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Jaidev JaIn and Co. Vs. the Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial;Constitution
CourtKolkata High Court
Decided On
Case NumberMatter No. 219 of 1970
Judge
Reported inAIR1972Cal253,76CWN153
ActsConstitution of India - Articles 14, 19(1) and 226
AppellantJaidev JaIn and Co.
RespondentThe Union of India (Uoi) and anr.
DispositionPetition fails
Cases ReferredK. N. Guruswamy v. State of Mysore
Excerpt:
- .....tender and accepting the one submitted by the respondent no. 3.2. tenders were invited by the chief commercial superintendent. eastern railway, for street collection and delivery of goods and parcels from calcutta and baranagore booking offices and also from several other stations. the petitioner as also others submitted their tenders in the form and manner indicated by the authorities. on 6th april, 1970, these tenders were opened in the presence of the petitioner when it was found that only two other tenders were received besides the petitioner's one, of respondent no. 3 and the other, of one ram kumar agarwalla. of these three tenders only two namely those of the petitioner and the respondent no. 3 were found in order but the rates quoted by the petitioner were lower than the.....
Judgment:
ORDER

A.K. Sinha, J.

1. This Rule is obtained against an order rejecting petitioner's tender and accepting the one submitted by the respondent No. 3.

2. Tenders were invited by the Chief Commercial Superintendent. Eastern Railway, for street collection and delivery of goods and parcels from Calcutta and Baranagore Booking Offices and also from several other stations. The petitioner as also others submitted their tenders in the form and manner indicated by the authorities. On 6th April, 1970, these tenders were opened in the presence of the petitioner when it was found that only two other tenders were received besides the petitioner's one, of respondent No. 3 and the other, of one Ram Kumar Agarwalla. Of these three tenders only two namely those of the petitioner and the respondent No. 3 were found in order but the rates quoted by the petitioner were lower than the rates quoted by the respondent No. 3. It is alleged that the tender submitted by the respondent No. 3 did not moreover conform to the rules contained in Clauses (15) and (17) of the tender form. Even so, the respondents Nos. 1 and 2 considered and ultimately accepted the tender of the respondent No. 3 in preference to the petitioner. In spite of repeated representations the respondents Nos. 1 and 2 did not cancel the acceptance of such tender. That is how, in short, the petitioner felt aggrieved and obtained the present Rule.

3. The first point raised on behalf of the petitioner is that the acceptance of the tender submitted by respondent No. 3 on consequential rejection of the petitioner's tender is in contravention of rules and provisions embodied in the form of the tender. Secondly, it is stated that the rejection of the tender of the petitioner offends against the fundamental rights guaranteed under the Constitution of India and amounts to illegal discrimination contrary to Article 14 of the Constitution. Thirdly, it is submitted, in any event, cancellation of the petitioner's tender without giving an opportunity of hearing has violated the rules and principles of natural justice but no such ground. I find was taken in this form in the writ petition.

4. I think, this Rule fails on a preliminary point raised by Mr. Basak on behalf of the respondents. First, it is said in paragraph 3 of the affidavit-in-opposition that at the material time there was no such post of Chief Commercial Superintendent (Development) Eastern Railway and even no person now is holding such post. The Writ Petition is not maintainable in absence of the Chief Commercial Superintendent, Eastern Railway, who is not a party. Secondly, it is said that the petition is also bad for non-joinder of parties, viz., the members of tender-committee whose names have been disclosed in paragraph 13 of the affidavit. It is stated that the tender-committee in its meeting held on 23rd April. 1970, considered the tenders submitted by the petitioner and the respondent No. 3 and ultimately recommended for acceptance of the tender submitted by the respondent No. 3 which was accordingly accepted by the Chief Commercial Superintendent. In paragraph 5 of the affidavit-in-reply of the petitioner affirmed on 20th June, 1970, it is however, denied that the petition is defective as under Clause (2) of the instructions to tenderers the Chief Commercial Superintendent (Development) has been described as the officer for presentation of the tenders for registration. With regard to the tender-committee it is said in the said affidavit in paragraph 14 that there was no reference of such committee under the instruction clauses in the tender form. I think, both the Chief Commerical Superintendent and the members of the tender-committee are necessary parties. For before the final acceptance or rejection of the tenders in dispute the whole thing had to pass through a continuous process of scrutiny, recommendation and then final acceptance and rejection. So, not only the Chief Commercial Superintendent but also the members of the tender-committee who participated in the scrutiny and recommended for acceptance of the tender are in my view, necessary parties for effective adjudication of questions in controversy in the present Rule. The petitioner had all the particulars about the officer and the members of the tender-committee from the affidavit-in-opposition affirmed by Vasant Vithal Vhedi on 3rd July, 1970; even then, he did not take any steps to bring the Chief Commercial Superintendent. Eastern Railway and the members of the tender-committee on record. It is well known, a writ petition shall fail by reason of nonjoinder of necessary parties. See Udit Narain Singh v. Board of Revenue, : AIR1963SC786 .

5. Even on merits, I think, there is no substance in the petitioner's case. Regarding the first and second points, even if there is breach of rules or regulations in accepting or rejecting the tenders that would at best come within the domain of contract, no writ will lie for enforcement of contractual right. No question also arises as to infringement of fundamental rights under Article 19(1)(g) or violation of provisions of Article 14 of the Constitution either in acceptance or rejection of tender for obtaining a contract. See : AIR1959SC490 . C. K. Achutan v. State of Kerala, : [1967]3SCR636 , G. J. Fernandez v. State of Mysore and (1969) 73 Cal WN 267. Regional Director v. A. S. Bhangoo.

6. On the third point learned Counsel for the petitioner has relied on an unreported decision of the Supreme Court in D. F. O. South Kheri v. Ram Sanehi Singh, Civil Appeal No. 1638 of 1969 (SC). It is urged that in any case the petitioner's tender could not be cancelled without giving him an opportunity of hearing. Following the principles indicated in K. N. Guruswamy v. State of Mysore, : [1955]1SCR305 , it was held in the above case that even though 'the order was administrative and not quasi-judicial the order had still to be made in a manner concerned with the rules of natural justice when it affects the respondent's rights to property.' This decision. I do not think, has any bearing to the question involved in the present Rule. For the acceptance or rejection of a tender was based not on any statute or statutory rules and the authority concerned did not pass any order vested with certain statutory power. Secondly, mere submission of tender did not create any right to property in favour of the petitioner. In any event, therefore, the petitioner cannot claim any hearing before cancellation of such tender. Thirdly, it is stated in paragraph 11 of the affidavit that one of the terms specified in the tender form is that 'the Railway Administration reserved the right to reject any tender without assigning any reason and does not bind itself to accept the lowest or any tender or to assign any reason for doing so. The said Administration also reserves the right to accept any tender in part or in whole. The tenderers should note that the charges quoted by them must conform to the rates and fares sanctioned for the area by the Regional Transport Authority.' There is no denial by the petitioner to the correctness of these provisions. Such being the terms of the agreement between the parties no question of giving an opportunity of hearing arises before cancellation of the petitioner's tender just because he quoted, although denied by the respondents, the lowest rate.

7. The result is, the petition fails. The Rule is discharged but there will be no order as to costs.


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