PHULCHAND VISWAKARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner who claims himself to be a manufacture and seller of accessories of pneumatic tools has challenged in the instant writ petition the alleged illegal and arbitrary action of the respondent in entering in to rate contract for accessories of pneumatic tools pursuant to the impugned tender notice inviting tender for rate contract in respect of pneumatic tools.

(2.) The tender notice being No. WMT-6/RC-3845/PH. TOOLS/95-96/ 16 dated 19th April 1994 was issued by the Directorate General of Supplies and Disposal and was published in vol. 352 No.7 of the Indian Trade Journal (annexure A to the writ petition). Admittedly such tender was invited, as it will appear from the tender notice itself in respect of various pneumatic tools specified in the tender notice for the rate contract period from 1st of September 1995 to 31st October 1996. It is the contention of the petitioner since admittedly such tender notice was issued only for supply of pneumatic tools and not accessories of pneumatic tools, the petitioner did not participate in the tender. But on 2nd week of August 1995 the petitioner received an information that the respondent would make bulk purchase of accessories of pneumatic tools from those tenderers who submitted their quotation pursuant to the aforesaid tender notice. It is the contention of the petitioner the aforesaid action of respondent in awarding contract for bulk supply of accessories of pneumatic tools to the tenderers who submitted their tender pursuant to the tender notice although in the said notice there was no indication that the same was also for accessories, was wholly arbitrary and by such action of the respondent, the petitioner who is manufacturer and supplier of accessories as also similarly circumstanced manufacturer of accessories have been wrongfully excluded from participating in such tender. It is alleged that such action was resorted to by the respondent wilfully to eliminate fair competition by precluding the petitioner and other manufacturers of accessories of pneumatic tools from participating in the tender. After coming to know about such fact the petitioner made a representation to the Directorate General of Supplies and Disposal, New Delhi, on 14th August 1995 contending, inter alia that because of such action of the respondents the petitioner's firm which is a small scale industry is being prevented from participating in the tender as it was not mentioned in the tender notice that the same was also for accessories. , It was prayed in the said representation that a fresh tender may be published with naming accessories thereto to enable the petitioner also to participate in the tender. Similar representations were also made by Kothari Rubber Products on 18th August, 1995, Ganesh Engineering Co. on 19th August 1995, but the same have been no avail. Sri Moreswar Savey a member of Lok Sabha, also wrote to the Secretary, Ministry of Supplies, Government of India complaining about gross irregularities in such tender because of which more than 2 dozen manufacturers scattered in the different parts of the country and specially the small scale industrial units suffered seriously because of their inability in participating in such tender. It is the further case of the petitioner that the respondents are treating accessories of pneumatic tools as a separate items of bulk purchase and accessories to pneumatic tools are going to constitute over 80% of the total tender value and on or before 4th September 1995 the petitioner came to know that the tender pursuant to such notice was finalised and advance intimation have been given to the tenderers. It is also alleged by the writ petitioner that the respondents are wilfully proceeding in such matter to exclude fair competition and to choose their favoured manufacturers. The petitioner has prayed for issue of a writ in the nature of Mandamus commanding the respondents to desist from making purchase of accessories of pneumatic tools pursuant to the aforesaid tender or alternatively to withdraw such tender notice and to float fresh tender for supply of accessories of pneumatic tools upon proper advertisement.

(3.) The writ petition which was affirmed on 11th September, 1995 was taken up for consideration for admission by this Court first time on 20th September 1995 when prayer for adjournment was made on behalf of the respondents on the ground of difficulty of their learned Advocate and the matter was accordingly adjourned till 25th September 1995, but at the same time on consideration of the prayer of the learned Advocate appearing for the petitioner that there is a reasonable apprehension that final steps for issuing the work order will be issued by the respondents in the mean time, an interim order was granted on 20th September 1995 to the effect that the respondents till 26th September 1995 shall not take any final decision if the matter of issuing work order only relating to accessories of pneumatic tools, On 26th September 1995 after hearing the learned Advocates of both the parties direction for affidavits was given and the interim order which was granted on 20th September 1995 was extended until further orders with liberty to the respondents to apply for vacation or variation of interim order upon notice to the petitioner.