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TMI Blog2007 (11) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... e corrigenda as well as an annihilation of the essential conditions of tender for the HSRP contrary to the ratio decidendi in Association of Registration Plates v. Union of India and Ors. AIR2005SC469 and the guidelines to the said effect formulated by the Central Government. This Court by its order dated 19/1/2007 while issuing notice restrained the State authorities from proceeding further with the exercise. 2. I have heard Mr. P.K. Goswami, Sr. Advocate assisted by Mr. Satyan Sharma, Mr. Arunabh Choudhury, Mr. J. Deka, Mr. A. Sharma and Mr. T.K. Bhuiyan, Advocates for the petitioner, Mr. N. Dutta, Sr. Advocate assisted by Mr. A.K. Bhuyan, Advocate for the State respondents, Mr. DK Mishra, Sr. Advocate assisted by Ms. Shamima Jahan, Advocate for the respondent No. 5 and 6 and Mr. D. Das, Advocate for respondent No. 8 and 9. Though an affidavit has been submitted on behalf of the respondent No. 4, none appeared to conduct the proceedings on its behalf. 3. The edificial facts in brief demand a narration to project the rival versions. The petitioner has introduced itself to be a Joint Venture Company between Mazon BV of Netherlands, CBM Industries Limited, New Delhi and Mr. NV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to issue the number as well as the HSRP to be fixed in the premises of the Regional Transport Officer by the selected manufacturer. While contending that the venture envisaged is thus to be conducted under the complete supervision of the State authorities, the petitioner has averred that the prescribed features of the plates have for the first time been introduced all at a time in India. According to it, the technology to produce such features is admittedly still not available in the country and accordingly the States being the implementing agencies, it is their solemn responsibility to select a suitable manufacturer from amongst the TAC holders tested on the touchstone of rigid and strict conditions of eligibility to guarantee the attainment of the salutary objective of the scheme. 6. Joint deliberations followed involving the States, Center and the prospective manufacturers to decide that the selection from amongst the TAC holders should be through a fair method by inviting tenders and that as having regard to the highly sophisticated device to be produced and the national interest and public security involved, strict and rigid eligibility conditions ought to be imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner of Transport Department, Government of Assam, thereafter on 15/11/2006 issued an advertisement inviting bids for the HSRP project in the State of Assam. Though the same mentioned about the aforementioned guidelines and necessity of the requirement of experience in manufacture and production of HSRP and its business, it (advertisement) was withdrawn on 21/11/2006 without, however, recording any reason therefor. 10. It was thereafter on 7/12/2006 that the State authority issued a fresh Invitation For Bids (hereafter referred to as IFB) inviting offers for selection of an eligible manufacturer having TAC and the requisite manufacturing capacity to produce HSRP in conformity with the specifications in the notifications dated 28/3/2001, 22/8/2001, 16/10/2001 and 12/6/2006 appertaining to HSRP in India on BUILD OWN AND OPERATE BASIS. 11. The petitioner intending to participate in the pursuit obtained the bid document, which disclosed that the contract would be awarded to the successful bidder for 10 years for manufacture and supply of HSRP in the State of Assam. While Clause 1.2.3. disclosing the objective of the bidding process revealed HSRP as a highly sensitive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d would have to cross the Pre-qualification stage. 15. The above notwithstanding, according to the petitioner, the Clauses were not free from ambiguities and vagueness and most importantly did not fully conform to the stipulations of experience approved by the Apex Court in Association of Registration Plates (supra). Representations of some of the manufacturers similarly situated as the petitioner and members of same association followed pointing out the deficiencies in the experience Clause. 16. The respondent No. 2, in the above background, issued the impugned corrigendum dated 26/12/2006 occasioning major amendments in Clause 1.1.21, 1.2.3 and 2.20.1.3. thereby modifying the definition of Prime Manufacturer to mean an individual or firm or corporate entity engaged in carrying out the manufacturing activity of the HSRP having obtained TAC and COP from a Government authorized agency mentioned therein deleting the requirement of experience, expertise and exposure and paragraph 2 of Clause 2.20.1.3. specifying the marking system. 17. This was followed by the impugned corrigenda dated 6/1/2007 deleting the stipulation of experience mentioned in Clause 1.5.3. and Clause 2.