1. A notice inviting tender issued by the respondent herein, which inter alia was published in The Times of India dated 15-04-2002 and as contained in Annexure-P1 to the writ petition is in question in this writ petition.
2. By reason of the said notice inviting tender, the respondent invited offers for sale of 'lustre lost wheat' (2001-02 crop year) available in the Food Corporation of India districts situated in the procuring regions of Punjab, Haryana and Uttar Pradesh. Such FCI Districts in the region of Punjab, Haryana and Uttar Pradesh are specified.
The relevant paragraphs of the said notice inviting tenders reads thus:-
"2. Offers may be made on net weight basis. Taxes will be as applicable. The intending buyers will send their sealed offers to Manager (Sales) FCI, Headquarters, 16-20, Barakhamba Lane, New Delhi.
3. The intending buyers will indicate the quantity and Railway Goodshed in consuming Regions of Gujarat, Maharashtra, West Bengal, Bihar, Jharkhand, Karnataka, Kerala, Tamilnadu, Assam and NEF accompanied with earnest money @ 2% of the value of the quantity intended in the form of DD/pay order favoring 'FCI', payable at New Delhi. Minimum quantity should be 5000 MT or in multiples thereof. The closed bids in the given format will be received between 10.30 A.M. to 2.00 P.M. on all FCI working days up to 18.04.2002.
Recipient FCI region Recipient Railway Goodsheed in Consuming FCI Region Quantity Intended dispatching Depot in the FCI Procuring Region Tender Rate on Net Weight Basis (Per QT)* 1 2 3 4 5 * INCLUDING RAIL FREIGHT up to DESTINATION GOODSHED (TAXES AS APPLICABLE WILL BE ADDITIONAL, ON THE SAID RATE QUOTED).
5. The bids will opened on 19.04.2002 at FCI, Hqrs. at 3.00 P.M. in the presence of the parties who opt to be present.
... ... ... ... ...
7. Buyers will have to deposit the balance cost of the stocks offered after adjusting the Earnest Money within seven FCI working days from issue of intimation filing which stocks could be allotted to the next buyer. The indent for rake will be given after deposition of full cost of quantity allotted along with other applicable taxes."
3. The contention of the writ petitioners is that the said public notice being not based on intelligible differentia and having no nexus with the objective to be achieved is discriminatory in nature and thus violative of Article 14 of the Constitution of India.
The petitioner No. 1 Association is based in North India.
The petitioners contend that the offer for the respondent FCI to sell lustre lost wheat available in its procuring regions of Punjab, Haryana and Uttar Pradesh to intending buyers by restricting the supplies only to the consuming regions of Gujarat, Maharashtra, West Bengal, Bihar, Jharkhand, Karnataka, Kerala, Tamil Nadu, Assam and NEF is illegal.
4. The petitioners have questioned the terms and conditions of the said public notice on the following grounds:-
(a) that these stocks of wheat are sold to consumers before they became completely rotten or deteriorated fully and were rendered unfit for human consumption;
(b) that as a result of the non-harvest season, prices were not unconscionably increased by traders in the open market; and
(c) that these godowns were ready to receive a large amount of fresh stocks expected towards the end of the fresh procurement season, which was to commence soon.
5. The petitioners would contend that there is absolutely no reason as to why the consuming regions of Delhi, Punjab, Haryana and Uttar Pradesh (primarily wheat consuming areas) and those of Rajasthan, Madhya Pradesh, Andhra Pradesh, Orissa, etc. have been arbitrarily debarred from participating in the said offer.
Further contention of the petitioners appears to be that the said public notice is illegal as no reserve price had been fixed thereby nor any provision had been made as to how and in what manner stocks of wheat would be released by the respondent No. 1 to the intending purchasers offering same price, but from different regions.
However, keeping in view of subsequent events, it may not be necessary for us to consider all the contentions raised in the writ petition.
6. The respondent in its counter affidavit contended that the policy of acquiring wheat from procurement regions and selling the same in consuming region was formulated by a High Level Committee appointed by the respondent No. 1 and the recommendations whereof were known to the petitioners.
Such public notices are being issued, according to the respondent, for several years.
In the counter affidavit, it is stated:-
"Answering respondent has been inviting bids to the extent of sale approximately 1.1 lacs tones of lustre lost wheat. Within a year more than 2 million tones of wheat has been liquidated either after having been issued to PDS or under the present policy that is being followed in the public notice dated 12.4.2002 which is the subject matter of the present petition.
