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TMI Blog2016 (9) TMI 1667X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant No. 2 is a proprietorship concern and its authorized agent is a director of the said company. The Appellant-company commenced manufacture of its insecticide product, Long Lasting Insecticide Net ("LLIN"). The World Health Organization Pesticides Evaluation Scheme (WHOPES) is the global body for monitoring, evaluating and approving LLIN brands, for without the said recommendation LLIN cannot be sold in the market. It is averred that WHOPES conducts very stringent tests at three levels before it gives recommendation to a product, which includes laboratory test, wash effective test and bio-efficacy field trial test, and due to rigorousness of the test, only handful of LLINs have been recommended by WHOPES and the Appellants' product that is DURANET(r) is one of them. The Appellant No. 1 was issued a license to manufacture insecticide on 08.01.2014 under the Insecticides Rules, 1971 (for short, "the Rules") and also allowed for carrying on wholesale dealing and storage for sale. The license granted in favour of the Appellant was renewed from time to time and it was valid till 31.12.2015. 3. As the facts as have been unrolled, the Appellant No. 2 vide application No. 45295 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an application of M/s. Shobikaa Impex, Karur, T.N. for grant of registration for indigenous manufacture of Alphacypermethrin Incorporated Long Lasting Mosquito Bed Net (LLIN) 0.55% w/w Under Section 9(3B) of the Insecticides Act 1968. The agenda was deliberated in detail and Committee approved provisional registration Under Section 9(3B) for public health programmes, subject to the outcome of the court case having W.P. No. 8408/2015 & W.P. No. 8409/2015 before the Hon'ble High Court of Judicature at Madras. The Committee further decided that the case be sent to DAC for according permission for commercialization during provisional registration. [Emphasis Supplied] 7. The Appellant No. 1 felt grieved, for in spite of the fact a decision was taken, the registration certificate was not made available and further the amendment in Instructions to Bidders had come which was unacceptable in law. Therefore, it invoked the jurisdiction of the High Court in WP(C) No. 9694 of 2015, which vide order dated 14.10.2015, while issuing notice, directed that the bid of the writ Petitioners shall not be rejected merely on the ground that it had not been able to produce the registration cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required in Amendment No. 3 dated 28.09.2015, and further the certificate was not produced at the time of submission of the bid, and accordingly treated the bid as not acceptable being non-compliant. At this juncture, the Appellant No. 1 moved a clarification application of the order dated 20.01.2016 passed in Writ Petition (C) 9694/2015 before the High Court. In the meantime, the licensing authority renewed the license for manufacturing of the insecticide of the Appellant No. 1 pursuant to application for renewal dated 27.10.2015 and, on 17.02.2016, the sub-Committee recommended to place the order for the insecticide product with M/s. Vestergaard Group SA at the total value of US$30,407,886. The Appellant No. 1 entered into correspondence with the Respondent No. 1 but as nothing fruitful ensued, it approached the High Court in Writ Petition (C) No. 1994 of 2016. 10. On a perusal of the order of the High Court, it is noticeable that it has referred to the unamended Clause 6.1(A) (d)6 of the Instructions to Bidders. The stand of the Appellants before the High Court was that its product was duly registered with CIB as per meeting dated 31.03.2015 and, therefore, the decision of Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral for Respondent Nos. 1 to 3. None has entered appearance on behalf of the Respondent No. 4. 13. It is submitted by Mr. Singh, learned senior Counsel that when CIBRC had decided to grant the registration certificate and it has put it on the website, it is to be deemed that the certificate had been granted on that date and, therefore, the High Court has erred in treating the bid as non-compliant or non-responsive. It is his further submission that the Respondent No. 1 has amended the Instructions to Bidders with the sole intention to favour the Respondent No. 4 as it was the singular bidder and hence, the entire action of the Respondents suffers from gross arbitrariness that violates Article 14 of the Constitution. 14. Ms. Pinky Anand, learned Additional Solicitor General, per contra, contends that the amendment was brought into existence to clarify the position as it was a tender of a different nature. She would contend that the registration certificate did not belong to the Appellant No. 1 but to the Appellant No. 2 and Appellant No. 2 had given authorization to Appellant No. 1 to use the domestic registration of the insecticide product DURANET(r) and that did not satisfy the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of receipt of the application: Provided that the Committee may, if it is unable within the said period to arrive at a decision on the basis of the materials placed before it, extend the period by a further period not exceeding six months: Provided further that if the Committee is of opinion that the precautions claimed by the applicant as being sufficient to ensure safety to human beings or animals are not such as can be easily observed or that notwithstanding the observance of such precautions the use of the insecticide involves serious risk to human beings or animals, it may refuse to register the insecticide. xxxxxxxxxx (3B) Where the Registration Committee is of opinion that the insecticide is being introduced for the first time in India, it may, pending any enquiry, register it provisionally for a period of two years on such conditions as may be specified by it. 17. Section 10 provides for appeal against non-registration or cancellation. Section 11 confers power of revision of Central Government. The scheme of the Act, as we find, deals with the procedure in detail. 18. Rule 9 of the Rules deals with licenses to manufacture insecticides. The said Rule is extracte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode in itself. In this context, we have to see the nature of the decision taken by the Registration Committee of CIB which dealt with the application of Appellant No. 2 Under Section 9(3B) of the Act and approved for provisional registration. We have already reproduced the said decision. The decision stated that it was to be sent to DAC (Department of Agriculture & Co-operation) for according permission for commercialization during provisional registration. In this context, clauses 5.4 and 5.4.1 of Instructions to Bidders become significant. They read as follows: 5.4 The Goods to be supplied under the Contract shall be registered with the relevant authority in the supplier's and Purchaser's country. The bidder should submit a copy of the Registration Certificate with its bid as indicated below: (1) a copy of the Registration Certificate of the Goods for use in the Purchaser's country issued by Central Insecticides Board (CIB). Note: Bidders are requested to inquire in advance about the registration requirements and procedures in order to avoid any delays due to involvement of various government agencies. Purchaser shall not be responsible for any delay on this acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount to registration by itself with the CIB. So the condition, as such, was not satisfied under the unamended stipulation. The amended Clause only provides about the consequence thereof. It can be stated without any shadow of doubt that even if Clause 6 would not have been amended, the first Respondent, on the ground of non-production of the registration certificate, would have been legally justified to reject the bid. It is an essential condition incorporated in the Instructions to Bidders. In this context, we may profitably refer to the authority in B.S.N. Joshi and Sons Ltd. v. Nair Coal Services Ltd. and Ors. (2006) 11 SCC 548 where a two-Judge Bench, after referring to series of judgments has culled out the following principles: (i) if there are essential conditions, the same must be adhered to; (ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully; (iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. 24. In Union of India and Anr. v. International Trading Company and Anr. (2003) 5 SCC 437, it has been held that the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. It has been further opined that the meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. 25. In Jespar I. Slong v. State of Meghalaya and Ors. (2004) 11 SCC 485, this Court stated that fixation of a value of the tender is entirely within the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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