Judgment : V. Eswaraiah This writ appeal is filed in dismissing the W.P. No. 3547 of 2011 of the appellant by order dated 5.11.2011. The appellant filed the said writ petition to declare the proceedings dated 2.2.2011 bearing No. SWC/Conf/1919/PEG-2008/PPP/10-11 cancelling the tender enquiry for Mypadu Road in Nellore district as illegal and to consequently direct the respondent to forthwith open the tenders. The parties herein are referred as they are arrayed in the writ petition. 2. The petitioner has also filed another writ petition in W.P. No. 30748 of 2010 to declare the action of the respondent in keeping the tender submitted by the petitioner for construction of godown for Food Corporation of India in abeyance vide proceedings No. SWC/Conf/1919/PEG-2008/PPP/10-2011(MYR-5) dated 27.11.2010 and the learned single Judge of this Court by common order dated 5.11.2011 dismissed both the writ petition. However, as against the order dismissing writ petition No. 30748 of 2011, no appeal is filed and the order passed in the said writ petition has become final. 3. The case of the writ petitioner is that the Government of India has communicated a scheme of augmentation of storage capacities in state of Andhra Pradesh known as Private Entrepreneur Godowns (PEG) 2008 Scheme and sanctioned 5.56 Lakh Metric Tonnes capacity to Andhra Pradesh to encourage private entrepreneurs to participate in the programme for supporting the food security in two phases i.e., 0.36 Lakhs Metric Tonnes in the first phase and 5.20 Lakhs Metric Tonnes in the second phase. The scheme assures a guaranteed reservation for a period of ten years besides providing subsidy from the Central Government and on request, the Government of India earmarked 0.71 Lakhs Metric Tonnes capacity to State Warehousing Corporation and 0.30 Lakhs Metric Tonnes to Central Warehousing Corporation, leaving 4.55 Lakhs Metric Tonnes to private parties. The A.P. State Warehousing Corporation (for short SWC), being the nodal agency, has taken up the responsibility of flouting and finalisation of tenders under two bids i.e., technical bid and financial bid and issued tender notification on 17.9.2010. The writ petitioner along with 5 others has submitted tenders for construction of FCI godowns at Mypadu road in Nellore District and in terms of the tender conditions has paid the earnest money deposit of Rs.3,00,000/-. The writ petitioner along with 5 others has submitted tenders for construction of FCI godowns at Mypadu road in Nellore District and in terms of the tender conditions has paid the earnest money deposit of Rs.3,00,000/-. The last date for filing the tenders was 12.10.2010 and the technical bid was opened on the same day wherein one tender was rejected and in all five tenders including the petitioner were accepted and the respondent stated to have inspected the respective proposed sites of all the qualified tenderers. The writ petitioner claims that among the said five qualified tenderers, the sites of three tenderers were outside Mypadu village and the site of the other tenderer has no approach road and thus his site is most suitable for construction of FCI godowns inasmuch as it is located on Mypadu main road leading to Nellore town which is a State highway. Since the respondent did not finalise the tender, the petitioner filed W.P. No. 30748 of 2010 and this Court by order dated 24.1.2011 directed the respondent to take a decision as to their course of action in respect of the construction of FCI godown at Mypadu road, Nellore. Thereafter, the respondent issued proceedings, intimating the petitioner that her tender has not been considered for the opening of price bid and her earnest money deposit of Rs.3,00,000/-is being returned to her vide cheque bearing No. 672725 dated 2.2.2011, questioning the said order, the petitioner filed writ petition no.3547 of 2011. 4. It is seen from the material available on record, that the respondent issued proceedings No. SWC/Conf/1919/PEG-2008/PPP/10-11 dated 26.1.2011 indicating the reasons for cancellation of the tenders at Bapatla and Mypadu Road centres, copy of which was marked to the petitioner and the same was even filed along with the writ petition and the present writ appeal in the material papers, however, the petitioner has not challenged the said proceedings. 5. 5. In the proceedings dated 26.1.2011 it was stated that pursuant to the tender notification, for Mypadu Road location, the Technical Evaluation Committee evaluated 5 offers and submitted its recommendations on 25.10.2010; meanwhile pursuant to the request made vide letter dated 22.10.2010 the Commissioner and Director of Marketing has agreed to allot Ac.10.00 of land of Agricultural Market Committee at Nellore on lease and vide proceedings dated 1.11.2010 directed the Agricultural Market Committee to hand over the land; that vide proceedings dated 20.11.2010 the respondent corporation has informed the General Manager, Food Corporation of India, Hyderabad about the allotment of Ac.10.00 land which is 1 ½ KMs from beginning of Mypadu Road and 6 ½ KMs from Padugupadu Goodshed and that the said site has been taken over and the respondent corporation is ready to construct 15,000 Metric Tonnes capacity godowns as required