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Northern Railway Vendor's Industrial (Service) Society Ltd. Vs. Union of India (13.10.1978 - DELHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petition No. 970 of 1977
Judge
Reported in15(1979)DLT100
ActsConstitution of India - Article 14
AppellantNorthern Railway Vendor's Industrial (Service) Society Ltd.
RespondentUnion of India
Excerpt:
.....to reject or select any of the tender bid except in the case of violation of any fundamental or statutory right - in view of the fact, it was ruled that the writ petition was not maintainable - - direction, order or writs, including writ inthe nature of habeasr-corpus mandamus prohibition qua-warrants and certiorari or any of them (a) for the enforcement of the rights conferred by the provisions of part iii or (b) for the redress of any injury or a substantial nature by reason of the contravention of any other provision of constitution or any provision of any enactment or ordinance or any order, rule, regulation, by-law or other instrument made there under and (e) for the redress for any injury by reason of any illegality in any proceeding by or before any authority under any..........provision. a writ of mandamus can issue only for the enforcement of a fundamental right or a statutory right or for the redress of any injury by 102 reason of any illegality in any proceeding by or before any authority exercising the statutory powers and functions. in the case before me the railway administration has only invited tenders. no statutory rules have been brought to my notice governing the invitation of tenders or acceptances of tenders. once the railway administration has invited tenders, then it is the function of the executive to decide as to who is the most appropriate party in the matter of making a contract on the peculiar facts of each case and as to whether the contract should be entered into at all or not. it is the executive discretion of the government and.....
Judgment:

S.S. Chadha, J.

(1) This writ petition under Articles 226 and 227 of the Constitution of India seeks issue of appropriate writ, order or direction U.O.I, and Railway Administration to take a decision in respect of the award of contracts to the petitioner society on the basis of its highest bid of Rs. l,35,000 and Rs. 1,15,000 respectively as license-fee for aterm of 3 years to sell the miscellaneous articles at the Delhi Main Railway Stationi Delhi in accordance with the law and appropriate writ or director prohibiting respondents 3 and 4 from selling the said articles at the said station for another period after the expiry of their existing term up to Dec. 1976.

(2) The facts lie in a very narrow compass and arte not in dispute. Respondent No.2, the Divisional Superintendent Northern Railway? New Delhi nvited, sealed tenders up to 3 p.m. on 1st of Dec. 1976. which were to be 101 opened soon thereafter for two miscellaneous articles contracts of Delhi State for the sale of miscellaneous articles'(specified in the tender documents) at Delhi Railway Station from the date of award with 12 salemen (six in each shift) with two trollies to be plied on the different platforms and IInd class waiting halls in each contract. In response to the above-said invitation to tenders? only four tenders were submitted and out of such tenders? the petitioner's tender was the highest as being for Rs 2, 50,000.00 (license fee) for both the contracts for a period of three years and was so found at the time of opening of the tenders on 1st of Dec. 1976. The petitioner submitted various representations to the Railway Administration requesting them to award the contact, but no decision has been taken communicated in this rgard to the petitioner. However, by letter dated 31.8.77, the petitioner was called upon to produce certain specified documents and also furnish the information with a view to verify of the tenderer. The information was supplied immediately by the petitioner, yet no decision has been taken by respondents I and 2 in regard to the grant of contract in pursuance of said tender, and hence this writ petition. The petitioner alleges in the writ petition that respondent 3 and 4 wield very high influence with the concerned authorities and it is at their instance and to give them undue benefits that the matter as to the award of contract to the petitioner is being unduly dalayed. Respondents 3 and 4 were awarded contracts for the sale of miscellaneous articles at Delhi Main Railway Station for 3 years at the license fee of Rs. 54,000.00 and Rs. 60.200.00 respectively and their ten expired at the end of 31.12.76 but they are being allowed to continue to sell the miscellaneous articles at the existing license fee. It is award that respondent 3 and 4 have manupulated to have their term extended causing loss to exchequer. This action of respondents I and 2 is alleged on arbitrary and mala-fide on the part of the Railway Administration.

