O.P.GARG - (1.) By means of this writ petition under Article 226 of the Constitution of India, the petitioner M/s. Monika Plastic Pipes (P) Limited has prayed that the three impugned orders all dated 10-2-1997 (Annexures-17, 18 and 19 to the writ petition) be quashed and the respondents be restrained from effecting any recovery from the petitioner on the basis of the order (Annexure-17) and from taking any action of causing any interference in the business of the petitioner directly of indirectly.
(2.) The petitioner company is engaged in the business of manufacture and sale of PVC pipes of which the Government departments, particularly, the Minor Irrigation Department and U.P. Jal Nigam are the main consumers. The Director of Industries, U.P., respondent No. 1 (for short 'Director') determines and prescribes the "Rate Contract" for the supply of the various articles to Government departments by the manufactures/contractors. A tender notice No. 181(G) dated 22-11-1994 (Annexure-1) was floated by the Director for 'Rate Contract' arrangement for supply of unplasticised PVC two different size pipes which are used for potable water supplies to meet the requirement of the various department of Government. The petitioner along with other manufacturers participated and after offer and counter-offers, the Director finalised the rate contract by issuing notification No. 241-R.C./G. dated 23/03/1995 (Annexure-2). The rate contract 110 mm/6 Kg was fixed at 99.69 per metre. This rate was to remain operative (for) the period 23-3-1995 to 30-9-1995. In Sept. 1995 another tender notice No. 167 (G) (Annexure 10) for the supply of PVC pipes on rate contract was floated by the Director of Industries in which again the petitioner participated and on 29-1-1996 the rate for 110 mm/6/Kgf PVC pipe was notifed as Rs. 84,96 per metre under Notification No. 196-G dated 30-1-1996. The said rate was to remain in force for a period of 4 months i.e. with effect from 30-1-1996 to 30-5-1996.
(3.) The final rate contract preceded with the acceptance of tender which is hedged with certain terms and conditions annexed with it. In those conditions there is a clause known as 'Fall Clause", in which it is specifically stipulated that if the tendering firm enters into a contract with any person for the supply of some material at the lower rate than that of the 'Rate Contract', then the firm shall be liable to pay difference money to be calculated on the basis of such lower rate. The 'Fall Clause", the existence and the applicability of which is in dispute in the present petition runs as follows :- "FALL CLAUSE" 1. The price charged for the stores supplied under the contract shall in no event exceed the lowest price at which the contractor sells the stores if identical description to the other person during the period of the contract. 2. If at any time during the said period the contractor reduces the sale price of such stores, sells such stores to any other person at a price lower than the price chargeable under contract he shall forthwith notifiy such reduction or sale to the Director of Industries, SPS, Kanpur, U.P. and price payable under the contract for the stores supplied after the date of coming into force of such reduction of sale shall stand correspondingly reduced.The above stipulation will not however apply to :(a) Exports by the contractor.(b) Sales of goods as original equipment at a price lower than the prices charged for normal replacement. 3A The contractor shall furnish certificates to the Director of Industries, SPS, Kanpur at intervals mentioned below :-(a) Within a month of commencement of the contract a certificate to the rate prevailing at the commencement of rate contract.(b) Within a month of expiry of every six months certificate as rate prevailing during the preceeding months.(c) And at the end of the rate contract within a month of the expiry of the rate contract a certificate in the following forms :-"I/We certify that the stores supplied to the identical to the stores supplied to the Government under the contract herein have the rate contract from - to at a price lower than the price except for the quantity of under sub-clauses (a) and (b) sub-para (2) above."During the subsistence of the "Rate Contract" the prices of the products were to remain fixed and there could be no variation either on lower or higher side and if any manufacturer/contractor, who is on the approved list of the Director, makes supplies at a rate lower than the rate contract, he is required to inform the Director of such contract at the lower rate.;