R.S. Narula, J.
1. Shrimati Sheel Kathuria, carrying on business under the style 'Messrs Sports Coiner' in Sector 22-D, Chandigarh, has come up to this Court under Article 226 of the Constitution to annul and quash the orders of respondents Nos. 1 and 2 (Punjab State and the Controller of Stores, Punjab), dated May 21, 1966, refusing to consider the tender submitted by the petitioner for the supply of sports goods on annual rate contract basis on the ground that the tender was submitted five minutes late.
The facts giving rise to the filing of the petition are neither lengthy nor complicated. Invitation to tender (Annexure 'A') was issued by the Punjab Government under the signature of the Assistant Controller of Stores, Punjab, on April 28, 1966, inviting offers to be made by 1 P. M. on May 21, 1966, for supply of sports goods of which description was given in the invitation to tender. One of the conditions laid down in the said public notice was that samples of each article offered, duly labelled indicating the rate, sealed and signed, must accompany the offer in duplicate failing which the rates were liable to be ignored. Condition No. 6 in the circular was to the effect that the tenders would be regarded as constituting offers open to acceptance in whole or in part at the discretion of the Controller of Stores, Punjab, till August 15, 1966. It is significant to notice that the said invitation to tender admittedly did not specify the name, particulars, designation or address of the authority with whom the tenders were to be filed or to whom the tenders were to be submitted by 1 P. M. on May 21, 1966.
It is the common case of both sides that the petitioner presented the requisite samples of each of the relevant articles duly labelled indicating the rate, sealed and signed within time before 1 P. M. on May 21, 1966, and they were actually received by the Government within time. Before delivering the samples, the petitioner's representative had gone to the Assistant Controller of Stores to lodge the tender. According to the petitioner this happened at 12-55 P. M. According to the written statement of the respondents, the tender was offered to the Assistant Controller at 1 P. M. This difference in time is not material, because it is not disputed that in either case, the tender was offered to the Assistant Controller of Stores within time. It does appear that the petitioner's representative must have met the Assistant Controller a few minutes before 1 P. M. as he was able to deliver the samples in a different building within time after leaving office of the Assistant Controller. It is also admitted by both sides that the Assistant Controller advised the representative of the petitioner to deliver the tender to the Office Superintendent, and that it was in pursuance of the said direction that the representative of the petitioner went to bungalow No. 561, where the samples were accepted from him, but he was told that he would have to present the tenders in kothi No 562. It was on arrival in that house that the Superintendent told the petitioner's representative that the tender had become five minutes late, and the said Superintendent made a note to that effect on the tender itself in spite of the petitioner having told the Superintendent all the above-mentioned facts. The office of the Assistant Controller is in bungalow No. 549. The office of the Superintendent was originally situated in building bearing No. 600, but had according to the respondents been shifted in April, 1966, to building No. 562. The representation of the petitioner, dated May 21, 1966 (Annexure 'B') for condoning the delay of five minutes in presenting the tenders not having been granted, the petitioner submitted a further application, dated June 24, 1966 (Annexure 'C'), wherein it was represented that the petitioner's tender was regular one and was in fact not a belated one in the circumstances described above. Prayer was again made in that application to consider and take into account the petitioner's tender as the samples with the rates labelled on them, had already been submitted within time. Not having been granted the relief claimed by her, the petitioner came to this Court on July 5, 1966, by way of this writ petition. The Motion Bench while admitting the petition on July 20, 1966, directed stay of acceptance of the tenders. Mr. M.M. Punchhi, the learned counsel for the respondents states that the tenders including that of the petitioner, have not been opened by the Government since then on account of the stay order.
2. The petition has been contested on behalf of the respondents and an affidavit of Paramjit Singh, Controller of Stores, Punjab, Chandigarh, has been filed as return of respondents Nos. 1 to 4 in reply to the rule issued by this Court. Material facts admitted by the respondents in the said reply, have already been referred to by me while giving a narrative of the case. The respondents, however, added that though the Assistant Controller did advise the representative of the petitioner to deliver the tender to the Office Superintendent, this was only according to the extant practice as some of the tenders used to deliver the tenders in person to the Office Superintendent, who also received tenders submitted by post, though strictly speaking the tenders submitted by hand were required to be deposited in the box meant for the purpose. This averment is based on Rule 8(v) of the rules framed by the Punjab Government under Article 283 of the Constitution in place of the original Appendix to the Punjab Financial Rules, Volume II, vide Punjab Government, Finance Department, notification No. 5530-4 FDII-61, dated the 23rd August, 1961, published in the Punjab Government gazette, dated the 8th September, 1961. The said sub-rule provides that 'the tenders shall be collected in a locked box to be opened on the day fixed for the purpose'. I need not deal with this plea of the respondent at any length, because the tender of the petitioner was not sought to be excluded from consideration on the ground that it had not been collected in the locked box. Moreover, it is admitted by the respondents that the alternative method of handing over the tenders to the Office Superintendent was not only in vogue, but had been suggested to the petitioner's representative by the Assistant Controller himself.