(3) Mr. R. N. Dhebar, learned counsel for the U.O.I and Railway Administration has raised a preliminary objection that the petitioner cannot claim enforcement of contract or tender by a writ under Article 226 of the Constitution of India and thus the present writ petition is not maintainable in law. Article 226 of the constitution confers powers on the High Court to issue to any person or authority including in appropriate cases, any Govt. direction, order or writs, including writ inthe nature of habeasr-corpus mandamus prohibition qua-warrants and certiorari or any of them (a) for the enforcement of the rights conferred by the provisions of part Iii or (b) for the redress of any injury or a substantial nature by reason of the contravention of any other provision of constitution or any provision of any enactment or ordinance or any order, rule, regulation, by-law or other instrument made there under and (e) for the redress for any injury by reason of any illegality in any proceeding by or before any authority under any provision referred to in sub-clause (b). Where such illegality has resulted in substantial failure of just clause. Thus the framers of the constitution conferred powers on the High Court of issuing writs, orders or directions for the endorsement of fundamental rights, or for redress of grievances on account of breach of constitutional or statutory provisions. A writ of mandamus can issue only for the endorsement of fundamen tal rights or for redresss of grievances on account of breach of constitutional or statutory provision. A writ of mandamus can issue only for the enforcement of a fundamental right or a statutory right or for the redress of any injury by 102 reason of any illegality in any proceeding by or before any authority exercising the statutory powers and functions. In the case before me the Railway Administration has only invited tenders. No statutory rules have been brought to my notice governing the invitation of tenders or acceptances of tenders. Once the Railway Administration has invited tenders, then it is the function of the Executive to decide as to who is the most appropriate party in the matter of making a contract on the peculiar facts of each case and as to whether the contract should be entered into at all or not. It is the executive discretion of the Government and not any statutory obligation or function. The rights and obligation of the parties here are purely of a contractual nature. In fact, no concluded contract had has yet come into existence. The petitioner has had also no fundamental right the enforcement of which can/could be sought in a proceeding under Article 226 to carry on business in a properties or rights belonging to the Government. No such right is vested in a citizen. There could also be no infringement of Article 14 of the constitution, if the Railway Administration tries/tried to get the best available party.

(4) A clause in a tender by which the government reserved a right to select any tender or reject all tender without assigning any reason thereof, argued as vocative of article 14 of the constitution, was considered in C.K. Achutan v The Slate of Kerala : AIR1959SC490 and approved in Purxotoma Ramanxte, Queninv. Makan Kalyan Tandel and others : [1974]3SCR64 when to was held.

(5) The gist of the present matter is the breach if any, of the contract said to have been given to the petitioner which has been cancelled either for good or for had reasons. There is no discrimination because it is perfect ly open to the Government, even as it is to a private party, to choose a person to their laking, to fulfill contracts which they wish to be performed. When one person is chosen rather than another, the aggrieved party cannot claim the protection of Article 14 because the choice of the person to fulfill a particular contract must be left to the Government. Similarly, a contract which is held from Government stands on no different footing from a contract held from a private party. The breach of the contract, if any, may entitle the person aggrieved to sue for damages or in appropriate cases, even specific performance; but he cannot complain that there has been a deprivation of to practice any profession or to carry on any occupation, trade or business, such as is contemplated by Article 19(1)(g). Nor has it been shown how Article 31 of the constitution may be invoked to present cancellation of a contract in exercise of powsr confered by one of the terms of the terms of the contract itself. In Tarlochan Misra etc. v. State of Orissa and other 1971(3) S.C.C. 158, clause vii of rule 5(b) of the Orissa Kendu leaves (control of trade) Act, 1961 giving power to the Government to accept or reject any of the tenders without assigning any reason came up for consideration. Their Lordships of the Supreme Court held that the Government certain has a right to enter into a contract with a person well known to it and especially one who has faithfully performed his contracts in the part in preference to an under sirable or unsuitable or untried person. However, Government is not bound to accept the highest tender but may accept a lower in case it thinks that the person offering the lower tender is on an over all consideration to be preferred to the higher tenderer. The power to accept or reject all or any of the tenders is also contained in section 29 of the Bihar Orissa Excise Act 1951 which came up for consideration before the Supreme Court in The State of Onssa and other v. Harinaraya Jairmel and others.'Faimal : [1972]3SCR784 . The Supreme Court had earlier taken the view that the 103 right to trade in intoxicant drugs is a, right to carry on any trade or business within the meaning of Article 19(l)(g) but still their lordship upheld the power of the Government to select any tenders or reject all the tenders without assigning any reason thereof. Once there is a right in the Government to accept any tenders or reject all the tenders without assigning any reason or grant or not to grant any tender, then on the facts as stated in the present writ petition, that right flows from the executive power of the government and not from any statutory function or obligation. In the absence of violation of any fundamental or statutory right or forthe redress of any injury caused in exercise of a statutory obligation or non-exercise of any statutory function, the writ petition under Article 226 of the Constitution cannot be held as maintainable. I' the absence of the contravention of any statutory provision, the writ petition is not maintainable.

(6) Mr. K.L. Budhiraj, learned counsel for the petitioner relied upon D.F.O. South Khori and other v. Ram Sanahi Singh : AIR1973SC205 , where their lordship held their merely because the source of the right which the respondent there claimed was initially in a contract for obtaining relief against any arbitrary and unlawful action on the part of a public authority, he must resort to a suit and not to a petition by way of a writ. Suffice is to say that in that case their lordship held that there can be no doubt that the petition was maintainable even if the right to relief arose out of an alleged breach of contract, where the action challenged was of a public authority invested with statutory power. The action challenged in that case was thus of a public authority invested with statutory power. In the case before me no Statutory provision has been brought to my notice under which the government has invited the tender or considering the tender. The acceptance or non-acceptance of the tender is in exercise of the executive power, not amenable to the writ jurisdiction. For the above reason, the preliminary objection of Sh. Dhebar prevails. The writ petition is held as not maintainable and is dismissed as such. I make no order to court.


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