TaxTMI 
TaxTMI 
1996 (3) TMI 552
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....cation were required to be given in terms of the requisition attached thereto and in case of revision the same were required to be spelt out. The petitioners submitted their technical commercial bid and price bid on 24-10-1994. Various letters were exchanged arid discussions were held for a period of over nine months. By a fax dated 5-8-1995 the offer of the petitioner was accepted, by the respondent No. 1 as contained in Annexure-I to the writ application; one of the clauses whereof required joint signature and acceptance of purchase orders by the petitioners as also its American collaborator O.P.W. Engineering System, USA (hereinafter referred to as the 'Colla-borator'). On the same date the said offer was accepted by the petitioner but by a fax dated requested the petitioners to hold action on fax of acceptance, which the petitioner agreed in terms of its fax message dated 14th August, 1995 without prejudice to its rights and contentions. However, on 8-10-1995 the respondent No. 1 intimated to the petitioner by a fax message that the earlier fax of acceptance of offer dated 5-8-1995 was cancelled and a decision to reissue tender was intimated to it whereafter on 10th Oct....
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....s to Rail wagons. The petitioners submitted their technical bids and after negotiations, the first respondent sent the fax message but no such communication was sent to the collaborator of the writ petitioner. 7. It is stated that while processing the said bids, certain relevant issues had not been considered/explored in the decision making process. As it required further study and enquiry, the aforementioned fax dated 10th August, 1995 was sent. An internal assessment was thereafter undertaken by the first respondent wherein a system failure and serious errors were found to have crept in. It was stated that lapses have occurred in the evaluation process, particularly in the course of technical bid analysis which are as fol-fows:-- (a) The technical Parameters were frozen on 21st April, 1995, and the same was communicated to all the tenderers. Annexure I of the Frozen Technical Parameters pro-vided that the Loading Arms to be supplied were to be fully assembled and imported as such without any further work in India. A copy of the Frozen Parameters will appear front the communication dated 21st April, 1995 (together with the Annexures thereto, which are annexed and marked V. ....
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....n basis and the comparative statement was in respect of quotations made on different basis. It was particularly noted that EMCO's first option which was in accordance with the Frozen Technical Parameters was considered along with the writ petitioner's and others' quotations which were dehors the condition of Frozen Technical Parameters, i.e., imported components hut assembled in India. 8. It is contended that the matter was studied at some depth and the first respondent also took legal advise in the matter and pursuant thereto it was advised to cancel the offer to the the writ petitioner and go for global tender. 9. The said respondent also contend that the writ application is not maintainable as :-- (a) It involves various disputed questions of fact; (b) The writ petitioners had no enforceable right as no concluded contract had been arrived at nor any firm commitment against the general principles as well as the terms and conditions of the tender was made; (c) No purchase order has been issued having regard to the terms of the tender as well as the agreed minutes dated 31st July, 1995. 10. It has been urged that this Court has no territorial jurisdict....
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....was further submitted that in any event even the new global tender has been sent in Calcutta. (2) The respondents being 'State' within the meaning of Article 12 of the Constitution of India, were bound to act fairly and the impunged orders being illegal and arbitrary, this Court should quash the same. The learned Counsel relying on or on the basis of the decisions of M/s, Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay , Kumari Shrilekha Vidyarthi v. State of Uttar Pradesh reported in 1991 SC page 537, Council of Civil Service Unions v. Minister for the Civil Service reported in 1984 (3) All ER 935: 1985 App Cas 374, Jones v. Swansea City Council reported in 1989 (3) All ER 162, Tata Cellular v. Union of India , Sterling Computers Ltd. v. M/s. M. & N. Publications Ltd. , New Horizons Ltd. v. Union of India , L.I.C. of India v. Consumer Education & Research Central as also two decisions of this Court in Marine Engineer v. Siddeswar Halder reported in 1991 (1) CLJ 467 and Jute Corporation of India Ltd. v. Nillimarla Jute Mills Co. Ltd. reported in 1993 (1) CLT 79 submitted that the illegal termination of contract also comes within the purview of the ju....
