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Judgment
Sarjoo Prosad, C.J.—The orders in question are attacked mainly on the ground that the tenders submitted by the proposed vendees were not in accordance with the terms and conditions laid down by the Department for the submission of tenders, and, as such, the Secretary was not justified in accepting the tenders of those vendees in preference to the tenders of the present petitioners.
The petitioner in Civil'' Rule No. 158 of 1055 is a businessman of Jorhat where he owns a rice-mill known as The National Rico Mill, which is situated at Madhabpur, P.O. Titabar. The Secretary to the Government of Assam in the Supply Department issued a notification on or about 20-10-55, inviting sealed tenders godown wise for sale of various stocks of Government paddy lying in different godowns specified in the notification.
According to that notification, the tenders were to reach him by 5-11-55 on printed forms containing the terms and conditions of sale, which were available in certain Government offices on payment of a cash amount. One of the conditions mentioned in the form was that the tenders should be accompanied by chalans showing deposit of earnest money at the rate of rupee one per maund on the declared quantify in any Government Treasury in Assam under the head "Revenue Deposit."
The earnest money was liable to be forfeited in the event of the tenderer riesling from his offer or in the case of his failure, after acceptance of the tender, either to deposit the entire amount or to remove the stocks sold within the time specified. The earnest money was, however, refundable to the tenderer in case the tender was not accepted by the Government.
The petitioner alleges that, in pursuance of the above notification, he submitted his tender on 5-11-55 for purchase of ten thousand maunds of paddy lying at the Reserve Godown at Jorhat at the rate of Rs. 8/8/- per maund, and he filed a chalan along with it showing the deposit of earnest money to the tune of Rs. 10,000/- (ten thousand only) in the State Bank of India, Shillong branch.
He however, received information from the Additional Secretary to the Government of Assam, Supply Department, that his tender had been accepted in respect of 1561 maunds of paddy only at the rate proposed by him.
Accordingly, on 25-11-55, the petitioner deposited at Jorhat Treasury the balance of the amount payable by him in respect of the sale of the quantity of paddy for which his tender had been accepted, lie later on learnt that the Department had accepted the tender of respondent No. 3, Harakchand Radhakishen, for the sale of 9639 maunds of paddy lying at the said Reserve Godown, at the rate of Rs. 9/- per maund.
It is stated that in submitting the tender, this respondent (No. 3) had not deposited the earnest money, as required by the conditions of the tender form, and yet the Secretary to the Government of Assam in the Supply Department sent him a telegram on 19-11-55 asking him to deposit the earnest money long after the date of submission of the tender.
In the other two cases, the allegation of the petitioners is that the proposed vendees not only failed to deposit the earnest money and submit the required chalans along with the tender forms, but that they had submitted their tenders not on the printed forms but on typed copies thereof; and thus the tenders submitted by them were not at all in conformity with the terms and conditions either of the notification or of the form of tender.
It is argued on behalf of the petitioners that the proposal of the Secretary, Supply Department, to sell these quantities of paddy to the opposite party vendees was clearly in violation of the terms and conditions laid down by the Department itself for the sale of Government stocks of paddy, and, as such, the orders should be set aside.
It Is further argued that there was absolutely no justification for the Department to show any favour to the opposite party vendees when their tenders were not in order, and no good reason has been assigned for not accepting the tenders of the petitioners, which otherwise should have been accepted.
On behalf of the Secretary to the Government of Assam in the Supply Department, a counter-affidavit has been filed, wherein it is stated that, on the terms and conditions for the sale of the paddy, the Government did not guarantee to make any definite quantity or quality of paddy available to the buyer, and further that the Government reserved the right to accept, without assigning any reason, any tender offered by an intending buyer.
It is submitted that it was open to Government to reject all the tenders without assigning any reason therefore; and that Government had complete discretion in the matter. In the present case, it is submitted that the stocks of paddy were procured by the State Government in different godowns, but after decontrol it was decided to dispose of the stocks according to the directions of the Government of India tenders were accordingly invited from intending purchasers in the printed form, a copy of which is annexed to the petitions.
On the conditions mentioned in the printed form, it was notified that the tenders should be accompanied by Treasury Chalans showing deposit of earnest money at the rate of rupee one per maund on the declared quantity, and it is not disputed that the tenders of the petitioners were accompanied with such deposits; but it is said that, these tenders offered lower prices than what were offered by the opposite party vendees in these cases, and that although the tenders offered by the latter were not accompanied by Treasury chalans showing deposit of earnest money, yet they were preferred in view of the maximum price which had been offered by thana.
The tenders were opened and considered in the presence of the representatives of the Government of India, and after consulting the Food Ministry to the Government of India, the tenders of those whose rates were the highest were accepted on condition that they deposited the earnest money before the acceptance order was formally communicated to them. Telegrams were, therefore, sent in pursuance of this decision and then the opposite party vendees deposited the earliest money and were allotted the quantities of paddy proposed to be sold to diem.
It is claimed, therefore, on behalf of the State that it was not binding on the Secretary, Supply Department, to accept the tenders of the petitioners, and that the absence of the earnest money along with the submission of the tenders did not take away the discretion of the State Government or, for the matter of that, that of the Government of India, to accept the highest offer which was made for the purchase of the paddy in question.
It is also contended that there was no violation of any statutory rule in these cases, nor have the petitioners shown that any of their valuable rights or fundamental rights has been infringed by the orders in question, which were entirely discretionary orders, which the Secretary, Supply Department, could pass in the circumstances.
