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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 therein 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.

47. Not only the tender notice indicated that the tender was for pneumatic tools, even the tender form which were issued by the respondents do not indicate that there was any scope of entering into rate contract with the tenderers of pneumatic tools for standard accessories without extra cost and in case of additional accessories with extra cost. As pointed out herein before the respondents themselves in their affidavit-in-opposition have clearly admitted that such tender was not for accessories but for pneumatic tools, but it has been sought to be contended that it was open to the respondents to enter into rate contract in respect of accessories with the tenderers of pneumatic tools if the same is convenient for the respondents without calling for separate tender for rate contract in case of accessories. The tender form and the schedule thereto being Annexure 'B' to the writ petition clearly indicates the tender was invited for supply of stores detailed in the schedule and item No. 1 of such stores was pneumatic tools equipment for civil engineering usage. The various other items which were mentioned under the various clauses of Clause (1) are not the stores in respect of which such tender was invited, but in respect of the same the tenderer was asked to file details along with the tender of pneumatic tools as it will appear from the said schedule itself. One of such information of such details which the tenderer was supposed to submit related to standard accessories and additional accessories at extra cost. Similarly item No. 2 of such stores in respect of which tender is invited is the pneumatic pusher legs or rock drills and the various sub clause under such item No. 2 which includes standard accessories and additional accessories at extra costs are not the item of stores in respect of which the tender is invited but the tenderer of pneumatic pusher legs is required to furnish details in respect thereof. Similarly in respect of all other items of stores in respect of which such tenders were invited, the tenderer was asked to supply details in respect of various other matters related to such pneumatic tools including standard accessories and accessories of additional costs.

49. Because of the reason aforesaid there was no scope for the respondents under the said tender to issue rate contract to the tenderers of the main equipment. There is nothing in the record also to indicate that even in absence of such scope as aforesaid, rate contract was also issued in respect of accessories to the tenderers of main equipment not arbitrarily but for public interest.

50. In the supplementary affidavit the respondents have annexed a guideline in the matter of such rate contract formulated by the respondents themselves. It has been stated in the said guideline that as a matter of policy Directorate General of Supplies & Disposals normally decide rate contracts based on the competitive tendering without resorting to negotiations. It is further stated in the said guideline that no rate contract are concluded for items unless the estimated annual drawal of the same exceeds Rs. 20 lakh for Central rate contract and Rs. 5 lakh for Regional rate contract. If the aforesaid two clauses are read together it will clearly appear that rate contract is issued on the basis of competitive tender and not negotiation, although in respect of items estimated annual drawals of which does not exceeds Rs. 25 lakh no rate contract may be concluded.

51. The minutes of the meeting of the tender committee dated 19th September 1995 merely, inter alia , refers to such principles. But it has not been stated there at all that the annual drawal in respect of the standard accessories and specially the additional accessories mentioned in the tender document have been found not to exceed Rs. 25 lakh and therefore rate contract in respect thereof has been entered into with the tenderer of pneumatic tools instead of separate rate contract. In the supplementary affidavit-in-opposition although such a policy has not been pleaded it has not been stated by the respondents that average expected annual drawals in respect of such accessories were found not to exceed Rs. 25 lakh and therefore separate rate contract was not asked for in respect of such accessories. It may be noted in this connection that in paragraph 17 of the writ petition the petitioner specifically pleaded that the accessories in respect of which the respondents have been entering into the rate contract with the tenderers of rate contract in respect of pneumatic tools form 80% of the total value of the pneumatic tools. In the affidavit-in-opposition the respondents have merely denied the allegation made in such paragraph in a bold manner without giving any particulars thereof and in the eye of law therefore the same is not even denial of such statement. It is also pertinent to note that the added respondent has claimed the total value of the expected drawals under the rate contract is to the extent of 43.75 lakh. It will also appear from the documents annexed to the affidavit-in-reply that in certain Government undertakings the expected drawals in respect of such accessories exceeds Rs. 25 lakh.