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CASE NO.: Appeal (civil)  5673 of 2006

PETITIONER: Nagar Nigam, Meerut                                     ..      Appellant

RESPONDENT: Al Faheem Meat Exports Pvt. Ltd & Ors.          ..      Respondents

DATE OF JUDGMENT: 07/12/2006

BENCH: S. B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T (Arising out of SLP(Civil) No. 10174 of 2006)

S.B. SINHA, J.

       Leave granted.

       Nagar Nigam Meerut is before us questioning the legality of a  judgment and order dated 29th March, 2006 passed by a Division Bench of  the Allahabad High Court in Civil Misc. Writ Petition No. 53782 of 2004.   Appellant-Corporation is a local authority constituted under Uttar Pradesh  Municipal Corporations Adhiniyam, 1959 (the Act).  As a local authority,  indisputably it has a large number of public duties and functions to perform;  maintenance of slaughter house being one of them.  Chapter XVI of the Act  inter 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 \026 (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 maintaining on any such  Corporation markets such building, places,  machines, weights, scales and measures for  weighing and measuring goods, sold therein as he  shall think fit;  

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(d)  upon being authorized by the Corporation on  that behalf, to close any Corporation market or  slaughter-house or stockyard or any portion thereof  and to dispose of as the property of the  Corporation the premises occupied for any market  or slaughter-house or stockyard or any portion  thereof so closes;  

(e)  with the previous sanction of the Corporation,  to prohibit by public notice from time to time  within a distance of fifty yards of any Corporation  market the sale or exposure for sale of the  commodities or of any of the commodities  specified in the notice ordinarily sold in the said  Corporation market and with like sanction to  cancel or modify any such notice at any time;  

(f)  to charge for the occupation or use of any stall,  shop, standing shed, or pen or other building in a  Corporation market, slaughter-house or stockyard,  and for the right to expose goods for sale in a  Corporation market, and for weighing and  measuring goods sold in any such market and for  the right to slaughter animals in any Corporation  slaughter-house, such stallages, rents and fees as  shall, from time to time be fixed by him, with the  approval of the Executive Committee, in that  behalf;  

(g)  with the approval of the Committee, from the  stallages, rents and fees leviable as aforesaid or  any portion thereof, for any period not exceeding  one year at a time; or

(h)  to put up to public auction, or with the  approval of the Executive Committee, dispose of,  by private sale, for privilege of occupying or using  any stall, shop, standing shed or pen or other  building in a Corporation market, slaughter-house  or stockyard for such term and on such conditions  as he shall think fit.  

423.   Opening of private markets and of private  slaughter-houses:-

(1)  The Corporation shall from time to time  determine whether the establishment of new  private markets or the establishment or  maintenance of private slaughter-house shall be  permitted in the City or in any specified portion of  the City.  

(2)  No person shall establish a private market for  sale of, or for the purpose of exposing for sale,  animals intended for human food, or any article of  human food or livestock or articles 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):

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       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-house is established shall be  deemed to have established such market.

(4)  The Municipal Commissioner shall not cancel  or suspend or refused to renew any licence for  keeping open a private market for any cause other  than the failure of the owner thereof to comply  with some provision of this Act, or with some  regulation or with some bye-law.         

(5)  The Municipal Commissioner may cancel or  suspend any licence for failure of the owner of a  private market to give in accordance with the  conditions of his licence a written receipt for any  stallage, rent, fee or other payment received by  him or his agent from any person for the  occupation or use of any stall, shop, standing,  shed, pen or other place therein.   

(6) When the Municipal Commissioner has  refused, cancelled or suspended any licence to  keep open a private market, he shall cause a notice  of his having so done to be affixed in such  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 has been held."  

       The first respondent herein was granted a licence for a period of one  year to run a slaughter house which is owned by the appellant-Corporation.   It gives this slaughter house on annual licence basis.  Such a licence was  granted to the first respondent herein on 9.1.2004.  The said licence expired  on 8.1.2005.  The impugned advertisement dated 6.12.2004 was issued by  the appellant inviting applications for granting a fresh contract for running  the slaughter house.  It is this advertisement whose validity was challenged  before the High Court.

It may be mentioned here that in the year 2003, the Mayor of the  Nagar Nigam issued an advertisement on 9.11.2003 for modernizing the  existing slaughter house, which was published in some local newspapers.  

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The first respondent is said to have submitted a project report in response to  the same.  However, as stated in paragraph 8 of the counter affidavit of the  Nagar Nigam before the High Court, the power to accept such a project  report is with the general body of the Nagar Nigam, which has not granted  any approval thereto.

