M/s. Agro Impex (I) Pvt. Ltd. vs State of Himachal Pradesh and Others

Justice R.B. Misra, Judge

The present writ petition has been preferred under Article 226 of the Constitution by the petitioner M/s. Agros Impex (I) Pvt. Ltd. (in short "Petitioner" hereinafter), a company incorporated under the Companies Act 1956 and having its registered Office at New Delhi. Following main prayers have been made in the writ petition:

i) For issuance of an appropriate writ/order/direction to cancel/reject/annul/quash the Letter of Intent dated 11.10.2011 (Annexure P-3), Concession Agreement (award of contract) dated 15.11.2011 (Annexure P-6), Notification dated 01.11.2011 (Annexure P-5) and all subsequent acts, actions, orders and measures taken for the implementation of the High Security Registration Plates Scheme in the State of Himachal Pradesh by the Transport Department, Government of Himachal Pradesh and to direct the Transport Department, Government of Himachal Pradesh to consider the bid of the Petitioner Company;

ii) For issuance any other appropriate writ, order or direction, which this Hon''ble Court may deem fit and proper in the facts and circumstances of this case;

Respondent No. 1, the State of Himachal Pradesh through Principal Secretary, Department of Transport and respondent No. 2, the Transport Commissioner, Government of Himachal Pradesh, invited bids through Invitation For Bids (in short called "IFB") for the implementation of the High Security Registration Plates (in short called "HSRP") in the State of Himachal Pradesh (in short called "State of HP"). The bid was submitted by the petitioner, whereas, respondents No. 3 and 4, namely, M/s. Utsav Safety Systems Pvt. Ltd. (in short ''M/s. Utsav) and M/s. Link Point Infrastructure Pvt. Ltd. submitted their bid as a consortium. The said ''HSRP'' Tender was awarded to this consortium and subsequently respondents No. 3 and 4 incorporated-M/s. Link Utsav Ventures Pvt. Ltd. (in short ''M/s. Link Utsav) impleaded as respondent No. 5 herein, as a Special Purpose Company (''SPC'') as contemplated under Clause 1.5.1 of the ''IFB''.

Before we refer to the various submissions and contentions raised by the respective counsel, it would be appropriate to notice the facts which are germane for the adjudication of the instant writ petition.

The dispute in the present writ petition pertains to ''HSRP'' i.e. high security registration plates. The ''Motor Vehicle'' is an item relatable to Entry 35 of List III (Concurrent List) of Seventh Schedule of the Constitution and the relevant entry 35 reads as below:-

Mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied.

The Central Govt. enacted the Central Motor Vehicles Act, 1988 (in short called ''CMV Act'' hereinafter). Relevant paragraph of ''CMV'' Act is quoted as under:-

Necessity for registration - No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner:

Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government.

A bare perusal of Section 39 of ''CMV Act'' makes it clear that no person can drive a vehicle without having valid registration mark.

Section 41deals with the registration. Section 41(6) reads as follows:-

The Registering Authority shall assign to the vehicles, for display thereon, a distinguishing mark (in this Act referred to as the registration mark) consisting of one of the groups of such of those letters and followed by such letters and figures as are allotted to the State by the Central Government from time to time by notification in the Official Gazette, and displayed and shown on the motor vehicle in such form and in such manner as may be prescribed by the Central Government.

Section 64 of ''CMV Act'' provides the powers of the Central Government to make Rules. Sub-clause (d) of Section 64 is relevant for this purpose and is extracted as below:-

Section 64.-Power of the Central Government to make rules: The Central Government may make rules to provide for all or any of the following matters, namely:-

(a) XXXXXXX

(b) XXXXXX

(c) XXXXXX

d) the manner in which and the form in which the registration mark, the letters and figures and other particulars referred to in sub-section (6) of section 41 shall be displayed and shown.

In exercise of the rule making powers vested u/s 64(d) of the ''CMV Act'' the Central Government has enacted The Central Motor Vehicle Rules, 1989 (in short called ''CMV Rule'') and Rule 50 reads as under:-

Rule 50. Form and manner of display of registration marks on the motor vehicles: (1) On or after commencement of this rule, the registration mark referred to in sub-section (6) of section 41 shall be displayed both at the front and at the rear of all motor vehicles clearly and legibly in the form of security license plate of the following specifications, namely:-

(i). the plate shall be a solid unit made of 1.0 mm aluminum conforming to DIN 1745/DIN 1783 or ISO 7591. Border edges and corners of the plate shall be rounded to avoid injuries to the extent of approx. 10 mm and the plates must have an embossed border. The plate shall be suitable for hot stamping and reflective sheet has to be guaranteed for imperishable nature for minimum five years. The fast colouring of legend and border to be done by hot stamping;

(ii). the plate should bear the letters "IND" in blue colour on the extreme left centre of the plate. The letter should be one-fourth of the size of letters mentioned in rule 51 and should be buried into the foil or applied by hot stamping and should be integral part of the plate;

(iii). each plate shall be protected against counterfeiting by applying chromium -based hologram, applied by hot stamping. Stickers and adhesive labels are not permitted. The plate shall bear a permanent consecutive identification number of minimum seven digits, to be laser branded into the reflective sheeting and hot stamping film shall bear a verification inscription;

(iv). apart from the registration marks on the front and rear, the third registration mark in the form of self-destructive type, chromium based hologram sticker shall be affixed on the left hand top side of the windshield of authority, etc, shall be printed on the sticker. The third registration mark shall be issued by the registering authorities/approved dealers of the license plates manufacturer along with the regular registration marks, and thereafter if such sticker is destroyed it shall be issued by the license plate manufacturer or his dealer;

(v). the plate shall be fastened with non-removable/non-reusable snap lock fitting system on rear of the vehicle at the premises of the registering authority;

The license plates with all the above specifications and the specified registrations for vehicles shall be issued by the registering authority or approved the license plates manufacturers or their dealers. The Central Road Research Institute, New Delhi or any of the agency authorized by the Central Government, shall approve the license plates manufacturers to the above specification;

(vi). The size of the plate for different categories of vehicles shall be as follows:

For two and three-wheelers 200x100 mm

For Light Motor Vehicles/Passenger cars 340x200 mm/500x120 mm

For medium commercial vehicles 340 x 200 mm: heavy commercial vehicles and Trailer/combination Provided that this sub-rule shall apply to already registered vehicles two years from the date of commencement:]

[Provided further that the size of the registration plates for agricultural tractors shall be as follows:

Front- 285 x 45 mm

Rear- 200 x 100 mm]

[Provided also that the size of registration plate for power tiller shall be 285x45 mm and shall be exhibited at the front. Further, in case of trailer coupled to power tiller, the size of registration plate shall be 200x100 mm and shall be exhibited on its rear]

[Provided also that in case of a motor cycle, the size of 285x45 mm for front registration plate shall also be permitted]

(2). In the case of motor cycles the registration mark in the front shall be displayed parallel to the handle bar or on any part of the vehicle including mudguard facing the front instead of, on a plate in line with the axis of the vehicles;] Provided that-

(a). the registration mark exhibited the rear of a transport vehicle shall be affixed to the vehicle on the right hand side at a distance not exceeding one metre from the ground as may be reasonably possible having regard to the type of body of the vehicle;

(b). the registration mark shall also be painted on the right and left side on the body of the vehicle in the case of a transport vehicle.

(c). the registration mark shall also be painted and exhibited on the partition provided between the driver and the passengers, facing the passengers'' seats or, where there is no such partition, on the front interior of the vehicle near the roof to the left side of the driver''s seat facing the passengers'' seats in the case of stage carriage or a contract carriage and in the case of a motor cab or a taxi cab it shall be sufficient if the registration mark is painted on the dash-board;

(d). the letters of the registration mark shall be in English and the figures shall be in Arabic numerals and shall be shown:-

(A). in the case of transport vehicles in black colour on yellow background; and

(B). In other cases, in black colour on white background, the registration mark on the trailer shall be exhibited on the left hand side in black colour on yellow background. In addition, the registration mark on the drawing vehicle shall be exhibited on the trailer also and this shall be done on the right hand side at the rear of the trailer or the last trailer as the case may be, in black colour on retro-reflective type yellow background:

Provided what where provisions of this clause have not been complied with in respect of motor vehicle, on or before commencement of the Central Motor Vehicles (8th Amendment) Rules 2001, then the provisions shall be complied with;-

(i). in respect of transport vehicle, on or before 1st February, 2002; and

(ii). in other cases, on or before 1st July 2002]

(3). The registration mark shall be exhibited in two lines, the State code and registering authority code forming the first line and the rest forming the second line, on below the other.

Provided that the registration mark in the front may be exhibited in one line;

Provided further that in models of vehicles having no sufficient provision at the rear to exhibit the registration mark in two lines, it shall be sufficient if in such vehicles registration mark is exhibited in a single line:''

(4). Every motor vehicle, except motor cab and motor car, manufactured on and from the date of commencement of the Central Motor Vehicles (Amendment) Rules 1993, shall be provided with sufficient space in the rear for display of registration mark in to lines.

(5). In case of agricultural tractors, the registration mark need not be inclined to the (vertical plane by more 45 degrees] (6). The registration mark of the drawing agricultural tractor may not be exhibited on the agricultural or trailers.]

The Central Government has also issued the Motor Vehicle (New High Security Registration Plates), Order 2001 (in short called ''HSRP Scheme'') in exercise of its powers vested u/s 109(3) of the ''CMV Act''. The various amendments were issued from time to time including the latest amendment issued vide notification dated 16.09.2011. The said ''HSRP Order of 2001'' is extracted as below:-

Whereas the Central Government is of the opinion that it is necessary and expedient in the public interest to notify certain standards in respect of the new system of high security registration plates for motor vehicles and the process used by a manufacturer or vendor for manufacturing or supplying such plates with reference to the amendments made in the Central Motor Vehicles Rules, 1989, by the Central Motor Vehicles (1st Amendment) Rules, 2001, it, therefore, in exercise of the powers conferred by the sub-section (3) of section 109 of the Motor Vehicles Act, 1988 (59 of 1988) makes the following Order to specify such standards, namely:--

This order may be called as THE MOTOR VEHICLES (NEW HIGH SECURITY REGISTRATION PLATES) ORDER 2001.

It shall come into force on the 22nd day of September, 2001 in case of new registered vehicles from that date and in case of already registered vehicles, two years from the date of publication of this Order in the Official Gazette.

Application.--This Order shall apply to motor vehicles as defined in clause (28) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988).

A manufacturer or supplier of new high security registration plates shall comply with the following specifications, namely:--

(i). The manufacturer or supplier shall have a certificate from the Central Road Research Institute, New Delhi or any one of the testing agencies authorized by the Central Government under rule 126 of the Central Motor Vehicles Rules, 1989.

(ii). The registration plate shall conform to the specifications spelt out in rule 50 of the Central Motor Vehicles Rules, 1989; and shall conform to [DIN 74069-1975 and ISO 7591-1982, as amended from time to time till such rime as the corresponding BIS specifications are notified. The registration plate has to be guaranteed for imperishable nature for a minimum five years.

(ii-a). The size of the registration plate for different categories of vehicles shall be in accordance with clause (vi) to sub-rule (1) of rule 50 of the Central Motor Vehicles Rules, 1989. However, in case of motorcycles, the size of the plate may be used 285x45 mm.

(iii). The background colour of the letters in the High Security Registration Plates shall be the same as per the colour scheme prescribed in the Notification of the Government of India in the Ministry of Road Transport & Highways No. G.S.R. 221(E), dated 28-3-2001, namely, in black colour on yellow background in case of transport vehicles and in black colour on white background in other cases. The letters of registration mark shall be in English and the figures shall be in Arabic numerals, and the letters and numerals shall be embossed and hot stamped.

