TaxTMI 
TaxTMI 
2006 (12) TMI 573
X X X X Extracts X X X X
X X X X Extracts X X X X
....alia provides for regulation of slaughter 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 mai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cles of good for livestock or shall establish or maintain a private slaughter-house except with the sanction of and 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-ho....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., which disposed off the same on 15.9.2004 by directing the State Government to consider the said representation. It is alleged that instead of deciding the representation, 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.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oject the said amount with interest if any shall be repaid to Petitioner No. 1 forthwith. crores (d) The above amount and time schedule shall be subject to such further mutual agreement/Settlement 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 provi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Nigam in accordance with law from the amount so deposited by Petitioner No. 1 under the above sub clauses of Clause 2. (10) Petitioner No. 1 shall be permitted to operate and slaughter animals at the existing slaughter- house 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 Rs. 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 Rs. 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 set....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iefs subject to the conditions and to the extent indicated above 7. The directions issued by the High Court, in our considered opinion, were totally unwarranted. The High Court undoubtedly exercises a wide jurisdiction under Article 226 of the Constitution of India. The jurisdiction 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation has various options. Such options, however, must be exercised by the Nagar Nigam itself having regard to the statutory scheme with a view to maintain public hygiene, but the same must be done in the light of the doctrine of life and liberty of a citizen as adumbrated under Article 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 auth....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se economy and efficiency in Government procurement, to promote healthy competition among the tenderers, to provide for fair and equitable treatment of all tenderers, and to eliminate irregularities, interference and corrupt practices by the authorities concerned. This is required by Article 14 of 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 releva....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e opportunity to bid in the bid, and there is total transparency. In our opinion this is an essential requirement in a democracy, where the people are supreme, and all official acts must be actuated by the public interest, and should inspire public confidence. 13. In the present case, unfortunately, the High Court'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 questi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ement and find no illegality in the same. It has been held by this Court in several decisions that the Court should not ordinarily interfere with the terms mentioned in such an advertisement. Thus in Global Energy Ltd. and Anr. v. Adani Exports Ltd. and Ors. AIR2005SC2653 this Court observed (vide para 10): The principle is, therefore, 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 ....