M. Sivaramaiah Vs. Superintending Engineer, National High Way and ors. - Court Judgment

Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - 4/92-93 dated 9-7-92 was issued, prescribing the conditions for ownership of the machinery like hot-mix plant, paver finisher and the location of the plant as per the approved norms. the assertion in the counter to the effect that experience of the department in the past was that the contractors, who did not possess the necessary machinery failed to complete the works in time, has to be taken into consideration. in those circumstances, the respondents were justified in not giving the tender documents to the petitioner, who failed to produce proof of ownership of the machinery.ordereswara prasad, j.1. the petitioner, who is a pwd, and r & b contractor, aggrieved by the refusal of the first respondent to issue tender schedule to him with regard to chit tender called for the works on the national highway no. 9 on vijayawada-hyderabad road, prays for a declaration that new condition no. 2 of ct no. 4/ 91-92 dated 9-7-92 of the first respondent was void. he seeks a direction to the first respondent to issue tender forms and to consider his tender along with others.2. chit tender notice no. 6/91-92 dated 10-3-92 was issued as per the specifications of the surface transport department, government of india and pwd code of the state government. according to the instructions of the chief engineer, the said chit tender notice was cancelled and a fresh chit tender notice no. 4/91-92 dated 9-7-92 was issued. chit tender notice no. 6/91-92 dated 10-3-92 was issued for six works with last date for receipt of requisition for supply of tender schedules as 10-4-92 and the date for receipt of the same as 30-4-92. the condition was that the applicant shall possess machinery, such as, hot-mix plant, paver and tippets with proof of ownership of the said machinery. an amendment was issued on 3-3-92 to the effect that the contractor should be capable of executing the butuminous items with hot-mix plant and he should produce either the proof of ownership of the plant or an undertaking from any owner of the plant located within 70 kms. radiuis that he is prepared to lend his plant to execute bituminous items in the specified works.3. in response to the said notice, the petitioner submitted an application for supply of tender documents, duly enclosing the challan towards the cost of tender and enclosing a letter of undertaking from m/s. b. seenaiah & co, to comply with the amended conditions. there was change of chief engineer, national highways, who issued instructions on 2-7-92 to insist ownership of machinery. consequently, the tender notice no. 6/91-92 was cancelled and a fresh chit tender notice no. 4/92-93 dated 9-7-92 was issued, prescribing the conditions for ownership of the machinery like hot-mix plant, paver finisher and the location of the plant as per the approved norms. the petitioner submitted the application for tender documents on the prescribed date, but without the proof of ownership of the machinery. the first respondent refused to issue the tender documents without the proof of ownership of the machinery.4. the learned counsel for the petitioner, sri p.m. gopalarao, submits that the change of condition was illegal, and was mala fide, made in order to eliminate the petitioner from making the tender and to oblige others.5. notice before admission was ordered and interim directions were issued directing that tenders may be opened but shall not be finalised, until further orders.6. the learned government pleader for transport appeared and filed counter of the first respondent. he submitted that the works are to be executed on the important national high ways, as per the specifications prescribed by the ministery of surface transport, government of india, as national highways are under the control of the said ministry. construction, maintenance and repairs and the execution of actual work have to be carried out as per specifications and directions issued by the government of india. works are to be carried out with sophisticated machinery, such as hot-mix plant, paver finisher etc. if the contractor does not own the machinery, the works will not be completed in time, causing undue hardships and inconvenience to heavy traffic plying on this important national highway. he further submitted that the contractors owning the hot-mix plant and other machinery, including m/s. b. seenaiah & company, who earlier gave letters of untertaking to the petitioner, submitted letters to the department withdrawing their undertaking. the chief engineer, issued telephonic instructions on 2-7-92, confirmed by letter dated 25-7-92, to insist ownership of the machinery. consequently, a fresh chit tender notice dated 9-7-92 was issued. he further submitted mat there are no mala fides on the part of the first respondent. the extension of time from time to time was only on administrative grounds and was not with any ulterior motive.7. as stated in the counter, the works notified at serial numbers 1 to 6 on the national high way no. 9 hyderabad-vijayawada section are of special nature, and are to be executed as per specifications prescribed by the ministry of surface transport, government of india. the national highways of the country are under the control of the ministry of surface transport, government of india. the improvement construction maintenance and repairs and the execution of actual work are all entrusted to the state government and the works are to be carried out as per the guidelines of the government of india with specified machinery, such as hot-mix plant, paver finisher on all national highways. the requirement of the proof of ownership of such plant by the contractor, cannot be considered to be arbitrary. if the contractor does not own the machinery and the plant, there is every possibility of the work not being completed in time, which would cause undue hardship and inconvenience to the heavy traffic plying on the national highways. the assertion in the counter to the effect that experience of the department in the past was that the contractors, who did not possess the necessary machinery failed to complete the works in time, has to be taken into consideration.8. sri gopalarao, contended that the works which are to be undertaken by the contractor do not require the said machinery, cannot be accepted. as rightly contended by the learned government pleader the contractor should be capable of executing bituminous items with hot-mix plant and none of the works mentioned in the tender notice can be said to be not requiring such machinery. the works are all of technical nature in which the court cannot hazard to get into a roving enquiry as to the requirement of particular machinery for particular works. it should be left to the opinion of technical personnel to decide as to what is the machinery that is required for executing particular works.9. it is significant to note that m/s. b. seenaiah and company and others, who under took to provide with hot-mix plant etc., backed out from their commitment, and so it became imperative for the chief engineer, in those circumstances, to insist upon the proof of ownership of such machinery. it was not possible to permit contractors to come forward with tenders accompanied by mere assurances by owners of such plant. the works are very urgent, as submitted in the counter-affidavit, and could not brook any delay in execution. the extension of time was made on administrative grounds and ultimately the chief engineer took a right decision to insist upon proof of ownership of the machinery by the tenderers. in those circumstances, the respondents were justified in not giving the tender documents to the petitioner, who failed to produce proof of ownership of the machinery. there are absolutely no mala fides on the part of the first respondent and he should not have been impleaded by name as second respondent.10. notice before admission was ordered in this writ petition and the learned government pleader for transport appeared and filed the counter-affidavit of the first respondent.11. there are no grounds to interfere to strike down the new condition dated 9-7-92. the writ petition is dismissed with costs of rs. 350/-.

