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TMI Blog2006 (12) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... er houses. Sections 422 and 423 of the said Act, which are relevant for the purpose of this case are set out herein below: 422. Municipal Commissioner's powers in respect of Corporation markets and slaughterhouse etc. - Subject to the provision of this Act and the rule and bye-laws framed thereunder the Municipal Commissioner shall have the power - (a) upon being authorized by the Corporation in that behalf, to construct, purchase, take on lease or otherwise acquire any building or land for the purpose of establishing a Corporation market or a Corporation slaughter-house or stockyard within, and with the prior sanction of the State Government, without the limits of the Corporation and of extending or improving any existing Corporation market or slaughter-house; (b) from time to time, to build and maintain such Corporation markets, slaughter-house and stockyards and such stalls, shops, sheds, pens and other buildings or conveniences as may be deemed necessary for the use of the persons carrying on trade or business in, or frequenting, such Corporation markets, slaughter-houses or stockyards; (c) to provide for maintaining on any such Corporation markets such building, plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after obtaining a licence from the Municipal Commissioner who shall be guided in giving such sanction and licence by the decisions of the Corporation at the time in force under Sub-section (1): Provided that the Municipal Commissioner shall not refuse to give sanction lawfully established on the appointed day if application for such sanction and licence is made within two months of the appointed day, except on the ground that the place where the market or slaughter-house is established falls to comply with any requirements of this Act or of any rule of bye-law thereunder. (3) When the establishment of a private market or a slaughter-house has been so sanctioned the Municipal Commissioner shall cause a notice of such sanction to be affixed in Hindi and such other language or languages as the Corporation may from time to time specify on some conspicuous spot on or near the building or place where such market is to be held. Explanation: For the purpose of Sub-section (2) the owner or occupier of a place in which a private market or slaughter-house is established shall be deemed to have established such market. (4) The Municipal Commissioner shall not cancel or suspend or refus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, the Nagar Nigam issued the impugned advertisement inviting applications for tenders for running of the slaughter house in question. 5. We may at this juncture also notice that the State intended to acquire some land for a site for construction of an alternative slaughter house, in respect of which proceeding under the Land Acquisition Act was initiated. However, at the instance of one of the owners of the said land, the High Court in Civil Misc. Writ Petition No. 11069 of 2006 (Asaf Ali v. State of U.P. and Ors.) stayed dispossession of the petitioner therein. That writ petition is said to be still pending. 6. The High Court by means of the impugned judgment dated 29.3.2006 has allowed the writ petition directing that the writ petitioner (respondent No. 1 herein) should be allowed to run the slaughter house for 10 years on terms and conditions stipulated therein. We would reproduce the relevant part of the impugned judgment of the High Court which is as under: Petitioner No. 1 and his counsel (Sh. S.D. Kautilya, advocate) have categorically stated before us that the petitioner No. 1 shall construct new building and install latest modern plants, machines fixtures with latest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Nigam and Petitioner No. 1 may settle under prior information to each other as well as to the State Government but notwithstanding the quality and the conditions of Project of Slaughter House duly approved/sanctioned by center for Integrated Animal Husbandry & Dairy Development, Noida (CIAHDD). (e) All the aforesaid amounts deposited by petitioner No. 1 shall be kept by the Nigam in a separate Nationalized Bank Account which shall be exclusively appropriated/utilized for executing modern slaughter house Project as duly approved (as contemplated herein under) at the site of existing Slaughter House. (3) Petitioner No. 1 shall get the project-report of the modern Slaughter House (with all details) duly approved and cleared on or before 15th May 2006 by center for Integrated Animal Husbandry and Dairy Development, Noida CIAHDD and Agency/Organization approved by the Nigam. The project reports shall include plan for Civil electrical and mechanical designs/plans, adequate provisions to check pollution of any kind including "Treatment of Effluents and Pollutants" as per norms prescribed by U.P. Pollution Control Board. Health and Safety Devices, prevention of Five and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se subject to the condition that he shall deposit with the Nigam on or before 15.05.2006 rupees sixty lacs in lump sum for the period of 01-04- 2006 to 31-03-2007. Such amount can be deposited, if so advised, in four equal installments; the first installment of ₹ 15 lacs to be paid to the Nigam on or before 15th May, 2006. The second installment to be paid to be paid to the Nigam on or before 15-08-2006, third installment to be paid to the Nigam on or before 15-11-2006 and fourth installment to be paid to the Nigam on or before 15-02-2007. In case of default in making the said deposits within the time stipulated above, this order shall stand automatically vacated in its entirety. Petitioner No. 1 shall likewise continue to deposit amount of ₹ 60 lacs per annum for ten years i.e. for the period ending on 31-03-2016. And thereafter slaughter house shall be allowed to be used and operated on such basis and terms and conditions as may be allowed and settled by the Nigam under the law. (11) Petitioner No. 1 shall be free to abandon his claim to run modern