by Food Corporation of India; that the said proposal dated 20.11.2010 was placed before the State Level Committee in its meeting held on 23.12.2010 and vide proceedings dated 24.12.2010 the Food Corporation of India has communicated the decision of the State Level Committee accepting change of agency in respect of Mypadu Road and Bapatla locations and decided to cancel the tenders flouted under PPP Model in respect of said two locations and permitted the SWC to take up constructions for approved capacities on their own; that the said subject was placed before the High Level Committee in its meeting held on 12.1.2011 and the same were accepted and the minutes of the High Level Committee Meeting were communicated vide proceedings dated 20.1.2011. Therefore, invoking clause 15 of the Detailed Notice Inviting Tenders read with the provisions in Notice Inviting Tender dated 17.9.2010, where under the respondent corporation reserves the right to scrap the tender enquiry at any stage without assigning any reason and will not be liable for any costs and consequences incurred by the tenderer, the enquiry for Mypadu Road was scrapped and the earnest money deposit and supplementary guarantee was directed to be returned to the tenderers. 6. It is stated that tender notification dated 17.9.2010 was issued for 14 locations and accepting tenders for 12 locations and cancelling the tender for two locations applying different yardsticks and without assigning any reasons is discriminatory. 6. It is stated that tender notification dated 17.9.2010 was issued for 14 locations and accepting tenders for 12 locations and cancelling the tender for two locations applying different yardsticks and without assigning any reasons is discriminatory. It is further contended that allotment of land by Agricultural Market Committee on lease is subsequent to the tender notice and the decision to cancel the tender for Mypadu Road was taken under the influence of the disqualified tenderers and scrapping of the tender enquiry at two places is contrary to the policy of the Government of India under PEG2008 scheme. Hence, he filed two writ petitions, i.e., W.P. No. 30748 of 2010 challenging the proceedings dated 27.11.2010 where under, tenders called for Bapatla and Mypadu Road locations under PEG-2008 scheme are kept under abeyance until further orders and W.P. No. 3547 of 2011 challenging the proceedings dated 2.2.2011 informing the petitioner that his tender has not been considered for opening of price bid and his earnest money deposit is returned. 7. The learned single Judge by the common order dated 5.11.2011 while rejecting the contentions of the petitioner, dismissed the writ petitions holding that the scheme is meant for allowing private participation in construction of godowns, which are primarily intended for stocking the food grains by Food Corporation of India and the petitioner cannot plead that Food Corporation of India has no liberty to take a decision to construct a godown on its own by taking the land belonging to Agricultural Market Committee on lease. It was further held that the petitioner has no vested right to insist that the respondent has no option other than accepting the offer of the petitioner for construction of godown and that the Food Corporation of India is always entitled to change its earlier decision in its own interest and unless any of the legal rights of the petitioner are affected by such change of decision, there is no warrant for this Court to interfere with such a decision. It was also held that the petitioner failed to establish violation of any of her rights. Though, by the common order dated 5.11.2011 two writ petitions i.e., W.P. No. 30748 of 2010 and W.P. No. 3547 of 2011 are dismissed, the present appeal is filed questioning the order passed in W.P. No. 3547 of 2011 only. 8. Mr. It was also held that the petitioner failed to establish violation of any of her rights. Though, by the common order dated 5.11.2011 two writ petitions i.e., W.P. No. 30748 of 2010 and W.P. No. 3547 of 2011 are dismissed, the present appeal is filed questioning the order passed in W.P. No. 3547 of 2011 only. 8. Mr. D.V. Sitarama Murthy, learned senior counsel appearing for the appellant/writ petitioner submits that as long as PEG-2008 scheme is in force, the respondent corporation cannot decide to undertake the construction of godowns on its own. He also submitted that the cancellation of tenders for two locations out of fourteen locations invoking clause 15 of the detailed notice inviting tenders, without assigning any reasons is discriminatory and arbitrary. It is further submitted that the respondent corporation, being a public undertaking, cannot do away with the tender process and the decision of the respondent corporation to construct the godowns on its own is not supported by any valid public interest and in fact such a decision would result in incurring huge loss to the respondent corporation as also to the Food Corporation of India inasmuch as in terms of the scheme the Food Corporation of India would pay to the respondent corporation Rs.4.12 paise per year per quintal as a lease amount for constructing the godown and whereas the appellant had offered to construct the godown in her own land at her own expenditure at a rate lesser than the amount being paid by Food Corporation of India to the respondent corporation. 