Judgment:
ORDER

Eswara Prasad, J.

1. The petitioner, who is a PWD, and R & B contractor, aggrieved by the refusal of the first respondent to issue tender schedule to him with regard to Chit Tender called for the works on the National Highway No. 9 on Vijayawada-Hyderabad Road, prays for a declaration that new condition No. 2 of CT No. 4/ 91-92 dated 9-7-92 of the first respondent was void. He seeks a direction to the first respondent to issue tender forms and to consider his tender along with others.

2. Chit Tender notice No. 6/91-92 dated 10-3-92 was issued as per the specifications of the Surface Transport Department, Government of India and PWD Code of the State Government. According to the instructions of the Chief Engineer, the said chit tender notice was cancelled and a fresh chit tender notice No. 4/91-92 dated 9-7-92 was issued. Chit Tender Notice No. 6/91-92 dated 10-3-92 was issued for six works with last date for receipt of requisition for supply of tender schedules as 10-4-92 and the date for receipt of the same as 30-4-92. The condition was that the applicant shall possess machinery, such as, hot-mix plant, paver and tippets with proof of ownership of the said machinery. An amendment was issued on 3-3-92 to the effect that the contractor should be capable of executing the butuminous items with hot-mix plant and he should produce either the proof of ownership of the plant or an undertaking from any owner of the plant located within 70 Kms. radiuis that he is prepared to lend his plant to execute bituminous items in the specified works.

3. In response to the said notice, the petitioner submitted an application for supply of tender documents, duly enclosing the challan towards the cost of tender and enclosing a letter of undertaking from M/s. B. Seenaiah & Co, to comply with the amended conditions. There was change of Chief Engineer, National Highways, who issued instructions on 2-7-92 to insist ownership of machinery. Consequently, the tender notice No. 6/91-92 was cancelled and a fresh chit tender notice No. 4/92-93 dated 9-7-92 was issued, prescribing the conditions for ownership of the machinery like hot-mix plant, paver finisher and the location of the plant as per the approved norms. The petitioner submitted the application for tender documents on the prescribed date, but without the proof of ownership of the machinery. The first respondent refused to issue the tender documents without the proof of ownership of the machinery.