It is alleged by the first respondent that he sent a representation to the  State Government seeking its permission to modernize the slaughter house.   Thereafter he filed a writ petition being Writ No. 37187/2004 before the  High Court, 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.

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 vs. State of  U.P. & Ors.) stayed dispossession of the petitioner therein.  That writ  petition is said to be still pending.

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. S.D.  Kautilya, advocate) have categorically stated  before us that the petitioner No. 1 shall construct  new building and install latest modern plants,  machines fixtures with latest advanced technology  on international standards so that one shall not be  able to identify it as "Slaughter House" from  outside and offered to invest Rs. 6 crores to  complete the project in one year besides  undertaking to deposit Rs. 60 lacs per annum at par  with the offer of petitioner No. 2 (As per affidavit  of Sri Prithvi SinghChauhan) provided he is  allowed to carry on the Slaughter House for ten  years.

Keeping in mind that the interest of the  common man at large is paramount which should  not be ignored and to ensure the welfare of the  local residents by saving them from facing untold  hardships and sufferings (as already recapitulated  earlier), we direct the Nigam and other concerned  authorities of Meerut, Administration to assist and  cooperate with petitioner No. 1 to modernize the  Slaughter House at its existing site on following  "terms and conditions":-

(1)     Petitioner No. 1 represented by its Director  Mohd. Imran Khan (which includes legal  representative, successor, assignee, agent,  nominee, servant etc.) shall, on or before  30.4.2006, file an affidavit giving undertaking to  the Nigam to comply with the directions given  hereunder.            (2) (a) Petitioner No. 1 as per its offer and

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undertaking given to the court shall on or before  15th May 2006 deposit Rs. three crores with Nagar  Nigam, Meerut.

(b)    Petitioner No. 1 shall also deposit Rs. two  crores on or before 30th September 2006 with  Nagar Nigam, Meerut.

(c)  The Nigam give written notice to the Petitioner  No. 1 to deposit within three weeks of receipt of  said Notice or such extended time as the Nigam  may grant in writing such additional amount (not  exceeding Rs. 50 lacks at one instance) in case  additional amount, exceeding Rs. five crores  referred in above clause (a) and (b), is required to  complete the project, (as contemplated under this  judgment) subject, however, to the condition:  

(i) demand of additional amount shall not in  total exceed Rs. one crore and the petitioner  No. 1, therefore, shall not be required to  deposit in total more than rupees six crores;  and     

(ii)  Further, in case of any amount being  found in excess and unutilized at the end of  completion of Project 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 Centre 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 Centre for Integrated Animal Husbandry  and Dairy Development, Noida CIAHDD and  Agency/Organiszation approved by the Nigam.   The project reports shall include plan for Civil  electrical and mechanical designs/plans, adequate  provisions to check pollution of any kind including  "Treatment of Effluents and Pollutants" as per  norms prescribed by U.P. Pollution Control   Board.  Health and Safety Devices, prevention of  Five and other relevant details as may be required  by the Nigam, or the State Government under  relevant concerned Act, Rules, Regulation,

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Government Orders etc. as well as bind itself to  discharge all obligation otherwise created for  operating modern slaughter house on international  standards.  

(4)     Petitioner No. 1 shall submit on or before  30th May 2006 a copy of the Project Report/Plan  duly approved by CIAHDD and other information,  if any, to the Nigam, M.D.A. or Pollution Control  Board, etc. dealing with the subject in question for  information who shall pass appropriate order  within ten days of receipt plan and intimate  Petitioner No. 1 accordingly.

(5)     Petitioner No.1 shall be duty bound to  remove defect, if any, communicated to it by the  Nigam, M.D.A. or U.P. Pollution Control Board,  within two weeks of receipt of objection and  obtain No Objection forthwith but in any case  before 15th June, 2006.  The Board shall consider  the report and pass appropriate order/grant or  refuse "No Objection" within ten days of receipt of  submission of papers after removal of such defect.

(6)  Petitioner No. 1 shall also obtain sanction No  Objection from the Nigam, Meerut Development  Authority(MDA), and U.P. Control Pollution  Board by submitting amendments in the plans, if  any, at appropriate time and then authorities shall  within ten days of the receipt of the same pass  appropriate order.  

(7)  Petitioner No. 1 shall inform Nigam in writing  before starting construction/execution of Project  work which must be undertaken on or before 15th  July, 2006.

