of 1040 Amp meters with corresponding spares. It was also decided that after getting their revised offer, the matter be again brought to the notice of Whole Time Members. It was also resolved that M/s VXL (L&G), Calcutta, be asked similarly to reduce the rates for an order quantity of 40,000 numbers of 1040 Amps. meters with corresponding spares and the matter be again brought to the notice of the Board. The cases of M/s India Meters, M/s Sea Horse Industries and M/s BHEL and of other firms, including the petitioner, were also considered and it was resolved visavis the petitioner that it be ignored on the basis of the report by the Member (Operations) that he had personally inspected its works and was not satisfied with the quality control arrangements. It was also resolved that an order for the supply of 40,000 meters of 520 Amps along with the corresponding spares be placed on M/s Shanghai Safeco, China, at their firm quoted rates with certain conditions and further it was resolved that orders for the supply of the electric meters be placed at the quoted rates on M/s Jaipur Metals for both ratings. These shall be variable as per the price variation formula stated in Tender Enquiry Q3636 subject to the maximum of 10%. This document (R1) would further show that the decision for placement of order was taken with respect to the nine firms, including M/s Jaipur Metals.

Then the next document to be considered is Annexure R2, which would again show that the matter was deliberated at length and the firm rate of M/s Shanghai Safeco was taken into consideration and incidentally the rate of this firm was equivalent to the quoted rate of M/s Jaipur Metals. Again the matter was considered in the meeting of the Board vide annexure R3 and the decision regarding the placement of orders on M/s Contimeters was taken. Further it was decided that the works appraisal of M/s Dass Hitachi and M/s Jaipur Metals be done. Annexure R4 is the report of two experts of the rank of Superintending Engineer, i.e. Shri S.S. Gill (deceased) and Shri Harjit Singh, who had given the opinion that the quality of the meters being manufactured by the petitioner was not upto the mark. The calibration of the meters when calibrated with respect to the master meter, when the master meter itself is not accurate, can be imagined. The quality of the jewel bearing being used by the firm was also very poor. The quality of the assembled meters can be assessed from the fact that the rotor discs of the meters put on sustained accuracy test were vibrating. The Committee came to the conclusion that in case this firm is considered for the supply of electric meters, the Board might not get good energy meters from it. Annexure R5 is the other decision of the Board dated 25.7.1996. It was decided that no orders be placed on M/s Krizik Slovak. Further no orders be placed on M/s VXL, L&G, in view of its balance supply which was yet to be made. The Board also took the decision that no orders be placed on M/s Bentex Electricals (petitioner) in view of the recommendations of the experts. So far as M/s Dass Hitachi and M/s Jaipur Metals are concerned, further orders be placed upon them only after watching the performance of their meters. Annexure R6 is the decision dated 25.7.1996 of the Whole Time Members of the Board, which would show that some orders were placed.

The necessity on the part of this Court to refer to the above chain of documents was that from time to time the Board took into consideration various aspects such as price quoted by the various firms, their manufacturing skill and then the Board took a decision how the orders should be placed and with which firms. The rates quoted by different firms were also taken notice of and even the Board resolved to impress upon the parties to scale down their prices.

The grouse of the petitioner is that its quotation has been rejected by the Board on the opinion of Mr. Y.P. Mehra, who had a bias against it and in this regard, reliance has been placed on Annexure R4. Before I deal with the major argument of Mr. Arun Nehra, learned counsel for the petitioner, I will have to make a reference to the three reports and the first in time is the report submitted by three persons, namely, Er. Y.P. Mehra, Er. S.S. Gill (deceased) and Er. P.L. Gulati, who visited the works of the petitioner. It was opined by the three experts that the petitionerfirm had not yet manufactured any meter with `6'' gm. cms. torque, the normal production being of `4'' gm. cm. No quality control method had been found at the premises of the firm. As such the firm could not supply the quality meters presently. Thus, it will be established that this opinion was not the opinion of Mr. Y.P. Mehra alone but also of Mr. S.S. Gill and Mr. P.L. Gulati. The second report on which reliance has been placed by Shri Arun Nehra is the report of Er. M.P. Mahajan, XEN/Works, and Er. V.K. Sanan, APOII. Even this report does not come to the rescue of the petitionerconcern. It has been opined by these two experts as follows :

"......As per its prevalent procedure the firm first calibrates any two meters of particular rating each day with RSS meters and then calibrates the meters in production line taking those 2 meters as Master Meters."

