Man Mohan Yadav vs Union Of India And Ors.
1987 Latest Caselaw 47 Del

JUDGMENT

R.N. Aggarwal, J.

(1) We have heard the learned counsel for the petitioner Mr. Swatantar Kumar at length. We have also heard Mr. R.K. Anand on behalf of the respondents.

(2) The relevant facts are the on 5-8-1986 respondent No. 2 invited tenders for the supply of fresh milk. The petitioner and one other party submitted their tenders. The price quoted by the petitioner was Rs. 4.50 per litre. On 6-9-1986 the tenders were opened and according to the petitioner which fact is not controverter by the respondents the panel of officers after opening the tenders negotiated the price with the petitioner and the petitioner agreed to supply milk at the rate of Rs. 3.99 per litre.

(3) Pursuant to a policy contained in the letter Ext. R-2 dated 13-8-1985 of the Government for the year 1985-86 respondent No. 2 had negotiated the contract for the supply of the milk with the Government Milk Scheme, Chhindwara. The said scheme was valid up to September 1986. On 11-8-86 the under Secretary, Ministry of defense wrote to the Chief of the Army Staff conveying the sanction of the President for the continuance of the above policy up to 30-9-87. Under the said policy the Government is not obliged to call tenders.

(4) On the receipt of the above letter respondent No. 2 decided to conclude the contract for the supply of the milk with the Government milk Scheme, Chhindwara. This has given rise to the present petition under Article 226 of the Constitution of India.

(5) Shri Swatantar Kumar contended that the above act of the respondent amounts to discrimination and arbitrariness. Counsel in support of his contention has placed reliance on Harminder Singh Arora v. Union of India and Others, .

(6) We have carefully gone through the cited authority. The facts of the cited authority are that pursuant to an invitation inviting tenders for the supply of milk Harminder Singh Arora (the appellant therein) and the General Manager, Government Milk Scheme (respondent No. 4 therein) had submitted tender for the supply of milk. The tender of the appellant therein was the lowest. The authority which had invited the tenders inspite of the fact that the tender of the appellant therein was lowest decided to give contract to respondent No. 4. This was challenged by Harminder Singh Arora. His appeal was accepted and their Lordships held as under :- "THE Government may enter into a contract with any person but in so doing the State or its instrumentalities cannot act arbitrarily. In absence of any specific policy of the Government it is open to the state to adopt any policy. But if the authority or the state chooses to invite tenders then it must abide by the conditions laid down in the tender notice and the result of the tender and cannot arbitrarily and capriciously accept a much high tender to the detriment of the State. If the tender form submitted by any party is not in conformity with the conditions of the tender notice the same should not have been accepted. In any case if the authorities chose to accept the tender of respondent 4 for supplying pasteurized milk, instead of fresh buffalo or cow milk as specified in the tender notice, the appellant should also have been given an opportunity to change his tender. Moreover, if the terms and conditions of the tender have been incorporated in the tender notice itself and that did not indicate giving of 10% price preference to Government undertaking, the authority concerned acted arbitrarily in allowing such preference to respondent 4 if the appellant had known that price preference to government undertaking was to be given to respondent 4, the appellant would taken every precaution while submitting the tender. The Price Preference Policy of the Government of India as laid down in letter No. 12(1)/1/85/D(QS) dated August 13, 1985 was not in existence when respondent 2 had issued the tender notice and as such the said policy was of no avail to respondent 4. Therefore, the contract -of-supply of milk was to be given to the lowest bidder under the terms of the tender notice and the appellant being the lowest bidder he should have been granted the contract to supply especially, when he has been doing so for the last so many years. But the authorities accepted the tender of respondent 4 in preference to that of the appellant arbitrarily, capriciously and in a fanciful manner. Thus Article 14 violated."

(7) We find that the authority relied upon by Mr. Swatantar Kumar is not applicable to the case in hand. The distinguishing fact straightaway is that the Government Milk Scheme, Chhindwara were not a party to the tender. The petitioner only had submitted the tender. The Government did not accept the tender or rather cancelled the tender notice pursuant to the policy of the Government for the purchase of the milk from the government Milk Scheme/Coop. Federation Station. It was open to respondent No. 2 to adopt any policy for the supply of the milk. We see no arbitrariness or discrimination in this.

(8) The Government had for the year 1985-86 concluded a contract with the Government Milk Scheme, Chhindwara for the supply of the milk and this contract is sought to be renewed for the year 1986-87 pursuant to the letter dated 11-8-1986 issued by the government.

(9) Shri Swatantar Kumar also referred to Ram Shyam Company v. State of Haryana and Others, and Rasbihari Pandey etc. v. State of Orissa, . We have read both the authorities and in our view they have no application. Shri Swatantar Kumar lastly contended that after respondent No. 2 had negotiated the price on 6-9-86 they are estopped from cancelling the tender notice. It is also stated that after receipt of the intimation from the respondents on 6-9-1986 the petitioner had invested money in making arrangements for the supply of the milk. We are unable to agree with this contention of the learned counsel. There was no finalisation of the contract and, therefore, the respondents were not bound to accept the tender of the petitioner.

(10) We see no force in the petition and the same is dismissed. No order as to costs.

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