(8)  Petitioner No. 1 shall cooperate and assist the  Nigam (its authorities/officers) to make inspection  of the site during course of implementation of the  project to satisfy that the work is as per Project  Report approved by CIAHDD as well as other  directions issued by other authorities viz. the  Nigam, Meerrut Development Authority, U.P.  Pollution Control Board etc.

(9)  Petitioner No. 1 shall be entitled to supervise  execution of the Project work and shall be entitled  to ensure that said work is performed/executed as  per Project Report, and all payments in that respect  shall be made promptly by the 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 instalments;  the first installment of Rs. 15 lacs to be paid to the  Nigam on or before 15th May, 2006.  The second

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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 settled by the  Nigam under the law.  

(11)  Petitioner No. 1 shall be free to abandon his  claim to run modern slaughter house for a period  of "ten years" or for less period as he may be  desired but he shall not be, in lieu of it or in  connection with, entitled to damages/compensation  of any kind.

(12)  Slaughter House shall be modernized within  a maximum period of one year from today out of  the funds referred to in Clause 1(a), (b), (c), (d)  and (e) above.  

(13)  Nagar Nigam Meerut, District Authorities  and other concerned authorities shall be duty  bound to ensure that all steps are taken to promote  expeditious execution of the Project Report  referred to above and further hereby directed to  extend desired support and full cooperation to the  petitioner in establishing "modern Slaughter  House".  Laxity or negligence in any manner on  the part of either party shall be deemed and treated  deliberate act of interfering with the compliance of  this order of the Court.   

(14)  Petitioner No. 1 shall have no claim or  interest or subsisting right or charge on the assets,  whether movable or immovable in the assets of the  slaughter house in question created out of funds  referred to in sub-clause 2(a), (b), (c) (d), (e) and  (f) of Clause 2 after expiry of ten years or in case  of the petitioner No. 1 abandoning or relinquishing  his right to operate the Slaughter House at any  time before expiry of said ten years.

(15)  The Nagar Nigam, Meerut and all the  concerned authorities shall have right to make  periodical inspections to ensure that the  slaughterhouse is properly maintained and run in  accordance with the relevant statutory provisions,  viz., the Act, Rules/Regulations and Government  Orders, etc, if any for ten years period  contemplated above.

(16)  ***                       ***                     ***

(17)  This order shall not, in any manner be read or  interpreted to encroach upon or undermine the  power conferred in lieu upon any  Officer/Authority of the Corporation etc.

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(18)  In case of difficulty or doubt the parties are at  liberty to approach this Court for  appropriate/requisite order by way of clarification.

U.P. Government., Nagar Vikas Anubhag  Order dated 07-01-2005 (No. 03 Writ/9-8-2005- 11P/03), Annexure CA-3 to short counter affidavit  of respondent No. 1/State of  U.P., is hereby set  aside.  

The Writ petition is allowed by moulding  the reliefs subject to the conditions and to the  extent indicated above"

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.   vs.  Section Officer Brotherhood and Anr.  2004 (8) SCC 286]

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 the Corporation have been taken away by the High Court’s  order, but in addition the constitutional scheme adumbrated under Article 14  of the Constitution also stands violated.  The learned senior counsel  contended that if with a view to achieve transparency the Corporation  intended to advertise a tender, it was not for the High Court to direct grant of  contract in favour of the first respondent herein on the terms and conditions  laid down in the impugned judgment.

Mr. Dinesh Dwivedi, learned senior counsel appearing for respondent  No.1, on the other hand, submitted that the High Court was faced with an  exceptional situation namely, the pressing need for modernization and  proper maintenance of the slaughter house keeping in view the health  hazards of the public at large.  It was pointed out that the new proposed  slaughter house cannot be constructed at an early date, as the High Court in  another writ petition has stayed acquisition of the alternative site, as a result  whereof a stalemate had occurred and continued for 2-1/2 years.  The  appellant-Corporation, it was urged, in view of the stand taken by the State  of U.P. could not grant lease for more than one year and it had no funds to  construct a new modernized slaughter house.  It was submitted that having  regard to the aforementioned difficulties, the High Court passed the  impugned judgment and, thus, no fault can be found therewith.  The learned  senior counsel would contend that Article 14 does not prohibit negotiation  with a private person for the purpose of distribution of largesse by the State  in some exceptional circumstances.  Reliance in this connection has been  placed on the judgments of this Court reported in Sachidanand Pandey &  Ors. vs.  State of West Bengal & Ors (1987) 2 SCC 295, Brij Bhushan &  Ors. vs. State of J & K & Ors. (1986) 2 SCC 354 and M.P. Oil Extraction  vs. State of M.P. (1997) 7 SCC 592.