It is the first step towards liquidation of remaining lustre lost wheat and in the second phase steps will be taken to dispose of residual lustre lost wheat stocks in non-procuring states. A special scheme was devised by FCI wherein roller flour mills located in North India were also permitted to buy lustre lost wheat at the place of their business establishment.
As a matter of policy/practice, sale of wheat is stopped in the wheat procuring states for three months i.e. April/May/June every year. This is done with a view to avoid any recycling at the time of procurement. It was decided to stop open sales in Procuring Regions only since there is a strong possibility of the same wheat being re-cycled at higher price back to Central Poll by buyers in Procuring Regions. This would lead to misutilisation of public money.
7. It is not in dispute that restrictions of free purchase which had been imposed in the North Indian region has since been lifted. Wheat is, thus, available in open market and the members of the petitioner association can buy the same where for they are not required to approach the respondent No. 1.
8. Before proceeding to consider the respective contentions of the parties, we may notice that pursuant to or in furtherance of the impugned public notice, bids have been offered and the tender process has become final.
9. In the aforementioned situation, the learned counsel for the petitioner submitted that having regard to the policy decision taken by the respondent No. 1 purchase of wheat from the respondent is now permissible and as such they may also be allowed to participate in the bid. The last date admittedly for offering the bids was 15.05.2002 when the matter was being heard.
10. Keeping in view the fact that the petitioners in terms of the aforementioned public notice were not eligible to participate, we declined to pass an interim order as thereby we would not only be changing the terms and conditions of the said public notice, but thereby others who were not parties to the writ petition would be deprived there from.
Furthermore, the writ petitioner Nos. 1, 2 and 3 are Association and only the petitioner No. 4 has approached this Court in its individual capacity. If permission was to be granted, the same could have been granted only to the petitioner No. 4 and not to others and such an order, thus, could not be passed as thereby this Court would have imposed different conditions as regard the eligibility criteria other than those stated in the public notice.
11. The only ground upon which the petitioners, in our opinion, can question the said public notice is that of discrimination. However, if the petitioners intended to offer their bids in terms of the impugned public notice, there was no restriction therefore. The petitioners, however, did not participate in the said bid for obvious reasons insofar as they are in the zone for which procurement of wheat was to be made. If the petitioners, thus, were not interested and otherwise were not eligible for participation in the bid process pursuant to or in furtherance of the said public notice, the grounds taken in the writ petition for questioning the said public notice, namely, non-fixation of the reserve price, etc. became irrelevant.
The petitioners, in our opinion, have no locus to question the validity of the said public notice on the grounds stated in the writ petition other than alleged violation of equality clause.
It is now a well-settled principle of law that Article 14 of the Constitution of India would be attracted only when discrimination is made amongst the people, who are similarly situated.
The respondent No. 1 as a 'State' within the meaning of Article 12 of the Constitution of India has an obligation to supply wheat to the flour milling industries throughout India. If for the aforementioned purposes, the producing area have been treated differently vis-a-vis the consuming area, in our opinion, no discrimination can be said to have been committed. Such classification is perfectly justified.
12. For the view we have taken, we are of the opinion that the submissions of the learned counsel that all the wheat producing industries throughout India should be treated as a class and thus the respondents have created a class within a class cannot be accepted. Classification on the ground of producing zone and consuming zone is based on an intelligible differentia. Such classification would, thus, not be hit by the provisions of Article 14 of the constitution of India.
13. The learned counsel appearing on behalf of the petitioners has relied upon various decisions of the Apex Court, namely, Ramana Dayaram Shetty v. International Airport Authority of India & Ors., ; Rashbihari Panda, etc. v. State of Orissa, ; Food Corporation of India v. Kamdhenu Cattle Feed Industries, ; and Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhansnagar Municipal Corporation and Ors., The said decisions, in our opinion, cannot be said to have any application having regard to the fact situation obtaining herein as noticed hereinbefore.
Furthermore, it is not a fit case where the petitioners were by any means affected/prejudiced by the terms and conditions laid down in the said public notice.
In any event, it is not a fit case where this Curt at this stage should exercise its discretionary jurisdiction under Article 226 of the Constitution of India having regard to the fact that now the members of the petitioner Nos. 1, 2 and 3 can purchase wheat from the respondent No. 1 at a price fixed therefore.
14. For the reasons aforementioned, we do not find any merit it this writ petition, which is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.