9. It is thus contended that if the tender of the appellant is accepted the Food Corporation of India would stand to gain and if the respondent corporation is permitted to construct the godown on Ac.10.00 land allotted by the Agricultural Market Committee, the Food Corporation of India has to pay 6 % of the land value as lease rent apart from cost of the construction, incurring huge loss to Food Corporation of India. 10. 10. The appellant also filed an additional affidavit contending that the allotment of Ac.10.00 land by the Agricultural Market Committee to State Warehousing Corporation for construction of 15000 MT capacity godown is subject to condition that 6 % of present land value be paid as lease rent by SWC and the present land value is Rs.3000/-per sq.yard and the value of the land admeasuring Ac.10.00 would be Rs.14,52,00,000/-and 6 % of the same would be Rs.87,00,000/-per year, plus 10 % bank interest on the construction cost amounting to Rs.30,00,000/-, plus maintenance cost of Rs.0.50 paise per 100 Kg amounting to Rs.9,00,000/-for 15000 Metric tonnes. It is thus stated that in all an amount of Rs.1,26,00,000-00 expenditure would be incurred by the Food Corporation of India. It is further stated that as per letter dated 17.10.2011 issued by the Under Secretary to the Government of India, Ministry of Consumer Affairs, Department of Public Distribution, New Delhi, the storage charges payable by the FCI to Central Warehousing Corporation is at Rs.2.45 per bag of 50 Kg per month w.e.f. 1.4.2008 and on the basis of the said rate, the rent payable would be Rs.88,20,000/-. It is thus contended that in all there would be loss of Rs.37,80,000/- ( Rs.1,26,00,000-82,20,000) to the Food Corporation of India. 11. On the other hand, the respondent Corporation filed a counter affidavit stating that the payment of lease, rent for the land allotted by the Commissioner, Agricultural Market Committee at Mypadu Road is under finalisation and the issue was referred to the Government for fixing up lease rent as per G.O.ms No. 202 dated 22.7.2001 Agriculture and Cooperation (MKTG.II) Department where under an amount of Rs.10,000/- per acre per year was fixed for a period of 33 years with a clause of enhancement of lease, rent at 5 % every year. It is stated that the State Warehousing Corporation vide letter dated 29.7.2011 addressed letter to Government stating that in terms of G O Ms No. 202 dated 22.7.2001 previously the Government fixed the lease rent on concessional rate at Rs.10,000/- per acre per year with yearly enhancement of lease rent by 5 % on lease value and if the market value is calculated on yard or acre basis and 6 % lease rent on market value is taken, it would be on a very high side and accordingly requested to fix the lease rent of non agricultural lands at the rate of 1 % of the market value with 5 % enhancement for every three years and in respect of agricultural lands, the market value may be fixed on concessional rates as per G.O.ms No. 202 dated 21.7.2001 by double the market value per acre i.e. 2 % of the land value. It is stated that the negotiations with regard to the fixation of the lease rent is still pending with the Government. 12. The learned Standing Counsel for respondent corporation Mr. Suresh Reddy Kalave submits that there is no reason as to why the proposal of the State Warehousing Corporation dated 29.7.2011 for fixing the market value either at 1 % of the market value for non agricultural land or at 2 % of the market value for agricultural lands, would be objected either by the Agricultural Market Committee or for not accepting the said proposal by the Government. It is stated that if 2 % of the land value is taken, the rent payable to the market committee would be lesser than the rent payable to the petitioner, as such the contention of the petitioner that huge expenditure would be incurred if the godowns are constructed by the respondent corporation, cannot be accepted. He further submitted that in terms of clause 15 of Detailed Notice Inviting Tender, the SWC reserves the right to accept or reject any or all the tenders without assigning any reasons/notice whatsoever. 13. For the sake of convenience, clause 15 of the Detailed Notice Inviting Tender, is extracted below; “15. He further submitted that in terms of clause 15 of Detailed Notice Inviting Tender, the SWC reserves the right to accept or reject any or all the tenders without assigning any reasons/notice whatsoever. 13. For the sake of convenience, clause 15 of the Detailed Notice Inviting Tender, is extracted below; “15. APSWC reserves the right to accept or reject any or all tenders without assigning any reason/notice whatsoever and is not bound to accept the lowest tender and reserves the right to scrap the tender enquiry at any stage without assigning any reason and APSWC will not be liable for any costs and consequences incurred by the intending tenderer.” 