(iv). To protect against counterfeiting, a chromium-based hologram of the size of 20 mm x 20 mm is to be applied by hot stamping on the top left-hand corner of the plate in both front and rear plates. The hologram shall contain CHAKRA in blue colour as given in the Annexure annexed to this Order.

(v). The permanent identification number of minimum 7 digits is to be laser branded into the reflective sheeting on the bottom left hand side of the registration plate with the numeral size being 2.5 mm:

Provided that the permanent consecutive identification number in Arabic numbers shall be preceded by two alphabets representing the name of the vendor or the manufacturer or the supplier, as the case may be, for whom the type approval certificate is issued by the test agencies:

Provided further that the test agencies specified in column (2) of the Table below shall use the alphabet specified in column (3) of the said Table as under:

TABLE

Provided also that the height of the digits shall be 5 mm for the front and rear registration plates and shall be 2.5 mm for the third registration plate, which shall in the form of a sticker.

(vi). The hot stamping film to be applied on the letters/numerals of the license number shall bear the inscription "INDIA". The letters "INDIA" shall be in blue colour with the font size of 10 (Ten) in Type Arial Bold script at 45 degrees inclination with sequential lines being the mirror image of the other.

(vii). The third registration plate in the form of a self destructive type chromium based hologram sticker shall be of the size of 100 mm x 60 mm is to be affixed on the inner side of left hand corner of windshield of the vehicle. The details on the sticker shall be (i) name of registering authority, (ii) registration number of the vehicle, (iii) laser branded permanent identification number, (iv) engine number and, (v) chassis number of the vehicle. On the bottom of the right corner of the sticker, the chromium based hologram shall be applied but of a smaller size of 10 mm x 10 mm. In the said sticker the registration number of the vehicle shall be in the centre with a letter size of 10 mm in height. The name of registering authority would be on top part of sticker in letter size of 5 mm, while, laser branded permanent identification number, then engine number followed by chassis number shall come in the bottom left side of the sticker with numeral size being 2.5 mm in each case. A depiction of the sticker is given in the sketch as specified in the Annexure annexed to this Order. The sticker should be essentially a diffraction foil film with high reflective index and shall have the chromium based hologram embedded.

(viii).The registration plate fitted in the rear of the vehicle shall be fastened with non-removable/non-reusable snap lock system. For that sake of better security, at least two such snap locks shall be fitted.

(ix). No high security plate shall be affixed outside the premises of the registering authority.

(x). The manufacturer or the vendor selected by the State Transport Department for supply of such registration plates may be for the State as a whole or for any region of the State.

(xa). The State Government or Union Territory Administration shall ensure that any person who has been,-

(a). convicted of a cognizable offence by any Court of law with imprisonment for a term exceeding one year; or

(b). imposed a penalty of rupees one crore or more for violation of the provisions of the Foreign Exchange Regulation Act, 1973 (46 of 1973) (since repealed) or the Foreign Exchange Management Act, 1999 (42 of 1999); or

(c). detained under the National Security Act, 1980 (65 of 1980) or the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or

(d). adjudged guilty by the Stock Exchange Board of India or any other such Financial Regulatory Boards or Tribunals or Agencies; or

(e). found to be associated in any manner with an organized crime syndicate or its associate or with any Association declared unlawful under the Unlawful Activities (Prevention) Act, 1967 (37 of 1967) or any other law for the time being in force; or

(f). found to be connected with activities prejudicial to the National Security, is not considered for selection as manufacturer or vendor for supply of High Security Registration Plates.

(xb). The person or firm selected for any State or any region of the State shall not change the ownership of the firm without prior permission of the State Government or Union Territory Administration.

(xc). The State Government or Union Territory Administration shall take necessary action to ensure compliance with the provisions of clause

(xa), as so inserted, and complete the implementation of rule 50 of the Central Motor Vehicles Rules, 1989 on or before the 31st day of October, 2006 for the newly registered vehicles and within a period of two years thereafter for already registered vehicles:

Provided that before cancelling the selection of or disqualifying a manufacturer or vendor, the State Government or Union Territory Administration shall give such manufacturer or vendor, as the case may be, a reasonable opportunity to represent against such action and communicate in writing the reasons for such cancellation or disqualification.

(xi) The registration plate will be supplied to the motor vehicle owners by the vendor against the authorization by the Road Transport Officer or any officer designated for the purpose by the State Transport Department.

(xii). The replacement for any existing registration plate may be made by the concerned transport authority only after ensuring that the old plate has been surrendered and destroyed.

(xiii) A proper record of the registration plates issued by the manufacturer or the vendor, authorized by the State Government, should be maintained on a daily basis and got tallied periodically with the records of the Transport Office.

(xiv).Periodic audit shall be carried out by concerned testing agency to ensure compliance of the requirements of the high security registration plate.

(xv) The approved manufacturer or supplier shall maintain complete record of all the security features in their possession which shall be audited by the concerned testing agencies.

(xvi) Various security features of security license plates shall be used only by the approved manufacturer or supplier authorized by the States or the Union territory Administration for fitment of these plates on motor vehicles.

xvii) The approved manufacturer or supplier shall exercise complete control over all the security features in its possession and shall be responsible for the use of any of the security features on registration plate in the open market either by himself or by any other person on his behalf. (xviii) The approved manufacturer or supplier shall not be authorized to sell incomplete plates or the security features separately to anyone.

(xix) The type approval certificate issued to the vendor shall be liable for suspension or cancellation by the Government for failure to comply with these provisions." [sub-clauses xv to xix has been inserted vide Notification dated 16.09.2011].

The legality and validity of the amended Rule 50 as well as the Motor Vehicles (New HSRP) order of 2001 was upheld in " Association of Registration Plates Vs. Union of India (UOI) and Others, wherein, Hon''ble Supreme Court has noted the following salient features of the ''HSRP Scheme'':-

The main features of the high security registration plates as provided in Rule 50 and the Order of 2001 are as follows:-

It provides for a solid aluminum plate, 2. The plate should be suitable for hot stamping and would be a reflective sheet.

The plat should bear the letters "IND" in blue colour.

It should have a chromium-based hologram which shall also be hot-stamped.

There would be a third registration mark which would be self-reflective being a chromium-based hologram sticker and which would be affixed on the windshield of the vehicle.

The plate on the rear shall be fastened with non-removable/non-reusable snap-lock fitting system.

The abovementioned features to the high security registration plates have been insisted upon for the following reasons:-

Hot chromium-based hologram would prevent counterfeiting.

The ingress letter "IND" on the plate would secure national identity and standardization.

The laser-etched seven-digit code to be given by the manufacturers to each plate is with a view that there should be a sequential identification of individual registration plates across the country. This would act as a watermark and would not be erasable by any mechanical or technical process.

Snap-lock to be fitted on the rear portions of the vehicle would be tamper-proof. Any attempt to remove the plate would break it.

The reflective sheet of superior grade would be visible from a minimum of 200 metres.

The alphanumeral would be easily readable and identifiable.

On alphanumeral border, ingress letters ''IND'' would prevent painting and screen printing which would act as protection against counterfeiting.

The sticker to be affixed on the windshield would have seven-digit laser code containing the engine number and the chassis number. This is so designed as to be self-destructive upon removal.

Despite the amendments in ''Rule 50'' and the issuance of the Motor Vehicle HSRP Order, 2001 and verdict in Association of Registration Plates (supra), various State Governments did not exhibit the requisite will to implement the ''HSRP Scheme'', therefore, being aggrieved by the inaction of non-implementation of the ''HSRP Scheme'' in various States and in the interest of public, a Public Interest Litigation, titled as Maninderjit Singh Bitta versus Union of India & Others, WP(C) No. 510 of 2005 (in short called ''Bitta''s case'') was preferred and vide order dated 18.10.2005, the Hon''ble Supreme Court issued ''notice'' to all the State and Union Territories, including State of Himachal Pradesh arrayed as respondent No. 10 therein, Hon''ble Supreme Court has been pleased to pass various orders from time to time in Bitta''s case (supra). The State of H.P. issued Invitation For Bids i.e. ''IFB'' on 13.9.2011.

For convenience, the various terms used and various relevant paragraphs and clauses in ''IFB'' are extracted as below:-

Section-1 (Instructions to bidders):-

"Contract" shall mean the Concession Agreement together with all its schedule to be executed between the Government of Himachal Pradesh and the Successful Bidder.

"Letter of Acceptance" means the formal acceptance of the tender by the Authority/Department.

"Performance Security" means the Performance Security by way of an irrevocable and unconditional Bank Guarantee to be provided by the Successful Bidder to the Authority or the Department for due performance of the contract, as per the formal set out in Annexure XXI.

1.5 ELIGIBLE BIDDERS:

This invitation for bid is open to all the bidders who fulfil the following criteria on cumulative basis:-

1.5.1 "Bidder" shall mean an individual Indian Citizen/Indian Sole Proprietorship, Limited Company, Partnership Firm, Joint Venture or Consortium, participating in the bidding process and shall include the successful bidder during the entire term of the "Contract". The total number of partners or members or shareholders in the bidding Partnership Firm or Joint Venture or Consortium shall not exceed three in the event the Bidder is an individual Indian Citizen/Indian Sole Proprietorship or Partnership Firm or Joint Venture or a Consortium having individuals or corporate bodies as its partners or members, then such Bidder must essentially incorporate a Special Purpose Company (SPC) registered under the Companies Act, 1956 in India for executing the Contract and implementation of the Project. One of the shareholders of the SPC should either be an individual Indian citizen or an Indian corporate body having not less than 51% shareholding in the SPC having valid type approval certificate. The membership structure of the Bidder shall not be changed by the Bidder without the prior written approval of the Department. The financial credentials shall not be considered for technical qualification, if the shareholding of any member/partner is less than 20%.

1.5.2. The Bidder should have its own manufacturing unit of High Security Registration Plates in India with minimum capacity of supplying at least three lakh number plates in one year. The successful Bidder will preferably have an office in Himachal Pradesh.

1.5.10. A person shall not be considered for qualification fort the bid if he has been:

a) convicted of a cognizable offence by any Court of law with imprisonment for a term exceeding one year; or

b) imposed a penalty of rupees one crore or more for violation of the provisions of the Foreign Exchange Regulation Act, 1973 (46 of 1973) (since repealed) or the Foreign Exchange Management Act, 1999 (42 of 1999) or

c) detained under the National Security Act, 1980 (65 of 1980) or the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or

d) adjudged guilty by the Stock Exchange Board of India or any other such Financial Regulatory Boards or Tribunals or Agencies; or

e) found to be associated in any manner with an organized crime syndicate or its associate or with any Association declared unlawful under the Unlawful Activities (Prevention) Act, 1967 (37 of 1967) or any other law for the time being in force; or

f) found to be connected with activities prejudicial to the National Security.

1.6 Signing of the Bid:

1.6.1 the bid shall be signed by a duly authorized person holding power of attorney/board resolution for signing the bid document. The power of attorney/board resolution to be enclosed in original.

SECTION - II (PREPARATION OF BIDS);

2.3.3 Documentary evidence for the following: Constitution/Legal Status along with General Application at Annexure IV & V. Place of manufacturing facility and proof of ownership of the facility should also be enclosed.

2.3.13 Declaration on affidavit as per format at Annexure

XI.

''2. the undersigned also hereby certifies that neither our firm M/s. __ nor any of its share holders have abandoned any work on High Security Registration Plates in India or abroad nor any contract awarded to us for such works have been rescinded during last five years prior to the date of this application. (If yes, specify reasons for the same).

We certify that we have not abandoned HSRP works in any other State in India. Also no contract(s) of ours or any of our Share Holders have been cancelled/terminated/revoked by any State in India (If yes, specify reasons for the same).