Only recommendations were made by these two Engineers that the firm may be considered for the placement of a trial order. There is no finding of these two experts with regard to the electric meters prepared by the petitioner concern that these were of the superior quality and would suit the need of the Board, if the order is placed on it. The report of these two experts would show that it was definitely a routine inspection because it is an admitted fact that the present petitioner had never supplied its goods to the Board. In order to have a survey with regard to the capacity for the supply of the best material, if the Board had deputed a team of two officers, who at one point of time had recommended that the petitioner firm may be considered for the placement of a trial order, that does not mean that the earlier report submitted by three Engineers, including Shri Y.P. Mehra, who by the relevant time had become Member (Operations), could be easily washed away.

Before I discuss the third report (Annexure R 4), it will be necessary for me to advert to the facts as to why it became necessary to depute the team of experts again comprising of Er. Harjit Singh and Er. S.S. Gill. Annexure P5 is the relevant document which would take the wind from the case of the petitioner. When the order was not placed upon the petitioner concern, it made representation dated 26.5.1996 (Annexure P5). In this representation the petitioner firm showed its performance, but not an iota of allegation was made against Mr. Y.P. Mehra that due to his alleged bias the petitioner firm has been ignored. Rather it has been admitted in this representation that the petitionerfirm was having inhouse testing facilities to test the meters as per IS :13010 except the shock, vibration and impulse voltage test. It has been categorically stated by respondent No. 2 in his affidavit that after this representation, the representative of the petitioner concern met him on 28.5.1996 and explained that the petitioner had carried out some improvements at its works and thus requested for a fresh appraisal. On this Annexure P1/A was written by the Board intimating the petitioner that its works would be inspected by a team of the Board Officers on 12.6.1996. The report (Annexure R4) was submitted by Sarvshri S.S. Gill and Harjit Singh, who were of the rank of Superintending Engineer, and they were of the definite opinion that the quality of meters being manufactured by the petitioner "is not upto the mark. The calibration of the meters when calibrated with respect to the master meter, when the master meter itself is not accurate, can be imagined." In view of the affidavit of Shri Harjit Singh, it is difficult for this Court to believe that Shri Y.P. Mehra had any bias against the petitioner. He was Member (Operations) and was competent to give his independent opinion to the Board, which took a separate and independent decision whether any order was to be placed upon the petitioner firm or not. Thereafter letter dated 16.7.1996 (Annexure P6) was written by the petitioner and for the first time an allegation had been made that the works of the petitioner had been reinspected for getting an unsatisfactory report due to vested interests. These allegations had been made without any substance; rather the above chain of facts would show that Mr. Mehra played a most fair role when he deputed a team of experts to see whether any improvement has been made in the quality control arrangement of the petitioner concern. Mr. Mehra was not the final authority in every matter. He gave his opinion to the Board, which was to take an independent decision keeping in view the report of the Expert Committee.

As I observed earlier, in such like matters the Court is not an expert and cannot sit as a Court of Appeal over the expert opinions. It has a limited jurisdiction of judicial review to ensure itself where there is a deprivation of a fair opportunity to the petitioner concern in the placement of the orders of the energy meters.

In the light of above, it can be safely held and concluded that the petitioner concern has no cause to raise a legitimate grouse that it has been deprived of a fair opportunity of consideration or that it has been discriminated visavis the other private respondents upon which orders have been placed by the Board.