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.... article by P. P. Craig 'A Conspectual Analysis' Published in 108 Law Quarterly Review, page 79. 12. Mr. S. Pal appearing on behalf of the respondents, however, submitted that the question of territorial jurisdiction would depend upon the determination of jurisdictional fact which this Court being not in a position to adjudicate, should not interfere in the matter. The learned Counsel contends that keeping in view various documents it would be apparent that no concluded contract had been arrived at by and between the parties and thus the question of revocation of such contract and communication thereof to the writ petitioners in terms of Section 4 of the Indian Contract Act does not arise. 13. Mr. Pal would urge that a decision is not required to be communicated and in view of the fact that such a decision not to award work in favour of the petitioner has been taken by the respondents at Delhi, no part of cause of action arose within the jurisdiction of this Court. Reliance in this connection has been placed on Burn Standard Company Limited v. Mcdermott International INC. . 14. It was been submitted that there being no concluded contract the question of revocation ....
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....ntended that the petitioner cannot have any legitimate expectation for grant of contract. Reliance in this connection has again been placed on A.C. Roy v. Union of India . 19 The questions which, therefore, arise for consideration in this application are:-- (i) Whether this Court has territorial jurisdiction to entertain the writ application and in any event whether this Court should exercise its jurisdiction in the facts and circumstance of the case. (ii) Whether the impugned order terminating the alleged contract and issuing the global tender notice suffers from illegality, irrationality or procedural irregularity. (iii) Whether the petitioner had a legitimate expectation to be awarded the contract in question. 20. Re: Question -- I A question as to whether the Court has territorial jurisdiction to entertain the writ application would depend upon the findings as to whether cause of action or any part thereof arose within the jurisdiction to this Court. Clause (2) of Article 226 of the Constitution of India reads thus:-- "The power conferred by Clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High....
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....municated to the petitioner at Calcutta. 24. The petitioner has stated that the petitioner's corporate Head Quarters is at Calcutta. Of course it has its office as also carries its manufacturing and operation at 344 GIDC Waghadia in the district of Baroda in the State of Gujarat. By a fax dated 5th August, 1995 the petitioner were allegedly offered the contract. The said fax 61 acceptance being 3412/163 as contained in An-nexure-I to the writ application although was despatched at its Calcutta address, admittedly the same was issued from Delhi and had been accepted by the petitioner in its entirety on the same date itself namely 5th August 1995 at Delhi. The petitioners agreed to furnish performance guarantee on the proforma of the respondent No. 1 within 10 days. The contract, if any, was, therefore, concluded at Delhi and not at Calcutta where a copy of the said fax was sent for informaation. 25. The question as to whether the parties have arrived at a concluded contract or not would depend upon the intention of the parties which has to be found out from the correspondences passed between the parties. A document as is well known must be read in its entirety and upon ....
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....der. Clause 40 of the said general agreement states: "The vendor hereby agree that the court situated at Bombay alone shall have the jurisdiction to hear and determine all actions and proceedings arising out of this contract." 29. However, in my opinion, the said clause has no application to the fact of the present case as the same does not and cannot override a constitutional provision contained in Art. 226(2) of the Constitution of India. 30. It may be true that all material correspondences were made by the petitioner with the respondent No. 1 at its Delhi Office from its Baroda Office and not from Calcutta as on the body of the said document, a rubber stamp of the Baroda Office of the petitioner appears, but does that mean that no part of cause of action arose within the jurisdiction of this Court? 31. It is not in dispute that the petitioner responded to the notice inviting tender issued by the respondent No. 1. In a letter dated 25th April, 1995 issued by the collaborator of the petitioner, it is stated : "OPW Engineered Systems would like Engineers India Limited to recognize that the D. Wren International Limited quotation for the loading arms at your Panipath ....
