SABYASACHI MUKHERJI, J. ( 1 ) THESE two petitions under Article 226 of the Constitution of India are taken up together for disposal as they relate to the question of acceptance of tender in favour of Amiya Kumar Mondal, who is respondent no. 9 in the first Rule and respondent no. 8 in the second one. In order to appreciate the contentions, it is necessary to refer to certain relevant fact. ( 2 ) BISWANATH Ahir, who is the petitioner is C. R. 7397 (W) of 1979 was working as storing agent at Haripal of the Food Corporation of India, who is the common respondents in both these two Rules. On the 15th July 1977 fresh tenders were invited for storing agent at Haripal. As arguments have been advanced in this case on the eligibility of the candidates and consideration of the tenders, it would be relevant to refer to the relevant clauses of the tender. Invitation of tender for appointment of storing agents invited tender upon certain conditions and condition No. 5 of the said invitation provides as follows :-? (5) Tender should specifically mention the location, size and capacity of their godowns and show proof of his/their possession of godowns. The tenderers should show only those godowns which are owned by themselves or under their direct tenancy when hired godowns are shown. No one should sub it tender who cannot show in his possession storage-worthy godown (S) with aminimum capacity of 1000 (one thousand) tones. ?clause (12) of the said conditions of tender provided as follows :-? (12) The successful tenderer will have to keep ready with godown space of not less than 1000 tonnes for reception of food grains but the Food Corporation of India does not give any guarantee about full utilization of the godown space notified in the tenders?. Clause (17) upon which reliance was placed on behalf of the respondents provides as follows :-? (17) The Regional Manager, Food Corporation of India, Calcutta, Region, reserves the right to reject any or all the tenders without assigning any reason and does not bind himself to accept lowest or any tender. He also reserves the right to appoint one or more tenders. ? ( 3 ) THESE are the material clauses of the tender. On the 17th August 1977 tenders were opened. He also reserves the right to appoint one or more tenders. ? ( 3 ) THESE are the material clauses of the tender. On the 17th August 1977 tenders were opened. There were 5 tenderers, namely, Biswanath Ahir, being the petitioner in the second rule and Amiya Kumar Mondal, Sukumar Yadav, Jay Kishore Pande and Debi Prosad Singha Roy. Indisputably the tender rate of Amiya Kumar Mondal was the lowest. The said tender on the 17th August 1977 was accepted conditionally by the Food Corporation of India. On the 28th November, 1977 a letter was written to Sri Amiya Kumar Mondal by the District Manager, Hooghly, Food Corporation of India. The said letter has not been annexed with any of the documents but was produce in court on behalf of The Food Corporation of India by my direction. The said letter reads as follows :- Sri Amiya Kumar Mondal Chinsurah Station Road, P. O. Chinsurah R. S. Dt. Hooghly. Dated 28. 11. 77 Sub : Appointment of Storing Agent at Haripal. Ref : Tender No. F/23 (4) 76-SIG (C) dt. 15. 7. 77 Sir, Your Tender No. F/23 (4) 76-SIG ? dt. 15. 7. 77 submitted to this office on 17. 8. 77 for appointment of Storing Agent at Haripal bas been accepted on condition that the defect in the godowns are rectified to make them storage-worthy to the satisfaction of the undersigned. Your are requested to remove the defects in the godown and let this office know immediately. You are also requested to deposit Security of Rs. 10,000/- (Rupees Ten thousand only) in Postal Savings Bank Pass Book duly pledged in favour of District Manager, Food Corporation of India, Hooghly and to execute Agreement in the prescribed Form. Two passport size Photographs of you may also please be submitted duly attested by you for affixing on the agreement to be executed by you. This may be treated as urgent. Yours faithfully, Sd. Illegible For District Manager, Hooghly. Thereupon, it appear that Sri Amiya Kumar Mondal on 9th December 1977 wrote back to the District Manager, Food Corporation of India, Hooghly, which again was produced before me and which provides as follows :- The District Manager, Food Corporation of India, Hooghly. 9. 12. 77 Ref : Your letter No. F/10 (39)/77 dt. 28. 11. Thereupon, it appear that Sri Amiya Kumar Mondal on 9th December 1977 wrote back to the District Manager, Food Corporation of India, Hooghly, which again was produced before me and which provides as follows :- The District Manager, Food Corporation of India, Hooghly. 9. 12. 77 Ref : Your letter No. F/10 (39)/77 dt. 28. 11. 77 Sir, I beg to inform you that I have appointed as a storing agent at Haripal. As per your above reference letter I removed the defects of the godowns which is known to me and I make the godowns storage worthy. So I request to your good office please allow me to store the food-grains in my godown as S/a Haripal. Thanking you, Yours faithfully, Amiya Kumar Mondal. ( 4 ) THERE is some Note that no further action could be taken on this letter because there was certain interim orders. I will refer to that interim order. That interim order was in respect of a petition filed by one of the tenderers, namely, Sukumar Yadab challenging the acceptance of tender by the Food Corporation of India. Some of the tenderers including Biswanath Ahir was not made party to the said writ petition. Rule Nisi was issued by Amiya Kumar Mookerji, J. on December 6, 1977 and certain interim order was passed. The application was marked as C. R. 6440 (W) of 1977. Thereafter there was a letter dated 9th December 1977 which I have set out hereinbefore. Prior thereto on the 23rd November 1977 it appears that there was another inspection by the Deputy Manager Quality Control), Sri S. P. Malhotra of the godown of Sri A. K. Mondal and his report was also produced pursuant to my direction because the said report was referred to in the proceedings of the tender committee and the said report reads as follows :-As per orders of SRM vide his note dt. 11. 11. 77 I visited Chinsura on 17. 11. 77 and later visited Haripal on 21. 11. 77. The following 6 godowns, out of the 7 offered by M/s. A. K. Mondal were inspected. The seventh godown could not be inspected as the keys were not available readily. 