4. The learned Counsel for the petitioner, Sri P.M. Gopalarao, submits that the change of condition was illegal, and was mala fide, made in order to eliminate the petitioner from making the tender and to oblige others.

5. Notice before admission was ordered and interim directions were issued directing that tenders may be opened but shall not be finalised, until further orders.

6. The learned Government Pleader for Transport appeared and filed counter of the first respondent. He submitted that the works are to be executed on the important National High ways, as per the specifications prescribed by the Ministery of Surface Transport, Government of India, as National Highways are under the control of the said Ministry. Construction, Maintenance and repairs and the execution of actual work have to be carried out as per specifications and directions issued by the Government of India. Works are to be carried out with sophisticated machinery, such as hot-mix plant, paver finisher etc. If the contractor does not own the machinery, the works will not be completed in time, causing undue hardships and inconvenience to heavy traffic plying on this important National Highway. He further submitted that the contractors owning the hot-mix plant and other machinery, including M/s. B. Seenaiah & Company, who earlier gave letters of untertaking to the petitioner, submitted letters to the Department withdrawing their undertaking. The Chief Engineer, issued telephonic instructions on 2-7-92, confirmed by letter dated 25-7-92, to insist ownership of the machinery. Consequently, a fresh chit tender notice dated 9-7-92 was issued. He further submitted mat there are no mala fides on the part of the first respondent. The extension of time from time to time was only on administrative grounds and was not with any ulterior motive.

7. As stated in the counter, the works notified at serial numbers 1 to 6 on the National High way No. 9 Hyderabad-Vijayawada Section are of special nature, and are to be executed as per specifications prescribed by the Ministry of Surface Transport, Government of India. The National Highways of the country are under the control of the Ministry of Surface Transport, Government of India. The improvement construction maintenance and repairs and the execution of actual work are all entrusted to the State Government and the works are to be carried out as per the guidelines of the Government of India with specified machinery, such as hot-mix plant, paver finisher on all National Highways. The requirement of the proof of ownership of such plant by the contractor, cannot be considered to be arbitrary. If the contractor does not own the machinery and the plant, there is every possibility of the work not being completed in time, which would cause undue hardship and inconvenience to the heavy traffic plying on the National Highways. The assertion in the counter to the effect that experience of the Department in the past was that the contractors, who did not possess the necessary machinery failed to complete the works in time, has to be taken into consideration.

8. Sri Gopalarao, contended that the works which are to be undertaken by the contractor do not require the said machinery, cannot be accepted. As rightly contended by the learned Government Pleader the contractor should be capable of executing bituminous items with hot-mix plant and none of the works mentioned in the tender notice can be said to be not requiring such machinery. The works are all of technical nature in which the court cannot hazard to get into a roving enquiry as to the requirement of particular machinery for particular works. It should be left to the opinion of technical personnel to decide as to what is the machinery that is required for executing particular works.

9. It is significant to note that M/s. B. Seenaiah and company and others, who under took to provide with hot-mix plant etc., backed out from their commitment, and so it became imperative for the Chief Engineer, in those circumstances, to insist upon the proof of ownership of such machinery. It was not possible to permit contractors to come forward with tenders accompanied by mere assurances by owners of such plant. The works are very urgent, as submitted in the counter-affidavit, and could not brook any delay in execution. The extension of time was made on administrative grounds and ultimately the Chief Engineer took a right decision to insist upon proof of ownership of the machinery by the tenderers. In those circumstances, the respondents were justified in not giving the tender documents to the petitioner, who failed to produce proof of ownership of the machinery. There are absolutely no mala fides on the part of the first respondent and he should not have been impleaded by name as second respondent.

10. Notice before admission was ordered in this writ petition and the learned Government Pleader for Transport appeared and filed the counter-affidavit of the first respondent.

11. There are no grounds to interfere to strike down the new condition dated 9-7-92. The writ petition is dismissed with costs of Rs. 350/-.