P.D. Kudal, J.
1. This is a writ petition filed under Article 226 of the Constitution, by Vijay Goods Transport Company through its partner Gopi Chand, praying for issuance of a direction not to take into consideration the tender submitted by respondent No. 4 and to accept the tender of the petitioner authorising him to transport stationery goods from one place to the other.
2. From the petition it appears that tenders relating to transportation of stationery articles by respondent No. 3, were invited. The petitioner as well as other persons including respondent No. 4 submitted their respective tenders for the above purpose which were to be opened by respondent No. 3 on Jan. 13, 1978 at 11 a. m. in the presence of the interested parties. All the conditions under which tenders were to be accepted need not be mentioned except those having a bearing for the decision of this petition. One of the conditions was that no tender which was not accompanied by a deposit of earnest money of Rs. 500/- was to be considered and further another condition was that a tender could be accepted or rejected without assigning any reason and that full authority to do so would vest in the State Central Printing Press. On Jan. 13, 1978, at the schedule time the tenders so submitted were opened and scrutinised. The tender submitted by M/s. National Transport Corporation (respondent No. 4), was accepted as competitively it was the lowest in rate.
3. The present petition has been filed to questioning the acceptance of the tender offered by respondent No. 4. The contention is that tenders, submitted by M/s. National Transport Corporation (respondent No. 4) and M/s. Jai Bharat Transport Company, were not in order, as both of them were not accompanied by the requisite deposit of Rs. 500/- each as earnest money, whereas the tenders, submitted by the petitioner M/s. Jaipur Golden Transport Co. (P.) Ltd., M/s. Vijay Goods Transport Co. and Jai-Shanker Goods Transport Co., were accompanied by a deposit of Rs. 500/- each as earnest money. The rate quoted by the petitioner was the lowest of all quoted in the valid tenders. Petitioner argues that thus the rate quoted by it was the lowest among the valid tenders. The petitioner further contends that the concern is entitled to a fair treatment equally before the law or the equal treatment of protection of law under Article 14 of the Constitution. He is, therefore, entitled to the grant of a contract for transporting stationery articles. Refusal to the acceptance of the tender of the petitioner infringes the fundamental right of the petitioner conferred by Article 14 of the Constitution. The discrimination or the arbitrariness is writ large on the face of it, justifying interference by this court. Learned counsel places reliance on State of Madhya Pradesh v. Thakur Bharat Singh, AIR 1967 SC 1170, as also on other cases relating to civil services in support of his contention.
4. I am afraid none of these above contentions is acceptable. No doubt the petitioner claims to have filed a valid tender. But by merely filing a tender, he had not acquired any absolute right to obtain the contract, because under Clause 25 of the conditions of tender (Annexure 1) the authority reserved power to accept or reject a lender without assigning any reason. Whether the exercise of that power in the case in hand was correct or not is a matter which can appropriately be decided by a civil court, where evidence can be given and examined at length. Competitive claims in the field of contract are required to be thoroughly investigated and determined on the basis of evidence to be adduced by the parties in a civil suit and the same cannot be conveniently and satisfactorily decided in exercise of extraordinary and discretionary powers under Article 226 of the Constitution. In a summary proceeding it is not possible to record detailed evidence which appear to be necessary for considering the nature of the allegations made and relief claimed. Such a case is eminently fit for being decided by a civil court vide Union Construction Co., (P) Ltd v. Chief Engineer Eastern Command, Lucknow, AIR 1960 All 72.
5. The gist of the present matter is breach, if any, of the terms of the notice calling tenders. Coming now to the argument under Article 14 of the Constitution. There can be no dispute that a citizen has right to do business. He has a right to be considered along others. It is not the case of the petitioner that his tender was excluded from being considered along with others. It would have been a case of discrimination if at the stage of scrutinising the tenders, respondent No. 3 would have rejected the tender of a party for not making deposit of Rs. 500/- as earnest money and would have considered the tender of the respondent No. 4 though it suffered from some defect but no such thing happened. It is perfectly open to the Government, as is open to a private party to choose a person of their liking, keeping in view the competence of the tenderer to fulfil the terms of the offer. When one person is chosen in preference to another, the aggrieved party cannot claim protection under Article 14, because the choice of the person capable of fulfilling the terms of a particular contract is left to the Government. The breach of the terms of the notice inviting tenders, if any, may perhaps entitle the person aggrieved to sue for damages or for specific performance. The alleged breach does not indicate the violation of legal and public duties or statutory duties to the remedy of which the petitioner could have claimed by issuance of a writ of mandamus. Admittedly, the notice (Annexure 1) inviting tenders was not issued under the provisions of any statute. The petitioner's case was considered along with others. The question whether the respondents had the right to waive certain terms of the notice inviting tenders falls within the field of contract. The cases relied upon by the petitioner relate to the breach of the exercise of statutory power or duty and none of them can be of any avail to the petitioner. It cannot be said that when the State or its officer purported to have operated within the contractual field, the appropriate remedy by way of a petition under Article 226 of the Constitution and not by any ordinary suit. In this connection it will be useful to make a reference to almost an identical case, reported in C. K. Achutan v. State of Kerala, AIR 1959 SC 490, wherein their Lordships of the Supreme Court observed (at p. 492):
'Where one person is chosen rather than another the aggrieved party cannot claim the protection of Article 14 because the choice of the person to fulfil a particular contract must be left to the Government.'
In the same case it has been observed
'Breach of the contract, if any, may entitle the person aggrieved to sue for damages.'
From the above discussion it is clear that every tenderer whose offer to perform a contract is refused cannot be said to have been denied equal protection of law under Article 14 of the Constitution.
6. In order to compel the authorities to accept the tender submitted by the petitioner and make a contract for transportation, it must be shown that the aggrieved party has a legal right under statute to enforce its performance. In the instant case it has not been shown by the petitioner that there is any statute or rule having the force of law which casts a duty on the respondents Nos. 1 to 3 which they have failed to perform. Terms of tender mentioned in the notice (Annexure 1), do not have the force of rule or law. They do not confer any right on any person and a tenderer cannot claim any right on the basis of an administrative instruction. It may be open to Government to take disciplinary action against its employees who do not follow the administrative instructions prescribed by the standard form in tender notices. But non-observance of such executive or administrative instructions does not, in my opinion, confer any right on any member of the public like a tenderer to ask for a writ against the Government by a petition under Article 226. Reference may be made to G. J. Fernandez v. State of Mysore, AIR 1967 SC 1753.
7. In the writ petition there is also noassertion that a demand for justice hadbeen made against the violation of petitioner's right. As authoritatively laiddown by their Lordships of the SupremeCourt in Kamini Kumar Das Choudharyv. State of West Bengal, AIR 1972 SC2060 and Amrit Lal v. Collector CentralExcise Central Revenue, AIR 1975 SC 538,in para 25, 'that a demand of justice and;its refusal must precede the filing of apetition asking for a direction or writ ofmandamus.' In the case of failure to makedemand on the part of the petitioner herefor justice operates as a bar against themaintainability of the writ petition.
8. The result, therefore, is that the writ fails and it is dismissed summarily.