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....tained in Annexure '1' to the writ appli-ealion was issued. It is also not in dispute that during the course of negotiation the collaborator of the writ petitioner agreed to join the contract but as noticed hereinbefore, such negotiation took place through the petitioner. Durirg negotiation several new conditions were attached as regards participation of the collaborator of the petitioner in the execution of th? contract which was accepted by the petitioner as also its collaborator. They also agreed to execute a performance guarantee and accept the purchase order jointly. They also made themselves liable jointly and severally for breach of contract. 37. As the offer was made to the writ petitioner alone the fax of acceptance being No. 3412/163 was sent to the writ petitioner alone laying down the conditions therein. 38. The said fax of acceptance refers to the offer of the petitioner dated 24-10-94 and the consortium offer dated 24-7-95 Memorandum dated 31-7-95 and all other correspondences up to and including the writ petitioner's 3 fax dated 3-8-95 from its Delhi office for loading arms (rail wagons) against respondent No. Ps notice inviting tender. 39. In no....
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.... any doubt whatsoever that the contract performance guarantee and issuance of purchase order were merely the condition subsequent. 46. In Jawaharlal Barman v. Union of India , the Apex Court clearly held that an acceptance of contract subject to making security deposit constitutes concluded contract. The Apex Court held that although S. 7 of the Contract Act requires the acceptance of offer must be absoiutely unqualified and it cannot be conditional, but reading the letter as a whole, ihe same amounted to absolutely an unqualified acceptance of the tender or offer made by the appellant. In the said case also tender of security deposit was treated as a subsequent condition. Acceptance of pur-chase!order by the writ petitioner as also its collaborator were also one of the conditions had emerged during the negotiation and such condition was also accepted by the petitioner. 47. It is now well known that in a given case it is necessary to examine the language of offer and acceptance to determine the existence of an agreement. See Cheshire, Fifoot & Furmston's Law of Contract, 11th Edn., p. 28. 48. In the instant case also the petitioner was asked to 'acknowledge the rec....
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....ppear from Clause EE aforementioned as also communication dated 18th July, 1995 from the collaborator to the respondent No. 1 which contains the following clauses:-- "All components for the loading arms will be manufactured by OPW Engineered Systems in Mason, Ohio, U.S.A. The loading arms will be welded and assembled by D. Wren International Ltd, under direct supervision of OPW Engineered Systems' personnel. OPW Engineered Systems will certify the in-country technical support for these loading arms during assembly through installation." 52. Similarly stipulation contained in Clause (7) was also agreed to by the collaborator as would be evident from the letter dated I8th July, 1995. to the following effect :-- "Should at any point in time the subcontract between OPW Engineered Systems I and D. Wren International Limited be abrogated/fail, OPW Engineered Sytems will supply Indian Oil with the loading arms at the agreed upon price and within the agreed upon delivery schedule. This will keep the total liability to Indian Oil Unchanged." 53. The stipulation in Clause '8' has also been agreed to by the collaborator. See paragraph 1 of its letter dated 18th J....
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....being and thus, non-execution of the formal agreement will be a matter which would not bind the parties. 58. In Maheswari Metals and Metal Refinery v. The Madras State Small Industries Corporation Ltd. , a similar view has been taken by Venkat-raman, J. that requirement to execute an agreement is a mere formality. 59. In Smallman v. Smallman reported in 1971 (3) All ELR 717 : 1971 (3) Writ LR 588, an agreement of maintenance between a husband and a wife subject to the approval of the court was held to be a condition subsequent. What is, therefore, necessary for constitution of a contract is 'animus contrahandi' between the parties. The terms of contract are ascertained from the invitation of tender, the acceptance and any other relevant documents. 60. It is true that the law relating to offer and acceptance is not simple. In Hamilton Rau and Weintraub on Contracts, Cases & Materials, at page 346, it is slated :-- "The rules pf offer and acceptance are usually favourites of law students; they are easily stated and tend to be rather mechanical in their operation. They also involve situations that are relatively easy to grasp and in which various policy considerati....
