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AFR
Court No. - 27
Case :- MISC. BENCH No. - 5744 of 2010
Petitioner :- M/S Ava Bio Pharma F/25 Kalyanji Morarji Warehousing Co.Pvt.
Respondent :- State Of U.P. & Ors.
Petitioner Counsel :- Pushpila Bisth
Respondent Counsel :- C.S.C.
Hon'ble Devi Prasad Singh,J.
Hon’ble Yogendra Kumar Sangal,J.
1. Heard learned counsel for the petitioner Ms. Pushpila Bisth and Shri
Mukund Tewari learned counsel for the State.
2. Petition under Article 226 of the Constitution of India has been preferred
against the impugned advertisement (Annexure-1 to the writ petition) inviting
tender for supply of Anti Rabies Vaccine. Petitioner is aggrieved by condition no.
13, which provides that only firm dealing with Indian manufacturer shall be entitled
to submit their tenders in response to impugned advertisement. For convenience
condition no. 13 is reproduced as under:-
“सवदेशी िनमारता फमर ही िनिवदा मे भाग ले सके गी परनतु यिद
िकसी सवदेशी फमर दारा इस आशय का पमाण पत िदया जाता है
िक उक फमर अपने उतपादो का िवपणन के वल सोल सेिलग ऎजेट के
माधयम से ही कर रही है तो ऎसे एजेनट भी िनिवदा मे भाग ले
सके गे परनतु पितबनध यह होगा की इस पकार के ऎजेट िक िनिवदा
सवीकार िकए जाने की िसथित मे ऎजेट को मूल िनमारता फमर के नाम
से ही िबल पसतुत करना होगा तथा िबलो का भुगतान भी िनमारता
फमर को भी िकया जाएगा ।
3. While assailing the impugned order, it has been stated by the petitioner’s
counsel that condition imposed by respondents suffers from arbitrary exercise of
power. Such condition can not be imposed.
4. Admittedly, petitioner deals with anit rabies vaccine manufactured in China.
In case, petitioner is not permitted to submit tender then it shall be deprived to
launch its product in India. While assailing impugned advertisement it has also
been submitted by petitioner’s counsel that earlier there was no such provision but
later on by impugned advertisement the condition no. 13 has been inducted. The
submission is that it has been done for extraneous reasons to give undue advantage
to some Indian firms.
5. Attention has been invited towards an order dated 2.4.2010 passed by this
Court in Writ Petition No. 2775 of 2010 (MB) where without entering into merit of
the controversy with regard to earlier tender where no such condition was imposed
this court had directed to decide the representation.
6. It has also been submitted that earlier tender was given to M/s Bharat
Biotech International which has been cancelled later on and thereafter fresh
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impugned advertisement has been issued inviting tender.
7. Shri Mukund Tewari learned counsel for the respondents submits that
impugned advertisement is neither arbitrary nor unjust and improper. Submission is
that classification is not bad and it is the prerogative of respondent to frame policy
and call for tender accordingly.
8. We have considered the arguments advanced by the parties’ counsel and
perused the record. Now it is settled proposition of law that government while
dealing with the contractual assignment may frame appropriate rules, regulations
guidelines or conditions (Statutory or non-statutory) to meet out its requirement.
The condition framed by the Government dealing with the contractual assignment
being a policy matter is ordinarily not call for interference under the judicial review
except if the condition is arbitrary capricious or malafide. Policy decision of the
state government may be interfered on there very limited grounds. It falls within
the domain of state government to make reasonable classification to meet out its
requirement. In the present case, by impugned condition the foreign manufacturer
have been deprived to submit tender for supply of anit rabies vaccine. It has been
stated by petitioner’s counsel that no such condition has been imposed by the state
government with regard to certain other medicinal product but the condition has
been imposed only for anti rabies vaccine. Whether a drug or vaccine or a
pharmacy product should be purchased from Indian manufacturer or a foreign
manufacturer is a subject matter ordinarily call for appropriate decision by the state
government. Government has got right to take decision giving preferential
treatment to Indian manufacturer who are producing certain product in this country
from giving over and above foreign product. Such classification shall not be bad in
law and neither can be termed as unreasonable nor arbitrary exercise of power by
the State Government or its instrumentalities..
9. One of the argument advanced by the petitioner’s counsel that condition has
been imposed with regard to anti rabies vaccine and not for other products.
Submission made by the petitioner’s counsel seems to be misconceived. It is for the
state government or competent authority to take a decision to impose such
condition. In case, a product is available in India and it is up to mark, fulfills
necessary condition and norms then government have right to impose such
condition. Of course, in case the product is not available in the country
manufactured by Indian industries or product manufactured by Indian industries is
not up to mark, government has got option to purchase such product from outside
the countries by floating global tenders. The action taken by the government
keeping in view the basic facet of commercial activities can not be termed as
unreasonable exercise of power or may be unjust and improper.
10. The Courts are not expert to decide as to which product should be purchased
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from Indian manufacturer or which product should be purchased from foreign
manufacture. Of course there may be cases where from the record if it is found that
the government while exercising its power is acting arbitrarily with ulterior motive
or as submitted to grant tailor made contract, court may interfere under judicial
review in pursuance to power conferred by Article 226 of the constitution of the
Constitution of India. But present case does not seem to cover by the exception
calling for interference under extraneous remedy of Article 226 of the constitution
of India. Whether it is one product or more than one product it is for the
government to take a decision which product should be purchased from Indian
manufactured and which product should be purchased from the foreign
manufactures. Preferential treatment given to Indian producers by the government
or its instrumentalities does not seem to suffer from arbitrary exercise of power.
Government has got right to give preference to Indian manufacturer as observed
herein-above.
11. In view of above, writ petition devoid of merit. Dismissed in limine.
Order Date :- 16.6.2010
Madhu