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenders would not be finalized for the present and that the petitioner would not be disqualified on the ground of COP. By the said order, the State of Tamil Nadu was restrained from opening the Financial Bids pending further orders. Reference has also been made of a similar tender process initiated in the State of West Bengal wherein the requirement of experience initially incorporated in the notice inviting tender was deleted. Though the challenge thereto before the Calcutta High Court in WP(C) 2083/2005 was negated the related SLP(C) 11621/2006 by Shimnit Utsch India Pvt. Ltd. and another against West Bengal Transport Infrastructure Development Corporation Limited and others before the Apex Court is pending and by an interim order, the State of West Bengal has been restrained from awarding the final contract. A declaration in the present case has also been prayed for adjudging the COPs issued by the respondents 3 to 5 to other manufacturers/vendors who have not implemented the HSRP project as illegal, null and void. 21. The State respondents in their affidavit while denying the charge of arbitrariness, illegality and discrimination vis-a-vis the tender process have contested t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adherence to the experience clause involved therein inhibiting any deviation therefrom, the amendments neither prohibit the petitioner's partaking in the process nor impinge upon any of its constitutional or legal rights. 25. The respondents have clarified in clear that the corrigendum dated 26/12/2006 does not incorporate the submission of COP as an obligatory pre-condition for participation in the tender process. According to them, there is no reference of Prime Manufacturer otherwise than in Clause 1.1.21 of the IFB. While admitting that the State is responsible for the implementation of the HSRP scheme in Assam, it has been admitted that the amendments in the original clauses of the IFB vide the impugned corrigenda had been effected on account of representations received from various TAC holders. The State respondents have pleaded that the steps to the said effect had been taken to ensure participation of all 18 TAC holders and guarantee competitive pricing through a fair, impartial and transparent venture. They have insisted that the condition of experience and percentage of turnover from registration plate business are neither essential nor mandatory and the Apex Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring respondents pleaded that the first COP seems to be for confirming the manufacture's capability for producing HSRP to the specified requirements and the subsequent COP is to be performed after implementation of HSRP. According to the deponent, the first COP was thus to be done after establishing facility and commencement of pilot production, whereas the subsequent COP is to be conducted only after the contract is awarded to the vendors by the State. Reinforcement of the above view is sought to be drawn from the letter No. 1028/5/MVL dated 20/6/2005 of the Ministry of Road Transport and Highways, Govt. of India. The deponent, therefore, asserted that that the respondent No. 4 on following the procedure and checkpoints laid down by the Ministry of Road Transport and Highways acted within the scope and parameters of the Rules and thus the COP certificate issued by it cannot be dubbed or styled as unwarranted and/or illegal. 28. In their counter, the respondent Nos. and 7 have presented the former to be a Company incorporated under the Companies Act, 1956 with its registered office in New Delhi. They have claimed that the respondent company is possessed of a valid TAC grante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble price. The respondent No. 6 being faced with that constriction thus submitted a representation before the respondent No. 2 for deletion of the experience clause to ensure equal opportunity of participation of all TAC holders. The eligibility criteria after such deletion is consequently fair providing a level playing field for all concerned without in any way causing any prejudice or detriment to the interest of any bidder. While contending that it was impermissible for the petitioner to claim that the condition regarding experience, expertise and exposure should be compulsorily incorporated in the IFB, it being the sole prerogative of the State Government, the respondents referred to the tender process of the State of Uttar Pradesh and West Bengal which similarly did not stipulate experience in different countries and certain percentage of turnover from the registration plates business as a condition of eligibility. 31. They, in turn, imputed the motive of the petitioner and other two companies namely, Tonnges Eateren Security Technologies Primate Limited and Shimnit Utsch India Private Limited forming a cartel to usurp the entire business of HSRP throughout the country at h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssential and mandatory to achieve a monopolistic end and usurp in the business of HSRP throughout the country at a highly inflated and exorbitant rates to the extent of five times than that of the lowest bidder. 35. The respondent Nos. 6, 7, 8 and 9 amongst other have annexed to their counter an affidavit filed by the West Bengal Transport Infrastructure Development Corporation Ltd. in SLP No. 11621/2006 pending before the Apex Court and have pleaded inter alia that the conditions of experience, exposure and expertise were not incorporated in the NIT involved therein so that the price of HSRP was not abnormally engineered by some unscrupulous and dishonest business-men forming caucus and coteries for their own business interest at the cost of the public at large. 36. The answering respondents reiterated that the impugned Corrigenda prevents the monopoly of the petitioner and its associates members and promote participation of all TAC holders to achieve the objectives of the amended Rule 50 in a most effective and efficient manner. 