1. Shed No. 1. This godown is situated by the side of haripal-Jangi para Rd, adjacent to cinema hall godown of our existing Storing Agent. 11. 77. The following 6 godowns, out of the 7 offered by M/s. A. K. Mondal were inspected. The seventh godown could not be inspected as the keys were not available readily. 1. Shed No. 1. This godown is situated by the side of haripal-Jangi para Rd, adjacent to cinema hall godown of our existing Storing Agent. The godown is newly constructed and has a nett effective capacity of approx. 500 M. T. The godown from the point of view of plinth, walls, floor, roof etc. is quite storage worthy except that eastern wall of the godown comes from cut of a pond. The wall is otherwise strong and a drainage (outside the godown) was found ?provided to prevent flooding when the water level of the pond would rise during monsoon. There were no signs of seepage of water from the pond. Even then I suggested to the owner to get the eastern side wall plastered with waterproof cement and a coating of bitumen to a height of about 3ft. from the floor to avoid any chances of seepage. The owner agreed to do it. 2. Two small godowns situated on either side of a paddy husking mill, owned by Sri B. N. Banerjee with an approx. storage capacity of about 90 and 70 M. T. respectively; the one on the south side of the husking mill had a common door with the mill and is, therefore, considered unsafe from the security angle. The other shed of 90 M. T. capacity is provided with a separate entrance. Considering the plinth, roof, walls, ventilation etc. the godown is storage-worthy for short-terms storage. The floor however requires patch repairs which the owner agreed to undertake. 3. Two small godowns with a capacity of approx. 73 M. T. and 76 M. T. respectively were found situated within the premises of residential houses. Although both these godowns from the point of view of condition of rood, floor, walls, ventilation etc. are storage-worthy the same are not considered safe from hazards of insecticidal treatments in a residential area. 4. One small shed situated by the side of Haripal Bhanderhati Rd. with a capacity of approx. 60 M. T. considering condition of pitched floor, plinth, walls etc. is considered fit for short-terms storage. are storage-worthy the same are not considered safe from hazards of insecticidal treatments in a residential area. 4. One small shed situated by the side of Haripal Bhanderhati Rd. with a capacity of approx. 60 M. T. considering condition of pitched floor, plinth, walls etc. is considered fit for short-terms storage. It will kindly be seen from the above that out of the 6 godowns inspected, 3 godowns with a storage capacity of about 650 M. T. are storage-worthy, subject to minor repairs. In small interior centers like Haripal ideal godowns are difficult to find. In fact the condition of many of our godowns in other centers is much worse. The present off-take of Haripal is around 500 tonnes per month. But since the off-take is likely to increase after a couple of months, some godowns will be needed. The existing string agent whose godown were also inspected has storage capacity of a little over 3000 M. T. and in case of termination of his storing agency some of the godowns now used by him will be available to M/s. A. K. Mondal. In fact, Sri Banerjee the owner of the newly constructed godown is also the owner of the cinema hall godown and he informed that he will lease out this godown to M/s. A. K. Mondal after vacation. Sd. S. P. Malhotra Dy. Manager (QC) 23-11-77? ( 5 ) ON the 15th February 1978, Biswanath Ahir's appointment as strong agent was terminated. Biswanath Ahir has alleged that the said termination was without reason. He instituted a suit in the Hooghly Court and his contention was rejected by the learned Munsif and there was an appeal before the District Judge, Hooghly and the order of the order of the learned Munsif was upheld. So, I am not concern with the termination of the storing agent contract in favour of Biswanath Ahir. On 29th August 1978 it appears that the aforesaid Rule (C. R. No. 6440 (W) of 1977was disposed of with the direction that fresh representation of made by the petitioner in the said application and the respondent that is to say, Sukumar Yadav, be considered by the Food Corporation of India in accordance with law. On 29th August 1978 it appears that the aforesaid Rule (C. R. No. 6440 (W) of 1977was disposed of with the direction that fresh representation of made by the petitioner in the said application and the respondent that is to say, Sukumar Yadav, be considered by the Food Corporation of India in accordance with law. Thereafter, on 8th January 1979, Biswanath Ahir, who is the petitioner in the second Rule in the instant case, filed the writ petition challenging the conditional acceptance of the tender by the Food Corporation of India and a Rule Nisi was issued and interim `order made by Amiya Kumar Mookerji, J. The said application was marked as C. R. 18 (W) of 1979. On the 11th January 1979 Food Corporation of India again appointed respondent no. 8 to the second Rule, namely, Amiya Kumar Mondal as the storing agent of Haripal subject to verification of repair works at the godown offered by him. Thereafter, it appears that another writ petition was filed by Sukumar Yadav challenging the order of conditional appointment dated 11th January 1979 in favour of Amiya Kumar Mondal. The said application was marked as C. R. 346 (W) of 1979. On 23rd March 1979 both C. R. 18 (W) of 1979 and C. R. 346 (W) of 1979 came up for hearing and were disposed of by Amiya Kumar Mookerji, J. As a good deal of argument again has been made on the effect of judgment and direction of Amiya Kumar Mookerji, J. as above, it would be relevant to refer to certain portion of the said judgment and order. After setting out the rival contentions, Amiya Kumar Mookerji, J. went on to observe as follows :-It is true that the petitioners have got no legal right to challenge the decision of the F. C. I. either accepting or rejecting a particular tender and it is not incumbent upon the authorities to state any reason in rejecting a particular tender and it is not incumbent upon the authorities to give any personal hearing before disposing of such application for tender. But at the same time the Food Corporation is a statutory body created by statute. So it is