M.L. Shrimal, J.
1. This is a writ petition filed under Article 226 of the Constitution by Vijay Goods Transport Company through its partner Gopi Chand, prating for issuance of a direction not to take into consideration 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 respondents 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 January 13, 1978, at 11 a.m. in the presence of the interested pad Section 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 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 January 13, 1978, at the schedule time the leaders so submitted were opened and scrutinised. The tender submitted by M/S. National Transport Corporation (respondent No. 4), was accepted as comparatively it was the lowest in rate.
3. The present petition has been filed to question the acceptance of the tender offered by respondent No. 4. The contention is that tenders, sub spitted 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 petitioners M/S. Jaipur Golden Transport Co. (P) Ltd., M/S. Vijay Goods Transport 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 entiled 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 tight of the petitioner conferred by Article 14 of the Constitution. The discrimination or the arbitrariness is writ large on the fact of it, justifying interference by this court. Learned Counsel places reliance on State of Madhya Pradesh and Anr. 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 & 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 tender without assigning any reason. Whether the exercise of that power in the case in hind was correct or not is a matter which can appropriately be decided by a civil court, where evidence can given and examined at length Competitive claims in the field of contract ate 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 & satisfactorily decided in exercise of extra ordinary and disservice nary powers under Article 226 of the Constitution, In a summary proceeding it is not possible to record detailed evidence which may appear to be necessary 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 Constitution Co. v. Chief Engineers EC : AIR1960All72 .
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 with others. It is not the case of the petitioner that his tender was excluded from being considered along with other. 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 fir not making deposit of Rs. 500/- as earnest money and would have considered the tender of the respondent No. 4 though it suffered from the same defect but no such thing happend. 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 tender or to fulfil the term of they 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 (Annexurel) inviting tenders was hot 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 of duty and none of the them can be of any avail to the petitioner. It cannot be said that when the Stats or its officer purported to have operated within the contractual field, the appropriate remedy is by way of a petition under Article 226 of the Constitution and not by an ordinary suit. In this connection it will be useful to make a reference to almost an identical case, reported in C.K. Achutan v. The Stat of Kerala and Ors. : AIR1959SC490 , wherein their Lordships of the Supreme Court observed:
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 tenderor 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 petitioners and make a contrast for transportation, it mast be shown that the aggrieved party has a legal right under the statute to enforce id 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 No. 1 to 3 which they have failed to perform. Terms of tender mentioned in (he notice (Annexure 1), do not have the force of rule or law. They do not confer any right on any person and a tenderor can not claim any right on the basis of an administrative instruction. It may be open to Govt. to take disciplinary action against its employees who do not follow the administrative instructions prescribed 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 he Government by a petition under Article 226 Reference may be made to G.J. Ferandez v. The State of Mysore and Ors. : 3SCR636 .
7. In the writ petition there is also no assertion that a demand for Janice had been made against the violation of petitioner's right. As authoritatively laid down by their Lordships of the Supreme Court in Kamini Kumar Das Choudhary v. State of West Bengal and Ors. AIR 1972 SC 2050 and Amritlal v. Collector, Central Excise and Revenue and Ors. : (1975)ILLJ144SC , in P. 25, 'that a demand of justice and its refusal must precede the filing of a petition asking for a direction or writ of mandamus.' In the case of failure to make demand on the part of the petitioner here for justice operates as a bar against the maintainability of the writ petition.
8. The result, therefore, is that the writ fails and it is dismissed summarily.