2.3.18 The Bidder shall give complete break up of infrastructure and facilities to be created for covering the different Registering Authorities in the State as shown in Annexure XIV with the logistic plan and delivery mechanism and the number of embossing stations proposed in the State and details of equipments/facilities to be installed in each embossing station. The Bidder shall ascertain all relevant facts regarding the State at its own cost and expense.

2.3.21 Documentary evidence of understanding between the share holders to be enclosed.

2.3.22 Notarized copy of the Joint Venture/Consortium/Joint Bidding Agreement along the lines of the indicative format annexed as Annexure XX.

2.4 DISQUALIFICTION OF BID

Bearing the reasons of non-responsive Bid, the Bidder is subject to disqualification, if the Bidder or any of its constituent partners have:

a) Made misleading or false representation in the forms, statement and attachments submitted; or

b) Been debarred by Transport Department as on the date of submission of bid.

c) Disqualified under the S.O. No. 883 (E), dated 12.6.2006.

d) If the bidder is found to have adopted corrupt or fraudulent practices and if any other State Contracts have been revoked due to suppression of facts & fraudulent practices in India.

e) Even if the bidder has met the eligibility and qualification criteria, they are subject to be disqualified on the basis of record of their poor performance such as abandoning of works in other States, cancellation of Contract by other State, not properly completing the contract, inordinate delays in implementation, completion, litigation history or financial failures. In case of false representation in forms, statements or attachments submitted in the part of qualification requirements, the bid security will be forfeited, bid shall be rejected and the bidder shall not be entitled to participate in similar tenders of the State.

2.12 SIGNING OF THE BID

12.1 The Bid submitted must be on the original pages of the Bid Document bearing seal and signature of the Director of Transport, Government of Himachal Pradesh. The original of the bid shall be printed, typed or written in indelible ink and shall be signed by a person or persons duly authorized to sign on behalf of the bidder. All pages of the bid and where entries or amendments have been made shall be initialed by the person or persons signing the bid. Photocopies duly attested are acceptable.

2.20.1 ENVELOP No. 1 (TECHNICAL QUALIFICATION BID)

i. The bid will be opened on the last day of submission at 1600 hrs in the presence of the bidders who wish to be present at the time of opening, to verify its contents as per the requirement at the Office of the Director of Transport, Government of Himachal Pradesh, Shimla.

2.22 EXAMINATION OF BIDS AND DETERMINATION OF RESPONSIVENESS.

2.22.1 Prior to the detailed evaluation of bids, the Government will determine whether each bid:

i. has been properly signed.

ii. is accompanied by the required securities.

iii. is substantially responsive to the requirements of the bidding document.

2.30 PERFORMANCE SECURITY

2.30.1 Within 03 days of receipt of the letter of acceptance, the successful bidder shall deliver to the Government a Performance Security in the form of an unconditional and irrevocable Bank Guarantee as per the format given in Annexure XXI issued by a Nationalized/Scheduled Bank for an amount of Rs. 1 crore (Rupees one crore only) in favour of the Director of Transport, Government of Himachal Pradesh, payable at Shimla.

2.30.2 Failure of the successful bidder to deliver the Performance Security within 03 days shall lead to cancellation of the award and forfeiture of the EMD, and the offer may be passed on to the next lowest bidder till the completion of process.

2.30.3 The Performance Security will be returned to the Successful Bidder/Concessionaire only after completion of the period of the contract/concession agreement without interest.

2.33 CORRUPT OR FRAUDULENT PRACTICES

2.33.1 The Government requires that all the bidders should observe the highest standard or ethics in pursuant to this policy, the Government:

i. Defines, for the purposes of this provision, the terms set forth as follows:

a) "Corrupt Practices" means behaviors on the part of officials in the public or private sector by which they improperly and unlawfully enrich themselves and/or those close to them, or induce others to do so, by misusing the position in which they are placed, and it includes the offering, giving, receiving, or soliciting of anything of value.

b) "Fraudulent Practice" means a misrepresentation of facts in order to influence a evaluation process or execution to the determent of the Government, and includes collusive practice among bidders (prior to or after bid submission) designed to establish bid price at artificial non-competitive level and to deprive the Government of the benefits of free and open competition.

Paragraph-1 of the ''IFB'', at Clause 3, indicates that the applicants interested in the ''IFB'' should hold a valid Type Approval Certificate (in short ''TAC'') from any testing agency, accredited for this purpose, approved by the Ministry of Road, Transport & Highways (in short ''MORTH'').

The last date of submission of this bid was initially fixed on 30.09.2011 and later on extended to 03.10.2011. By 03.10.2010, following four (4) bidders submitted their bids in response to the IFB, namely:-

(1) Agro Impex (India) Pvt. Ltd. - the petitioner herein/L-2

(2) M/s Utsav Safety Systems Pvt. Ltd. and M/s Link Point (Respondents No. 3 & 4)/L-1

(3) M/s Real Mazon India Ltd. (L-3) &

(4) M/s Great Saturn Intelligence and Security Agency Pvt. Ltd. (L-4)

(a) Four (4) bids were opened on 03.10.2011 at 4 P.M. and after declaring all the 4 bidders'' as "technically eligible", the financial bids were opened on the very next date i.e., on 04.10.2011 at 6 P.M.

(b) On opening the financial bids, common bid submitted by the Consortium of Respondents No. 3 & 4 herein was declared to be (Lowest-1) i.e., L-1 and the State Government, after receiving the approval of the State Cabinet on 10.10.2011, issued the Notice of Award i.e. Letter of Intent (LOI) to the respondent No. 3 on 11.10.2011 (Annexure P-3). Respondent No. 3 accepted the Notice of Award by its letter of acceptance dated 13.10.2011. This letter of acceptance was accepted by the State Government on 15.10.2011.

(c) As per Clause 2.30 of the IFB, performance security, by way of Bank Guarantee (''BG'') had to be submitted by successfully bidder within 3 days of the issuance of the letter of acceptance by the State Government i.e., within 3 days of 15.10.2011. It appears respondents have submitted the performance guarantee by way of a BG for Rs. 1 Crore on 17.10.2011.

(d) Respondents No. 3 and 4 incorporated a Special Purpose Company (SPC) in terms of Clause 1.5 of the ''IFB'', namely, the respondent No. 5 herein on 31.10.2011. The State Government notified the HSRP Scheme, vide notification dated 01.11.2011, in the State of HP and declared that respondent No. 5 would execute the said project.

(e) Respondent No. 5 submitted its performance security by way of BG of Rs. 1 Crore to the State Government on 12.11.2011 and the earlier ''BG'' submitted by respondent No. 3 on 17.10.2011 was ''withdrawn''.

(f) The Concession Agreement was entered into between the State Government and the respondent on 15.11.2011 (Annexure P-6) by virtue of the fact that respondent No. 5 was entrusted with the task of implementing and executing the HSRP Project in the State of Himachal Pradesh.

(g) Aggrieved by the above decisions of the State Government to declare the consortium consisting of respondents No. 3 and 4 as L-1 and the notification to the ''HSRP Scheme'' and the execution of the Concession Agreement in favour of respondent No. 5, to implement and execute the HSRP in the State of Himachal Pradesh, the present writ petition has been filed.

Following main submissions have been made for and on behalf of the petitioner while assailing the award of tender to respondents No. 3 to 5:-

(i) Bid was submitted by respondents No. 3 and 4 without valid Power of Attorney (''POA'') and Board Resolution.

(ii) No manufacturing facility of respondent No. 3.

(iii) ''HSRP'' implementation Scheme violates/is ultra vires the Statutory Scheme as contained in the 16th September, 2011 notification, the HSRP Order 2001 (as amended) and Rule 50 of the CMV Rules.

(iv) No valid and timely Performance Security submitted by respondent No. 5.

(v) Fraudulent concealment of facts regarding the cancellation of the ''LOI'' of respondent No. 3 in the State of Uttar Pradesh.

(vi) Fraudulent and deliberate concealment of facts and deliberate mis-statement and misrepresentation of facts regarding the sale of Anti-Theft Registration Plates (in short ''ATRP'') including the order dated 16.8.2010 of Hon''ble Supreme Court in WP(C) No. 162 of 2010 (Raahat Safe Community Foundation versus Union of India & Others).

(vii) There is violation of the terms of the Type Approval Certificate (''TAC'') and Rule 50 of CMVR, 1989.

(viii) There is non-application of mind on the part of the tender evaluating committee, severely vitiating the evaluation of the bid submitted by the successful bidder.

In respect of Power of Attorney, it has been submitted by the petitioner that as per clause 1.6.1 of the IFB, the bid shall be signed by a duly authorized person holding both the Board Resolution as well as the Power of Attorney for the purpose of signing the said bid. It has been argued that respondents No. 3 and 4 are separate juristic entities and are separate companies incorporated under the Companies Act 1956. The terms of the IFB permitted both these distinct entities to submit a common bid, whereas, it is imperative in terms of Clause 1.6.1 that a single authorized person, having due authorization by virtue of Board Resolution and a Power of Attorney of both the companies, ought to have signed and submitted the said bid, whereas, in the instant case, respondent No. 3 authorized one Shri Brij Kumar and respondent No. 4 authorized one Shri Sahendra Pal Singh to sign the bid. The single common bid that was submitted was signed only by Shri Brij Kumar and not by Shri Sahendra Pal Singh and therefore, since the bid was not signed on behalf of both the bidder companies comprising of the consortium, as such, the same ought to have been rejected at the very outset.

Clause 1.5.2 of the ''IFB'' prescribed that the interested bidders should have their own manufacturing Unit of ''HSRP'' in India with a minimum capacity of supplying at least 3 lac number plates in one year. It has also been prescribed that the successful bidder should preferably have an Office in the State of Himachal Pradesh. The manufacturing facility was said to be belonging to respondent No. 3 at Plot No. 3A, Phase IV, Industrial Area, Gwalthai, Distt. Bilaspur (H.P.) (in short ''manufacturing facility/plant/factory''), whereas, in fact, the above mentioned factory/facility does not belong to respondent No. 3 but belongs to one M/s. AUTO MOTIVE TECH, which is a sole proprietorship of one Shri Ravi Somani, who is merely a shareholder of respondent No. 3 Company. It has been submitted that since the Company and shareholders are distinct from each other and the bid was submitted by the Company and the manufacturing facilities should also be that of the Company, and a manufacturing facility in the name of a shareholder does not lead to the vesting of the manufacturing facility in the name of the bidder company and therefore the common bid submitted by respondents No. 3 and 4 ought to have been rejected.

Regarding gross violation of the ''HSRP Order'' of 2001 and the Rule 50 of the CMV Rules, it has been submitted for the petitioner that respondents No. 3 and 4 were the bidders who submitted a single joint bid. This joint bid was declared technically eligible on 03.10.2011 (at 4:00 PM) and declared as the Lowest Bidder/L-1 on 04.10.2011. The Notice of the Award in favour of respondents No. 3 and 4 was issued on 11.10.2011 (Annexure P-3).

(a) However, for the purposes of implementation and execution of the HSRP Project, respondent No. 5 M/s. LINK UTSAV - as Special Purpose Company (SPC) has been incorporated on 31.10.2011 and in whose favour the State Govt. has notified the HSRP Scheme in the State of HP and the Concession Agreement.

(b) The company-respondent No. 5-M/s. LINK UTSAV which came into existence barely 24 hours ago, was entrusted with the task of implementation of the HSRP Project in the State of HP.

(c) Admittedly, respondent No. 5 neither has ''Type Approval Certificate'' which stands in the name of respondent No. 3 nor respondent No. 5 is an ''approved manufacturer or supplier'' in terms of the HSRP Order dated 22.09.2011.