incumbent upon such authority to dispose of such and every application fairly and without any bias but not arbitrarily and/or malafide. But at the same time the Food Corporation is a statutory body created by statute. So it is incumbent upon such authority to dispose of such and every application fairly and without any bias but not arbitrarily and/or malafide. It is alleged that patronage was distributed by the concerned authorities in favour of respondent no. 6. The report of the Assistant Manager (Quality Control) has been placed before me. It appears from the said report that none of the godowns of respondent No. 6 was found storage worthy and none of the godown confirm the specifications given in the tender form. Such state of affairs smack malafide. So for that reason it is necessary that the concerned authorities should consider afresh the cases of all the three applicants i. e. the petitioners in these Rules and the Respondent No. 6 along with rates mentioned in each of Assistant Manager (Quality Control) Hooghly and on the basis of the said Manger's report whosoever's godown is found to be storage worthy and conform the required specifications in terms of the tender form the competent authority shall be at liberty to give storing agency to that person who satisfies all the requirements of contract. As the matter is hanging for a long time, it is desirable that within six weeks from date the District Manager, F. C. I. Hooghly is directed to consider afresh all the tenders of the said three applicants and dispose of the same in terms of the direction indicated hereinabove. Both these Rules are disposed of as above without any order as to costs; I further made it clear that the decision of the authorities concerned shall be binding upon all the parties and they cannot agitate further against such order. In view of urgency of the matter, let plain copies of order countersigned by the Asst. Regr. be givben to the learned Advcocate appearing for the parites. ( 6 ) ON the 24th May 1979 it appears that there was a meeting of the Tender Committee and Proceedings of the said Tender Committee were not annexed or referred to in any of the affidavits filed in these two matters. Therefore, at my direction learned advocate for the Food Corporation of India produced the records and it necessary to set out proceedings of the said Tender Committee which are as follows :- In accordance with the orders dated 23. Therefore, at my direction learned advocate for the Food Corporation of India produced the records and it necessary to set out proceedings of the said Tender Committee which are as follows :- In accordance with the orders dated 23. 4. 79 of the Sr. Regional Manager at n. s. p. 17 ante, the Tender Committee met on 19. 5. 79 to consider the matter relating to the appointment of the Storing Agent at Haripal under district Manger, F. C. I. Hooghly in accordance with the guidelines prescribed by the Hon'able High Court in this regard. Present. 1. Shri D. Ghosh, Additional Regional Manager - II - Chairman 2. Shri R. N. Mukherjee, Dy Regional Manger (stg.) - Member 3. Shri S. L. Sensharma, Deputy Manager (Finance) - Member 4. Shri J. R. Ghosh, Sr. Assistant Manager (Movt.) - Member and Secretary. The Committee carefully examined the tenders submitted by Shri Amiya Kumar Mondal, Shri Biswanath Ahir and Shri Sukumar Yadab in pursuance of Tender Notice No. F/23 (4)/76-STC (C) dated 15. 7. 77 for appointment of a Storing Agent at Haripal. The Committee also considered the various representations submitted by the parties in the matter. The reports of the Assistant Manager (Q. C.), Hooghly on the storage worthiness of the godowns offered by the aforesaid three tenderers were also care fully gone into. It appears that at the time when the Assistant Manager (Q. C.) Hooghly inspected the godowns, those offered by Shri Sukumar Yadab were in the process of construction from which the Assistant Manager (Q. C.) could form no clear idea about their storage-worthiness. In other words, Shri Yadav did not actually have nay completed godowns in his possession at the relevant time. Out of the six sheds offered by Shri Biswanath Ahir, two sheds with a total storage capacity of a little over 200 M. T. were found to be unfit for storage by the Assistant Manager. The remaining four sheds were found by him to be fit for short-term storage subject to rectification of the defects detected during inspection. The godowns offered by Shri Amiya Kumar Mondal were found by the Asstt Manager (Q. C.) to be unfit for storage of foodgrains. The remaining four sheds were found by him to be fit for short-term storage subject to rectification of the defects detected during inspection. The godowns offered by Shri Amiya Kumar Mondal were found by the Asstt Manager (Q. C.) to be unfit for storage of foodgrains. However, in view of the lowest rates offered by Shri Mondal and the written undertaking furnished by him to remove the defects to make the godowns storage-worthy before the food stocks were actually stored he has recommended for appointment as the Storing Agent at Haripal and the recommendation was accepted by the Sr. Regional Manager. It, however, appears that on receipt of complaint, the godowns of Shri Amiya Kumar Mondal were inspected by a superior Quality Control Officer viz. Deputy Manager (Q. C.) under order of Sr. Regional Manager. According to his report, out of the seven godown offered by the tenderer, three godowns with a total capacity of 650 M. T. were fit for storage. Out of these, one godown with 500 M. T. capacity was a new construction, and the owner agreed to remove the only defect in it. The other godowns were found to be fit for short-term storage. One of them required patch repairs which the owner agreed to undertake. On the basis of the report of the Deputy Manager (Q. C.) the Senior Regional Manager maintained the earlier decision to appoint Shri Mondal as the Storing Agent. Thus, as regards storage-worthiness, the case of Shri Sukumar Yadav deserves no consideration as he could not show any completed godowns. Between the two remaining tenderers Shri Mondal whose rates were the lowest was therefore selected as the Storing Agent in preference to Shri Ahir in consideration of rates. The Committee did not find any new material during reconsideration to recommend alteration of the previous decision in this regard. Sd. J. R. Ghosh 24. 