Global Rescue Foundation v. Union of India and Ors.

14. Learned counsel has also highlighted the fact that the National Museum has over two lakh priceless antiquities many of which are National Treasures that are more than 3000 years old including the objects pertaining to Indus Valley Civilization and only about 3% of these objects are on display while remaining 97% are preserved in store and accordingly, a well prepared Disaster Management Plan was required to prevent permanent loss to these national treasures which may be at risk due to fire, flood, earthquake or even hazards that are specific to museum objects like moisture, heat or pest attacks. It is essential to understand the disaster risk or risk due to hazards related to museum objects which requires very specific skills and knowledge in the field of material heritage, conservation of objects, museum display technique, storage of objects etc. It is also the contention of the counsel for the respondents that the preparation of Museum Disaster Plan extends much beyond building safety or human evacuation in case of a fire or an earthquake. The preparation of plan would also involve sharing sensitive information regarding storage locations and security of museum objects. It is also pointed out that the Disaster Management Plan for the National Museum was sought to be prepared for the first time in 60 years history of the National Museum to mitigate the disaster risk and to ensure safety of priceless national treasures and to prevent disasters that had wiped out Indian Museum of Natural History (Mandi House in 2016) and National Museum of Brazil in 2018. Paras 2 to 5 of the counter affidavit filed by respondents read as under:

15. As per para 8 of the counter affidavit filed by the respondents to prepare Disaster Management Plan, a market survey was done to identify the potential and capable agencies for the work. On a query raised by the Court, Mr. Gogna explains that only INTACH and the petitioner were contacted. Their proposals were taken and compared wherein INTACH was found to be suitable for the preparation of the Disaster Management Plan. Mr. Gogna has further submitted that INTACH was appointed after much deliberation, having regard to the fact that INTACH was established in the year 1984 as a Society. It is a premier agency in the field of culture heritage. It is one of the world’s largest agencies with over 200 chapters across the country having its headquarters in New Delhi. It operates through various divisions such as Archaeology Heritage, Natural Heritage, Material Heritage, intangible Cultural Heritage, Heritage Education and Communication Services (HECS), Crafts and Community Cell, Chapters, INTACH Heritage Academy, Heritage Tourism, Listing Cell and Library, Archives and Documentation Centre. Paras 9 to 14 of the counter affidavit filed by respondents reads as under:

16. Mr. Gogna, learned counsel for the respondent, has laid stress on the fact that unlike the petitioner, which is a private agency, INTACH finds mentioned at Sr. No.26 pertaining to Govt. of India (Allocation of Business Rules), Ministry of House and Urban Affairs, Govt. of India. Counsel submits that the petitioner was not found relatively suitable. He submits that the task has not been awarded in a hushed manner as has been suggested by the counsel for the petitioner. He has further placed reliance on para 10 of the note file dated 06.05.2019, which is reproduced below: “ Global Rescue Foundation (GRF) is a private not for profit organization engaged primarily in areas like Rapid Visual Screening of existing structure to assess structural safety, Retro fitment of building for seismic safety etc. The foundation has conducted a seminar on Museum Safety & Disaster Management at National Museum in 2019. However, the documents made available by the foundation do not indicate any prior experience of preparation of Disaster Management Plan for any institutions like National Museum. The list of experts of GRF primarily from Civil Engineering domain, it does not have the heritage/ archeology/ art conservation experts to understand the safety related issues of museum objects. The foundation has sought a fee of Rs.11.80 lakhs + GST for the work. (SN- 49)”

17. Learned counsel for the respondent contends that the documents made available by the petitioner do not indicate any prior experience of preparation of Disaster Management Plan for any Institutions, like the National Museum. The list of experts of the petitioner are primarily from civil engineering domain. They do not have any expertise in heritage/archaeology, art conservation etc. to understand the safety and conservation related issues of museum objects. Mr Gogna further submits that the interference of court in tender matters and in invocation of the powers for judicial review in matters relating to Government contracts and tenders is narrow. Reliance is placed on Jagdish Mandal v. State of Orissa reported at (2007) 14 SCC 517, more particularly paras 21 and 22, which read as under: Scope of judicial review of award of contracts

21. We may refer to some of the decisions of this Court, which have dealt with the scope of judicial review of award of contracts.

