JUDGMENT (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 in 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 go downs and show proof of his/their possession of go downs. The tenderness should show only those go downs which are owned by themselves or under their direct tenancy when hired go downs are shown. No one should submit tender who cannot show in his possession storage-worthy go down (s) with a minimum capacity of 1000 (one thousand) tones. " Clause (12) of the said conditions of tender provided as follows :- " (12) The successful tendered will have to keep ready with go down space of not less than 1000 tones for reception of food grains but the food Corporation of India does not give any guarantee about full utilization of the go down 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 tenderness." 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 tenderness." These are the material clauses of the tender. On the 17th August 1977 tenders were opened. There were 5 tenderness, namely, Biswanath Ahir, being the petitioner in the second Rule and Amiya Kumar Mondal, Sukumar yadab, 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 produced in court on behalf of The Food corporation of India by my direction. The said letter reads as follows :- Sri Amiya Kumar Mondal Chins rah Station Road, P. O. Chins rah R. S. Dt. Hooghly. Dated 28.11.1977 Sub : Appointment of Storing Agent at Haripal. Ref : Tender- No. F / 23 (4) 76-SIG (C) dt 15. 7. 1977. Sir, Your Tender no. F/23 (4)/76-SIG (C) dated 15.7.77 submitted to this office on 17.8.1977 for appointment of storing Agent at Haripal has been accepted on condition that the defect in the go downs are rectified to make them storage -worthy to the satisfaction of the undersigned. You are requested to remove the defects in the go down 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 appears 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. 9.12.1977 Ref : Your letter No. F / 10 (39) / 77 dt . 28. 11. 1977. Thereupon, it appears 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. 9.12.1977 Ref : Your letter No. F / 10 (39) / 77 dt . 28. 11. 1977. 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 go downs which is known to me and I make the go downs storage worthy. So I request to your good office please allow me to store the food-grains in my go down as S/a Haripal. Thanking you, Yours faithfully, Amiya Kumar Mondal. (3.) 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 tenderness, namely, Sukumar Yadab challenging the acceptance of tender by the Food corporation of India. Some of the tenderness including Biswanath Ahir was not made party to the said writ petition. Rule Nisi was issued by Amiya kumar Mookherjee, 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 go down 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 Chinstrap on 17.11.77 and later visited Haripal on 21.11.77. The following 6 go downs, out of the 7 offered by M/s. A. K. Mondal were inspected. The seventh go down could not be inspected as the keys were not available readily, 1. Shed No. 1. This go down is situated by the side of Haripal Jangipara Rd, adjacent to cinema hall go down of our existing Storing agent. The following 6 go downs, out of the 7 offered by M/s. A. K. Mondal were inspected. The seventh go down could not be inspected as the keys were not available readily, 1. Shed No. 1. This go down is situated by the side of Haripal Jangipara Rd, adjacent to cinema hall go down of our existing Storing agent. The go down is newly constructed and has a net effective capacity of approx. 500 M. T. The go down from the point of view of plinth, walls, floor, roof etc. is quite storage worthy except that eastern wall of the go down comes from out of a pond. The wall is otherwise strong and a drainage (outside the go down) 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 go downs 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 go downs is storage-worthy for short-terms storage. The floor however requires patch repairs which the owner agreed to undertake. 3. Two small go downs 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 go downs, from the point of view of condition of roof, floor, walls, ventilation etc. are storage-worthy the same are not consider-ed 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 consider-ed 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 go downs inspected, 3 go downs with a storage capacity of about 650 M. T. are storage-worthy, subject to minor repairs. In small interior centres like haripal ideal go downs are difficult to find, In fact the condition of many of our go downs in other centres is much worse. The present off-take of Haripal is around 500 tones per month. But since the off take is likely to increase after a couple of months, some more go downs will be needed. The existing storing agent whose go downs were also inspected has a storage capacity of a little over 3000 M. T. and in case of termination of his storing agency some of the go downs now used by him will be available to M/s A. K. Mondal. In fact, Sri banerjee the owner of the newly constructed go downs is also the owner of the cinema hall go down and ho informed that he will lease out this go down to M/s. A. K. Mondal after vacation. Sd. S. P. Malhotra dy. Manager (QC)23-11-77. " (4.) ON the 15th February 1978, biswanath Ahir's appointment as storing 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 learned Munsif was upheld. So, I am not concerned 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 1977 was 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 1977 was 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 Mukherji, 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 go down 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 Mookherjee, J. As a good deal of argument again has been made on the effect of judgment and direction of Amiya kumar Mookherjee, 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 Mookherjee, 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. 