slaughter house for a period of "ten years" or for less period as he may be desired but he shall not be, in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction of the High Court to entertain an application in the nature of a public interest litigation is well-known but it is also trite that the court should exercise its jurisdiction only when it is essential to do so. It is also trite that ordinarily the High Court would not interfere in an administrative action of the State unless it is inter alia found to be contrary to a legislative policy or arbitrary attracting the wrath of Article 14 of the Constitution of India. The jurisdiction of the High Court is limited in this regard. [See State of U.P. v. Section Officer Brotherhood and Anr. (2004)8SCC286 ] Apart from the above, Mr. Jayant Bhushan, learned senior counsel appearing on behalf of the appellant submitted before us that the High Court could not have issued the impugned directions which are not only violative of Sections 422 and 423 of the Act, for the reasons that the statutory functions of the Corporation have been taken away by the High Court's order, but in addition the constitutional scheme adumbrated under Article 14 of the Constitution also stands violated. The learned senior counsel contended that if with a view to achieve transparency the Corporation intend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 of the Constitution. Such options cannot be exercised by the High Court, as that is no part of its functions. Maintenance and setting up of a slaughter house (abattoir) is a statutory responsibility of the Corporation. We may notice that the three Judge bench of this Court in Buffalo Traders Welfare Association v. Union of India and Ors. (2004) 11 SCC 333 had issued certain directions to the Municipal Corporation of Delhi to construct both temporary and permanent slaughter house (abattoir) keeping in mind the future need of the city. This Court in the said case has been monitoring construction of a modern slaughter house in Delhi. However, the question who should be given the contract for the slaughter house and on what terms, is for the Municipal Corporation to decide, and not for the Courts. All that the Courts can do is to ensure that there is no arbitrariness on the part of the Municipal authorities. 10. In this case, however, we are concerned with a different question. It is now a well settled principle of law that having regard to the provisions of Article 14 of the Constitution of India, a State within the meaning of Article 12 thereof cannot distribute its largesse at i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution. However, in rare and exceptional cases, for instance during natural calamities and emergencies declared by the Government; where the procurement is possible from a single source only; where the supplier or contractor has exclusive rights in respect of the goods or services and no reasonable alternative or substitute exists; where the auction was held on several dates but there were no bidders or the bids offered were too low, etc., this normal rule may be departed from and such contracts may be awarded through 'private negotiations'. (See Ram and Shyam Company v. State of Haryana and Ors. AIR1985SC1147 ). 12. In Sachidanand Pandey v. State of West Bengal [1987]2SCR223 , O. Chinnappa Reddy, J. after considering almost all the decisions of the Court on the subject summarized the legal propositions in the following terms: On a consideration of the relevant cases cited at the bar the following propositions may be taken as well established: State owned or public owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the met ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt's attention was not drawn to the aforementioned legal principles. Furthermore, we see force in the submission of Mr. Jayant Bhushan, learned senior counsel for the appellant, that it was not for the High Court to fix the terms and conditions of the Contract. It is for the state authorities to take a policy decision and fix the terms and conditions of the Contract. It is one thing to say that the High Court in exercise of power of judicial review may strike down the contract or a notice inviting the tender if it offends Article 14 of the Constitution of India, but it is another thing to say that the High Court in exercise of the power of judicial review would thrust a contract upon a non-willing party particularly when the said exercise would be violative of Article 14 of the Constitution. Yet again, save and except in some very rare and exceptional case, the question of fixing any terms of the Contract or laying down the terms and conditions is for the concerned authority to decide, and it is not a matter within the domain of the Courts. In this behalf, we may refer to a decision of this Court in Association of Registration Plates v. Union of India and Ors. reported in AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, well settled that the terms of the invitation to tender are not open to judicial scrutiny and the courts cannot whittle down the terms of the tender as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by malice.o?= 15. Similarly in Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd. and Anr. AIR2005SC2299 , this Court held that the modern trend points to judicial restraint in reviewing the administrative action. The court does not sit as a court of appeal over such a decision but merely reviews the manner in which the decision was made. The court ordinarily would not interfere with an administrative decision. The Government must have freedom of contract. Some fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere. We have carefully perused the impugned advertisement and we do not find any arbitrariness, discrimination or malafides in the same. Hence the High Court had no justification for interfering with the said advertisement. 16. For the reasons aforementioned, we have no other option but to hold that the impugned judgment is unsustainable. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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