37. In its reply affidavit to the counter of the Respondent Nos. 1 and 2, the petitioner while generally reiterating and reaffirming the avermen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the strategic significance of HSRP which if sustained would be a travesty of a selection envisaged in law. 40. As a TAC is not an impregnable index of the capacity, capability, experience and exposure of the holder thereof for implementation of the project in hand, the relaxation of the essential conditions of experience, defies logic and would facilitate admission of fly by night operators like the respondent No. 6, 7, 8 and 9 to the tender process though categorically discountenanced by the Apex Court in Association of Registration of Plates (supra). The petitioner has alleged that the corrigenda demonstrates the State authorities submission to the pressure of respondent No. 6 and other units unqualified to participate in the venture. 41. According to the petitioner, the tender process initiated by the State of Uttar Pradesh sans the strict conditions of experience has faced a serious set back for which the project remained unimplemented for the last four years and eventually the letter of acceptance issued in favour of the lowest bidder on 5/7/2003 has been cancelled. The lis pertaining to the tender in the State of West Bengal dehors the essential conditions of exper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dation of the Apex Court in Association of Registration Plates (supra) discountenancing such an access. The petitioner has maintained that considering the strategic location of the State of Assam geographically with alarming rate of crimes involving motor vehicles, a rigorous implementation of the scheme without diluting the conditions of experience, expertise and exposure is uncompromisingly essential in the interest of the safety and security of the State and its people. 45. While reiterating that a TAC is not adequate to demonstrate a bidder's technology and wherewithal to implement the project and that the impugned relaxations approve the participation of bidders having no experience and exposure and capability or capacity to implement the project, the petitioner has pleaded that the impugned tender process displays unjustified departure from the ratio in Association of Registration Plates (supra) binding on all States and Union Territories. The allegation of wilting of the State authorities to the pressure of the otherwise unqualified TAC holders including the respondent No. 8 having no experience in the field of HSRP has been reiterated. The charge against the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacturer notwithstanding was not an essential condition of eligibility for participation in the process in absence of any corrigendum by the State authorities to the said effect. He, therefore, maintained that on this ground alone the impugned tender process is liable to be struck down. 48. The learned Sr. Counsel was persuasively critical on the deletion of the clauses relating to the experience, expertise and exposure as well as the turnover from HSRP business contending that the same is in outright contravention of the mandate engrafted in the decision of the Apex Court in Association of Registration Plates (supra) ruling those to be essential having regard to the nature and character of the manufacturing activity and the underlying objective of the scheme, Mr. Goswami urged that the State authorities being convinced that the experience and adequate financial involvement in HSRP business were indispensably essential as conditions of eligibility for a bidder intending to participate in the tender process, had consciously incorporated stipulations pertaining thereto in the original IFB and therefore the systematic withdrawal thereof consequent upon the submission of representa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the HSRP is still not available in India and thus the relaxation of the conditions of experience and financial capability vis-a-vis HSRP business is a patently illegal, arbitrary and whimsical abandonment by the State of the framework of essential conditions approved by the Apex Court as above. 51. Not only the plea of monopoly and exclusion of indigenous entrepreneurs similarly raised in Association of Registration Plates (supra) has been rejected by the Supreme Court, on a consideration of the schematic characteristics of the project and the end goal in view, the impugned action is not only annihilative of the scheme but seeks to overreach the binding conclusions in the said decision, he urged. As the competitive rates offered only by eligible tenderers complying with the recognized and proclaimed essential conditions of eligibility would be legally acknowledgeable, the reasons for omitting the criteria of experience and financial returns in HSRP business are purported and not real and manifestly demonstrate an autocratic exercise of executive authority thoroughly unmindful of the overwhelming purpose of the scheme and the State's responsibility for the due accomplishment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erference in the exercise of the power of judicial review is warranted. Mr. Dutta affirmed that the COP has not been prescribed as a pre-requisite for a valid offer and contended that, therefore, the arguments built thereon are immaterial and ought to be ignored. The stipulations of the IFB being within the realm of contract and the reasons assigned in support of the corrigenda being objective logical and rationale, the prayer for judicial intervention is misconceived more particularly as neither the petitioner is disqualified thereby nor is its right or interest in any manner adversely affected, he urged. Mr. Dutta pointed out that not only the representation submitted by a Company of the same group as the petitioner is conspicuously silent about any transgression of the proposition recorded in Association of Registration Plates (supra) the modifications as perceived to be necessary having been made at a pre-bidding stage, the same by no means vitiate the tender process. He argued that a corrigendum altering or modifying a clause in a tender process being an inseparable part thereof and the State's power to issue the same being not under challenge, having regard to reason and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch an evaluation, mere deletion of the Clauses bearing on experience and financial capability relating to HSRP business would not render the process flawed or invalid. The petition is also wanting in factual foundation to substantiate the plea of bias or malafide as alleged, he insisted. 