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 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 go downs of respondent no. 6 was found storage worthy and none of the go down conform 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 the tender and the report of the assistant Manager (Quality Control) Hooghly and on the basis of the said Manager's report whosevers go down is found to be storage worthy and conform the required specifications in terms of the tender from 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 make 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 Asstt. Rag (C) be given to the learned Advocate appearing for the parties" 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. Rag (C) be given to the learned Advocate appearing for the parties" 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 is necessary to set out the 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 Manager, F. C. I. Hooghly in accordance with the guidelines prescribed by the Hon'ble High Court in this regard, present. 1. Shri D. Ghosh, Additional Regional manager II Chairman 2. Shri R. N. Mukherjee, Dy Regional manager (stg.) Member 3. Shri S. L. Sensharma, Deputy manager (Finance) Member 4. Shri J.R. Ghosh, Sir. Assistant Manager (Govt.) 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 go downs offered by the aforesaid three "tenderness were also carefully gone into. It appears that at the time when the Assistant Manager (Q. C.) Hooghly inspected the go downs, 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 any completed go downs 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. 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 go downs offered by Shri amiya Kumar Mondal were found by the Asstt. Manager (Q. C.) to be unfit for storage of food grains. 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 go downs 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 go downs 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 go downs offered by the tendered, three go downs with a total capacity of 650 M. T. were fit for storage. Out of these, one go down with 500 M. T. capacity was a new construction, and the owner agreed to remove the only defect in it. The other go downs 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 go downs. Between the two remaining tenderness 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. Manager (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. (5.) UPON this an order was passed. 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. Manager (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. (5.) 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/1o (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 go downs are rectified to the satisfaction of undersigned 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. 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 Haripal 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. " (6.) 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 Mookherjee, 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 from, 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. 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 in 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 reasonably, 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 Food 1 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. Indisputably Amiya Kumar Moridal's rate quoted was the lowest. The main question, is, whether in the instant case, the Food 1 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. Indisputably Amiya Kumar Moridal'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 go down 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 go down 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 go down space of not less than 1000 tones of reception of Food-grains even though the Food Corporation of India did not give any guarantee about the full utilization of the go down space notified in the tender, Indisputably, in this case if all the go downs 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. (7.) IT was referring to the fact that though more space would be required, some of the space which were 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. The condition of the. 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. go downs oh 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 Mookherjee, J. which I have referred to hereinbefore. The relevant portion. of. the. same. . . . . . . . are as follows : Godowns offered by Sri A. K. Mondal SI No. Description Shed-Ill Owner B. N. Banerjee Plot No. 544 south of Paddy Mill. Shed-V Owner B. N. Banerjee Plot 544 North of Paddy Mill. Shed-VI Owner-Kanai Lal Banerjee East Room. Shed-VI I Owner Kanailal Banerjee West Road. 12. Storage 812 Sft-116 MT-23 Sft. (20% less due to low height)=93 Mt 622 Sft-39-18 MT (20% less due to low height) = 71 MT 48 Sft-69 MT 14 (20% less for low height) - 55mt 517 Sft-74 MT-14 MT (due to low height 20%) 60mt. 13. Description & Recommendation This is a low height one tin roof damp shed, situated north of a paddymill. One wall is common with the mill unfit for shed fumigation. Unfit for storage of food grains. This is an old shed attached to a Husking Mill-one wall is common within Mill. Unfit for shed fumigation. In view of old shed attached to Mill, damp floor and wall the shed is unfit for storage of food grains. This is an one tin roof with low height old building. Dark and ill ventilated. Unfit for storage of food-grains This is an old and dark room having one tin roof. Ill ventilated. Unfit for storage of food-grains. Godowns offered by Sri A. K. Mondal SI . No. Description No. 1 owner Baidyanath Banerjee Plot No. 36 Haripal Bazar Owner B. N. Banernce No. II Plot No. 306 near Rly. Level Crossing. No. IV. Owner B. N. Banerjee Plot No. 544 (Near owner's House at Haripal Bazar) 12. Storage Capacity 2731 Sft =390 M. T. plus 98 (25% increase due to higher height) = 488 MT 640 Sft.