5. 79 Sr. Asstt. Magnager (Movement)SD. R. N. Mukherjee 24. 5. 79 Dy Regional Manager (Storage)SD. S. L. Sensharma 24. 5. 79 Deputy Manager (Fin) Sd. D. Ghosh, 24. 5. 79 Additional Regional Manager. ( 7 ) UPON this an order was passed. As to what that order was there is certain amount of discrepancy. According to the petitioner the order was as follows :-Sir, In partial modification of this office letter No. F/10 (39)/77 dated 28. 11. 5. 79 Deputy Manager (Fin) Sd. D. Ghosh, 24. 5. 79 Additional Regional Manager. ( 7 ) UPON this an order was passed. As to what that order was there is certain amount of discrepancy. According to the petitioner the order was as follows :-Sir, In partial modification of this office letter No. F/10 (39)/77 dated 28. 11. 77, I am directed to inform you that you have been selected for appointment as Storing Agent at Haripal at your tendered rates on conditions that the defects in the godowns are rectified to the satisfaction of under signed before allotment of stocks to you. ? According to the Food Corporation of India in the affidavit of Dilip Kumar Gupta, affirmed on 6th August 1979, the order passed was as follows :- I have perused the relevant papers. After due consideration I fully agree with the views of the Tender Committee. The D. M. , F. C. I. , Hooghly may be informed accordingly. ?it was signed by one R. N. De on the 25th May 1979. But the communication, according to the Food Corporation of India, was as follows :-Sir, In partial modification of the office letter No. F/10 (39)/77 dated 28. 11. 77 I am directed to inform you that you have been selected for appointment as Storing Agent at Hairpal at your tendered rates on conditions that the defects in the godowns are rectified to the satisfaction of undersigned before allotment of stocks to you. You are requested to execute agreement and submit your passport size photograph. ?on the 4th June 1979, Jay Kishore Pande, who was not a party to any previous proceedings moved an application under Article 226 of the Constitution and a Rule Nisi was issued. In that application he challenged the appointment of Amiya Kumar Mondal and he has annexed the letter written by Senior Assistant Manager, who communicated that the Senior Regional Manager has considered the tender of three applicants in pursuance of the order of Amiya Kumar Mookerji, J. and has selected Amiya Kumar Mondal for appointment as storing agent at Haripal at tendered rate. Rule Nisi was issued and interim order, restraining giving effect to the said acceptance of the tender in favour of Amiya Kumar Mondal, was granted. The said order form time to time was extended. Rule Nisi was issued and interim order, restraining giving effect to the said acceptance of the tender in favour of Amiya Kumar Mondal, was granted. The said order form time to time was extended. As I have mentioned before, the bone of contention in this application is whether the grant of the contract in favour of Amiya Kumar Mondal by the Food Corporation of India should be or can be sustained. ( 8 ) FROM a conspectus of sections 3,7,6,9,13,26 (2), 32 and 34 of the Food Corporation of India Act, 1961, it would be manifest that the capital, control, management, audit and powers are controlled and directed by the Government of India. It performs basically the functions as contemplated under section 13 of the said Act to promote, that is to say, to undertake the purchase, storage, movement, transport, distribution and sale of food grains and other foodstuffs and particularly to promote production of food grains and other foodstuffs, set up or assist in the setting up of rice-mills, flour-mills and other undertakings for the processing of food grains and other foodstuffs and discharge such other functions as may be entrusted upon them. The Board of Management is completely under the control of the Central Government, The Capital of the Corporation is controlled by the Central Government. It is, therefore, apparent that this is statutory Corporation constituted by the Government to perform some of the essential functions which a Government is a welfare society are obliged to perform. Therefore, it is a machinery set up, controlled and guided by the Union Government to perform its governmental activity in the sphere of social welfare and responsibility. It, therefore, in view of the ratio of the supreme Court in the case of Ramana Vs. International Airport Authority of India, reported in A. I. R. 1979 S. C. , p. 1628 is amenable to the writ jurisdiction and must act reasonable, fairly and on relevant materials in discharge of its function which affects the rights and privileges of others. There is not much dispute on this position. The main question, is, whether in the instant case, the Rood Corporation of India has acted either illegally or improperly or arbitrarily or in any discriminatory manner in granting the contract to Amiya Kumar Mondal in the facts and circumstances of the case. Indisputable Amiya Kumar Mondal's rate quoted was the lowest. There is not much dispute on this position. The main question, is, whether in the instant case, the Rood Corporation of India has acted either illegally or improperly or arbitrarily or in any discriminatory manner in granting the contract to Amiya Kumar Mondal in the facts and circumstances of the case. Indisputable Amiya Kumar Mondal's rate quoted was the lowest. That is certainly a very relevant and very cogent material. But the question that was manifest before me was that in view of the conditions which I have set out hereinbefore in the said letter inviting the tenders, Amiya Kumar Mondal was ineligible for offering his godown and the Food Corporation of India had no capacity to waive those conditions and in accepting the tender in the manner as it did, the Food Corporation of India had acted arbitrarily and not equally with other tenderers or even eligible tenderers who might have tendered had they known that such relaxations of the conditions would be permissible. Regarding the condition of the godown of Amiya Kumar Mondal as I have mentioned before the condition of the Tender was by clause (12) that the successful tenderers would have to keep ready the godown space of not less than 1000 tonnes of reception f Food grains even though the Food Corporation of India did not give any guarantee about the full utilization of the godown space notified in the