KAMALA AGENCIES Vs. STATE OF ODISHA

JUDGEMENT

(1.) The Petitioner, which is a registered Proprietorship Firm, by means of this Writ Petition seeks to quash Clause-5.2 of the Tender Call Notice bearing Bid Reference No.OSMCL/2022-23/DRUGS-VETERINARY/14 dtd. 20/6/2022 under Annexure-7, and to issue direction to the Opposite Parties to allow it to participate in the tender process for the year 2022-23.

(2.) The factual matrix of the case, in a nutshell, is that Petitioner, being a registered Dealer, Whole-seller, Supplier and Distributor of veterinary drugs, medicines, vaccines, chemicals, veterinary instruments and equipments having valid registration and permission from the State as well as Central Government Authorities, has been supplying the items, as mentioned above, to various Government/Semi-Government Organizations as well as PSUs for the last 15 years at a highly competitive price. The Petitioner is the prime Distributor of veterinary items of reputed international companies like Cadila Healthcare Limited, Zydus and Boehringer Ingelheim etc.

(3.) Mr. Pitambar Acharya, learned Senior Counsel appearing along with Mr. S.S. Tripathy, learned Counsel for the Petitioner, contended that the Petitioner, being a Distributor of medicines, earlier participated in the tender for the years 2015-16, 2017-18 and 2019-20, and was continuing the supply of drugs to the Opposite Parties. But for the tender invited for the year 2020-21, the Tendering Authority introduced a Clause excluding the Distributors from participating in the tender process, which was challenged by it in W.P.(C) No. 30953 of 2021 and in the said Writ Petition this Court passed interim orders. However, subsequently, after expiry of the period of Tender, the Writ Petition became infructuous and disposed of as such. Therefore, question of exclusion of Distributor was not considered and decided in the said Writ Petition and, as such, again in the year 2022-23, the very same condition has been incorporated in Clause-5.2 of the tender document debarring the Distributors from participating in the tender process. It is contended that such exclusion of Distributors from the arena of participating in the tender process is arbitrary, illegal, contrary to the provisions of law and, as such, without having any rationale behind it and in a capricious manner, the Petitioner has been debarred from participating in the tender process in order to create monopoly for the Manufacturers and Importers. As such, such exclusion of Distributors also suffers from nepotism and favoritism in favour of a class of people, i.e., Manufacturers and Importers. Thereby, the same is unreasonable and tainted with mala fide and is against the public policy. It is further contended the terms and conditions under Clause-5.2 cannot be sustained in the eye of law, as it is the settled principle that a sec. of business cannot be excluded in order to favour another class. Therefore, any administrative decision would be regarded as unreasonable, if it is partial or unequal in its operation between two different classes. It is further contended that procuring veterinary items from Manufacturers/Direct Importers will also not be at the larger public interest, as they will be deprived from availing the medicines from the Companies of international repute. In the past, there have been instances where it has been observed that there were glaring irregularities on the part of local Manufacturers/Direct Importers in supply of veterinary items, which is evident from the acts of Opposite Party No.2 in blacklisting as many as 35 Manufacturers for not providing standard quality of veterinary items. These Companies have been blacklisted in a span of around four months. Thus, it is contended that the action of the Authorities is arbitrary, unreasonable and contrary to the provisions of law, as well as violative of Articles 14, 19(1)(g), 21 and Article 300-A of the Constitution of India.