(d) Respondent No. 5 thus does not and cannot have any legal access to the "security features" which are inherent in the HSRP and for the implementation of the HSRP Project. It "receives" these security features, presumably from M/s. AUTO MOTIVE TECH/M/s. UTSAV and consequently undertakes embossing, hot-stamping and affixation of the HSRPs in the vehicles in the State of H.P. which is clearly prohibited under notification dated 16th September, 2011.

(e) Clause 4 of the Motor Vehicles (New HSRP) order 2001 (supra) prescribes that the manufacturer or supplier of the HSRP shall have a valid certificate (known as the Type Approval Certificate (TAC) from one of the approved testing agencies, authorized by the Central Govt. under Rule 126 of the CMV Rules, 1989.

(f) Sub-clause (xv) of clause 4 (as amended and inserted by the September 16, 2011 notification) prescribes that the manufacturer or the supplier shall maintain a complete record of the various security features in their possession which shall be duly audited by the testing agencies. The various security features shall be used only by the approved manufacturer/supplier (respondent No. 3 and not respondent No. 5) for fitment of these plates on motor vehicle. The approved manufacturers/supplier cannot transfer the security features, which are in his possession, to any other person on his behalf, therefore, it is not permissible for respondent No. 3 to transfer the security features to respondent No. 5-for implementation of the HSRP Project.

(g) Sub-clause (xviii) further clearly bars sale of the security features separately to anyone, therefore, the entire Scheme of implementation of the HSRP Project by respondent No. 5 is in derogation to the statutory Scheme contained in rule 50 CMV Rules, 1989 and the HSRP Order 2001 as amended by notification dated 16th September, 2011. The Hon''ble Supreme Court has also deprecated this practice in following paragraphs No. 12 and 13 of judgment and order dated 08.12.2011 in WP(C) No. 510 of 2005-Bitta''s case:-

The tenders which were invited for awarding the work of manufacture and fixation of HSRP were opened on 23rd June, 2011. Financial bids were opened on 28th June, 2011 and the successful bidder has been finalized. According to the stand taken by the Delhi Government, the rate schedule has also been finalized by the Chief Secretary. However, it remains to be finally accepted by the Delhi Integrated Multimodal Transit System (DIMTS) which has been constituted by the Government as a special Purpose Vehicle for overseeing transport in Delhi. The Delhi Government still has not implemented the scheme and, in fact, has not even awarded the contract so far. It has been stated that firstly the terms and conditions of the tender were challenged by one M/s. Tonnejes Eastern by filing a writ petition before the Delhi High Court wherein the High Court had refused the prayer for interim stay. This order of the High Court dated 10th June, 2011 was challenged before the Supreme Court. The SLP against the non-grant of the interim order was dismissed by this Court on 23rd June, 2011. However, SLP filed against the order of dismissal of the writ petition before the High Court vide order dated 26th August, 2011 is pending before this Court, in which no interim order has been passed.

Be that as it may, to some extent, the procedure adopted by the Delhi Government is not in conformity with the judgments of this Court. From the documents now filed on record, it appears that DIMTS has reserved onto itself the power to select more than one vendor for the project. It is also stipulated in the draft agreement that the supplier of the plate shall notify the purchaser in writing of all sub-contracts awarded under the contract. We make it clear that neither Rule 50 of the Motor Vehicles Rules, 1989 (for short, the ''Rules''), Motor Vehicles (New High Security Registration Plates) Order, 2011 nor the judgments of this Court permit sub-contracts to be awarded by the contractor to whom the award for manufacture and fixation of HSRP is awarded. Furthermore, in their affidavit dated 26th November, 2011 it has been stated that the DIMTS is also taking other steps and it has divided the implementation process into two parts:-Firstly, procurement of blank HSRP confirming to Rule 50 of the Rules and personalization of plates by embossing, hot stamping of number plates, quality checking, printing of third number plate, set matching, dispatch, transportation and installation of HSRP. Secondly, it is not permissible to bifurcate the process under different heads or in parts. It is a mandatory requirement that one person should exclusively be responsible for the entire process in the interest of security. Thus, we make it clear that DIMTS, when it is getting the HSRP manufactured from the contractor, such manufacture should be firstly from a single contractor and secondly it should, without fail, be under the direct supervision and control of DIMTS. They should not let the sub-contractors or other parties to have control over the manufacturing processing and fixation of HSRP in any manner, whatsoever. They should ensure that one single person is responsible for manufacturing, affixation of seals, imprinting of numbers and affixation of HSRP on the vehicles in the NCT of Delhi. The Government has prayed for extension of time. We extend the period for implementation of the scheme till 31st December, 2011, by which date, all steps, complete in all respects, should be taken by the Delhi Government.

(h) It has been argued that from joint reading of paragraphs 12 and 13 of the aforesaid judgment of Bitta''s case (supra), it appears that only those entities who have valid Type Approval Certificate in their name and in possession of the valid technical expertise, should be entrusted with the task of implementation of the HSRP Scheme in various States and Union Territories. In the instant case, since respondent No. 5 does not have a Type Approval Certificate in its own name, it lacks technical competence and expertise to implement HSRP Schemes in the State of H.P. The Hon''ble Supreme Court intended to lay down the law that only a single entity - that too having technical capacity as demonstrated by the ''TAC'', should be responsible for the implementation of the HSRP project, whereas, in the instant case, the technical capacity, insofar as the ''TAC'' is concerned, is with respondent No. 3, therefore, the implementation of bid in the hands of respondents No. 5 is not legally permissible.

In terms of clause 2.30 of the Bid document, the successful bidder has to deliver of ''Performance Security'', in the form of a (Bank Guarantee) BG, to the tune of Rs. 1 Crore, whereas, the ''BG'', so furnished, was submitted by respondent No. 5 on 12.11.2011 and it is the admitted case of the respondent that this B.G. had to be furnished by the 18th of October 2011. The respondents have contended that respondent No. 3 submitted a BG of Rs. 1 Crore on 17.10.2011 and it was "withdrawn" once respondent No. 5 submitted its BG on 12.11.2011 which is not permissible and is illegal. The tender document does not have any provision for multiple BGs. It contemplates only a single BG/Performance Security, to be submitted by the party performing the contract, which is admittedly respondent No. 5 and not respondent No. 3, so there is no question of submitting any BG by respondent No. 3 towards Performance Security, as it is not entrusted with the task of performance of the contract. As such, it has been argued that the ''BG'' was not furnished in 3 days, therefore, the Award, in favour of respondents No. 3 and 4 ought to have been cancelled and the petitioner herein/L-2 was entitled for being awarded in terms of the mandatory provision of clause 2.30.2.

Regarding concealment of cancellation of the ''LOI'' by the UP Govt. by respondent No. 3, it has been submitted for and on behalf of the petitioner that respondent No. 3 submitted a common bid for the UP HSRP Project along with one M/s. Shonkh International Technologies Ltd. (in short ''Shonkh'') in the HSRP tender of 2003 in the State of UP. For M/s. Shonkh having a dubious entity and for having criminal antecedents, the Letter of Intent (LOI) given to this common bid was terminated by the Govt. of UP vide its order dated 15.01.2008 on the grounds inter-alia violation of 12.06.2006 notification. Such concealment constitutes fraudulent practice in terms of clause 2.33 (b) of the IFB and entails disqualification in terms of clause 2.4 of the IFB.

Regarding fraudulent practice of sale of ''ATRP'' respondent No. 3, has openly admitted and acknowledged selling of Anti-Theft Registration Plates (''ATRP'') which are nothing but fake/look-alike ''HSRP''.

(a) The defence put forth by respondent No. 3 that there was never any statutory bar for selling ATRP prior to 16th September, 2011 is incorrect and misconceived. Respondent No. 3 was very well aware that the HSRP Scheme was introduced with a salutary purpose of enhancing national security, by preventing vehicular theft and is subsequent misuse by anti-national and criminal elements.

(b) By actively advertising and selling ATRP, Respondent No. 3 has not only used the security features for a purpose other than its statutory intended purpose, but also mis-presented the gullible general public that ''ATRP'' has received Central Govt. approval and is ''HSRP''. This constitutes clear fraudulent practice in terms of Clause 2.33(b) and entailed disqualification under Clause 2.4 of ''IFB''.

With regards to non-application of mind, it has been argued for the petitioner that the admitted position of respondents is that Technical Bids were opened on 03.10.2011 at 4 P.M. The Financial Bids were opened on the next date i.e. 04.10.2011 at 6 P.M. Each bid ran into several hundred pages. It is a clear proof of non-application of mind on behalf of the State Authorities that it barely devoted one day for a comprehensive evaluation of all the four bids, which ran into thousands of pages. On this count alone, the impugned award deserves to be set aside.

Learned counsel for the petitioner has also argued that by virtue of the ''TAC'' granted to respondent No. 3, it has to prefix ''AA'' to the permanent consecutive identification number (''PCIN''). Admittedly, respondent No. 5 uses ''AAA'' and ''AAHP'' prior to the PCIN, which is in clear violation of the ''TAC'' and Rule 50 of CMVR, 1989. The State Govt. and the testing agency, namely, ''The Automatic Research Association of India (in short called ''ARAI'') are silent on this aspect despite adverse impact on public interest.

Shri Sanjiv Bansal learned Counsel appearing on behalf of the private respondents No. 3 to 5, on the other hand, has supported the impugned decision of the State Government and has made the following submissions:-

(a) The instant petition is hit by delay and laches as the entire tender process concluded with the signing of the Concession Agreement in favour of respondent No. 5 on 15.11.2011 and the writ petition has been filed only on 06.07.2012 and there is an unexplained delay of more than 8 months and on this count alone, the Writ Petition deserves to be dismissed.

(b) The petitioner is estopped from a raising various submissions in the instant Writ Petition on the ground that the petitioner-Company was always aware of the various issues pertaining to respondents No. 3 and 4 even at the time when respondents No. 3 and 4 submitted their common bid. Since the petitioner Company did not challenge the submission of the common bid and the decision of the State Government to declare the said common bid as technically qualified at the relevant stage itself, as such, the petitioner Company is estopped from raising the pleas against the eligibility of respondents No. 3 and 4 in the instant writ petition.

(c) The eligibility of the petitioner by virtue of the fact that its ''HSRP'' contracts in the States of Bihar and Jharkhand stood cancelled and therefore, the Petitioner was ineligible to be considered in the HSRP tender in the State of Himachal Pradesh.

(d) In response to the submissions made on the issue of a valid Power of Attorney, our attention has been invited to page 455 of Paper Book and Annexure R-5 which is a Power of Attorney (for Lead Bidder) given in favour of Shri Brij Kumar to submit the said bid on behalf of respondents No. 3 and 4.

(e) Regarding manufacturing facilities, it has been submitted that the manufacturing unit which was established earlier, belonged to one M/s. AUTO MOTIVE TECH, a proprietorship firm, which has since been merged with respondent No. 3 vide Merger Agreement dated 01.10.2010 (Annexure C-16 to the reply) and even the land lease has been transferred in the name of respondent No. 3, as such, M/s. AUTO MOTIVE TECH is a unit of respondent No. 3 and it is respondent No. 3 which is manufacturing ''HSRP''/Plates for all practical purposes.

(f) In respect of the allegations that respondent No. 3 has indulged in the sale of Anti Theft Registration Plates (''ATRP''), Shri Bansal, learned counsel for private respondents, while inviting our attention to the amendments in the HSRP Order of 2001, vide Notification dated 16.09.2011 has submitted that it is only for the first time on 16.9.2011 that the sale of security features used in ''HSRP'' was banned by the Central Government, however, prior to that, there was no legal bar on respondent No. 3 to sale number plates having one or many of the security features.