tender. Indisputable, in this case if all the godowns of Amiya Kumar Mondal are taken into consideration, the available storage space would be 916 Metric tones. It fell short of the required capacity. Perhaps this was in the mind of the Tender Committee when it mentioned what it did in penultimate paragraph of its proceedings of 24th May 1979 which I have set out hereinbefore. It was referring to the fact that though more space would be required, some of the space which in the occupation of the present storing agent, Mr. Biswanath Ahir, the petitioner in the second Rule, would be vacant after the contract in favour of Biswanath Ahir was terminated and as the landlord had assured that the same would be available to be leased out to Amiya Kumar Mondal. Biswanath Ahir, the petitioner in the second Rule, would be vacant after the contract in favour of Biswanath Ahir was terminated and as the landlord had assured that the same would be available to be leased out to Amiya Kumar Mondal. The condition of the godowns on the point of storage are mentioned first in the report of Shri A. Das Gupta, Assistant Manager, Quality Control, whose report has been referred to and mentioned in the judgment of Amiya Kumar Mookerji, J. which I have referred to hereinbefore. The relevant portion of the same are as follows :- ( 9 ) THEREFORE, apart from the fact that though seven godowns were offered by Amiya Kumar Mondal, most of did not have much storage capacity except one which was 2731 Sft having a storage capacity of 488 M. T. did not make up the minimum total required by the letter inviting the Tender. Each one of them have been noted to be unfit for storage of food-grains. At least, that was the report given by A. Das Gupta, Assistant Manager (Quality Control) dated 8th October, 1977. The Deputy Manager, Quality Control, on the 23rd November 1977 before the letter dated 28th November 1977 was written had inspected and had mentioned the conditions. He has also noted that some additional storage space might be available to Amiya Kumar Mondal after the termination of the contract in favour of Biswanath Ahir as the landlord was willing to give the lease in favour of Amiya Kumar Mondal. It appears that pursuant to this inspection, Amiya Kumar Mondal was asked to do the repairs and make the godowns storage-worthy. But if the defects mentioned in the report of Sri A. K. Das Gupta dated 8th October 1977 were of such nature as indicated before, it is difficult to comprehend how on 9th December 1977 such defects could be removed by Amiya Kumar Mondal and naturally petitioners in both these Rules emphasis that this was an absolutely impossible thing. Another aspect it has to be borne in mind is that though it appears that there was an inspection on the 23rd November 1977 by the Deputy Manager, Quality Control, such report was not placed or attention of Amiya Kumar Mookerji, J. was not drawn when His Lordship passed order dated 6th December 1977. Another aspect it has to be borne in mind is that though it appears that there was an inspection on the 23rd November 1977 by the Deputy Manager, Quality Control, such report was not placed or attention of Amiya Kumar Mookerji, J. was not drawn when His Lordship passed order dated 6th December 1977. The learned Judge, as I have set out hereinbefore, specifically referred to the report of the Assistant Manager, Quality Control, and directed that the concerned authorities should consider afresh the cases of all the three applicants, i. e. , the petitioners in these Rules and respondent no. 6 along with rates mentioned in ease of the tender and report of the Assistant Manager (Quality Control), Hooghly and on the basis of the said Manager's report, the learned Judge directed whosoever's godown would be found to be storage-worthy and conform to the requirement of specifications in terms of the tender form, the competent authority shall be at liberty to give the storing agency to that person who satisfies all the requirements of contract. The learned Judge also directed that person who satisfies all the requirements of contract. The learned Judge also directed that the decision of the authority concerned should be binding upon all the parties and they cannot agitate further against such order. The petitioner in C. R. 4659 (W) of 1979, Joy Kishore Panda, was not one of the parties whose applications the learned Judge directed to consider. On behalf of the respondents it was contended that the condition of the godown of Biswanath Ahir was also not eligible and suitable for the purpose required. In this connection, reliance was placed on the report of Sri A. K. Das Gupta about the condition of the godown of Biswanath Ahir and it would be relevant to make the narration complete to set out the relevant portion. Sl No. Description Owner : Baidya Nath Banerjee Owner : Kartick Chandra Ahir Gopinagar, Defunct Cinema, Haripal Stn. Haripal on Haripal Bhandarhati Rd. Plot Bazar, Dag 306, J. L. N. 72 3. Plinth 9-below surrounding road Paralled to ground level but slightly No. 1206 Lower than level Motorable road level. 4. Roof Made of asbestos sheet fitted Made of asbestos sheet fitted on tubuler Sl No. Description Owner : Baidya Nath Banerjee Owner : Kartick Chandra Ahir Gopinagar, Defunct Cinema, Haripal Stn. Haripal on Haripal Bhandarhati Rd. Plinth 9-below surrounding road Paralled to ground level but slightly No. 1206 Lower than level Motorable road level. 4. Roof Made of asbestos sheet fitted Made of asbestos sheet fitted on tubuler Sl No. Description Owner : Baidya Nath Banerjee Owner : Kartick Chandra Ahir Gopinagar, Defunct Cinema, Haripal Stn. Haripal on Haripal Bhandarhati Rd. Plot No. 1206 Bazar, Dag 306, J. L. N. 72 on iron frames iron frame 5. Floor Pitched floor. The floor could Cement concrete floor. The floor could not be inspected properly as the not be inspected properly as the same same is covered by what stocks is covered by wheat/rice stocks of the of existing S. A. Cracks and Existing S. A. Long crack noticed along dampness noticed in between the joint of wall and floor which Require repairing. wall and floor joint which require repairing/resplastering. Pitched floor has been worked Exposed concrete floor shows cracks at out at several places, require repairing. several places which should be 6. Wall 10-thick brick wall Plastered by cement 10- thick brick wall having cement repaired. both outside and inside except one side. Plaster in both inside and outside The side wall should be plastered. Walls. 