Pasayat, J.
1. As the three writ applications involve identical disputes, they are taken up together. Petitioner in each case questions settlement of contracts in respect of computerisation of land records of several districts of the State. Petitioner Dillip Kumar Patnaik, petitioner in O.J.C. No. 11482 of 1997 makes grievance in respect of Ganjam district whereas Ashok Agarwalla, petitioner in O.J.C. No. 17194 of 1997 makes grievance in respect of districts of Cuttack, Jajpur, Jagatsghpur, Kendrapara, Puri, Khurda, Nayagarh, Dhenkanal, Angul and Boudh. Petitioner M/s Computer Action Pvt. Ltd. in O.J.C. No. 3949 of 1998 makes grievance in respect of districts of Ganjam, Gajapati. Dhenkanal and Angul.
2. Common background facts as presented by the petitioners are as follows:
The Director of Land Records and Survey, Orissa, Cuttack wrote to various concerns intimating them about the computerisation of land records for various districts. For this purpose it was proposed to entrust the Data Entry work to private Data Entry Houses. A draft lender proforma was enclosed. Suggestions for additions and alterations were requested to be furnished. Subsequently tender notice was published in the daily 'Samaj' dated 25-8-1996 inviting tenders from reputed Computer Data-Entry Houses for computerisation of record-of-rights in respect of six districts. Petitioners submitted their tender papers indicating therein some general terms and conditions. Requisite papers and security amount were deposited and the prices were quoted. Petitioner in each case along with others were invited for negotiation. During negotiation petitioners, and others who attended the same were forced to agree to complete the work at the rate of Rs. 2.80 paise, though the rates in respect of different categories were quoted at higher figures earlier. Subsequently the petitioners objected to the modalities adopted and requested for re-consideration of the matter. While the matter stood thus, without considering the prayer of petitioners for reconsideration and without giving any further hearing, attempts are being made to settle the work after negotiation with some other persons. Petitioners are ready and willing to negotiate if opportunity is given.
3. Several persons have filed applications to be added as intervenors, taking the stand that they have been already allotted the work. Further the averments made are not factually correct. In the counter affidavit filed by the State and its functionaries, it has been stated that 49 tenders were received, and those were placed before the State Level Tender Committee on 16-12-1996. It was noticed that the rates quoted by different tenderers varied from Rs. 0.35 paise to Rs. 12.82 paise and because of such wide variance, the matter was referred to National Information Centre (in short, 'NIC') for opinion. The Senior System Analyst of NIC gave a calculation that the minimum workable rate would be Rs. 1.48 paise for 100 characters. Considering the same, the State Level Tender Committee in its meeting held on 26-3-1997 decided to circulate the details of work involved, consumable, data cartridge, gist terminal etc. required and calculation sheet of minimum workable rates as given by NIC to all the tenderers. They were required to quote their rates and to give their final offers by 30-4-1997 along with necessary earnest money deposit (in short, 'EMD'), and preference of districts. All the petitioners were given opportunity. Petitioner Diliip Kumar Patnaik had submitted tender without depositing EMD and had indicated that same shall be deposited at the time of accepting the work order. Though he had not deposited the EMD, he was given opportunity along with others to indicate his rates. Rates quoted by the petitioners in respect of different districts are as follows:
Dillip Kumar Patnaik (OJC NO. 11482/97)Rs. 3.65 paise for Ganjam districtRs. 3:80 paise for the districts other than Ganjam.Ashok Agarwalla (OJC No. 17194/97)Rs. 3.65 paise for category I districtsRs. 3.80 paise for Category II districts.Rs. 3.95 paise for Category III districts.M/s. Computer Action Pvt. Ltd.For the districts of Jagatsinghpur, Kendrapara, Dhenkanal & Angul-Rs. 2.78 paise
For Cuttack district-Rate will be less than two paise as per last offer price given by the party.
It had submitted tender at the rate of Rs. 3.35 paise for 100 character
The tenders received were opened on 6-5-1997. Rate offered by one Scion Computers (opposite Party No. 3 in O.J.C. No. 11482 of 1997 was 1.3.49 for Ganjam as well as other districts. The Director of Land Records and Survey has been authorised by the State Level Tender Committee in its meeting held on 23-5-1997 to make negotiation with the firms offering lowest rates fixed for different groups of districts. On negotiation the aforesaid M/s. Scion Computers (Opp. Party No. 3 in O.J.C. No. 11482/97) agreed to do the work for Ganjam district at the rate of Rs. 2.80 paise for 100 characters fixed by the State Level Tender Committee while the other firm, viz; M/s. Network International, Bhubaneswar preferred another district. That very day, Opp. Party No. 2 annouced that M/s. Scion Computers was selected for the work in respect of Ganjam district. The tender was an open competition among the bidders, and those who had quoted lowest rates were called for negotiation, as negotiation with all the offerers would not have fetched any positive result, as no decision could have been arrived at had many ot the firms opted to do the work at the rate fixed, i.e. Rs. 2.30 paise. As a joint representation was received stating that the rate of Rs. 2.80 paise was imposed on them, fresh negotiation should be made.