56. Further there being no discernible material suggesting misuse of statutory powers in absence of any particular technology prescribed by Rule 50 or infringement of the said legal provision, the assailment is per se unsustainable, he argued. As the corrigenda enlarges the field of choice on considerations, relevant and germane, this Court acting on the petitioner's paranoia against competition would not interdict a process at its nascent stage in absence of any material to presume that the State authorities would not choose the best for the work involved. Mr. Dutta argued that the Apex Court in Association of Registration Plates, supra, did not recognize any legal requirement of foreign collaboration for prosecuting the project and its determination that the tender conditions therein were not discriminatory does not necessarily make it obligatory for all the subsequent process to obduratel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corrigenda to facilitate wider competition for competitive bids are in valid exercise of executive discretion according with public interest. The learned Senior counsel submitted that not only the State authorities have a prerogative to determine the tender conditions as has been amongst others recognized in Association of Registration Plates (Supra), the impugned corrigenda neither impinges upon any right of the petitioner nor prevents its participation in the on going process. On the other hand, as the same opens up an uniform plane for all TAC holders to vie for the contract, the assailment is misconceived. The TACs having been approved by test Agencies following vigorous tests of the samples of HSR plates, the holders thereby have been rightly held to be eligible and the petitioner's endeavour to exclude them from the fray is clearly prompted by extraneous and selfish considerations. The learned Senior counsel urged that the Apex Court in the Association of Registration Plates (Supra) did not hold the conditions of experience and financial capacity as essential so as to enjoin incorporation thereof in all tenders relating to manufacture of HSR plates impliedly permitting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to be evaluated in the perspective of developments following the amendment of Rule 50 as well as the background of facts leading to the adjudication in Association of Registration Plates (supra). He insisted that the tender stipulations approved by the Supreme Court therein were for standardizing the same and structuring the discretion of the State authorities in the matter of settlement of contract of manufacture and supply of HRS plates. Though the State authorities have the ultimate choice in selection, but the criteria both for determining the scope of entry, participation as well as the ultimate evaluation have to sub serve the end purpose of the amendment of Rule 50. The negation of the plea based on monopoly, foreign collaboration and denial of indigenous participation is a clear indication of the mandatory nature thereof, he urged. Not only the amendments effected by the corrigenda do away with the original norms bearing on experience, expertise and exposure, no other objective standard to analyze the experience, expertise and capability of the bidders has been enumerated. 62. Mr. Goswami in the alternative, while relenting to the extant that the State authorities ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndergone a change or if called for on new circumstances to better sub serve the end goal of Rule 50. In the contextual facts, there being none, the impugned process is unsustainable in law, he urged. Following decisions were relied upon by the learned Counsel. Mohinder Singh Gill and Ors. v. the Chief Election Commissioner, New Delhi and Ors. (1978) 1 SCC 408, Ramana Dayarama Shetty v. International Airport Authority of India and Ors. (1979)IILLJ217SC Fuzlunbi v. K. Khader Vali and Anr. 1980CriLJ1249 , Association of Registration Plates v. Union of India and Ors. AIR2005SC469 . 63A. Mr. Dutta answered by contending' that the plea of want of procedural fairness in the facts and circumstances of the case is untenable. He reiterated that considering the issues raised in the Association of Registration Plates (supra), the decision therein is not a binding precedent on the State of Assam under Article 141 of the Constitution of India and the petitioner's case founded thereon is evidently fallacious. He sought to draw sustenance for his submissions from the decisions of the Apex Court in G. J. Fernandez v. State of Karnataka and Ors. [1990]1SCR229 , Tata Cellular v. Union of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly peremptory requirement. The definition of 'Bidder(s) as provided in Clause 1.1.6 of the IFB, has also been adverted to contend that Bidder (s), means a legal entity including vendor/consortium