12. Storage 2988 Sft = 427 M. T. = 7 Sft per Enhanced 4232 Sft=604 M. T. @ 7 Sft. Capacity storage capacity due to increase height Enhanced storage capacity due to 256 = 107 M. T. Total Capacity-534 M. T. increased height 25%=151 M. T. 13. Description This is a defunct Cinema Hall. The Shed This is a big shed having no pillar total capacity 755m. T. & Recommendation is fit for short term storage subject to inspection of floor and rectification inside. The shed is fit for short term of all above defects. storage subject to inspection of floor and rectification of all above 3. Plinth 3- above surrounding ground level. 3- above surrounding ground level. 4. Roof Asbestos fitted on tubular iron frame. Asbestos fitted on tubular iron frame. 5. Floor Pitched floor but the entire floor could Pitched floor but the floor could not defects. not be seen as the floor space is covered be seen properly as food grains stocks by food-grains stocks of existing S. A. having covered entire space of the existing S. A. However, joints of wall and floor require repairing, due to 13. Descrip- The shed is ill ventilated/lighted. not be seen as the floor space is covered be seen properly as food grains stocks by food-grains stocks of existing S. A. having covered entire space of the existing S. A. However, joints of wall and floor require repairing, due to 13. Descrip- The shed is ill ventilated/lighted. The The shed is ill lighted ventilated. The tion & Re- ventilators should be made bigger. Ventilators should be made bigger. commen- The said is fit for short term storage The shed is fit for term storage dation subject to inspection of floor and subject to inspection floor and rect- rectification of above defects. cation of all above defects. ( 10 ) SO far as Jay Kishore Pande's godown is concerned, he did not allow inspection of any godown. He said that he was not in a position to give inspection within the time that was allowed to him. He wrote a letter to the appropriate authorities contending that he was ill so he should be given extension of time to allow inspection which, however, was not allowed to him. One of the main questions that was canvassed before me on behalf of the respondents was that in this matter there has been inordinate delay on the part of the petitioners in moving these applications. It was submitted that the contract was originally granted on the 17th August, 1977. Jay Kishore Pande took no steps until 4th June 1979 to agitate about the grant. Biswanath Ahir also did not move any application and the first application he moved was on 8th January 1979 and there after, there was afresh consideration and the contract was again granted to him on the 11th January 1979. Therefore, if the present application moved by the petitioner on the 26th June 1979 was belated, it was also emphasized that he was unsuccessfully trying to resist the cancellation of storing contract by filing a suit before the learned Munsif and, thereafter, on appeal before the learned District Judge, Hooghly, and there being unsuccessful he came at a belated stage in order to perpetuate his storage contract at Haripal. It was submitted that he should not be allowed to agitate at this belated stage. It was urged that in the decision of the supreme Court in Ramana Vs. It was submitted that he should not be allowed to agitate at this belated stage. It was urged that in the decision of the supreme Court in Ramana Vs. I. A. Authority of India (Supra) a delay about five months was considered to disentitle the applicant even though in that case the Supreme Court found that the contract had been arbitrarily or improperly granted in favour of the party, In this case, it was submitted that the Food Corporation of India as well as Amiya Kumar Mondal had altered their situation pursuant to the grant of a contract. Therefore, it would be inequitable to exercise powers under Article 226 of the Constitution to interfere at this stage. It was, secondly, urged that, in any event, Jay Kishore Pandey was not entitled to challenge the contract because he had no godown according to the inspection report and so far as Biswanath Ahir was concerned at the date when he submitted tender he did not have with him the available godown because until the termination of the storing contract which took place subsequently there was no question of this godown, which was being occupied by the Food Corporation of India being available for the purpose of his contract. It was urged that even though some of the conditions might not have been strictly followed having regard to the public nature, the lowest rate for a Statutory Corporation to allow the minor deviation for the sake of economy was an exercise in power on reason and relevant material and on the basis of the principle enunciated by the Supreme Court referred to hereinbefore. Such deviation should not be interfered with. It was, then, urged that under condition No. 17 of the Tender such deviation was permissible and if for the reasons of economy such deviation has been permitted then it should not be interfered with. It was emphasized that the Food Corporation of India being a statutory corporation has proceeded on the basis of economy and getting the godowns contracted for at a very much cheaper rate than the other contending contractors. It was also alleged that these matter had been prolonged for along time and the Food Corporation of India was being deprived of its right to settle the contract. It was also alleged that these matter had been prolonged for along time and the Food Corporation of India was being deprived of its right to settle the contract. It was submitted that Yadav and Ahir were related to each other and, as such it was only camouflaged attempt to take the benefit of the process of the Court. In that background it was submitted that this application was not maintainable. ( 11 ) LEARNED advocate for Amiya Kumar Mondal also emphasized that the claims of the parties had to be adjudged in the light of the direction of Amiya Kumar Mookerji, J. who had specifically directed that the decision of the authorities would be final and binding and none of the parties were entitled to challenge the same, He emphasized that the authorities were really nominees of the court pursuant to the order