Indisputably Appellant-Corporation is a State within the meaning of  Article 12 of the Constitution of India.  It was constituted under the said Act  which was enacted with a view to ensure better municipal governmence of  the cities in the State of Uttar Pradesh.  The statutory obligation on the part  of the Municipal Corporation to build and/or maintain a hygienic slaughter

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house is not open to question.  We have noticed hereinbefore that in terms of  Sections 422 and 423 of the Act, the Corporation 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 vs. Union of India &  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 authorities.  

In this case, however, we are concerned with a different question.  It is  now a well settled principle of law that having regard to the provisions of  Article 14  of the Constitution of India, a State within the meaning of Article  12 thereof cannot distribute its largesse at its own sweet will, vide R.S.  Shetty vs. Union of India, AIR1979 SC 1628.  The Court can ensure that  the statutory functions are not carried out at the whims and caprices of the  officers of the government/local body in an arbitrary manner.  But the Court  cannot itself take over these functions.   

This Court time and again has emphasized the need to maintain  transparency in grant of public contracts.  Ordinarily, maintenance of  transparency as also compliance of Article 14 of the Constitution would inter  alia be ensured by holding public auction upon issuance of advertisement in  the well known newspapers.  That has not been done in this case.   Although  the Nagar Nigam had advertised the contract, the High Court has directed  that it should be given for 10 years to a particular party (respondent No. 1).   This was clearly illegal.

It is well settled that ordinarily the State or its instrumentalities should  not give contracts by private negotiation but by open public auction/tender  after wide publicity.  In this case the contract has not only been given by  way of private negotiation, but the negotiation has been carried out by the  High Court itself, which is impermissible.  

       We have no doubt that in rare and exceptional cases, having regard to  the nature of the trade or largesse or for some other good reason, a contract  may have to be granted by private negotiation, but normally that should not  be done as it shakes the public confidence.  

The law is well-settled that contracts by the State, its corporations,  instrumentalities and agencies must be normally granted through public  auction/public tender by inviting tenders from eligible persons and the  notification of the public-auction or inviting tenders should be advertised in  well known dailies having wide circulation in the locality with all relevant  details such as date, time and place of auction, subject-matter of auction,  technical specifications, estimated cost, earnest money Deposit, etc. The  award of Government contracts through public-auction/public tender is to  ensure transparency in the public procurement, to maximise 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

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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 vs. State of  Haryana and Others, AIR 1985 SC 1147).

In Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109  at 1133, 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 relevant cases cited  at the bar the following propositions may be  taken as well established: State owned or public  owned property is not to be dealt with at the  absolute discretion of the executive. Certain  precepts and principles have to be observed.  Public interest is the paramount consideration.  One of the methods of securing the public  interest when it is considered necessary to  dispose of a property is to sell the property by  public auction or by inviting tenders. Though  that is the ordinary rule, it is not an invariable  rule. There may be situations where there are  compelling reasons necessitating departure  from the rule but then the reasons for the  departure must be rational and should not be  suggestive of discrimination. Appearance of  public justice is as important as doing justice.  Nothing should be done which gives an  appearance of bias, jobbery or nepotism."            "The public property owned by the State  or by an instrumentality of the State should be  generally sold by public auction or by inviting  tenders. This Court has been insisting upon that  rule, not only to get the highest price for the  property but also to ensure fairness in the  activities of the State and public authorities.  They should undoubtedly act fairly. Their  actions should be legitimate. Their dealings  should be above board. Their transactions  should be without aversion or affection.  Nothing should be suggestive of  discrimination. Nothing should be done by  them which gives an impression of  bias, favoritism or nepotism. Ordinarily, these  factors would be absent if the  matter is brought to public auction or sale by  tenders. That is why the Court  repeatedly stated and reiterated that the State  owned properties are required to  be disposed of publicly. But that is not the only  rule. As O.Chinnappa Reddy, J. observed, "that  though that is the ordinary rule, it is not an  invariable rule". There may be situations  necessitating departure from the rule, but then  such instances must be justified by  compulsions and not by compromise. It must  be justified by compelling reasons and not by just  convenience".