incorporated as a Company registered under the Indian Companies Act, 1956 and holding a valid TAC from the competent authorities. Noticeably, none of the respondents has disputed the petitioners' assertion that the Conformity of Production Certificate is neither comprehended nor issued before the manufacturing process of the HSRP by a successful bidder commences on being settled with the contract therefor. Though, in the affidavit of respondent No. 4, the deponent therein, has expressed an opinion that such a certificate being first COP , can be issued prior to the implementation of the HSRP and commencement of regular production, a plain reading of the letter No. RT-11028/5/2002-MVL dated 04.09.2002 of the Ministry of the Road Transport and Highways, Government of India, based on which the view has been offered belies the same. It is instead obvious therefrom that the steps preceding the issuance of the COP certificate, are to be taken after the commencement of production of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Court orders therein, I do not feel persuaded to dismiss the petitioner's assailment to be lacking in bonafide or to espouse its narrow monopolistic ends. Indubitably, the impugnment if upheld, would constrict the area of the competition but in the face of wholesome objectives of the scheme, the pleaded assertions ought not to be jettisoned on that consideration alone. The plate require to be manufactured, is a highly sophisticated item with complex and intricate features, for the first time introduced in the country and would therefore, demand a high degree of expertise and experience to prosecute and attain the job as statutorily comprehended and ordained. 68. While, mere deposit of Rs. 25 lakhs as the earnest money, cannot be an unfailing assurance against the participation of fly by night or unreliable bidders, the facts present a debate demanding an in depth scrutiny of the rival stand points for a judicial resolution thereof. 69. On the date of the institution of the instant proceeding with the amended definition of Prime Manufacturer read with Annexure V to the IFB, the petitioner's right of participation was evidently affected as the COP, could not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Notices Inviting Tenders for supply of HSRP for motor vehicles though originated in various High Courts came to be analyzed and resolved by the Apex Court in that verdict. Initially, the lis was lodged before a Division Bench thereof, but following a divergence of opinions, it was referred to a larger bench following which the decision to be addressed to was rendered. The tenders under challenge as observed hereinabove, had been issued by various State Governments on the guidelines circulated by the Central Government for implementing the provisions of the Motor Vehicles Act, 1988 (hereafter for short referred to as the 'Act') and the Rules. The principal grievance of the petitioners, was that the Notices Inviting Tenders (hereafter for short also referred to as the 'NITs'), had been issued with conditions tailored to favour companies having foreign collaborations and aimed to exclude indigenous manufactures from the related process. The remonstrance registered was also against the proposal to entrust the work of supply of HSRP for all existing vehicles and new vehicles to a single licence plate manufacturer in a State or a region for a long period of 15 year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich would be affixed on the windshield of the vehicle. 6. The plate on the rear shall be fastened with non-removable/non-reusable snap-lock fitting system. 73. The reasons for obligating the above features were also culled out and being instructive are set out hereunder as well: 1. Hot chromium-based hologram would prevent counterfeiting. 2. The ingress letter IND on the plate would secure national identity and standardization. 3. The laser-etched seven-digit code to be given by the manufacturer 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. 4. Snap-lock to be fitted on the rear portions of the vehicle would be temper-proof. Any attempt to remove the plate would break it. 5. The reflective sheet of superior grade would be visible from a minimum of 200 meters. 6. The alpha numeral would be easily readable and identifiable. 7. On alpha numeral border, ingress letters IND'' would prevent painting and screen printing which would act as protection against counterfeiting. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attached along with pro forma as per Annexure XIII duly filled in. Apart from the above credentials the tenderer/bidder should furnish type approved certificate from testing agencies. Condition (b). The tenderers/bidders of the joint venture partners together must have had a minimum annual turnover equivalent to INR 30 crores in the immediately preceding last year. At least 25% of this turnover must be from the licence plate business. Certificate confirming and the certification of this minimum 25% turnover being from licence plate business will have to be provided duly attested by a chartered accountant/any bank to be attached in support of fulfillment of this condition. Condition (c) The contract will be for a period of fifteen years commencing from the date of commencement of the scheme. A detailed agreement shall be entered into between the successful bidder and the Government for a period of fifteen years and the Government ensures that no second bidder will be approved during the currency of the contract in the State except in the case of termination of the contract in view of the strictest of adherence to high security features and to impose answerability on to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... experience in 5 countries from the manufacturers, was to eliminate the manufacturers of India though fully competent for implementation of the new scheme of high security plates. 