and having accepted the order the petitioners specially Biswanath Ahir was estopped in agitating this ground. So far as Jay Krishore Pandey is concerned, he could not be considered at all because Amiya Kumar Mookerji, J. had specifically directed consideration of certain applicants amongst whom Jay Kishore Pandey was not there. These are the rival contentions that are to be considered in this case. ( 12 ) SO far as the question of delay is concerned, it is true that if there is delay and if in the meantime parties have altered their position, than, the Court would be slow to interfere in the exercise of its discretionary power under Article 226 of the Constitution. But, in this case the order challenged really is the final grant of the contract in favour of Biswanath Ahir on 25th May, 1979. So far as petitioner Jay Kishore Pandey is concerned, he moved this application on 4th June 1979. So far as the petitioner in the other application, that is, Biswanath Ahir's application is concerned, he moved the application on the 29th June 1979. So both these applications were within a period of a month's time. So far as petitioner Jay Kishore Pandey is concerned, he moved this application on 4th June 1979. So far as the petitioner in the other application, that is, Biswanath Ahir's application is concerned, he moved the application on the 29th June 1979. So both these applications were within a period of a month's time. It true that Jay Kishore Pandey was not one of the Persons who was asked to be considered by the order of Amiya Kumar Mookerji, J. But as the Supreme Court emphasized the cardinal principle is that all the persons who are entitled to submit applications or submits tenders must be treated equally and it they are treated differently then the equality with which a statutory authority is obliged to function in a welfare state is breached. In the case before the Supreme Court, the challenge was by a person who even did not submit his tender. In that context, the observations of the Supreme Court at page 1635 of the report are significant. These are as follows : That takes us to the next question whether the acceptance of the tender of the 4th respondents was invalid and liable to be set aside at the instance of the appellant. It was contented on behalf of the 1st and the 4th respondents that the appellant had no locus standi to maintain the writ petition since no tender was submitted by him and he was a mere stranger. The argument was that it the appellant did not enter the field of competition by submitting a tender, what did it matter to him whose tender was accepted; what grievance could he have if the tender of the 4th respondents was wrongly accepted. A person whose tender was rejected might very well complain that the tender of some one else was wrongly accepted, but, it was submitted, how could a person who never tendered and who was at no time in the field, put forward such a complaint? This argument, in our opinion, is misconceived and cannot be sustained for a moment. The grievance of the appellant, it may be noted was not that his tender was rejected as a result of improper acceptance of the tender of the 4th respondents, but that he was differentially treated and denied equality of opportunity with the 4th respondents in submitting a tender. The grievance of the appellant, it may be noted was not that his tender was rejected as a result of improper acceptance of the tender of the 4th respondents, but that he was differentially treated and denied equality of opportunity with the 4th respondents in submitting a tender. His complaint was that if it were known that nonfulfilment of the condition of eligibility would be no bar to consideration of a tender, he also would have submitted a tender and competed for obtaining a contract. But he was precluded from submitting a tender and entering the field of consideration by reason of the condition of eligibility, while so far as the 4th respondents were concerned, their tender was entertained and accepted even though they did not satisfy the condition of eligibility and this resulted in inequality of treatment which was constitutionally impermissible. This was the grievance made by the appellant in the writ petition and there can be no doubt that if this grievance were well founded, the appellant would be entitled to maintain the writ petition, The question is whether this acceptance of the tender of the 4th respondents was vitiated by any legal infirmity. ? ( 13 ) THERE, the Supreme Court had gone to the extent that if there was relaxation in favour of one person then even a person who had not submitted the tender could come and complain that the complainant might have submitted tender had he known that such relaxations would be permitted. There was no such indication in the tender. The second factor that has to be borne in mind that in the case before the Supreme Court the person in whose favour the contract had been granted, the Supreme Court had found that the contract had been granted improperly, it had incurred the costs of 1,12,000/- because of the lapse of five months and he was actually functioning. But in this case Amiya Kumar Mondal is not functioning. Secondly, there is no evidence of any expenses having been incurred by him or on his part. There is a bald averment that defects have been removed. When the defects have been removed ? What were removed ? And how the defects were removed ? Amiya Kumar Mondal had not made nay averment on these. Secondly, there is no evidence of any expenses having been incurred by him or on his part. There is a bald averment that defects have been removed. When the defects have been removed ? What were removed ? And how the defects were removed ? Amiya Kumar Mondal had not made nay averment on these. Food Corporation of India in its affidavit has not made any statement, but, in the report of the Deputy Manager, Quality Control, some improvements have been noted, but when those improvements have been done that have not been mentioned. Therefore, the basis on which the Supreme Court declined to interfere in the case of International Airport Authority (supra) would not be applicable in the instant case. ( 14 ) THE nest question, is, whether Jay Kishore Pandey has any locus standi to maintain this application because he not having the requisite number of gododowns of requisite storage capacity. To this the answer