-91 Tonnes 18 (20 % due to low height) plus 73 Tonnes. Level Crossing. No. IV. Owner B. N. Banerjee Plot No. 544 (Near owner's House at Haripal Bazar) 12. Storage Capacity 2731 Sft =390 M. T. plus 98 (25% increase due to higher height) = 488 MT 640 Sft.-91 Tonnes 18 (20 % due to low height) plus 73 Tonnes. -662 Sft-94 M. T.-18 (20% due to low height) =76 M. T. 13. Description & Recommendation This is a new godown under construction. The shed is situated by the side of a pond. The East wall of the shed is vertically emerges out of the pond, having upper portion is of 5" wall in case through 5" wall in case of over flood of pond cannot be ruled out. The shed is, therefore, unfit for storage of food grains in its present condition. This is a residential-cum-commercial room Front portion is occupied by a shop and back portion is occupied by private house. Unfit for stack and shed fumigation. In view of the shed is unfit for storage of food-grains. This is a residential-cum-commercial room situated in the residential locality, made of single tin roof. Floor and adjoining wall showed size of dampness. In view of the shed is unfit for storage of food-grains. (8.) THEREFORE, apart from the fact that though seven go downs were offered by amiya Kumar Mondal, most of these did not have much, storage capacity except one which was 2731 Sift 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 ha 1 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 go downs storage-worthy. It appears that pursuant to this inspection, Amiya kumar Mondal was asked to do the repairs and make the go downs 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 Sri Amiya Kumar Mondal and naturally petitioners in both these Rules emphasize 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 Mookherjee, 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 whosevers go down 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 require-mints 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 go down 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 go down of Biswanath Ahir and it would be relevant to make the narration complete to set out the relevant portion. SI No. Description Owner : Baidya Nath Banerjee Defunct Cinema, Haripal Stn. In this connection, reliance was placed on the report of Sri A.K. Das Gupta about the condition of the go down of Biswanath Ahir and it would be relevant to make the narration complete to set out the relevant portion. SI No. Description Owner : Baidya Nath Banerjee Defunct Cinema, Haripal Stn. Bazar Dag 306, J. L N. 72 Owner Kartick Chandra Ahir Gopinagar, Haripal on Haripal Bhandarhatr Rd. Plot No. 1206 3. Plinth 9" level below surrounding road Paraded to ground level but slightly lower than motorable road level. 4. Roof Made of asbestos sheet fitted on iron frames Made of asbestos sheet fitted on tubuler iron frame SI No. Description Owner : Baidya Nath Banerjee Defunct Cine, Haripal Stn. Bazar, Dag 306 J. L No. 72. Owner : Kartic C. Ahir, Gopinagar, Haripal on Haripal Bhandarhati Rd. Plot No. 1206 5. Floor Pitched floor. The floor could not be inspected properly as the same is covered by what stocks of existing S. A. Cracks and dampness noticed in between wall and floor joint which require repairing/resplastering. Cement concrete floor. The floor could not- be inspected properly as the same is covered by wheat/ rice stocks of the existing S. A. Long crack noticed along the joint of wall and floor which require repairing. Pitched floor has been worked out at several places, require repairing. Exposed concrete floor shows cracks at several places which should be repeired. 6. Wall 10" thick brick wall. Plastered by cement both outside and inside except one side. The side wall should be plastered. 10" thick brick wall having cement plaster in both inside and outside walls. 12. Storage Capacity 2988 Sft =427m. T. = 7 Sft per Enhanced storage capacity due to increase height 256=107 M. T. Total Capa-city-534 M. T. 4232 Sft =604 M. T. @ 7 Sft. Enhanced storage capacity due to increased height 25%= 151 M. T, total capacity 755 M. T. 13, Description & recommendation This is a defunct Cinema Hall. The shed is fit for short term storage subject to inspection of floor and rectification of all above defects. This is a big shed having no pillar inside. The shed is fit for short term storage subject to inspection of floor and rectification of all above defects. 3. Plinth 3" above surrounding ground level 3" above surrounding ground level 4. The shed is fit for short term storage subject to inspection of floor and rectification of all above defects. This is a big shed having no pillar inside. The shed is fit for short term storage subject to inspection of floor and rectification of all above defects. 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 not be seen as the floor space is covered by food-grains stocks of existing S. A. Pitched floor but the floor could not be seen properly as food grains stocks having covered entire space of the existing S. A. However, joints of wall and floor require repairing, due to cracks. Lower portion of dampness, hence should be replastered. 13. Description & Recommendation The shed is ill ventilated/ lighted. The ventilators should be made bigger. The said is fit for short term storage subject to inspection of floor and rectification of above defects. The shed is ill lighted ventilated. The ventilators should be made bigger. The shed is fit for short term storage subject to inspection floor and rectification of all above defects. So far as Jay Kishore Pande's go down is concerned, he did not allow inspection of any go down. He said that he was not in a position to give inspection within the time that was allowed 10" thick brick wail having cement plaster in both inside and outside walls. 