21.1. In Sterling Computers Ltd. v. M & N Publications Ltd. [(1993) 1 SCC 445] this Court observed: (SCC p. 458, para 18) “18. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the court is concerned primarily as to whether there has been any infirmity in the ‘decision-making process’. … the courts can certainly examine whether ‘decision-making process’ was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution.”

21.2. In Tata Cellular v. Union of India [(1994) 6 SCC 651: AIR 1996 SC 11] this Court referred to the limitations relating to the scope of judicial review of administrative decisions and exercise of powers in awarding contracts, thus: (SCC pp. 687-88, para 94) “(1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative action. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. … More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” (emphasis in original) This Court also noted that there are inherent limitations in the exercise of power of judicial review of contractual powers. This Court also observed that the duty to act fairly will vary in extent, depending upon the nature of cases, to which the said principle is sought to be applied. This Court held that the State has the right to refuse the lowest or any other tender, provided it tries to get the best person or the best quotation, and the power to choose is not exercised for any collateral purpose or in infringement of Article 14.

21.3. In Raunaq International Ltd. v. I.V.R. Construction Ltd. [(1999) 1 SCC 492] this Court dealt with the matter in some detail. This Court held: (SCC pp. 500-01, paras 9-11)

21.4. In Air India Ltd. v. Cochin International Airport Ltd. [(2000) 2 SCC 617] this Court summarised the scope of interference as enunciated in several earlier decisions thus: (SCC pp. 623-24, para 7)

21.5. In Assn. of Registration Plates v. Union of India [(2005) 1 SCC 679] this Court held: (SCC p. 700, para 43)

“56. It may be true that a contract need not be given to the lowest tenderer but it is equally true that the employer is the best judge therefor; the same ordinarily being within its domain, court's interference in such matter should be minimal. The High Court's jurisdiction in such matters being limited in a case of this nature, the Court should normally exercise judicial restraint unless illegality or arbitrariness on the part of the employer is apparent on the face of the record.”

22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, 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. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succor to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or Whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”;

(ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.”

18. Mr. Gogna, learned counsel for respondents, in his counter affidavit has also disclosed that the National Museum has over 2 lakh priceless antiques many of which are national treasures and are more than 3000 years old including the objects of Indus Valley Civilization. Another interesting fact, which has been revealed is that only 3% of these objects are in display and remaining 97% are preserved in store. With a view to prevent permanent loss to these National Treasures due to commonly known disasters like flood, fire, earthquake or even specific museum objects related to hazards like moisture, heat or even pest attacks, it was decided keeping this prime object in mind that the purpose and objective of preparation of a Disaster Management Plan is to protect these treasures and taking into consideration the fact that in the year 2016, a fire had wiped out Indian Museum of Natural History (Mandi House in 2016) and National Museum of Brazil in

2018.

19. Mr. Gogna has submitted before us that no doubt under ordinary circumstances, a tender can be invited and an e-tender could have been invited. However, upon an examination of the market survey, the answering respondents found that only two agencies met the requisite qualifications that were required in order to prepare a Disaster Management Plan. The respondent in its wisdom considered it appropriate to rely upon Rule 194 of the General Financial Rules,

2017. Proposals were invited from the petitioner and respondent no.3. The same were compared and in the interest of museum, having regard to the expertise of respondent no.3 and after taking into consideration that the petitioner had no past experience of Disaster Management, respondent no.3 was awarded the work of providing the Disaster Management Plan.

20. Learned counsel for the respondents places reliance on the case of Nagar Nigam Meerut (supra) wherein the Apex Court has highlighted that normally such a procedure should not be adopted which shakes the public confidence. It was observed that the State, its incorporation and its instrumentalities and agency must grant tenders ordinarily through public auction or by inviting tender from eligible persons, advertisements should be made in well-known daily newspapers, technical specification, estimated costs etc. should be provided. However, it is only in rare and exceptional scenarios that the contracts can be awarded through “private negotiations.” These rare and exceptional scenarios include natural calamities and emergencies declared by the Government; a situation when the procurement is possible only from a single source; when the contract has exclusive rights in respect of the goods and services and no reasonable alternative or substitute exists. The answering respondent submits that that a market survey was conducted by a potential and capable agency for the work and only two persons could be found and thus, the respondents were well within their right to seek proposals, which was not done in an opaque manner, which is evident from the fact that even the petitioner was called upon to submit his proposal, which he did.