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....were to be relieved from all liability. Far clearer wording would be required to achieve this effect." 66. In Dhutipudi Namayya v. The Union of India, reported in AIR 1958 AP 533, a Division Bench of the Andhra Pradesh High Court held that the mere fact that a new and collateral term is annexed to an absolute acceptance would not affect the formation of the contract on the basis of the original which is unconditionally accepted. 67. In American Jurisprudence, 2nd Sec. 65, it has been stated - "It must not be inferred from the rule that an acceptance must be unconditional, the mere mention in a letter of acceptance of matters upon which the acceptance of the proposition does not depend prevents the contract from being completed. There is authority to the effect that although an acceptance which introduces a new term as part of the proposed contract is insufficient, the mere addition to the acceptance of a collateral or immaterial requisition not warranted by the terms of the offer does not prevent the contract from being completed. Thus, immaterial or minor differences or variances between the offer and acceptance will not prevent the formation of a contract. Although a req....
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....dia, such a clause cannot have any application. 70. Furthermore the petitioner in terms of its letter dated 3-8-95 categorically stated "that the contract performance guarantee will be submitted at the time of signing of Contract/Purchase Order, jointly by D. Wren International Limited & OPW Engi-neered Systems, it was also stated that D. Wren/OPW eagerly looks forward to the opportunities to be of service to BIL." 71. It is now well settled principles that the documents for the purpose of arriving at a decision as to whether a concluded contract has been arrived at between the parties or not, have to be read as a whole. A conjoint reading of the aforementioned letters leave no manner of doubt that issuance of purchase order by the respondent No. 1 and acceptance thereof by the petitioner and its collaborator jointly as also furnishing of the contract performance guarantee were not sine qua non for arriving at a concluded contract and at best can be said to be conditions subsequent. Furnishing of bank-guarantee and issuance of purchase order were mere formalities. 72. It is also evident that at ail relevant times the American collaborator of the petitioner took part in the....
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....o whether it can exercise its territorial jurisdiction or not. 78. The Supreme Court in ONGC's case (supra) held that all necessary facts must form an integral part of the cause of action. It observed: "So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. Besides the fax message of 15-1-1993, cannot be construed as conveying rejection of the offer as that fact occurred on 27-1-1993." 79. In the instant case, not only concluded contract was arrived at, admittedly the offer of the petitioner accepted by the respondent No. 1 whether on provision basis or otherwise was rejected and the said decision was conveyed to the petitioner at Calcutta. 80. In Union of India v. Hindusthan Aluminium Corporation Ltd. , it was stated in the writ petition that the aluminium control order which was although issued at Delhi, the same having affected the business of Hindalco at Calcutta; a part of cause of action arose in Calcutta. 81. However, the Hindustan Aluminium Corporation's case, (supra) has also been distinguished in Everest Coal Pvt. Ltd. v. Coal Controller rep....
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....ch of contract on the part of the defendant where the contract has been entered into or where the same has been revoked as has been held by Patna High Cour! in Arthur Butler & Co. Ltd. v. District Board of Gaya reported in AIR 1947 Patna 13.4 and G. Venkatesha Bhat v. M/s. Kamla-pat Motilal , but the said decisions cannot be said to have any application whatsoever to the facts and circumstances of this case. 88. The submission of Mr. Pal as regards 'Forum Convenience' is wholly misconceived. The said doctrine has no application in a writ petition ;,nd, thus, it is not necessary to notice the decisions cited by Mr. Pal. 89. The question which now arises for consideration as to whether even if a part of cause of action has arisen within the jurisdiction of this court, this court should exercise its discretion in entertaining the writ application or not. 90. It is also difficult to accept the submission of Mr. Pal that decision to regret the offer of the petitioner was not required to be communicated. The Respondent No. 1 having communicated the order of acceptance of the petitioner's offer, was also bound to communicate its decision of rejection of offer. The dec....