(g) In reference to the letter dated 08.10.2009, issued by Central Government to all the States and Union Territories, it has been submitted that the said letter was enclosed in CWP No. 853 of 2010 before Punjab & Haryana High Court. During the course of arguments, Mr. Bansal has also contended that respondent No. 3 has never claimed that it has sold Anti Theft Registration Plates. It has further been contended that respondent No. 3 has never been black listed or disqualified by State Government despite the issuance of letter dated 08.10.2009 of Government of India, Ministry of Road Transport & Highways to all States/UTs (Annexure P-12) and despite the notice of the Hon''ble Supreme Court dated 16.08.2010, passed in WP (C) No. 162 of 2010 i.e. Raahat Safe Community Foundation (supra).

(h) With regards to the cancellation of the ''LOI'' by the State of Uttar Pradesh, Mr. Bansal, learned counsel for the private respondents, has denied that the Respondent No. 3 entered into a Consortium Agreement with said M/s. Shonkh for the UP-''HSRP'' tender of 2003. In any case, Mr. Bansal argued that a Letter of Intent does not constitute a contract and assuming without admitting that there was a Consortium agreement between respondent No. 3 and M/s. Shonkh for the UP HSRP Tender, 2003, only ''LOI'' was issued and no agreement was signed and therefore it cannot be said that the agreement of respondent No. 3 has been cancelled.

(i) Regarding the misuse of the Type Approval Certificate (TAC), it has been submitted by Mr. Bansal that respondent No. 3 is entitled to use more than 2 prescribed alphabets i.e., "AA". There is no bar in usage of more than 2 alphabets. It has further been argued that the Test Agency, namely "ARAI" has been made aware of the number system followed by respondent No. 3 herein and it has raised in objection to the same and therefore, the petitioner cannot impugn or challenge the same.

(j) With regards to the Writ Petition No. 162 of 2010, filed by M/s. Raahat Safe Community Foundation in Hon''ble Supreme Court, Mr. Bansal has argued that the Hon''ble Supreme Court has not passed any order directing the State Governments not to entertain the bid submitted by respondent No. 3 in the HSRP tender.

(k) Mr. Bansal has further argued that respondent No. 5 has already completed more than 45% of the work schedule and therefore, it would not be in the interest of justice to unseat respondent No. 5 at this stage. Mr. Bansal has also referred to the various orders passed by the Hon''ble Supreme Court in Bitta''s case (supra), which consistently laid down a time frame for the implementation of the HSRP Scheme in all the States and Union Territories. Since the Hon''ble Supreme Court has already granted time till 15.06.2012 to the State of Himachal Pradesh to implement HSRP Scheme and it was argued that if respondent No. 5 is displaced then the above time limit prescribed the Hon''ble Supreme Court would not be complied with.

Following judgments have been referred on behalf of the private respondents:-

i). Jagdish Mandal Vs. State of Orissa and Others,

ii) Vodafone International Holdings B.V. Vs. Union of India (UOI) and Another,

iii). Tejas Constructions and Infrastructure Pvt. Ltd. Vs. Municipal Council, Sendhwa and Another,

iv). Judgment and order dated 13.4.2009, passed in WP(C) No. 62 of 2009 titled as Tata Power Company Ltd. & Another versus Union of India & Others.

In reference to the above-mentioned judgments, Mr. Bansal has submitted that the scope of judicial review is limited and that inter-inference must be called only under extremely exceptional circumstance. It has been argued that there no exceptional circumstances in the instant petition, which would call for exercise of power under Article 226 by this Court.

Mr. Bansal, in support of his contention that LOI is not a contract, has referred and relied upon the following judgments:-

i). Rajasthan Co-operative Dairy Federation Ltd. Vs. Shri Mahal Laxmi Mingrate Marketing Service Pvt. Ltd. and Others,

ii). Dresser Rand S.A. Vs. BINDAL Agro Chem Ltd. and K.G. Khosla Compressors Ltd., .

Mr. Ramesh Thakur, learned counsel appearing on behalf of the State Government while adopting the submissions advanced for and on behalf of the private respondents has submitted that the State of H.P. has not committed any violation of the terms and conditions of the ''IFB'' and that the bids were scrutinized as per the provisions of ''IFB'' and the contract has been awarded to respondents No. 3 to 5 based on the evaluation mechanism prescribed in the ''IFB'', as such, the instant writ petition is liable to be dismissed.

We have heard the Ld. Counsel appearing for the parties, perused the materials on record and have given our anxious consideration to the submissions made on the various aspects, therefore, in the facts and circumstances, following points need formulation for our consideration:-

(i) Whether the Government of Himachal Pradesh was legally not justified to reject the common bid submitted by respondents No. 3 and 4 herein for violating the provisions of the IFB?

(ii) Whether the implementation of the HSRP project in the State of HP by the Respondent No. 5 herein violates the HSRP Scheme as contained in Rule 50 of the ''CMV Rules'' and the HSRP Order of 2001?

(iii) Whether the selection of the private Respondents is vitiated by non-application of mind and non-consideration of relevant material?

(iv) If the answers to above three queries are in the affirmative, then what consequential remedies are available?

(A) With regard to the issue of Power of Attorney/Board Resolution, the main defence put forth by the respondents is that Shri Brij Kumar was authorized by Shri Sahendra Pal Singh (on behalf of respondent No. 4) to sign the joint bid. Reliance was placed on the power of attorney dated 28.09.2011 at page 455 (Annexure R-5 of Volume-II of the paper book). We have perused this document and we are afraid that we are unable to agree with the contention of the respondents. A perusal of this document would reveal that this document is merely an authority granted to Mr. Brij Kumar to sign the joint bidding agreement by respondents No. 3 and 4, since the said respondents were bidding as a consortium/unincorporated joint venture and this document was required to be furnished by such bidders in terms of Annexure XX of the Joint Bidding Agreement, which is a mandatory requirement in terms of IFB.

(B) Such document does not give any power to Shri Brij Kumar to submit a common bid on behalf of respondent No. 4. There is a clear distinction between a joint bidding agreement, which is merely one of the annexures in a bid, and the bid itself. Any authorization to sign a joint bidding agreement cannot ipso facto lead to the presumption that there is a valid authority granted to sign the entire bid document. Shri Brij Kumar has been authorized only by the Respondent No. 3 Company vide its Board Resolution dated 28.09.2011 and by a power attorney dated 28.09.2011 to submit bid on behalf of the Respondent No. 3 for the instant HSRP Tender. There is neither any Board Resolution of respondent No. 4 Company nor there is any Power of Attorney authorizing Sh. Brij Kumar to sign and submit the common bid on behalf of respondent No. 4.

(C) On perusal of the Board Resolution and Power of Attorney by respondent No. 4 in favour of Sh. Sahendra Pal Singh, we notice that there is no power contained therein which enables Shri Sahnedra Pal Singh to sub-delegate his powers in favour of Shri Brij Kumar to sign and submit the entire bid document. Consequently, we are of the considered view that the common/joint bid was unresponsive/defective due to this material error and it was liable to be rejected/disqualified at the stage of technical evaluation itself.

(a) In reference to manufacturing facility, Mr. Bansal, has argued that M/s. Auto Motive Tech, which was earlier a sole proprietorship of Mr. Ravi Somani, is now a unit of respondent No. 3-Company by virtue of a merger agreement dated 01.10.2010 arrived at much prior to date of submitting of bid dated 03.10.2011, as such, respondent No. 3 be treated as having manufacturing facility.

(b) We permitted Mr. Bansal to refer and rely upon various documents like land lease agreements etc on which the factory is situated etc, in support of his contention even though these documents were not a part of the record before us. We refrain at this stage from passing any comment on this issue whether the manufacturing facility as submitted by respondent No. 3 in its common bid, does indeed belong to respondent No. 3 or it belongs to someone else. Suffice is to say that on date of submission of the common bid, the documents submitted by respondent No. 3, in support of its claim that it has a manufacturing facility in compliance of Clause 1.5.2 of the IFB, clearly reveals that the said facility is in the name of M/s. Auto Motive Tech.

(c) Respondent No. 3 has submitted its Sales Tax Registration Certificate 12.10.2010 which clearly mentions that the manufacturing facility stands in the name of M/s AUTO MOTIVE TECH.

(d) Since the materials sought to be relied by Mr. Bansal on this issue, were not a part of the bid and naturally were not of the material for consideration it, we fail to see as to how the Tender Evaluating Committee could arrive at a conclusion that the manufacturing facility belongs to respondent No. 3 herein. It also appears utterly incomprehensible to us as to how can the State Government consider that the manufacturing facility stands validly in the name of respondent No. 3, when the documents furnished by Respondent No. 3, in its bid, itself prima facie indicate a different story and when the documents now shown to us by Mr. Bansal, even if one was to assume its authenticity, were admittedly not before the Tender Evaluating Committee of the State Govt. on 03.10.2011 when the bid of the private Respondents herein were opened and scrutinized. Subsequently on this issue too, we are of the considered view that the decision of the State Government, in holding that the common bid submitted by respondents No. 3 and 4, is in compliance to clause 1.5.2 of the IFB (regarding having own manufacturing unit), is vitiated by non application of mind and non consideration of the material before it and accordingly not liable to be approved.

(e) During the course of arguments, this Court was even pleased to enquire from Mr. Bansal and sought details of the Sales Tax record notifying that the transfer of the manufacturing facility has indeed taken place from M/s Automotive Tech, in favour of respondent No. 3. No satisfactory answer has been put forward and no documents were furnished to satisfy this Court that the manufacturing unit at the said address is now assessed to Sale Tax in the name of M/s. Utsav and not in the name of M/s. Auto Motive Tech.

(i) Violation of the HSRP order of 2001 and criteria of notification dated 16.9.2011 has been taken as one of the main grounds and the petitioner has submitted that the ''HSRP'' contract in favour of respondent No. 5 runs totally contrary to the HSRP Scheme as contained in HSRP order 2001 as amended from time to time, including latest amendment dated 16.09.2011 as well as the observations of Hon''ble Supreme Court in Bitta''s case (supra).

(ii) The Hon''ble Supreme Court while dealing with the issue of award of HSRP tender in the Govt. of NCT of Delhi has observed in judgment dated 8.12.2011 in Bitta''s case (i.e. IA Nos. 10, 16, 17 and 18 in Writ Petition (C) No. 510 of 2005) that the person having technical expertise should be responsible for implementation of the HSRP project. The person or entity executing the HSRP Project in the State of H.P. must have a valid type approval certificate (TAC) from one of the approved testing agency by Central Government. Meaning thereby any entity which is keen to win a tender, issued by the State Government to implement the HSRP Project in the State or Union Territory as the case may be must have a valid ''TAC'' issued under Rule 126 of the CMV Rules 1989 from one of the approved testing agencies.

(iii) In the instant case, as we have noticed that Government of H.P. entered into a Concession Agreement with respondent No. 5 to execute and implement the HSRP Project in the State of H.P. in furtherance to clause 1.5 of the IFB. We have also noticed that the said clause 1.5 of IFB, in so far, permitting any entity, like respondent No. 5 herein to implement and execute the HSRP project in the State of H.P. is without possessing a valid ''TAC'', as such, is in derogation of the HSRP Order 2001 and consequently not legally sustainable.

(iv) Admittedly respondent No. 5 was incorporated on 31.10.2011 and undisputedly it did not submit the bid. It does not have a ''TAC'', yet within 24 hours of its ''birth'', the Govt. of H.P. notified the HSRP tender in its favour and within a fortnight, thereafter, executed the Concession Agreement in its favour for implementation and execution of the HSRP Project in the State of H.P.