14. Admittedly, the petitioner/appellant never challenged the clause no.15 of the Detailed Notice Inviting Tenders where under respondent corporation reserved right to reject any or all tenders without assigning any reason/notice whatsoever and scrap the tender enquiry at any stage, nor the petitioner challenged the proceedings dated 26.1.2011 of the respondent where under the tender enquiry for Mypadu Road was scrapped. The petitioner only questions the proceedings dated 2.2.2011 informing the petitioner that her tender has not been considered for opening of price bid and her earnest money deposit was returned. The learned Standing Counsel for respondent corporation submits that in fact the decision relating to the finalisation of the lease rent of the land of the Agricultural Market Committee is pending and the High Level Committee has accepted the proposal for allotment of Ac.10.00 land by the Agricultural Market Committee for the purpose of construction of godown by APSWC and said decision was forwarded to the Government of India. In the absence of finalisation of fixation of the lease /rent for the land and the details of the actual amount required to be incurred for construction of the godown etc, the contention of the petitioner that the lease amounts payable to the Agricultural Market Committee would be much higher, cannot be accepted. It is to be noted that if the proposal of fixation at 2 % market value is taken into account, the lease amount payable to the Agricultural Market Committee would be much lesser than the rent payable to the petitioner. However, it is now settled that in the writ proceedings, the disputed questions cannot be gone into. It is to be noted that if the proposal of fixation at 2 % market value is taken into account, the lease amount payable to the Agricultural Market Committee would be much lesser than the rent payable to the petitioner. However, it is now settled that in the writ proceedings, the disputed questions cannot be gone into. It is the case of the respondent corporation that pursuant to letter dated 8.12.2011 the possession of the land was taken over from the Agricultural Market Committee. The tender is only a proposal and in the present case, admittedly, even the technical bids were also not finalised and the Technical Evaluation Committee has submitted its recommendations only by proceedings dated 25.10.2010 and final bid was not finalised, therefore we are of the opinion that no right has been accrued in favour of the petitioner. It is to be noted that as per the tender conditions, the respondent corporation reserves right to cancel or scrap the tender without assigning any reasons and in the present case since the respondent corporation is desirous to construct godowns on its own on the land allotted by the Agricultural Market Committee, it cannot be said that the respondent corporation has changed its policy, more so, against the public interest or contrary to statute. A policy decision may be subject to change from time to time and only because a change is effected, the same by itself does not render a policy decision to be illegal or otherwise vitiated in law. A power to deal with the contractual matter and power of the statutory authority to exercise its statutory power in determining the rights and liabilities of the parties are distinct and different. It is to be noted that even in concluded contracts, the public law remedy by way of writ petition under Article 226 of the Constitution of India is not available to seek damages for the breach of the contract of specific performance of the contract. It is to be noted that even in concluded contracts, the public law remedy by way of writ petition under Article 226 of the Constitution of India is not available to seek damages for the breach of the contract of specific performance of the contract. It is pertinent to note that the Central Warehousing Corporation and the State Warehousing Corporations have their own godowns and it is their primary duty to provide godowns for the purpose of proper storage and distribution of food grains to different parts in the country by the Food Corporation of India and since both the corporations are not in a position to cope up with the increased requirement of godowns, a scheme was evaluated where under public private entrepreneurs are given opportunity to construct the godowns and the private entrepreneurs have no right to insist upon the nodal agencies to make use of the godowns provided by them, inasmuch as under the policy decision they have a limited right to construct the godowns to be used by the Food Corporation of India. In the instant case, admittedly, the Agricultural Market Committee has come forward to allot the land, for which the lease is yet to be determined, therefore, it cannot be said that the respondent has discriminated the two tenders among the fourteen tenderers. 15. In the absence of any concluded contract and any accrued right in favour of the petitioner, it cannot be said that the decision of the respondent corporation is against the public policy or the public interest or that there is violation of Article 14 of the Constitution of India, warranting interference of this Court. 16. For the foregoing reasons, we see no reason to interfere with the order of the learned single Judge and the same is hereby confirmed. There are no merits in the appeal and the same is hereby dismissed with costs.