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....dmitted and the learned Counsels addressed me at great length for a number of days, I also do not consider it to be a fit case where I should refuse to exercise any jurisdiction to entertain the writ petition. 96. In Surjit Singh v. Union of India, a learned single Judge has held that an invalid contract cannot be relied upon as constituting the part of cause of action. In that case jurisdiction of High Court was invoked on the ground that the contract was entered into within the jurisdiction but on facl it was held that there was n.o such contract. The decision of the Division Bench in Modern in Malleable Casting Works Ltd. v. M/s. Star Iron Works Ltd., reported in 1995 (2) Calcutta High Court Notes, page 433 also has no application to the fact of the case. In that case it was held that the cause of action for the writ application questioning arbitrary exercise of power by the respondents therein took place at Delhi and, thus the same would not confer jurisdiction to this Court merely because some communication was received at Calcutta which had nothing to do with formation of contract. The fact of the matter in the present case is absolutely different. 97. In Ujjap Talukder....
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....olves a public law element. The question as to whether a particular contract invovles public law clement or not would depend upon the fact of each case. The question as to whether the action of the State involved public law character or not is not only dependant on.the fact situation but also the stage of the contract. There cannot be any doubt that at the stage of threshold any decision taken by the State would to a great extent, be the subject matter of judicial review inasmuch as every person has a fundamental and legal right to participate in a tender and the State is bound to take a fair and reasonable attitude in the matter. 102. In view of well settled principles of law by judicial precedents that arbitrariness is antithesis of law and in the event an action of the Slate suffers from such arbitrariness the Court would not hesitate to declare the same to be bad and illegal with a view to uphold the constitutional guarantee of equal protection as embodied in Art. 14 of the Constitution. 103. Public bodies are required to follow certain principles and guidelines. (See Rampana Dayaram Shetty v. The International Airport Authority of India and ). In Harbinder Singh v. Union....
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....s to provide service to the people." 107. However, in G. D. Mahajan v. Jalgaon Municipal Commissioner, the Supreme Court held that the materials placed before the Court fell far short of what the law require to justify interference. The Supreme Court held that although the principles of judicial review applied to exercise by a government body of its contractual power, the inherent limitations on the scope of the enquiry are themselves a part of those principles. The Apex Court observed that in a matter even as between the parties, there must be a public law element to the contractual decision before judicial review is invoked. 108. In Tata Cellular v. Union of India, , the Apex Court after reviewing its earlier decision laid down the paramaters of judicial review in the following terms:-- "(a) The modern trend points to judicial restraint in administrative action. (b) The Court does not sit as a Court of Appeal but merely reviews the manner in which the decision was made. (c) The Court does not have the expertise to correct the administrative decision. If a review of administrative decision is permitted it will be substituting its own decision, without the necessary ....
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....to are governed by the terms of the contract, a writ petition shall not lie. However, keeping in view the subsequent development in law in tne field of contract vis-a-vis jurisdiction of the High Court to entertain the writ application, a full bench of the Patna High Court presided over by N. P. Singh, J. (as his lordship then was) in M/s. Pancham Singh v. State of Bihar, held that apart from three categories adumbrated in Radhakrishnan there exists fourth category namely, that a writ petition shall also be maintainable where the contract has been terminated by the State on a ground dehors any of the terms of the contract and which is per sc violative of Art. 14 of the Constitution of India. 111. B. L. Jain, J. in Niranjan Papatia Mattsr No. 3106 of 1993, D/- 8-9-93 (supra) has also accepted the said view. The division bench decisions of this Court in Marine Engineer v. Siddeswar Haldar, reported in 1991 (1) Cal LJ 467 and Jute Corporation of India Ltd. v. Nillimarla Jute Mills Co. Ltd., reported in 1993(1) CLT 79 only reiterate the said legal position. However, this Court will have no jurisdiction to entertain a writ application, in a matter governed by contract, qua contract a....
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.... the State if it is arbitrary or if any decision of the State has not been reasonable or has not been arrived in good faith or for improper motive or unauthorised purposes. 116. In Tata Cellular, (supra), the Supreme Court has clearly indicated the parameters of judicial review of this Court in contractual fields. One of the situation where the Court can exercise its power of judicial review is where a violation of principles of natural just ice lakes place as would appear from paragraph 94 of the said judgment. 117. In India Hotel Matter No. 3743 of 1994, D/- 27-2-95 (supra) I have held that the general principles of natural justice as is understood in the normal parlance is not applicable in the matter, of acceptance of tender. It has, however, held that once a concluded contract was entered into, the same could not have been reopened for the purpose of consideration of a representation by some other persons, However, in the instant case although a contract came into being, it was sought to be rescinded despite the fact that the benefits received by the petitioner had been taken away thereby. In Tata Cellular, (supra) the Apex court clearly held that in such a situation pri....