The law is, thus, clear that ordinarily all contracts by the  Government or by an instrumentality of the State should be granted only by

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public auction or by inviting tenders, after advertising the same in well  known newspapers having wide circulation, so that all eligible persons will  have 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.           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 question of fixing any terms of the  Contract or laying down the terms and conditions is for the concerned  authority to decide, and it is not a matter within the domain of the Courts.  In  this behalf, we may refer to a decision of this Court in Association of  Registration Plates vs. Union of India & Ors. reported in (2005) 1 SCC  679, wherein this Court opined:

"The fifteen years’ contract period has also been  supported by the Union of India and State  authorities.  We find great substance in the  submissions made on the data supplied as a  justification for awarding the contract for a long  period of 15 years.  There would be a huge  investment required towards the infrastructure by  the selected manufacturer and the major return  would be expected in initial period of two years  although he would be bound down to render his  services for future vehicles periodically for along  period.  Looking to the huge investment required  and the nature of the job which is most  sophisticated, requiring network and infrastructure,  a long-term contract, if though viable and feasible,  cannot be faulted by the court.  If there are two  alternatives available of giving a short-term or a  long-term contract, it is not for the court to suggest  that the short-term contract should be given.  On  the subject of business management, expertise is  available with the State authorities.  The policy has  been chalked out and the tender conditions have  been formulated after joint deliberations between  authorities of the State and the intending  manufacturers.  A contract providing for technical  expertise, financial capability and experience  qualifications with a long term of 15 years would  serve the dual purpose of attracting sound parties  to stake their money in understanding the job of  supply and safeguard the public interest by  ensuring that for a long period the work of  affixation of security plates would continue  uninterrupted in fulfillment of the object of the  scheme contained in Rule 50.  Our considered  opinion, therefore, is that none of the impugned  clauses in the tender conditions can be held to be  arbitrary or discriminatory deserving their striking  down as prayed for on behalf of the petitioners."

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                                        (emphasis supplied)

In the present case, the respondent no.1 challenged the impugned  advertisement dated 6.12.2004 issued by the Nagar Nigam.  We have  carefully perused the said advertisement 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.   vs.  Adani Exports Ltd. and Ors.  2005(4) SCC 435 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."\005\005\005

Similarly in Master Marine Services (P) Ltd. vs. Metcalfe &  Hodgkinson (P) Ltd. and Anr. 2005(6) SCC 138, 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 have carefully perused the impugned advertisement and we do not  find any arbitrariness, discrimination or malafides in the same.  Hence the  High Court had no justification for interfering with the said advertisement.        

For the reasons aforementioned, we have no other option but to hold  that the impugned judgment is unsustainable.  It is set aside accordingly.   The question, however, arises what direction should be passed by us now,  considering the fact that the impugned advertisement was issued on  6.12.2004.  We think that the interest of justice would be subserved if the  appellant Corporation is directed to issue an advertisement in well known  newspapers having wide circulation again calling for bids on such terms and  conditions which it may find to be reasonable within six weeks from the date  of communication of this order.  The bids offered pursuant thereto must be  opened and a final decision must be taken within eight weeks thereafter.      Till such time it will be for the appellant-Corporation to decide as to  how the slaughter house should be allowed to function by making such  interim arrangement as it may find fit and proper.   

Although the State of U.P. had rejected the proposal of the Municipal  Corporation, we direct the State to have a fresh look at the matter and to  consider the feasibility/desirability of grant of a licence to run the slaughter  house for a longer period than one year on the condition that the plant should  be modernized by the licencee.  In our opinion, such a policy decision may  be required to be taken keeping in view the health and welfare of a large  number of inhabitants of the vicinity where such abattoirs are functioning, as  also vis-‘-vis the health of the inhabitants of the locality, which is a  fundamental right under Article 21 of the Constitution of India.  If a policy  decision is taken by the State, it goes without saying that the appellant- Corporation in future may act in terms thereof, unless otherwise provided for  by the Statute.   

Although the matter is not before us, however, keeping in view the  fact that now it is widely felt that a modern abattoir should be constructed, as  was noticed by this Court in Buffalo Traders Welfare Association (supra),  which ensures hygiene and sanitation, we would request the High Court to

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consider the desirability of disposing of Civil Misc. Writ Petition No.  11069/2006 (Asaf Ali vs. State of U.P. & Ors.) as expeditiously as possible.   Save and except the aforementioned directions, we are of the opinion that  the Corporation may work out the other modalities as it deems fit and in  accordance with law.  If respondent No.1 has deposited any amount for the  modernization of the plant, which has not been carried out, the Corporation  may refund the amount subject to any outstanding dues.

The appeal is allowed accordingly.  No costs.