4. The scope of judicial review in matters of administrative decision has been highlighted by the Courts in many cases. In recent times the distinction between administrative orders and judicial or quasi-judicial orders have practically ceased to exist in view of primacy of the rule of law. The point that falls for determination is the scope for judicial interference in matters of administrative decision. Administrative action is stated to be referable to broad area of Government activities in which the repositorise of power may exercise every class of statutory function of executive, quasi-legislative and quasijudicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. See, State of U.P. v. Renusagar Power Co., AIR 1988 SC I737.At one lime, the traditional view in England was that the executive was not where its action was attributable to the exercise of prerogative power. Professor De Smith in his classical work 'Judicial Review of Administrative Action' 4th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority mustgenainely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising a discretion in each individual cases. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not arbitrarily or capriciously. These several principles can be conveniently grouped in two main categories; (i) failure to exercise a discretion; and (ii) excess or abuse of discretionary power. The two classes are not, however, actually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body insets ultra vires.
The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those class of cases which relate to deployment of troops entering into international treaties, etc. The distinctive features of some of these recent cases signify the willingness of the Courts to assert their power to scrutinise the factual bases upon which discretionary powers have been exercised. Judicial review has developed to a stage today when, without reiterating any analysis of the steps by which the development has come about. One conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is 'illegality', the second 'irrationality' and the third 'procedural impropriety'. These principles were highlighted by Lord Diplock in, Council of Civil Service Union v. Minister for the Civil Services, (1984) 3 All ER 935. If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as mainfestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous such exercise of power will stand vitiated. See Commissionerof Income-tax v. Mahindra & Mahindra Ltd., AIR 1984 SC 1182 : (1983 Tax LR 1286). The effect of several decisions on the question of jurisdiction has been summed up by Grahms Alsdous and John Alder in their book 'Applications for Judicial Review. Law and Practice' thus:
'There is a general presumption against ousting the jurisdiction of the Courts, so that statutory provisions which purport to exclude judicial review are constructed restrictively. There are however, certain areas of governmental activity national security being the paradise, which the Courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the Government's claim is bonafide. In this kind of non-justiciable are a judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal prerogative are inherently unreviewable but since the speeches of the House of Lords in Council of Civil Service Union v. Minister for the Civil Service this is doubtful. Lords Diplock, Scorman and Roskill appeared to agree that there is no general distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject-matter of a particular power, in that case national security. Many prerogative powers arc in fact concerned with sensitive, non-justiciable areas for example foreign affairs, but some are reviewable in principle, including the prerogatives relating to the civil service where national security is not involved. Another non-justiciable power is the Attorney- General's prerogative to decide whether to institute legal proceedings on behalf of the public interest.'
Also see Padfield v. Minister of Agriculture. Fisheries & Food. LA (1968) AC 997 and Council of Civil Service v. Minsiter for the Civil Service, (1984) 3 All ER 985 (H.L.). The Court must while adjudicating validity of an executive decisions grant a certain measure of freedom of play in the joints to the executive. The problems of Government are practical ones and may justify, if they do not require, rough accommodations; illegal, if may be and unscientific. But even such criticism should not be hastily expressed. What is best is not discernible, the wisdom of any choice may be disputed or commenced. More errors of Government arc not subject to judicial review. It is only palpably arbitrary exercise which can be declared void, only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene. While fair-play is an essential ingredient in accepting and in awarding a contract, similarly 'fair play in the joints' is also a necessary concomitant for administrative body functioning in an administrative sphere or quasi administrative sphere.
Discretion, Lord Mansfield stated in classic terms in, John Wilke's case. (1970)4 Hurr 2528, must be a sound one governed by law and guided by rule, not by humour. Lord Denning put it eloquently in Breem v. Amalgamated Engineering Union,(1971) I A11ER 1148, that in a Government of 'Laws' there is nothing like unfettered discretion immune from judicial reviewability.' Courts stand between the executive and the subject alert, to sec that discretionary power is not exceeded or misused. Discretion is a science of understanding to discern between right or wrong, between shadow and substance, between equity and colourable glosses and pretences and not to do according to one's wills and private affections. Lord Brightman elegantly observed in the case of, Chief Constable of North Sales Police v. Evans, (1982) 3 All ER 141 that:
'Judicial review, as the words imply is not an appeal from a decision, but a review of the matter in which the decision was made.'