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....by and between the petitioner and the respondent No. I.took place for a period of more than 9 months and thus, in my opinion, it was possible for the concerned respondents to comply with the principles of natural justice. 123. In a given case a writ Court can exercise its power of judicial review under Art. 226 of Constitution of India is evident from the decision of a Division Bench of this , Court in Kalyani Spinning Mills Ltd. v. Smt. Sudha Sashikant Shroff, . 124. The question as to whether the principles of natural justice would be attracted or not depends upon facts and circumstances of each case. It has to be considered in circumstantial flexibility and situational fairness. The fact of the present case clearly suggests that in the instant case, in terms of Tata Cellular, (supra) the concerned respondent ought to have complied with the principles of natural justice. In this view of the matter it is nofnecessary to consider the other decisions cited at the bar. 125. However, Mr. Mitra is not correct in submitting that the impugned order must be set aside only on the around that it does not contain any reason. While awarding a contract the role of a 'State' wi....
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....of admission by collusion or manipulation. These decisions are being referred to only for the purpose of showing that even in the case of rectification of mistake, principles of natural justice can be taken recourse to. 130. The word 'civil consequences' is of wide amplitude. See D. K. Yadav V. Z. M. A. Industries Ltd., . 131. In view of my findings aforementioned, it is not necessary to advert to other questions raised in this application and consider the large number of decisions cited by the learned Counsel for the parties. Re : -- Contention - (3) Legitimate Expectations 132. It is no doubt true that doctrine of legitimate expectation holds its root in fairness. 133. In Wade & Forsyth's Administrative Law, 7th Edn. it is stated :-- "Claims based on legitimate expectation have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on estoppel. The argument under the table 'estoppel' and the 'legitimate expectation' argument are substantially the same. In this conflict of doctrines the demands of fairness are proving the stronger. But those demands cannot be pressed ....
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....tration. It is difficult to see why it is any less unfair to frustrate a legitimate expectation that something will or will not be done by the decision-maker than it is to frustrate a legitimate expectation that the applicant will be listened to before the decision-maker decides whether to take a particular step. Such a doctrine does not risk fettering a public body in the discharge of public duties because no individual can legitimately expect the discharge of public duties to stand still or be distorted because of that individual's peculiar position. As I hope to show in what follows, legitimacy is itself a relative concept, to be gauged proportionately to the legal and policy implications of ihe expectation. This no doubt, is why it has proved easier to establish a legitimate expectation that an applicant will be listened to than that a particular outcome will be arrived at by the decision-maker. But the same principle of fairness in my judgment governs both situations." 137. The learned Judge further observed: "It is precisely because public authorities have public duties to perform that they can no more be estopped from performing them than they can contract out of t....
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....loniser owning land in that area that he could construct a housing colony therein simply because he had submitted some plan for approval, when grant of the permission under S. 15 of the U. P. Act is not automatic and the statute permitted amendment of the Master Plan by change of the land use even thereafter. The mere fact that the area was shown originally as meant for recreational use, shows that reversion to the original land use is equally permitted by the statute. No legitimate expectation of the kind claimed by these private colonisers could arise on these facts and in a situation like this clearly contemplated by the Statute itself." 141. The Supreme Court also held :-- "The aforementioned decision, therefore, clarly lay down the law that the High Court in exercise of its jurisdiction under Art. 226 of the Constitution of India cannot interfere in a matter of contract or demand of money under a contract unless there exists a public law element:" 142. It was held that ihe case must involve a constitutional issue so as to make the same amenable to the jurisdiction of this Court. 143. It is interesting to note that in Union of India v. Hindusthan Development Corpora....