In our considered view, therefore, in terms of the mandatory provisions of HSRP order 2001 and in view of the observations of Hon''ble Supreme Court in Bitta''s case (supra) dated 08.12.2011, respondent No. 5 was not legally entitled for allotment to implement the HSRP Project in the State of H.P. (v) Another substantial reason that persuades us for holding so, is the mandatory import of the MORTH notification dated 16.09.2011 which now forms of a part of the HSRP Order 2001. A perusal of the said notification dated 16.9.2011 would reveal that only approved manufacturer and supplier can affix the HSRP plates in the vehicle after receiving due authorization from the State Government. In the instant case, respondent No. 5 is neither a approved manufacture or supplier as it does not have ''TAC'' and, therefore, it is also not permissible for the State of H.P. to permit respondent No. 5 to affix the HSRP plates in the vehicle in the State of H.P. in violation of notification dated 16.9.2011.

(vi) Vide above notification, there was clear embargo on sale or transfer of the security features by the approved manufacturer to any third party. In this case, we are informed that the HSRP plates containing all six features as prescribed in Rule 50 of CMVR and the HSRP Order 2001, is provided to respondent No. 5 by respondent No. 3. This too is in blatant violation of notification dated 16.9.2011 but surprisingly the State Government has not taken any action for such violation of law and on the contrary remains mute spectator.

(vii) It also appears very unusual as to why the testing agency, namely, ''ARAI'' is silent on this issue despite clear violations of the provisions of the notification dated 16.9.2011 and despite the fact that the violation of the said notification would entail cancellation of the ''TAC'' that has been given by the approved agency i.e. ARAI in the instant case.

Regarding performance security, we are afraid that we cannot accept the contention of the respondents herein. We have carefully perused clause 2.30 of ''IFB''. Once the letter of acceptance is issued by the State Government on 15.10.2011, the performance security by way of Bank Guarantee to the tune of Rs. 1 crore, had to submitted by the successful bidder. The respondent No. 3 claims to have submitted a performance security in the nature of Bank Guarantee to the tune of Rs. 1 Crore on 17.10.2011 i.e. prior to closing of the three days window period and this ''BG'' was later on withdrawn when respondent No. 5 submitted its own ''BG'' on 12.11.2011, however, we fail to understand how it is permissible? The answer lies in perusing Clause 2.30.1, 2.30.2 and 2.30.3 extracted as above in Paragraph-9. A perusal of the above clauses would reveal that:-

(A) The performance security by way of Bank Guarantee has to be submitted by the successful bidder within three days;

(B) Non compliance of the mandatory provision would entail cancellation of letter of intent or award issued earlier in favour of defaulter party and the tender must be awarded to next lowest bidder.

(C) We are not persuaded by the submission of Mr. Bansal that rigor of Clause 2.30 was mitigated by furnishing a performance security by way of bank guarantee on 17.10.2011 prior to said date of 18.10.2011, by respondent No. 3 and when respondent No. 5 came into existence i.e. incorporated on 31.01.2011, then it submitted its own performance security by way of Bank Guarantee of Rs. 1 Crore on 12.11.2011 and consequently the earlier performance guarantee furnished by respondent No. 3 on 17.10.2011 was "withdrawn".

(D) In our considered view, Clause 2.30 does not admit the interpretation as canvassed by Mr. Bansal. There is absolutely no provision for submission of two Performance Securities or two Bank Guarantees. The said Clause states that a successful bidder must submit its performance security by way of Bank Guarantee and since performance of the contract is to be done by respondent No. 5 alone and not by respondents No. 3 and 4, in fact it was respondent No. 5 which had to furnish the Performance Security by way of Bank Guarantee within three days of the issuance of letter of Acceptance on 15.10.2011. Admittedly no Performance Security was furnished by respondent No. 5 within the expiry of three days period i.e. 18.10.2011. This may also be because of the fact that respondent No. 5 was not even in existence on 18.10.2011 as it came to be incorporated only on 31.01.2011. The State Government has ignored such aspect for the reasons best known to it and has taken material breaches casually. (E) We, therefore, hold respondent No. 5 was supposed to submit its performance security within three days of the issuance of the letter of acceptance, as contemplated in clause 2.30 of the IFB. Admittedly this has not been done and therefore on this count too, notification dated 1.11.2011 and the Concession Agreement dated 15.11.2011 are liable to be set aside.

In Association of Registration Plates (supra), the Hon''ble Supreme Court has held as under:-

The object of the new scheme is to curb the increasing menace of vehicle thefts and their usage in commission of crimes like murder, dacoity, kidnapping, etc. It is felt urgent to check usage of motor vehicles in terrorist activities. The Central Government on the recommendation of its technical Committee has devised a system of high security registration plates which will ensure public safety and security. With the above purpose, Rule 50 of the Motor Vehicles Rules has been amended. Rule 50 was first amended on 28-3-2001, then on 24-9-2001 and lastly on 21-1-2003 w.e.f. 1-4-2004.

The Hon''ble Supreme Court has also observed in the judgment of Association of Registration Plates (supra), as follows:-

Article 14 of the Constitution prohibits the Government from arbitrarily choosing a contractor at its will and pleasure. It has to act reasonably, fairly and in public interest in awarding contract. At the same time, no person can claim a fundamental right to carry on business with the Government. All that he can claim is that in competing for the contract, he should not be unfairly treated and discriminated against, to the detriment of public interest. Undisputedly, the legal position which has been firmly established from various decisions of the Supreme Court is that government contracts are highly valuable assets and the Court should be prepared to enforce standards of fairness on the Government in its dealings with tenders and contractors.

In its order dated 08.05.2008, in Bitta''s case (supra), the three Judges Bench of Hon''ble Supreme Court has observed in WP(C) No. 510 of 2005 as below:-

Needless to say the scheme appears to have been introduced keeping in view the public safety and security of the citizens. Let necessary decisions be taken, if not already taken, within a period of six months from today. While taking the decision the aspects highlighted by this Court in the earlier decision needless to say shall be kept in view.

(a) In reference to issue of cancellation of Letter of Intent (LOI) by State of Uttar Pradesh, we now refer to Annexure XI of the IFB which has been filed by respondent No. 3 in pursuance to clause 2.3.13 of the IFB (i.e. declaration on affidavit as per format at Annexure XI Paras 2 and 3 of affidavit signed by an authorized officer of the bidder) are extracted as herein-below:-

The undersigned also hereby certifies that neither our firm M/s _ nor any of its share holders have abandoned any work on High Security Registration Plates in India or abroad nor any contract awarded to us for such works have been rescinded during last five years prior to the date of this application. (If yes specify reasons for the same).

We certify that we have not abandoned HSRP works in any other State in India. Also no Contract(s) of ours or any of our Share Holders have been cancelled/terminated/revoked by any State in India (If yes, specify reasons for the same).

(b) In the common bid submitted by respondents No. 3 and 4, a certificate has been furnished in terms of clause 2.3.13 and Annexure XI of the IFB which states that no contract of HSRP which has been awarded has been rescinded during the last five years, prior to the date of submission of bid. This undertaking furnished by respondent No. 3 is a fraudulent misrepresentation and in clear violation of the order issued by the Transport Commissioner, Government of Uttar Pradesh dated 15.01.2008. Vide the said office order, Government of Uttar Pradesh, cancelled the letter of intent (LOI) issued in favour of the consortium consisting of respondent No. 3 and M/s Shonkh Technologies International Ltd. (in short M/s. Shonkh) as the latter one (i.e. M/s. Shonkh) was found to have indulged into criminal and anti social activities which violated the terms of the MORTH notification dated 12.06.2006 which is a part of HSRP Order 2001.

(c) The denial by learned counsel for the private respondents that respondent No. 3 never submitted its bid along with M/s. Shonkh in the State of Uttar Pradesh for the HSRP tender of UP in 2003 appears factually incorrect, contrary to the record and misleading. Our intention is invited to the relevant part of the office order issued by the Government of Uttar Pradesh dated 15.01.2008 (Annexure R-9 to the Writ Petition), whereby, the letter of intent/bid, given to M/s. Shonkh relating to High Security Registration Plates Scheme in the State of U.P. was cancelled and there was some confusion whether M/s. Utsav was a part of the consortium with M/s. Shonkh or not, the said office order has returned the finding which is extracted herein below :-

Officer of Shonkh Technology Mr. Ashok Krishan vide his letter dated 13.10.2003 wrote to the department that there is some conspiracy against letter of M/s Utsav Safety Systems and department should give explanation letter before taking any action. M/s Utsav Safety Systems Pvt. Ltd. explained to Transport Commissioner through their letter dated 30.11.2003 that Mr. Ravi Somani and Mrs. Priya Somani are no more Directors of the company which is also available in the record of Registrar of Companies, Bangalore as per document/circular-2. In the letter it was also explained that Mr. Surain Uppal is no more a member of the Board of Directors of the company and he is no more authorized to lead the organization. The company vide its support letter dated 23.6.2003 again confirmed the consortium agreement dated 19.6.2003 done by Shonkh Technology.

(d) In appears that there has been deliberate and willful concealment of this material fact by respondent No. 3 in its Annexure XI, submitted along with the bid, as such, the bid submitted by respondent No. 3 deserves to be disqualified in terms of clause 2.4 of IFB.

(A) Regarding manufacture, sale and affixation of Anti Theft Registration Plate (ATRP), we express our inability to agree with the submissions made by Mr. Bansal, appearing for respondents No. 3 to 5. The contention of Mr. Bansal is contrary to the spirit of HSRP scheme. Respondent No. 3 was well aware of the statutory purpose and intent of amending Rule 50 incorporated the HSRP scheme. The HSRP Scheme consists of the following six essential security features:-

(a) Hot stamped Chromium based Hologram.

(b) Permanent consecutive identification number of minimum 7 digits.

(c) ''IND'' in blue colour.

(d) Non-removable snap lock

(e) Third Registration Plate on the top left hand corner of the three/four wheeler windscreen.

(f) Hot Stamping INDIA inscript Film.

(B) These security features, as quoted above, distinguish the HSRP from the ordinary number plates. The ''ATRP'', sold by respondent No. 3, contains 4 out of the 6 security features. If any entity is permitted to sell the ''ATRP'' or any number plate which contains some or all of the security features which necessarily persists in a ''HSRP'', then the general public would be induced into buying ''ATRP'' without having the knowledge that this ''ATRP'' are not the ''HSRP'' that are required to be affixed under Rule 50 of the CMV Rules and hence the very purpose of ''HSRP'' scheme would stand defeated.

(C) Whereas, during the course of argument, Mr. Fernandes, learned counsel for the petitioner, presented before us a sample of both the ''HSRP'' as well as that of a ''ATRP''. This Court is not able to notice any difference between the two and can only speculate, with serious concern, the plight of the common man. The ''ATRP'' contains four out of the six features provided under ''HSRP'' Scheme and to any man of reasonable prudence, it appears as if ''ATRP'' is indeed ''HSRP''.

We also refer advertising material, issued and circulated by respondent No. 3 itself which forms a part of the record of WP(C) No. 162 of 2010 i.e. Raahat Safe Community Foundation versus Union of India & Others in which, Hon''ble Supreme Court had issued notice, vide its order dated 16.08.2010 (Annexure P-13) to all States and Union Territories including the State of H.P. which is impleaded as respondent No. 10, whereas, M/s. Utsav Safety System (Pvt.) Ltd. i.e. respondent No. 3 in present writ petition and M/s. Automotive Tech are arrayed as respondents No. 40 and 41 respectively in WP(C) No. 162 of 2010. But surprisingly despite issuance of notices to the parties/respondents by Hon''ble Supreme Court in above WP(C) No. 162 of 2010, the State Government did not deem it fit to elicit any response from respondent No. 3 during the Tender Evaluation process.

