Fairfest Media Private Limited & ... vs Union Of India & Others
2000 Latest Caselaw 27 Del

ORDER

C.M. Nayar, J.

1. The present petition has been filed for issuance of a writ of mandamus against respondent No.1 to consider the petitioners for endorsement/approval for Travel and Tourism Fair 2000 (for short TTF) being organized on the basis of the tender notice issued by Respondent No. 1 and for issuance of a further writ for setting aside the bid dated 22nd April, 1999 settled in favour of Respondent No. 3 for organising India Tourism Week-2000 and for quashing the appointment of Respondent No. 3 as Event Manager.

2. The pleas raised in the petition arise out of the tender notice which is filed as Annexure-P17. The said notice reads as follows:-

"TENDER NOTICE

MINISTRY OF TOURISM GOVERNMENT OF INDIA INVITES BIDS

For appointment of an Event Manager For Organising India International Travel Expo & Mart (IITEM) During 2000, 2001 & 2002

On a No-Cost basis to the Government

The parties with proven credentials in the field of organising Tourism related Expositions, interested in bidding for organising IITEM are advised to collect the Tender Documents from the Director (OM), Room No.118, Transport Bhawan, Parliament Street, New Delhi-110001 on or before 28.4.1999. The Bids which should be accompanied with a refundable Earnest Money Deposit of Rs. 25,000/- shall be accepted till 1500 hrs on 29.4.1999."

3. The tender document was supplied to the eligible parties including the petitioners and Respondent No. 3 and is filed as Annexure-P19 to the writ Petition. The conditions as enumerated therein may also be reproduced as under :-

"TENDER DOCUMENT

TENDER NO.15 TP (28) 99 Pt.

The Ministry of Tourism requires the service of a professional Event Manager Agency to organise travel expositions (India International Tourism Expo & Mart) for January 2000/2001/2002. This exposition will be a part of the India Tourism Week, an annual event of the Ministry of Tourism, scheduled for January 19-25, each year.

OBJECTIVES:-

It is the endeavour of the Ministry of Tourism to develop this Mart as one of the biggest Travel Marts of the world.

To promote Tourism in the Domestic and International Tourism Markets.

To create aware in India of Tourism products.

Only capable parties having the commitment and desire to achieve these objectives need apply.

SCOPE OF WORK - All items of work relating to organising the Expo. This will include items such as :-

Arranging for space for the Mart at ITPO

Fabrication of the booths

Marketing product to sellers (in India and abroad) i.e. travel trade, media, State Govts., NTOs of other countries.

Publicity to the event to make it a success.

Organising seminars and workshops to synchronise with the mart.

IMPORTANT POINTS FOR THE TENDERER

The bids should be accompanied with the following:-

A refundable earnest amount of Rs. 25,000/- through a Demand Draft drawn in favour of PAO, Ministry of Tourism, New Delhi.

Credentials in respect of similar jobs entrusted in the past.

Company Profile, including profile off staff employed in India and abroad. Details of office in Delhi is mandatory.

The organiser shall act as an Event Manager of the Mart/Exposition under the banner of the Ministry of Tourism.

The agency will undertake to generate the entire resources for the show including the charges for space, structure, seminars, workshop etc.

The agency will make efforts to attract at least 200 buyers from overseas.

All business risk will be borne by the Agency.

The Agency will arrange for adequate publicity at its own cost.

Efforts in seeking sponsorships and exhibitors will be in the letter and spirit of public policy.

Selected agency will have to provide a minimum guarantee of Rs. 2.5 lakhs in the form of bank guarantee.

The selected agency shall place a net profit of over 10% at the disposal of the Ministry of Tourism, to be utilised for development of tourism.

Tenderers should submit their bid in a cover sealed clearly circumscribed "Bid for IITE&M 2000/2001/2002 by 1500 hr on 29.4.99, to Director (OM) # 118, Transport Bhavan Parliament Street, NEW DELHI.

Please note: The Ministry of Tourism reserves the right to accept or reject any offer without assigning any reasons."

4. The learned counsel for the petitioners has vehemently contended that the petitioners are duly qualified to participate in the event and have submitted their bid in accordance with the tender notice as well as the tender document whereas respondent No. 3 has neither clarified its offer nor has submitted a bid in conformity with the conditions as contained in the tender document. Particular reference is made to the following condition:

"The selected agency shall place a net profit of aver 10% at the disposal of the Ministry of Tourism, to be utilised for development of tourism."