21. We have heard the learned counsel for the parties and considered their rival contentions.

22. This writ petition primarily relates to preparation of a Disaster Management Plan for the National Museum, which is situated in Delhi. On a reading of the note on the brief history of the establishment and status of the National Museum as given by Mr. Gogna, we find that the blueprint for establishing the National Museum in Delhi was prepared by Maurice Gwyer Committee in May

1946. Paras 2 to 7 of the brief of National Museum read as under: -

23. After considering the contentions of the parties along with the historical facts of the National Museum, the first issue which arises for our consideration is whether respondents No. 1 and 2 were justified in arbitrarily appointing respondent No. 3 by taking recourse to Rule 194 of the General Financial Rules, 2017, rather than inviting a tender and following the established principles and the office memorandum of the government. To decide the issue so framed, we deem it appropriate to reproduce Rule 194 of General Financial Rules, 2017 below: Rule 194, General Financial Rules, 2017. Single Source Selection/ Consultancy by Nomination: The selection by direct negotiation/ nomination, on the lines of Single Tender mode of procurement of goods, is considered appropriate only under exceptional circumstances such as:

(i) Tasks that represent a natural continuation of previous work carried out by the firm;

(ii) In case of an emergency situation, situations arising out after natural disasters, situations where timely completion of the assignment is of utmost importance; and Situations where execution of the assignment may involve use of propriety techniques or only one consultant has requisite expertise.

(iii) Under some special circumstances, it may become necessary to select a particular consultant where adequate justification is available for such singlesource selection in the context of the overall interest of the Ministry or Department. Full justification for single source selection should be recorded in the file and approval of the competent authority obtained before resorting to such single-source selection.

(iv) It shall ensure fairness and equity, and shall have a procedure in place to ensure that the prices are reasonable and consistent with market rates for tasks of a similar nature, and the required consultancy services are not split into small sized procurement.

24. The Supreme Court, in the case of Nagar Nigam (supra), cautioned that in rare and exceptional cases when the Court feels there are justifiable reasons, a contract may have to be granted by private negotiations. This practice has been discouraged as it would shake public confidence. Contracts made by the State, its Corporations, instrumentalities and agencies must ordinarily be granted through public auction/public tender and by inviting tenders from eligible persons after advertising the same in well-known dailies having wide circulation with relevant details including the subject matter of auction, technical specifications, estimated cost etc. in order to avoid public confidence being shaken and to promote healthy competition and to ensure transparency. The objective is to promote healthy competition amongst tenderers to provide for fair and equitable treatment of all tenderers, and to eliminate irregularities, interference and corrupt practices. No doubt, in rare cases, the exception to the rule is applied when there is some natural calamity or emergency declared by the Government or where the procurement is possible from a single source only.

25. The National Museum is a valuable treasure of the country, a collection of our nation’s glorious history and culture which has over two lakh priceless antiques in its protection. It presently holds approximately 2,00,000 objects of diverse nature, both Indian as well as foreign, and its holdings cover a time span of more than five thousand years of our cultural legacy. It is shocking that for about 60 years, there was no Disaster Management Plan in place. Keeping in view the importance and having regard to the safeguards required, it is our considered opinion that the procedure adopted by the respondents shows no transparency as only two agencies were approached to explore possibilities to prepare the Disaster Management Plan for the National Museum. In the light of the judgment rendered in the case of Air India Ltd. (supra), the Apex Court has recognized that while awarding a contract, which is purely a commercial transaction, the State can decide the manner in which the contract is to be awarded. It can also fix its own terms of invitation to tender and that is not open to judicial scrutiny, but they must adhere to the norms, standard and procedure laid down and cannot depart from them arbitrarily. The Supreme Court has observed that price need not always be the sole criterion for awarding a tender. Though the decision is not amenable to judicial review, the court can examine the decision-making process, provided the same is found to be vitiated by malafide unreasonableness and arbitrary.

26. Further, a Division Bench of this Court, in the case of Times Innovative Media Ltd. Vs. Delhi Transport Infrastructure Development Corporation Ltd. & Ors., 2013 SCC Online Delhi 1250, more particularly para 75, held as under:

28. We find that the offer of the petitioner was rejected for justifiable reasons, i.e., the petitioner does not have the heritage/archeology/art conservation experts to understand the safety related issues required for the safe upkeep and management of the museum objects. Other than that, the objective of respondent No.1 was to ensure a Disaster Management Plan that would prevent permanent loss of national treasures which could occur due to commonly known disasters caused by fires, floods and earthquakes and specific museums related hazards like moisture, heat or pest attacks. The Disaster Management Plan was to extend beyond building safety or human evacuation in case of fire or earthquake. Further, preparation of the plan involved sharing sensitive information regarding storage locations and security of museum objects. The Counter Affidavit, as filed by respondent No. 2, has further outlined that the work of preparation of a Disaster Management Plan for the National Museum, which possessed priceless national treasures, would require a multi-disciplinary institutional capacity in the field of architecture, conservation, disaster management and other academic research areas. The respondent No.1 also recognized that the work of preparation of Disaster Management Plan for National Museum was a subject that is rare in nature, a plan for the first time to be prepared in 60 years to mitigate the disaster risk and to ensure safety of priceless national treasures and to prevent disasters that had wiped out the Indian Museum of Natural History (Mandi House) in 2016 and National Museum of Brazil in 2018. Further, preparation of the plan also involved sharing sensitive information regarding storage locations and security of museum objects.

29. The next question which arises for our consideration is whether respondent No.2 was a multi discipline institution capable of providing the said Disaster Management Plan. The requirement of the said Plan has been described in paras 2 to 5 of the counter affidavit filed by Respondent No. 2, which we reproduce below:

30. The counter affidavit filed by respondent No. 2 reveals the expertise of respondent No.3, INTACH, which shows that INTACH is one of the world’s largest agencies with over 200 chapters across the world. It operates through various divisions such as Archaeology Heritage, Natural Heritage, Material Heritage, intangible Cultural Heritage, Heritage Education and Communication Services (HECS), Crafts and Community Cell, INTACH Heritage Academy, Heritage Tourism, Listing Cell and Library, Archives and Documentation Centre. It is the only NGO named as a support agency in the Ancient Monuments, Sites & Remains Act, 2010 and undertakes various initiatives and projects related to Heritage Conservation, Historic sites Management, Training and Capacity building etc. The counter affidavit does not disclose whether respondent No.3 has prepared a disaster management plan for any agency, much less a museum of national importance. There is no whisper that respondent No.3 has ever devised or prepared a disaster management plan for disasters; both natural disasters or man-made disasters. Further, respondent No.2 in their counter affidavit have referred to the damage caused to Sri Raja Pratap Singh Museum, Srinagar. This damage was caused due to floods in the year

2014. The earthquake in the year 2015 caused extensive damage to the Chhauni National Museum, Kathmandu. Reference is also made to the National Museum for Natural History which was gutted into fire in the year 2016. There is nothing on record to show that respondent No.3 has ever provided any safety plans with regard to floods and fire. So while it may be important to appoint an agency which has knowledge of conservation, protection of the rare items housed in the museums, but if there is no disaster management plan with regard to earthquakes, fires, it would defeat the purpose that the respondents had sought to achieve.

31. It is a cause of concern that the present awardee, respondent No. 3, lacks the minimum required technical expertise to conduct a Fire Safety Audit of an institution of the scale and value such as the National Museum.

32. We are of therefore of the considered opinion that respondent No. 3 lacks the required expertise as per respondent No. 2’s own showing in their counter affidavit and thus, respondent No.2 has not acted in the interest of the national monument. We are of the view that in case proper and wider publicity would have been given, the respondent No.2 would have been able to appoint an agency with the necessary expertise. We are further of the view that even at this stage the issue should be revisited and after wide publicity an agency should be appointed for a proper and wider disaster management covering all facets including earthquakes, fire, flood and other natural calamities.

33. While we are unable to grant any relief to the petitioner, we leave it to the wisdom of respondents No.1 and 2 to a take a considered view in the matter as to which agency is competent and which agency would meet their requirements of preparing a sound Disaster Management Plan. We, however, make it clear that the petitioner would not be precluded in participating in any future tender.

34. Accordingly, in the interest of fair play and with a view to preserve our national heritage, we deem it fit to recommend and issue directions to the effect that the respondents should endeavour to reconsider and re-examine the issue of preparing a Disaster Management Plan only after formulating a selection criteria, issuing advertisements in national dailies and ensuring that maximum number of qualified bids are received. Such an approach will ensure that our national heritage remains intact and does not suffer the fate suffered by our National Museum of Natural History in the year 2016.

35. With the above directions, this petition is accordingly disposed of. CM Appl. 31283/2019

36. The application stands disposed of in view of the order passed in the writ petition. G.S. SISTANI, J JYOTI SINGH, J DECEMBER 24, 2019 ck//