We have no hesitation in indicating that respondent No. 3 has been manufacturing and selling the ATRPs since the inception of the HSRP Scheme 2001, as is evident from the certificate of the Sale Tax Authority dated 12.10.2010 (Annexure P-7) and as per the annexures contained in WP(C) No. 162 of 2010. Respondent No. 3 has thus indulged in fraudulent practice as contained under clause 2.33 (b) of the IFB.

The attention of this Court was also invited to the contents of the letter dated 08.10.2009 issued by the Central Government (Ministry of Road Transport & Highways) to all the State Governments and Union Territories including the State of H.P., in which, M/s. Utsav was clearly named as selling the ''ATRP''. The State Government also did not take any action on this aspect when it received the bid from respondent No. 3.

In reference to the judgment dated 29.5.2009 (Annexure P-10) of High Court of Rajasthan (DB), passed in CWP (PIL) No. 2463 of 2009 (Maninderjit Singh Bitta versus Union of India & Others, the Central Government vide letter dated 8.10.2009 (Annexure P-11) has communicated to all concerned in paragraphs-6, 7 and 8 as below:-

Recently Hon''ble High Court of Rajasthan, in WP No. 2463 of 2009 - Maninderjit Singh Bitta versus UOI & Ors. Has also directed the State of Rajasthan to ban manufacturing, sale and distribution of counterfeit plates in the State forthwith and to take action against the persons dealing in it. You may, therefore, verify the genuineness of this issue and take suitable action in the matter.

Incidentally, I would also like to inform you that a complaint was recently filed by the Government of Goa against Shri Ravi Somani of Utsav Safety Systems and his local dealer. They were charged with forgery of HSRP, its manufacture and sale. Based on this complaint, the State Police of Goa arrested both the above-mentioned persons.

You would, therefore, appreciate that along with implementation of the scheme of HSRP, the States/UTs would also need to check the practice of sale of fake HSRP. The public may also be appropriately cautioned against ATRP and it would be prudent on your part to advise the public accordingly through print media. I am also enclosing some samples of original and fake HSRP. General public would also need to be educated about the normal number plates as per law in all the States where HSRP has not yet been implemented....

In reference to the violation of the ''TAC'' & Rule 50 of CMVR, it appears that despite the ''TAC'' making it very clear that M/s Utsav shall prefix the PCIN with code ''AA'', M/s Utsav, (respondent No. 3 herein) is selling the ''HSRP'' by using the code ''AAA'' or ''AAHP'' which is clearly impermissible and is in derogation to ''TAC'' and Rule 50 of CMVR. On this aspect too, the State Govt.''s silence and inaction is not appreciable.

We have also given our due consideration to the various judgments referred by Mr. Bansal on the principle of limits of judicial review of administrative action.

In the case of Tata Cellular Vs. Union of India, the Hon''ble Supreme Court has traced out the background of judicial review of administrative action and the parameters have also been indicated, which still hold the field and are guiding factors:-

It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.

Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review.

Lord Scarman in Nottinghamshire County Council v. Secretary of State for the Environment proclaimed :

Judicial review'' is a great weapon in the hands of the judges; but the judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficial power.

Commenting upon this Michael Supperstone and James Goudie in their work Judicial Review (1992 Edn.) at p. 16 say :

If anyone were prompted to dismiss this sage warning as a mere obiter dictum from the most radical member of the higher judiciary of recent times, and therefore to be treated as an idiosyncratic aberration, it has received the endorsement of the Law Lords generally. The words of Lord Scarman were echoed by Lord Bridge of Harwich, speaking on behalf of the Board when reversing an interventionist decision of the New Zealand Court of Appeal in Butcher v. Petrocorp Exploration Ltd. 18-3-1991.

Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court''s ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action.

74-76. X X X

The duty of the court is to confine itself to the question of legality. Its concern should be :

Whether a decision-making authority exceeded its powers?

Committed an error of law,

committed a breach of the rules of natural justice,

reached a decision which no reasonable tribunal would have reached or,

abused its powers.

Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. 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 decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety.

The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. 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.

78-93. X X X

The principles deducible from the above are:

(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 fair play 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 New Horizons Limited and Another Vs. Union of India (UOI) and Others, the petitioner before the Hon''ble Supreme Court disqualified from the tender process and had lost in his challenge before the Delhi High Court, however, Hon''ble Supreme Court has not only set aside the decision of the administrative authority but also the judgment of Delhi High Court (DB) with observations as below:-

Thus the approach from the legal standpoint also leads to the conclusion that for the purpose of considering whether NHL has the experience as contemplated by the advertisement for inviting tenders dated 22-4-1993, the experience of the constituents of NHL, i.e., the Indian group of companies (TPI, LMI and WML) and the Singapore-based company, (IIPL) has to be taken into consideration. As per the tender of NHL, one of its Indian constituents (LMI) had printed and bound the telephone directories of Delhi and Bombay for the years 1992 and its Singapore-based constituent (IIPL) has 25 years'' experience in printing the telephone directories with "yellow pages" in Singapore. The said experience has been ignored by the Tender Evaluation Committee on an erroneous view that the said experience was not in the name of NHL and that NHL did not fulfil the conditions about eligibility for the award of the contract. In proceeding on that basis the Tender Evaluation Committee has misguided itself about the true legal position as well as the terms and conditions prescribed for submission of tenders contained in the notice for inviting tenders dated 26-4-1993. The non-consideration of the tender submitted by NHL has resulted in acceptance of the tender of Respondent 4. The total amount of royalty offered by Respondent 4 for three years was Rs. 95 lakhs whereas NHL had offered Rs. 459.90 lakhs, i.e., nearly five times the amount offered by Respondent 4. Having regard to this large margin in the amount of royalty offered by NHL and that offered by Respondent 4, it must be held that decision of the Tender Evaluation Committee to refuse to consider the tender of NHL and to accept the tender of Respondent 4 suffers from the vice of arbitrariness and irrationality and is liable to be quashed.

We have been informed that while the matter was pending in the High Court and in this Court the telephone directory for the year 1993 has been printed and supplied to the Department by Respondent 4 as per terms of the contract. Insofar as the directory for the year 1994 is concerned we find that, as per the terms of the contract, the process for preparation of the telephone directory has already commenced. We cannot lose sight of the fact that as a result of quashing of the contract in respect of the directory for 1994 fresh steps will have to be taken to award a fresh contract and the said process would take some time and thereafter the contractor will require time to print and publish the telephone directory. It would, therefore, not be feasible to bring out the directory for 1994 before the close of the year. As a result, the Department would suffer loss of revenue which it would otherwise earn by way of royalty from Respondent 4 for the directory for the year 1994. Insofar as the contract in respect of the year 1995 is concerned there is sufficient time for the Department to award a fresh contract if the contract awarded to Respondent 4 is cancelled and the new contractor will have sufficient time at his disposal to print and deliver the directory as per the time schedule. Moreover, in respect of the directory for the year 1995 the amount of royalty that is payable by Respondent 4 is Rs. 45 lakhs and the amount of royalty offered by NHL for the directory for the said year was Rs. 291.6 lakhs. Keeping in view the circumstances referred to above, the course that commends us is that, while maintaining the contract awarded to Respondent 4 in respect of the directories for the years 1993 and 1994, the said contract may be set aside insofar as it relates to the directory for the year 1995 and fresh tenders may be invited for award of the contract for the directory for the year 1995. The appeal filed against the judgment and order of the Delhi High Court dismissing the writ petition of the appellants must therefore, be allowed in the above terms. The other appeal has been filed by the appellants against the order of the Delhi High Court dismissing CM No. 6120 of 1993 which was an application for an interim relief during the pendency of the writ petition in the High Court. In view of the final order that is being passed in the writ petition the application for interim relief has become infructuous and the appeal against the order dismissing CM No. 6120 of 1993 must, therefore, be dismissed as infructuous.

In Air India Ltd. Vs. Cochin Int., Airport Ltd. and Others, the Hon''ble Apex Court held:-

The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India, Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, CCE v. Dunlop India Ltd., Tata Cellular v. Union of India, Ramniklal N. Bhutta v. State of Maharashtra and Raunaq International Ltd. v. I.V.R. Construction Ltd. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene.

In Jagdish Mandal Vs. State of Orissa and Others, , at page 530, the Hon''ble Supreme Court explained the concept of interference in the tender matters, inter-alia on the public interest aspect:-

Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. 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 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 up 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 mala fide 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.

The Hon''ble Supreme Court in Tejas Constructions & Infrastructure Pvt. Ltd. (supra), has found no mala-fides or arbitrariness in process of evaluation of bids and determination of eligibility of bidders in view of the observations made in Para-21, which is extracted as below:-

To the same effect is the decision of this Court in Master Marine Services Pvt. Ltd. Vs. Metcalfe and Hodgkinson Pvt. Ltd. and Another, and Jagdish Mandal Vs. State of Orissa and Others, where this Court laid down the following tests for judicial interference in exercise of power of judicial review of administrative action:-

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 mala fide 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. If the answers are in the negative, there should be no interference under Article 226.

If we apply the principles of Cochin International Airport Ltd. (supra) and Jagdish Mandal (supra), to the facts of the present case, it is clear that the instant tender has tremendous public interest of wide ramifications. The very conception of the HSRP scheme was to curb anti-national and criminal activities. In our considered view, the public interest demands scrutiny and interference by this Court in the present case.

While referring the earlier decisions like Raunaq International Limited Vs. I.V.R. Construction Ltd. and Others, , Union of India (UOI) and Another Vs. International Trading Co. and Another, and Reliance Airport Developers Pvt. Ltd. Vs. Airports Authority of India and Others, the Hon''ble Supreme Court in Michigan Rubber (India) Ltd. (supra) has observed as below:-

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 mala fide 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"; and

(ii) Whether the public interest is affected.

If the answers to the above questions are in negative, then there should be no interference under Article 226.

In our considered view, the judgment of Hon''ble Supreme Court in Vodaphone International Holding BV (supra) is not protecting the case of the petitioner as the facts and circumstances of that are different and distinguished. In view of the judgment of Hon''ble Supreme Court in Association of Registration Plates (supra), the tender conditions are unassailable, unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, however, it is pertinent to mention that the present petitioner has not challenged the tender conditions.

We are conscious of the law laid down and observations of Hon''ble Supreme Court made above, however, we also cannot close to our eyes to the illegality, arbitrariness, unreasonableness and procedural impropriety writ large in the case in hand. Severe and material violations of the ''IFB'' stand committed by the State Govt. which have adversely prejudiced the public interest.

Mr. Bansal had argued that the HSRP contracts of the Petitioner-Company herein have been cancelled in the States of Bihar and Jharkhand respectively, therefore, the petitioner - company herein is ineligible to maintain and prosecute the instant writ petition. We do not appreciate such submissions for the reason that the Private Respondents No. 3 to 5, on whose behalf Shri Bansal argued, have not instituted the instant proceeding seeking disqualification of the Petitioner-Company from the evaluation process in the State of Himachal Pradesh on the grounds that its HSRP contracts have been cancelled in the States of Bihar and Jharkhand. It is the Petitioner-Company which is the dominus litus in the instant proceeding and it is not open for any of the respondents seeking a writ or any order or direction against the petitioner in the instant proceeding. At best, the respondents can plead for dismissal of the instant writ petition. The grounds urged by the respondents regarding cancellation of the HSRP contracts of the Petitioner Company in Bihar & Jharkhand are not relevant to the instant proceeding because on the date when the Petitioner-Company submitted its bid and the said bid was scrutinized and evaluated on 03.10.2012, none of the HSRP contracts of the Petitioner-Company were terminated. Therefore, no fault can be placed at the doorstep of the State Government for declaring the Petitioner-Company as technically eligible. As things stand today, the Petitioner-Company has been declared technically eligible and based on its financial bid, has been declared as L-2. Moreso, as submitted for the petitioner herein that the Petitioner Company has challenged its cancellation of the HSRP contracts before the High Courts of Patna and Jharkhand respectively and it would not be appropriate for us to pass any further comment as the two Hon''ble Courts are in seisin of the lis.