The question which arises is whether, in these cases, there has been any violation of any statutory rules and obligations, of which this Court could direct enforcement. The orders in question are entirely administrative orders, and although tire tenders submitted by the opposite party vendees may not have been quite in form, as prescribed by the terms and conditions of sale, those conditions were not statutory conditions, and it is not shown how we could, by a Writ under Article 226 of the Constitution, enforce those conditions. The conditions do show that Government reserved the right to accept or not to accept any tender offered by any party interested.
Indeed, that position is not disputed by Mr. Ghose appearing on behalf of the petitioners. He even concedes that it was open to the Department to reject all the tenders and then to sell the quantities of paddy afresh to any person they liked. If this is so, then it cannot be contended that these are appropriate cases in which we can exercise our extraordinary powers of issuing writs under Article 226 of the Constitution.
In these cases, there may have been some justification for the Secretary, Supply Department, not to accept the tenders given by the petitioners, because it is undoubted that the Secretary, under the directions of the Government of India, accepted the tenders which offered the highest prices for the paddy to be sold. It is, true that the rules and condition. once laid down by the Department for such Sales, Should be respected as far as practicable, and there should be no impression given to the members of public, with whom the Department deals, that there was something sinister or something undesirable in not conforming strictly to the rules.
But, in the present case, the justification claimed by the State Government for not strictly adhering to the rule of tender is that they were getting higher prices for the sale of the paddy. Apart from the fact that there had been no violation of any statutory rules or provisions of law in these cases, we are not satisfied that the petitioners have been able to establish the violation of any legal right at all so as to induce our interference. The applications, therefore, cannot be entertained and have to be rejected.
It has been urged by Mr. Ghose that, at any rate, his fender in respect of a certain quantity of paddy has been accepted, and he has deposited the entire consideration for the sale of that paddy, and yet he has not obtained any delivery of the same, and that the opposite parties are now trying to put him off by preferring certain excuses in favour of the vendee respondent in Civil Rule No. 1.58 of 1955.
If this is so, this may constitute a cause of action in favour of the petitioner in a claim for damages, if any but it does not attract our jurisdiction under Article 226 of the Constitution, These petitions, therefore, fail and are rejected. In the circumstances disclosed in these cases, we do not think that we would, give, any costs to the respondents.
Deka, j.
I agree with the order proposed by my Lord the Chief Justice that the Rules should be discharged.
Since the facts have been elaborately stated in the judgment of my Lord, I need not recount them over again. Looking, however, at the facts as they are, I am not satisfied that the Government dealt fairly towards the petitioners in the matter of passing orders for sale in favour of, the opposite party No. 3, Harakchand Radhakishen, in Civil Rule No. 158 of 1955 and opposite party No. 3, Nethuram Jaidayal, in the other two cases.
The terms on which the applications or tenders were invited, were not respected in the matter of passing the order that has been impugned. The express terms in the notice were that the tenders should be submitted in forms available from the Supply Offices; in the District and Sub-Divisional headquarters arid the set of rules that were supplied with these forms made it a condition precedent that the tenders should be accompanied by chalans showing deposit of Earnest money at the rate of rupee one per maund on the declared quantity, in any Government-Treasury.
In all these three cases, the parties who have been favored with the order, did not deposit any earnest money whatsoever. The only excuse shown by the Government is that they quoted higher rates for the purchase of the paddy than the petitioners did. It is quite obvious that these tenders might have been quite speculative as those tenderers had not to face any risk us to, the forfeiture of the earnest money in case they did not accept the order of sale in, their favour, whereas the persons who put in the earnest money had to face that penalty in case they did not accept the Government order.
The order of sale in favour of such persons who did not deposit the earnest money, therefore; amounted to an action unwarranted under the rules which the Government proposed to abide by. That the Government had obviously shown some discrimination in favour of these persons, is clear from another fact, namely, that in the application of Haribux Kanwatia in Civil Rule No. 160 of 1955, we find that he was personally present at the time when the tenders were opened, and when he found that the tenders, without earnest money, were being considered, lie verbally represented to the respondents, namely, the Secretary to the Government of Assam, Supply Department, and others, that he was prepared to purchase fifty thousand maunds of paddy at the rate of Rs. 9/- per maund, which was the highest rate that was being accepted, but the Department refused to take that into consideration on the ground that it was not put down in his tender form.
If the conditions of tender were meant to, be strictly enforced in his case, there is no reason for relaxing the same in case of some other persons. Similar discrimination was shown in the matter, of refusing to sell the quantity of paddy to Ganesh Ran Sharma, petitioner in Civil Rule No. 158 of 1955, for which his tender had been accepted.
Actions like these may not be strictly illegal but surely unfair. A private businessman may do away with scruples for the sake of gain or profit, but the action of the Government or a State employee, should be of a higher level, Our difficulty is that we cannot step in ail cases where we find that there has been unfairness or discrimination in an administrative action.
The jurisdiction'' of the Court is limited, to a great extent, in exercising its powers under Article 226 of the Constitution to some illegalities apparent of the face of the record or direct or indirect violation of some statutory rules or provisions.
Taking the Government as an ordinary party, we cannot force their hands to sell their paddy to any body in particular, because they have unfettered discretion in the matter, nor can we issue a writ directing them to sell the paddy in terms of the notification issued by them.
Neither the notifications, nor the rules they advertised are framed under any statutory provisions or provisions coming under any Act, therefore, they enjoyed certain liberties in the matter, which we are unable to check under Article 226. The prestige of the Government should be its own care. In this view of things, I agree that no relief can be given under, these petitions.