78. Impugning the condition regarding prescribed minimum turn over of business, it was insisted that such a high turn over for a new business was to espouse the interest of a group of Companies having foreign links and support it being impossible for any indigenous manufacture to earn such a turnover from the HSRP sought to be introduced in India for the first time. It was argued as well that the condition of a period of 15 years of the contract was a demonstrative attempt to create a monopoly in favour of one Company or a cartel of companies, which would leave the consumers/vehicle owners at the disposal of a sole successful bidder. The arguments highlighted that if indigenous manufacturers are involved in the implementation of the scheme, the market price of a pair of HSRP, would range between Rs. 800 to Rs. 900, which would stand inflated in case manufactured by joint venture companies with foreign collaboration to not less than Rs. 2000. It was indicated that keeping in view of the large vehicular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to 15 years as a contract period was also endorsed to be in public interest, so much so that having regard to the amount of investments to be made for installing the high technology based networking at the RTO's Office, a short term settlement would not attract an experienced and reliable manufacturer. Further, the period prescribed, would ensure against price increase therefor, and thus prove beneficial to the customers against inflation. 83. It was highlighted that the tender conditions had been suitably formulated for performance guarantee, experience and understanding of business, financial strength and capacity of creating and stalling the entire infrastructure and networking. The eligibility criteria were advocated to be commensurate not only with the scale of operation and size of network to be created by the operator but also to ensure that the statutory requirement of the State's obligations to the vehicle owners to deliver the HSRP without any interruption is complied with. 84. On this matrix of facts and the emulous asseverations, the Apex Court in categorical terms held that in view of the enormous work involved in switching over to the new plates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies engaged in such activities and, therefore, concluded that the scheme under Rule 50 being a new experiment for India, at the initial stage of its implementation, tender conditions encouraging such manufacturers, who are in foreign collaborations cannot be impeached as discriminatory to indigenous manufacturers. Keeping in view the nature of the contract and job involved, particularly its magnitude and the huge investment for infrastructure required, the attempt to select such manufacturer having collaboration with foreign companies and experience therein, could not be held to be a deliberate attempt on the part of the State authorities to eliminate indigenous manufacturers. 87. In this context, the Apex Court reiterated that in the matter of formulating conditions of a tender document and awarding contract of the nature of ensuring supply of HSRP, greater latitude is to be conceded to the State authorities and that unless the action of the tendering authority was found to be malicious and in misuse of its statutory power, tender conditions were unassailable. 88. With regard to the clauses requiring experience in the field of supplying registration plates and the quantu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id down, the same could not be held to be discriminatory. 90. Reading between the lines, the determination as above, in my view, cannot be limited in its essence, purport and amplitude as a response simpliciter to the assailment before the Apex Court and the resolution of the issues before it with no general overtones vis-a-vis, the identical process in comprehension as well as in progress in other States. Indubitably, any tender process for selecting a manufacturer for the HSRP, as dealt with in the aforementioned decision, would have to be conceived of in the background of the same legal provisions, scheme and the guidelines and the objectives. Though, admittedly, their Lordships have not spelt out explicitly that the propositions enunciated would be applicable to all tender process to implement the scheme founded on Rule 50 and clause 4 of the Order, it is perceptibly discernible from the narration and the reasonings preceding the various conclusions. Significantly all the contentions raised in the instant proceeding on behalf of the respondents, in substance have been exhaustively dealt with by their Lordships eventually to be rejected. The decision as required, was oriented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on plates in at least three countries and a minimum turnover in such business was held to be essential conditions to make sure that the selected manufacturer would be technically and financially equipped to satisfy the contractual obligations, which having regard to the massive frame of the work demanded huge investment qualitatively and quantitatively. The Apex Court was unambiguous in concluding that a contract demanding technical expertise, financial capability and experience, with a long term of 15 years, would serve the dual purpose of attracting sound parties to invest their money in undertaking the job and supply and safeguard the public interest by ensuring uninterrupted delivery of security plates in the fulfillment of the job of the scheme generated by Rule 50. In arriving at this conclusion, the Apex Court was not unmindful of the existence of many tenderers, who possessed TACs but held the view that to ensure the supply of such vast quantity of security plates in the initial two years and continued delivery thereof thereafter for the new vehicles for a long period, selection of a manufacturer, who was sound both technically and financially, is an imperative necessity. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely because of the jurisprudence of precedents, but because of the imperatives of Article 141. 95. In Dr. Thadani v. Union of India and Ors. (Supra), the challenge laid before the Delhi High Court principally asserted absence of rule making power of the Central Government in the matter relating to fixation of High Security Registration/Number Plates. Dismissing the petition, it was held that judicial notice could be taken of the fact of increase in the theft of car and commission of several offences by using forged number plates. Having regard to the recent spurt of terrorism for which extra security as regard identification of cars, has become all the more necessary, the contention that the implementation of the scheme would entail extra expenditure of the State was rejected as irrelevant. It was observed further that the hardship of an individual or a group of individuals cannot be a ground to strike down an otherwise validly enacted statute or rule. The Court noticed that the purport and object of the amendment in the Rules was to ensure against the change in the registration/number plates or tampering thereof and that the new High Security Registration/Number Plates, was con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iting such a course. Tested from the viewpoint that the Apex Court's pronouncement notwithstanding the State of Assam on the singular facts and circumstances prevalent in the area and its distinctive exigencies can permissibly do away with the conditions of experience and business turnover in HSRP also, the impugned action cannot be upheld on the materials available on record. Not only, the State respondents have omitted to plead that the technology of manufacture of the HSRP is presently available in India, the other respondents do not claim to have the required experience and business commitment in the said field of activity. The policy decision as claimed by the State authorities, which expectedly has preceded the issuance of the corrigenda, is also not on record. Irrefutably, the contract to be awarded has inherent features and cannot be equated with any other government contract with different attributes. The avowed objective of the scheme in introducing the HSRP is principally for prevention of crimes so much so that the product needs to embody high security features to prevent counterfeiting and duplication thereof, demanding unquestionable experience, expertise and expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... qualifying criteria for a intending bidder. The possession of a TAC therefore, was thus not considered enough by the Apex Court, considering the magnitude of the project to be undertaken and the uncompromising needfulness of unhindered supply of plates on a long term basis. ATAC therefore, was not construed to be an unassailable index of the holder's experience in HSRP business. 101. The plea based on competitive price thus fade into insignificance considering the critical objectives of the scheme and the ensuing benefits to the public at large if implemented as expected. In any case the consideration of a competitive price is unacceptable at the cost of the quality of the plates and the end purpose in view. Insistence on experience and business turnover in the manufacture and supply of HSRP is further on assurance of consistency in approach of all the States that would auger well for the attainment of the legislative intendment embodied in Rule 50. 102. The Apex Court in Union of India and Anr. v. International Trading Co. and Anr. (Supra), while dwelling on the prerogative of the Government to formulate its policies held that though the same is wide enough, it has to, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle, which in itself is not irrational, unreasonable or discriminatory. The impugned State action fails to conform to this profound dictum adumbrated hereinabove. 105. As the corrigenda assailed in the opinion of this Court, are in disregard of the ratio decidendi in Association of Registration Plates (Supra), those are in breach of the process envisaged in terms of the said decision and is thus actionable at the instance of the petitioner as observed by the Apex Court in Mohinder Singh Gil (Supra). The Apex Court in Association of Registration Plates (Supra), having recognized and sustained the conditions of experience and business turnover in the manufacture and supply of HSRP, every prospective tenderer has a right to insist for a process in harmony therewith. 106. In the above premise, the pronouncement of the Apex Court in Directorate of Settlement, A.P and Ors. (Supra), enjoining the edict of existence of a legal right of the person aggrieved as a prerequisite to seek a writ of mandamus for the enforcement thereof, is of no avail to the respondents. 107. For the reasons mentioned hereinabove with respect, I am unable to subscribe to the view expressed by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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