The petitioner herein preferred a SLP No. 18101/2012 (M/s. Agros Impex (I) P. Ltd. through M.D. versus State of Bihar & Others) against the judgment and order dated 16.5.2012, passed in CWJC No. 9765/2012 of High Court of Patna, wherein the Hon''ble Supreme Court vide order dated 11.6.2012, while disposing of the Special Leave Petition, has been pleased to pass the following order:-

Since the challenge is against the interim order granted, we find no reason to entertain this special leave petition. All the same, it is open to the parties to raise all their contentions before the High Court. Further, we are not expressing any opinion on the merits of the case. This Court''s order was only to see that the scheme for implementation of the High Security Registration Plates be not delayed. The SLP is, accordingly, disposed of.

If respondents No. 3 to 5 have any grievance against the eligibility of the Petitioner-Company, due to events which have happened after the evaluation of the Petitioner-Company''s bid in the State of Himachal Pradesh i.e., cancellation of the HSRP contract of the Petitioner -Company, which have taken place in the year 2012 in the States of Bihar and Jharkhand, much after the evaluation process concluded in the state of Himachal Pradesh, it was the choice of private respondents to seek independent legal remedies as advised under law, however, there is no occasion for the respondents to raise such pleas during the course of present writ petition.

Another aspect and reason that we are not appreciating the submissions of the private respondents pertaining to the technical eligibility of the Petitioner-Company, is that the judgment dated 11.9.2012 rendered by the High Court of Punjab & Haryana in CWP No. 2186 of 2011 (M/s. Utsav Safety Systems Pvt. Ltd. versus State of Punjab & Others). The respondent No. 3 as the writ petitioner in the above mentioned writ petition has challenged the decision of the State of Punjab to award HSRP contracts to the Petitioner-Company herein. However, vide Judgment and Final Order dated 11.09.2012, Punjab & Haryana High Court (DB) has dismissed the writ petition filed by respondent No. 3 herein. The contention raised by the private respondents in their reply in the instant petition, were similar to the contentions raised by it in CWP No. 2186 of 2011. A Division Bench of Hon''ble High Court of Punjab & Haryana has had the occasion of extensively and exhaustively considering the pleas made by respondent No. 3 against the petitioner-company and rejected the same by way of a detailed judgment, we too have no occasion to ignore the observations made therein, however, we do not appreciate the submissions of the petitioner herein that the above judgment dated 11.9.2012 of Punjab & Haryana High Court would also operate with constructive res-judicata as the parties (namely, respondent No. 3 and the petitioner herein) are similar.

The contention of the private respondents that the writ petition is to be dismissed on the ground of delay and laches alone as the petitioner has approached this Court by a delay of more than eight months from the allocation of tender work to the private respondents. We have carefully considered all aspects of the matter. The issue of delay in filing the writ petition was considered by the Hon''ble Supreme Court in Smt. Sudama Devi Vs. Commissioner and Others, wherein the Hon''ble Supreme Court has observed as under:-

There is no period of limitation prescribed by any law for filing the writ petition under Article 226 of the Constitution. It is, in fact, doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt that no such period of limitation can be laid down either under the rules made by the High Court or by practice. For every case, it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner.

Similarly, in State of U.P. and Others Vs. Raj Bahadur Singh and Another, the Hon''ble Supreme Court held that "there is no time limit for filing the writ petition. All that the Court has to see is whether the laches on the part of the petitioner are such as to disentitle him to the relief claimed by him." However, in subsequent judgments also, the Hon''ble Supreme Court in Northern Indian Glass Industries Vs. Jaswant Singh and Others, and The Printers (Mysore) Ltd. Vs. M.A. Rasheed and Others, has observed that the delay and laches are not to be ignored by the High Court.

While dealing with the matter of Land Acquisition Act, 1894, Hon''ble Supreme Court in Bangalore City Cooperative Housing Society Ltd. Vs. State of Karnataka and Others, , has observed that rule against laches is one of the self imposed restraint and not a strict rule of limitation and has also observed in Para-14 as below:-

After lapse of long time, the President of the appellant submitted memorandum dated 17.9.1987 to the Joint Registrar, Cooperative Societies (for short, ''the Joint Registrar'') stating therein that the appellant had engaged M/s. Manasa Enterprises (Estate Agent) for procuring 250 acres land from the landowners. The copies of agreements dated 1.6.1984 and 4.12.1984 executed with M/s. Manasa Enterprises were also submitted along with the memorandum. Along with letter dated 26.3.1987, the appellant furnished additional information to the Joint Registrar. The appellant''s application was considered in the meeting of the TMC held on 5.10.1987 and the Joint Registrar was asked to conduct verification of the information supplied by the appellant.

In the present case, the concession agreement was awarded on 15.11.2011 in favour of the private respondents and the petitioner as well as respondents were also litigating in different High Courts as well as in the Supreme Court in different matters. It appears the petitioner was not in a position to procure the information and relevant documents pertaining to the present bid in question and taking out the relevant documents for filing the writ petition might have taken little more time, in the facts and circumstances, the present petition is not to be dismissed on the hyper-technical point of delay and laches alone. In the facts and circumstances, though repeatedly learned counsel for the private respondents has tried to impress this Court to dismiss the writ petition on the ground of delay and laches, however, the Court was not impressed with such submission advanced on behalf of the private respondents, therefore, the petitioner was not asked to specifically address on this point alone.

We have carefully examined the records of the case and in our considered view, in the peculiar facts and circumstances, the present writ petition is not to be dismissed alone on the technical point of delay and laches as the matter is of importance from the point of view of public interest and regarding examining the illegality, unreasonableness and arbitrariness of the decision making process of the State Government.

In view of the foregoing discussion and analysis made above, our observations about the points formulated by us in paragraph-23 above are given herein as follows:-

(i) The State Government ought to have rejected the common bid submitted by respondents No. 3 and 4 for violation of the various provisions of IFB relating to Power of Attorney/Board Resolution, for non availability of manufacturing facility, non submission of Performance Security by way of Bank Guarantee in time, concealment of cancellation of the Letter of Intent by the UP Government, violation of Type Approval Certificate (TAC) and Rule 50 of CMVR, 1989 and admitted sale of ''ATRP'' using the security features and concealing the said information which tantamount to fraudulent practice under Clause 2.33 (b) of the ''IFB'' which entails disqualification under Clause 2.4 of the IFB, as such, the point No. 1 is dealt in affirmative.

(ii) The implementation of HSRP Scheme in the State of Himachal Pradesh by respondent No. 5 violates the HSRP Scheme as contained in Rule 50 of the CMVR and HSRP Order of 2001 as amended by Notification dated 16.09.2011 as well as the direction contained in the order dated 08.12.2011 of the Hon''ble Supreme Court in WP(C) No. 510 of 2005 on the ground that the Respondent does not hold a valid ''TAC'' and is, therefore, ineligible to deal with security features and implement HSRP Scheme in the State of Himachal Pradesh, as such, point No. 2 is dealt in affirmative.

(iii) The selection of the private Respondents is indeed vitiated by non-application of mind and non-consideration of the relevant materials. We cannot expect anything better when the State Government in a display of un-seemly haste "evaluated" and "scrutinized" the bid documents submitted by four (4) bidders running into thousands of pages in barely 24 hours, as such, point No. 3 is dealt in affirmative.

In course of the decision making process the State of H.P. in awarding the contract i.e. concession agreement on 15.11.2011 (Annexure P-6) in reference to letter of intent dated 11.10.2011 (Annexure P-3) has made in high haste, arbitrary and unreasonable manner with intention to favour private respondents. In these circumstances, this Court is interfering in the decision making process of the State of H.P. in public interest.

Since the answer of above three points of paragraph 23, mentioned above, have been dealt with in the affirmative, then question arises as to what consequential remedies this Court should grant in the present case. This Court, inter-alia, considering the prayers of the petitioner has also power to mould the relief as required in the facts and circumstances of the case in view of the observations made by the Hon''ble Supreme Court in B.C. Chaturvedi Vs. Union of India and others,

We also take note of the submissions of learned counsel of the petitioner, during the course of arguments, who has fairly submitted, in response to the query posed by us, that if this Court is pleased to hold that the Award of the HSRP Contract in favour of the private respondents deserved to be quashed and set aside, then this Hon''ble Court may be pleased to provide the State Government with any of the following two options:-

(a) Invite the Petitioner-Company, which is L-2 to implement the said project or in the failure of the petitioner-Company to do so, the next lowest bidder i.e., L-3 can be similarly invited to implement the Scheme.

(b) Cancel the entire tender process and go for de novo tender process.

We could have given liberty to the State Government to adopt either of the two courses of action as suggested by learned counsel for the petitioner, however, we refrain from giving liberty to the State Government to exercise the second option, i.e., de novo tender process, in view of the repeated orders and directions passed by the Hon''ble Supreme Court in Bitta''s case (supra). As already noted above, the Hon''ble Supreme Court has been passing repeated directions in Bitta''s case (supra), to all the State Governments and Union Territories to expeditiously implement the HSRP Scheme which has come into force since the year 2001. If the State Government was to go for a de novo tender process, then it would inevitably further delay the implementation process, which was started with much difficulty in the State of Himachal Pradesh, more than 11 years after the introduction of HSRP Scheme in the year 2001. We are also fully conscious of the directions passed by the Hon''ble Supreme Court in its order dated 08.12.2011 and 07.02.2012 (Annexure C-15), in WP(C) No. 510/2005, wherein, time was granted to the State of Himachal Pradesh to implement ''HSRP'' Scheme on or before 15.06.2012.

In the light of the discussion and analysis, made herein-above and taking a broader view in the facts and circumstances of the instant case as well as keeping in view the observations passed by the Hon''ble Supreme Court and also to ensure least inconvenience to the motor vehicle owners in the state of Himachal Pradesh, we issue following directions:-

(I) The decision of the Government of Himachal Pradesh to declare the consortium of respondents No. 3 and 4 as technically eligible is set aside and consequently Letter of Intent dated 11.10.2011 (Annexure P-3) and the letter of acceptance by the State Government dated 15.10.2011, concession agreement (award of contract) dated 15.11.2011 (Annexure P-6) by the State Government in favour of respondent No. 5 are also set aside. The notification dated 01.11.2012 and Concession Agreement dated 15.11.2011 by the State Government in favour of respondent No. 5 is also set aside.

(II) Respondent No. 5 is directed to vacate the RTO and DTO premises and hand over all records and data in complete manner back to the Transport Department/Government of Himachal Pradesh back expeditiously.

(III) The State Government is directed to examine the case of the petitioner (and in case not finding it suitable, to take into consideration the case of the next lowest bidder) and finalize the ''LOI'' and Concession Agreement, within two months, so that the implementation process of ''HSRP'' may be made in favour of the petitioner or the next lowest bidder strictly in accordance with their ranking obtained after opening of the Financial Bid.

(IV) The finalization of the bid and Concession Agreement in respect of implementation of ''HSRP'' shall be finalized in favour of the petitioner or the next lowest bidder on the same rate as being performed by respondent No. 5.

(V) Till the Letter of Intent and awarding of contract and Concession Agreement is finalized in favour of the petitioner or the next lowest bidder, as indicated in para

(III) above the arrangement of implementation process of

''HSRP'' by respondent No. 5 shall continue.

In view of the above observations, the Writ petition is allowed without costs.