In a recent decision of, Tata Cellular v. Union of India, (1994) 6 SCC 651 : (1994 AIR SCW 3344), the Apex Court classified the grounds of challenge as tinder at Page 3368-3369 of AIR SCW:
'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, Wednes'bury unreasonableness.
(iii) Procedural impropriety.'
The action of the State, the instrumentality, any public authority or person whose actions bearor public law element or public character are amenable to judicial review and the validity of such action would be tested on the anvil of Article 14 of the Constitution. The classic passage from the judgment of Lord Creene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1948) 1 KB 223 eloquently states the position in law. The same reads as follows: 'It is true the discretion must be exercised reasonably. Now what does not mean Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used as a general description of the things that must not be done. For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said to be acting 'unreasonably'. Similarly there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.'
These aspects have been highlighted by one of us (A.Pasayat, J.) in, Geetanjali Patnaik v. State of Orissa, represented through its Secretary, Department of Health, (1996) 81 CLT 540: (AIR 1996 Orissa 157) and Sri Rama Ballav Rath v. State of Orissa, represcntated by the Secretary to Government, General Administration Department, (1996) 81 CLT 841. Keeping in view the limited scope of judicial review in adminsitrative matters, it is to be seen how far the orders passed by the authorities can be maintained on the touch-stone of attainability.
5. Coming to the facts of the case, a meeting of the Tender Committee was held on 23-5-1997. In the earlier meeting held on 26-3-1997 it was decided that the minimum workable rate being fixed at Rs. 1.48 paise by NIC for 100 characters, 39 concerns who submitted their tenders in response to the original lender notice should be asked to quote their rates including their profit, and they should also indicate the names of the districts in order of preference for which they were prepared to work for computerisation of land records. All the 39 concerns were asked to offer their final rates by 4 p.m. on 30-4-1997 for 100 characters of date entry in the format prescribed. The concerns who had submitted tenders earlier without earnest Money Deposit or with defective Earnest Money Deposit were advised to take back the same and to submit the Earnest Money Deposit in shape of N.S.C. or Postal Savings Pass Book Accounts being duly pledged in favour of the appropriate authorities. In response to said letter, 35 concerns out of 39 who had earlier submitted their final offers, and four concerns namely, (1) Intellectuals Avenue, Rourkcla, (2) Titan Institute of Computer Science, Jeypore (3) Bright Communication, Cuttack, and (4) Axiom Computer. Bhubaneswar did not submit the same. Out of the 35 who had submitted tenders earlier, four did not submit HMD, and as such their offers were not taken into consideration. The Director informed the Tender Committee that one of the concerns, namely, Linker Computer had applied for time to submit EMD on account of non-receipt of intimation earlier and on consideration of the prayer the Committee accepted the recommendation of the Director to take into consideration the tender submitted by the said concern. On scrutiny of the final lender papers, it appeared to the committee that the rates offered by said 31 firms vary from Rs. 3.10 to Rs. 4.30. It also appeared that the concerns had given different rates for different districts.
The Senior System Analyst, NIC wasrequested to offer his views about the rates quoted by the tenderers. An updated cost estimate prepared by the Senior System Analyst, NIC was placed before the Committee showing the approximate recurring cost estimate for Data Entry of 100 characters GISTfor 5 copies of check list print out, assuming two pages per Khalian. The Senior System Analyst, NIC while submitting the revised cost estimate opined that the cost of computerisation paper had gone up in the market. He had also taken into account the cost of generator, UPS and power consumption etc. which were not taken into account in the earlier estimate. As per his revised cost calculation, the data entry for 100 characters would be Rs. 2.49 without any profit.
6. In view of the, varied infrastruclural facilities in the districts and in consideration of the revised estimate submitted by the Senior System Analyst, NIC for computerisation of land records, the Committee decided as follows:
(1) All the 28 districts should be grouped under three Zones viz. (A) Coastal districts having developed infrastructure, (B) The districts other than coastal and interior districts having some infrastructural development, (C) Interior districts including KBK districts having less infrastructural facilities.
(2) Separate rales for each group should be fixed for computerisation of land records.