Faced with this difficulty, Shri Nehra then tried to build his case as if his client wants to raise a public interest litigation. Mr. Nehra submitted that by placing orders at a higher rate than that of the rate quoted by M/s Jaipur Metals, the Board is likely to suffer a loss of Rs. 1.25 crore. Mr. Nehra explained with the help of tender appearing at page 143 of the paper book and submitted that the rates quoted by M/s Jaipur Metals were the lowest. Its basic rate with respect to the meter was Rs. 350/. By adding excise duty, central sales tax, freight etc., the price would be round about Rs. 406/ per meter. The variation at the rate of 10% could take the price either at Rs. 447/ or Rs. 360/ and in this manner there was hardly any justification on the part of the Board to place an order at a much higher rate. Mr. Nehra tried to explain his arguments by submitting that the Board had adopted a novel method of raising the price of the quotations of M/s Jaipur Metals when it was not even claimed by that firm and in the garb of that inflated price, the order has been placed upon the respondentfirms. Mr. Arun Nehra has also drawn my attention to Ramana Dayaram Shetty v. The International Airport Authority of India and others, AIR 1979 S.C. 1628, and submitted that the eligibility clause could not be changed so as to give benefit to the private respondents. This argument of Mr. Nehra, learned counsel for the petitioner, has been refuted strongly by Shri M.L. Sarin, Senior Advocate, appearing on behalf of the Board, and he drew my attention to the various resolutions and submitted that the Board took a just decision after taking into consideration the quotations given by different proposed suppliers, including M/s Jaipur Metals. The Board always believed in firm commitments. It rightly came to the conclusion that the quotation offered by M/s Jaipur Metals could not be implemented. All these aspects were taken care of by the experts and then the orders were placed, including upon M/s Jaipur Metals. Those orders were to be reviewed. Even if some orders have been placed of a still higher side upon the private respondents by the Board, this has been done in its larger interests, keeping in view the fact that M/s Jaipur Metals may not be in a position to supply the entire supply order, if given to it. Mr. Sarin submitted that in spite of the placement of the orders upon M/s Jaipur Metals, which is a Government undertaking, not even a single electric meter has been supplied to the Board so far. Mere quoting of lower price to some extent is no ground to jump to a conclusion that the Board had not acted in a judicious manner or in the best interests of the public at large. Rather the object of the Board is to provide facility to the consumer public and in the eventuality of the nonsupply of the electric meters by a particular firm, the entire exercise for the supply of the electricity would fall through.

After considering the rival contentions of the parties, I am of the opinion that the contentions raised by Mr. Nehra are devoid of any merit. The case which has been tried to be formulated by Mr. Nehra, has not been pleaded in the writ petition. The writ petitioner has tried to build a case from the written statement and the documents filed by the respondentBoard, and has miserably failed to establish that while placing the orders upon the private respondents on the rates quoted in the Board meetings were done in order to benefit any particular entrepreneurs or that Mr. Y.P. Mehra wanted to help a particular entrepreneur in regard to the supply of electric meters. The placement of the orders upon different concerns itself suggests that the decision was taken by the petitioner in a conscious manner, so that each of the concerns may be able to supply the electric meters of the highest quality at the most competitive rates. For this objective the global tenders were invited and even the foreign firms were also considered in the placement of the orders. The decision regarding the placement of the orders was not a decision of an individual but was a decision of the Board, which consists of 7 Members and it is difficult on the part of this Court to infer and conclude that some fishy has been one in the placement of the orders. On the contrary, this Court is of the opinion that it is a writ petition which has been filed by a dejected entrepreneur, who has failed to achieve any tender, due to his own shortfalls when he did not have the requisite technical knowhow, which was necessary for the manufacturing of quality electric meters.

It was also one of the arguments of Mr. Nehra that the petitioner firm was never asked to come on a negotiation table to scale down its prices. The argument is not appealable because the Board ignored the name of the petitionerfirm as opined in Annexure R4. The proposed supply on a cheaper rate on the part of the petitionerfirm would not improve its case when its technical knowhow itself is bad and does not satisfy to the standards of respondent No. 1.

Summing up, this Court has come to this conclusion that super technical decisions must be left to the experts and should not be interfered lightly until and unless strong grounds are made out to cast a serious doubt with regard to the mode of handling the tenders. This Court is also of the opinion that by placing tenders upon the private respondents, no wrongful gain has been given to them by the Board. Also this Court is of the view that the interests of the public have not been overlooked by the Board.

Finally, this Court is of the opinion that this writ petition is devoid of any merit, which is hereby dismissed with no order as to costs.