3. Considering the fact that the intending tenders were not told in the published invitation to tender to file their offers with any particular officer and the fact that the invitation to tender (Annexure 'A') was signed by the Assistant Controller of Stores and the fact that samples were received duly labeled with the tendered prices within time and five minutes' delay was occasioned in the submission of the tender on account of no fault of the petitioner, I would have been inclined to hold, if it was open to me to do so, that the refusal of the Government to consider the petitioner's tender, was neither fair nor just, but such a finding can be invited only in appropriate proceedings. Mr. Pipat learned counsel for the petitioner has relied on a single Bench judgment of the Travancore-Cochin High Court in Krishnankutty v. State of Travancore-Cochin, AIR 1951 Trav-Co. 197, wherein it was held in this connection as follows :--
'The second preliminary point was that the jural relationship between the petitioner on the one hand and the State on the other was merely contractual and that no application for a writ would therefore lie. The authority cited in that behalf namely pp. 561-563 of Vol. 1 of A. S. Choudry's High Prerogative Writs itself shows that judicial opinion is not agreed on that point. It will not, in my opinion, therefore, be safe to rest a decision solely on it. Nor do I feel inclined to dispose of this petition on the narrow ground that the petitioner, if aggrieved has other remedies. No doubt that is a consideration which the Court should keep in mind in seeking to exercise its jurisdiction under Article 226 but the decision of the Supreme Court cited earlier, namely Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163; (1950 SCR 566), shows that the availability of other remedies creates no legal bar to the Court exercising the jurisdiction under Article 226'
4. The objection of Mr. M. M. Punchhi, counsel for the respondents is not based on the ground of the petitioner not having availed of the alternative remedy by way of suit to claim relief sought from this Court. His plea is that in the absence of any statutory provisions like the Act of a competent legislature or statutory rules, it is open to the State Government in exercise of its executive functions to enter into contract for purchasing sports goods in any manner it likes and it is no one's right to insist upon giving his offer for acceptance. Article 162 or the Constitution lays down that subject to the provisions of the Constitution itself, the executive power of a State extends to the matters with respect to which the Legislature of the State has power to make laws. Article 298 inter alia provides that the executive power of each State extends, amongst other things to the carrying on of any trade or business and the making of any contracts for the holding and disposal of property etc. The proceedings for the inviting of tenders, considering them and accepting one or more of them, are in the nature of contractual obligations which have to be fulfilled by the State in exercise of its executive power under Article 298 of the Constitution.
Counsel for the petitioner has not been able to lay his hands on any statutory provision or rule which might have been violated by the respondents in declining to consider the petitioner's tender. That being so, it does not appear to me to be open to the petitioner to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution for controlling' the executive action of the State. Executive functions of the State include not only the determination of the policy in relation to matters governed by Articles 162 and/or 298 of the Constitution, but also the carrying of the same into execution. In Ham Jawaya v. State of Punjab, AIR 1955 SC .549, it was held that the carrying on of the business of printing and publishing text books, could not be said to be beyond the competence of the executive Government without a specific legislation sanctioning such course. Their Lordships further observed that any particular executive action of the Government may be good or bad and it may legitimately be criticised and condemned in the Houses of Legislature or outside but the exercise of legal executive functions in any lawful manner wanted by the State Government does not amount to an infraction of any fundamental rights guaranteed by Article 19 to a citizen. After carefully considering all the arguments of the learned counsel for the petitioner, I am of the opinion that this is not a matter for which the petitioner can justifiably invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution. Whether the tender was submitted within time or not is essentially a question of fact and this Court is ordinarily loath to embark on enquiries into such disputed questions. Whether in the particular circumstances of the case, the delay should have been condoned or not, was within the discretion of the State Government which cannot in my opinion be controlled by this Court. Whether in fact the submission of the tender was delayed in accordance with law or not, may more appropriately be got decided by the petitioner, if she is so advised, by recourse to the ordinary civil Courts of the land. I have not been able to persuade myself to interfere in this case in exercise of the writ jurisdiction of the Court.
5. The petition, therefore, fails and isdismissed, but without any order as to costs .