(3) The workable rate for data entry for 100 characters was fixed accordingly for each group of districts as indicated below : GROUP - A. 1.Cuttack|
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|Rs. 2.802.Jagaisinghpur3.Kendrapara4.Jajpur5.Puri6.Khurda7.Nayagarh8.Balasore9.Bhadrak10.Dhenkanal11.Angul12.GanjamGROUP - B. 1.Khandamal (Phulbani)|
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|Rs. 2.902.Boudh3.Sambalpur4.Deogarh5.Bargarh6.Zeonjhar7.Sundargarh8.JharsugudaGRQUP - C. 1.Balangir|
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|Rs. 3.002.Sonepur3.Kalahandi4.Nawapara5.Koraput6.Rayagada7.Naawarangpur8.Malkangiri
In Group-A, 12 districts were taken and the rate was fixed at Rs. 2.80 paise, in Group-B, 8 districts were taken and the rate was fixed at Rs. 2.90 and in Group-C, 8 districts were taken and the rate was fixed at Rs. 3.00. Since the quoted rates offered by the tenderers were much higher than the rate recommended by the NIC, the Committee decided that the Director should make negotiation with the concerns offering lowest rates in respect of each district keeping in view the rates fixed for different group of district as in item 3 above. It was decided that in case the negotiation failed, negotiation was to be extended to all other concerns giving preference to that particular district. Other modalities were worked out. The Director was to finalise the negotiation and allot the districts to them. It was decided that in case of big districts having more number of Tahasils, more than one concern may be allotted the work of computerisation at the negotiated rate with due weightage to the concern quoting the lowest rates for each district. The Director was authorised to issue work orders at his level to individual concerns keeping the above principles in view and giving due weightage to the concerns quoting the lowest rates for each district.
7. So far as Ganjam district is concerned, the rate fixed was Rs. 2.80. Normally when negotiation is to be done, all the tenderers are required to be called for negotiation. This position is clearly accepted by the learned counsel for State. However, it is his stand that petitioners Dillip Kumar Patnaik and Ashok Agrawalla had clearly indicated earlier that they were not prepared to work at the rate of Rs. 2.80 paise fixed for Ganjam district. That being the position, the question of calling them for negotiation did not arise as they had clearly given their written intimation that the rate of Rs. 2.80 paise was not acceptable to them. No material has been brought on record to show as to how the rates are speculative. In fact no person has been selected at a rate higher than the rate fixed by NIC and rates quoted during negotiation were lower. In view of the clear statement in writing given by petitioner Dillip Kumar Patnaik that he was not willing to take up the work at the rate of Rs. 2.80, there is no scope of any grievance by him when the negotiated rates are lower.
8. Scion Computer (opp. party No. 3 in O.J.C. No. 11462 of 1997) has given its written consent to work at Rs. 2.80 paise. It has been selected by the Director. In the aforesaid premises, the writ application filed by petitioner Dilip Kumar Patnaik (O.J.C. No. 11482 of 1997) has no merit.
9. So far as petitioner Ashok Kumar Agrawalla is concerned, the records reveal that he was invited to attend negotiation at 11.30 a.m. on 12-12-1997. He did not appear at the relevant point of time and appeared much later and submitted a representation for giving him a chance for negotiation, as he reached the place of negotiation late due to unavoidable difficulties. By that time the rates were finalised and the accepted rates and the norms were declared. In his representation Ashok Kumar Agrawal has stated that he was not interested to quote in respect of the districts for which decision had already been finalised. He has, however, requested that he may be permitted to make offer for the districts which have not been finalised. Such a request has been rightly turned down. In view of the factual position highlighted above, writ application filed by Ashok Kumar Agrawal is misconceived and is dismissed.
10. So far as petitioner Computer Action Pvt. Ltd. (O.J.C. No. 3949 of 1998) is concerned, it has been stated that different standards for negotation were adopted and the opposite parties acted illegally in not calling the petitioner to the negotiation held on 4-8-1997. The learned counsel for State with reference to Annexure-7 stated that the grievance of the petitioner is without any foundation. Petitioner was required to furnish information regarding its capability to take up the work. In fact the petitioner was called for negotiation on 12-12-1997 as would be evident from Annexure-B, and the petitioner did participate. Records were produced before us to show that the petitioner appeared for the purpose of negotiation on 12-12-1997. The rates quoted by it were considered along with the rates quoted by others, so far as Puri and Jajpur districts are concerned. For the district of Puri, the rate quoted by it at the time of negotiation was Rs. 2.48 paise. while for the district of Jajpur it was Rs. 2.75 paise. Lower rates were offered by others at the time of negotiation. So far as Puri district is concerned, the lowest offer was Rs. 2.29 paise, which has been accepted. So far as Jajpur district is concerned, the lowest rate offered was Rs. 2.38 paise which has been accepted. That being the position, the grievance of the petitioner that it was denied fair and reasonable opportunity of participating in the negotiation has no basis. In fact it took part at the time of negotiation. Admittedly rates quoted by it were higher than the others. Except making vague allegations about lack of proper opportunity or mala fide, no material to substantiate such plea have been indicated in the writ application or at the time of hearing. The writ application (O.J.C. No. 3949 of 1998) fails and is dismissed.
In the ultimate result, all the three writ applications fail and are dismissed, No costs.
S.N. Phukan, C.J.
11. I agree.