of the petitioner, Jay Kishore Pnadey, is that nobody has yet found that he has no storage capacity. He has not been given even three weeks time to prove that and when he asked for time on the ground of illness for the postponement of the inspection of his godown that was refused while in case of Amiya Kumar Mondal admittedly defective godowns, defective to the extent of a finding by Assistant Manager, Quality Control, that these were unfit for the purpose of which these were required, have been allowed time to rectify these defects. This is certainly clear discrimination. It the matter had prolonged for so long, what was the harm in giving Jay Kishore Pandey time for inspection in order to satisfy the authorities concerned whether he had storage worthy godowns with the requisite capacity. So far as Biswanath Ahir's case is concerned, it is stated that he had not the requisite godowns though he had submitted the tender having the storage capacity of over 1700 M. T. The major part of his godown was in the occupation of the Food Corporation of India. There is no condition as such that the godown which were in the occupation of the Food Corporation of India, could not be offered for fresh consideration. There is no condition as such that the godown which were in the occupation of the Food Corporation of India, could not be offered for fresh consideration. Indeed it is a most revealing thing that the Deputy Manager, Quality control, in his report noticed that Amiya Kumar Mondal would have the requisite storage capacity, in the event the godowns in the possession of Biswanath Ahir were vacated after termination of the contract in his favour and these made over to Amiya Kumar Mondal ; this proves not only that he had the requisite godowns with storage capacity but the godowns were considered to be fit enough for utilization for the purpose for which these were offered. Therefore, I am unable to accept the contention that this application is either belated or the petitioners as such have no locus standi. ( 15 ) SO far as the question of Amiya Kumar Mookerji, J's direction that the decision of the authorities would binding is concerned, it is significant and that is the reason why I have set out the order of Amiya Kumar Mookerji, J. in extenso. His Lordship directed that there should be consideration. His Lordship, further directed that how those considerations should be made, that is to say, on the basis of the report of the Assistant manager, Quality Control, and it must be found out whether on the basis of that report whether the godowns offered by Amiya Kumar Mondal conformed to the requisite specification. It has to be a decision based on the aforesaid considerations. Such a decision was made to be final. It is not a decision simpliciter or without the consideration that was made final. Therefore, in my opinion, the fact that the learned judge had directed the decision to be final does not preclude in view of the facts and circumstances of the case, whether there was consideration as directed. Such a decision was made to be final. It is not a decision simpliciter or without the consideration that was made final. Therefore, in my opinion, the fact that the learned judge had directed the decision to be final does not preclude in view of the facts and circumstances of the case, whether there was consideration as directed. Furthermore, in any event, in this case the decision of the tender committee and of the grant which was ultimately based on the decision of the tender committee was not on the basis of the report of the Assistant Manager, Quality Control, but a report of the Deputy Manager, Quality Control, which significantly was made long prior to the decision of Amiya Kumar Mookerji, J. that the Food Corporation of India for the reasons best known to it did not think it fit and proper to bring it to the notice of Amiya Kumar Mookerji, J. Therefore, a decision which was based on the materials not warranted by the decision of Amiya Kumar Mookerji, J. Therefore, this contention that in view of the direction of Amiya Kumar Mookerji, J. the decision cannot be challenged, in my opinion, cannot be sustained. A distinction must be made between decision and consideration in this case. There has been a purported decision in terms of Amiya Kumar Mookerji, J. without the consideration of the factors enumerated by Amiya Kumar Mookerji, J. ( 16 ). It was, then, urged that deviations were permissible in view of clause 17. I mentioned that such clause which fixed the eligibility cannot be deviated by virtue of clause 17, which I have enumerated before. This action comes within the mischief mentioned by the Supreme Court in the case of International Airport Authority it is true that this matter has been prolonging for along time. But that is, in my opinion, due to the Food Corporation of India's conduct. I see no reason why the report of the Deputy Manager, Quality Control, was not placed before the learned Judge. I cannot also appreciate how after 28th November, 1977 by 9th December 1977, the defects the nature of which were indicated in the report of the Assistant Manager, Quality control, Amiya Kumar Mondal could have been removed or rectified. I see no reason why the report of the Deputy Manager, Quality Control, was not placed before the learned Judge. I cannot also appreciate how after 28th November, 1977 by 9th December 1977, the defects the nature of which were indicated in the report of the Assistant Manager, Quality control, Amiya Kumar Mondal could have been removed or rectified. There is also no reason as to why Amiya Kumar Mondal had been given time to remove such defects while others had not been given that opportunity. In that view of the matter, and having regard to the long time taken in this matter, I think the appropriate orders would be to cancel the acceptance of the tender, direct the Food Corporation of India to invite fresh tenders by stipulating such conditions as if considers fit and proper and as might be available in the Indian conditions and, thereafter to proceed in accepting the tender in accordance with law. The acceptance of tender in favour of Amiya Kumar Mondal by the order dated 25th May 1979 is hereby cancelled and set aside. The Rules are made absolute to the extent indicated above. In the facts and circumstances of the case, there will be no order as to costs. Rules made absolute.