4232 Sift =604 M. T. @ 7 Sift. Enhanced storage capacity due to increased height 25%= 151 M. T, total capacity 755 M. T. This is a big shed having no pillar inside. The shed is fit for short term storage subject to inspection of floor and rectification of all above defects. 3" above surrounding ground level asbestos fitted on tubular iron frame pitched floor but the floor could not be seer properly as food grains stocks having covered entire space of the existing S. A. However, joints of wall and floor require repairing, due to cracks. Lower portion of dampness, hence should be re-plastered. The shed is ill lighted ventilated. The ventilators should be made bigger. The shed is fit for short term storage subject to inspection floor and rectification of all above defects to him. Lower portion of dampness, hence should be re-plastered. The shed is ill lighted ventilated. The ventilators should be made bigger. The shed is fit for short term storage subject to inspection floor and rectification of all above defects 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. lb 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 a fresh 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. 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. 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 pande was not entitled to challenge the contract because he had no go down 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 go down because until the termination of the storing contract which took place subsequently there was no question of this go down, 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 go downs contracted for at a very much cheaper rate than the other contending contractors. It was also alleged that these matter had been prolonged for a long 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. 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. (9.) 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 Mookherjee, 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 Kishore Pande is concerned, he could not be considered at all because Amiya Kumar Mookherjee J. had specifically directed consideration of certain applicants amongst whom Jay Kishore Pande was not there. These are the rival contentions that are to be considered in this case. (10.) 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 Pande 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 is true that Jay Kishore Pande was not one of the persons who was asked to be considered by the order of Amiya Kumar Mookherjee, 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 if 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 contended 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 if 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. His complaint was that if it were known that non-fulfillment 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. 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 write petition, The question is whether this grievance was justified in law and the acceptance of the tender of the 4th respondents was vitiated by any legal infirmity. " 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 the defects that were removed ? And how the defects were removed ? Amiya Kumar Mondal has not made any averments 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. 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. (11.) THE next question, is, whether Jay Kishore Pande has any locus standi to maintain this application because he not having the requisite number of go down or requisite storage capacity. To this the answer of the petitioner Jay Kishore Pande, 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 go down that was refused while in case of Amiya Kumar Mondal admittedly defective go down, 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. If the matter had prolonged for so long, what was the harm in giving Jay Kishore Pande time for inspection in order to satisfy the authorities concerned whether he had storage worthy go downs with the requisite capacity. So far as Biswanath Ahir's case is concerned it is Stated that he had not the requisite go downs though he had submitted the tender having the storage capacity of over 1700 M. T. The major part of his go down was in the occupation of the Food Corporation of India. There is no condition as such that the go down 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 go downs 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 go downs with storage capacity but the go downs 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. Therefore, i am unable to accept the contention that this application is either belated or the petitioners as such have no locus standi. (12.) SO far as the question of Amiya Kumar Mookherjee, 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 Mookherjee, J. in extensor. 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 go downs 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. 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 Mookherjee, 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 Mookherjee, J. Therefore, a decision which was based on the materials not warranted by the decision of Amiya Kumar Mookherjee, J. Therefore, this contention that in view of the direction of Amiya Kumar Mookherjee, 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 Mookherjee, J. without the consideration of the factors enumerated by Amiya Kumar Mookherjee, J. It was, then, urged that deviations were permissible in view of clause 17. A distinction must be made between decision and consideration in this case. There has been a purported decision in terms of Amiya Kumar Mookherjee, J. without the consideration of the factors enumerated by Amiya Kumar Mookherjee, J. 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 a long 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. 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, 1 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. No costs.