5. On interpretation of this condition it is submitted that respondent No. 3 has merely given lumpsum guarantee and has nowhere complied with the condition that it shall place a net profit of over 10% at the disposal of the Ministry of Tourism. The learned counsel has therefore, argued that the offer of respondent No. 3 could not be consider as the offer of the petitioners is definitely higher and, therefore, they are entitled to the award of contract. Counter affidavit has been filed by respondent No. 1 wherein the allegations as made in the petition are denied and it is submitted by learned counsel for the said respondent that a fair chance was given to the petitioner in the selection of Event Manager for India Tourism Week and on comparative analysis of the offers of each short listed party respondent No. 3 was selected. The comparative statement of short listed agencies has been produced in Court and the offers of the petitioners as well as of respondent No. 3 may be reproduced as below:-

                     YEARS    TAFCON      CSP       ITE      TTF
     NO OF STALLS   2000     300         350       300      300
                    2001     420         400       400      400
                    2002     588         450       500      500
     NO OF BUYERS   2000     300 or      0         200      200
                             More
                    2001     NA          0         250      250
                    2002     NA          0         350      300
     UPFRONT        2000     Rs.10       Rs.11     10%of    Rs.2.50
     PAYMENT        lakhs    lakhs       net       Lakhs    or 5%
                                                            profit 
                                                            total 
                                                            stall
                    2001     Rs.15       Rs.13     do       sale or
                             lakhs       lakhs              whichever 
                    2002     Rs.20       Rs.15     do       is more
                             lakhs       lakhs
     BOOTH COST     2000     Rs.6500     Rs.55,000 Rs.6000  Rs.7000
                             USD 300     USD1500   per sqm per sqm
                             per Sqmtr
                    2001     Rs.7000/    Rs.60,000 Rs.6500  Rs.7500
                             USD 300     USD1650   per sqm  per sqm
                             per Sqmtr
                    2002     Rs.7000/    Rs.65,000 Rs.7000  do
                             USD 300     USD 1750  per sqm 
                             per Sqmtr"

 

6. The final offer of the petitioners is contained in communication dated 25th May, 1999. The guarantee upfront payment of the petitioners is contained in paragraph 3 of this communication which may be reproduced as below:-

"3. Guaranteed upfront payment (in Rs.) to the Ministry of Tourism Rs.2,50,000/- Rs. 2,50,000/- Rs. 2,50,000/-

     (Rupees Two Lakh    Rupees Two Lakh     Rupees Two Lakh
     Fifty Thousand)     Fifty Thousand)     Fifty Thousand)
     OR                  OR                  OR
     5% of               5% of               5% of 
     total stall         total stall         total stall
     charges             charges             charges
     collected,          collected,          collected,
     whichever           whichever           whichever          
     is higher           is higher           is higher"

 

7. The learned counsel for the petitioners has, however, contended that the above said offer was in addition to the earlier offer guaranteeing minimum payment of above 10% of net profit to be placed at the disposal of the Ministry of Tourism. The offer of respondent No. 3 is contained in the communication dated 28th May, 1999. Paragraph 3 of this letter reads as below :-

"3. We only reiterate our terms of the original tender that the Guaranteed Payment to the Ministry of Tourism, irrespective of the booking of stalls and our profits, will be Rs.10 Lakhs, Rs.15 Lakhs & Rs.20 Lakhs respectively during IITEM 2000, 2001 & 2002."

8. The learned counsel for Union of India has also produced the record before this Court to show that proper consideration of the bids of the petitioners as well as of respondent No. 3 has been done and there is application of mind in assessing the criteria and consideration on the basis of the tender notice as well as the conditions as contained in the tender document at all stages. The petitioners were short listed but some how the bid of respondent No. 3 was found more receptive and, therefore, the said respondent was awarded the contract. He has also clarified that there is no by-passing the minimum guarantee of placing of net profit of over 10% at the disposal of the Ministry of Tourism to be utilised for development of tourism though respondent No.1 has also submitted the lumpsum amount of Rs.10 lakhs, 15 lakhs and 20 lakhs for the years 2000, 20001 and 2002. The lump sums offered will not imply that the condition of over 10% of net profit is waived and it is submitted that respondent No. 3 will pay the amount or amounts for the respective years whichever are higher.

9. The law is very clear on the subject that this Court in exercise of jurisdiction under Article 226 of the Constitution of India is not concerned with reviewing the merits of the decision in support of which the application for judicial review is made but the decision making process itself. The judgment reported as Tata Cellular Vs. Union of India clearly elucidated the law on the subject and the Court does not sit as a Court of appeal to merely review the manner in which the decision is made. Paragraphs 77 and 94 of this judgment may be reproduced as below:-

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

1. Whether a decision-making authority exceeded its powers?

2. Committed an error of law.

3. Committed a breach of the rules of natural justice,

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

5. Abused its powers.

Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment 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."

"94. 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 order 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.

Based on these principles we will examine the facts of this case since they commend to us as the correct principles."

10. The petition also raises questions of fact which cannot be adjudicated in writ jurisdiction. Therefore, it will not be open for this Court to interfere in the facts and circumstances of the present case. The petition as a consequence is dismissed in limine. There will be no order as to costs. It will, however, be open for the petitioners to take recourse to any other remedy in case it is available to them in accordance with law.

11. Let copy of the Order be given Dasti to counsel for the parties.