MUKESH AND CO TOBACCO PRODUCTS PVT LTD Vs. MADHYA PRADESH RAJYA LAGHU VANOPAJ VYAPAR EVAM VIKAS SAHAKARI SANGH

JUDGEMENT

(1.) THIS State of Madhya Pradesh is the principal grower of tendu leaves in the country. Sixty percent of the total produce of tendu leaves in the country is from this State. By enacting the Tendu Paita (Vyapar Evam Viniyaman) Adhiniyam, 1964, the State acquired monopoly in respect of sale of tendu leaves. Sections 5 and 12 of the Adhiniyam empower the State Government to dispose of tendu leaves in such manner as may be deemed fit. That Adhiniyam contains provision for appointment of purchasers of tendu leaves. In the year 1984, a Government controlled co-operative society, named as M. P. Rajya Laghu Vanopaj (Vyapar Evam Vikas) Sahakari Sangh, was appointed as the agent for disposal of tendu leaves grown in the State. The remaining tendu leaves were to be disposed of by the State Government. Tendu leaves were being disposed of by inviting tenders. The Government claims that with a view to bring about better working conditions for the labourers engaged in collection of tendu leaves and to eliminate middlemen in the trade as also to improve the economic conditions of persons belonging to weaker section of the society engaged in the trade, it was decided to collect the tendu leaves through co-operative societies. These co-operative societies were to have as members persons belonging to the above categories, i. e. labourers, members of scheduled castes and scheduled tribes and weaker section of the society engaged in collection and trade of tendu leaves. Accordingly, for the season 1989 number of such co-operative societies were formed. Tendu leaves collected by one of such societies were allotted one lot number and it is alleged that in all 44 lacs of standard bags of tendu leaves were collected by such societies comprised in 1937 lots. For sale of these tendu leaves stored in different godowns, tender notice was issued on 27-6-1989. According to clause 6 of Tender Notice (notice inviting tender), one person was to submit only one tender for one or several lots. He was to disclose his purchasing capacity, besides mentioning separately for each lot and in order of priority, the amount of his offer per standard bag excluding all taxes, cess or any other expenses. The tender was to be submitted in the form annexed with the tender notice. Tenders could be accepted only from the persons or parties who got registered themselves as manufacturers of bidis or exporters of Tendu leaves for the year 1989, as required under M. P. Tendu Patta (Vyapar Viniyaman) Adhiniyam, 1964 and M. P. Tendu Patta (Vyapar Viniyaman) Niyamavali, 1966. At the same time, tender submitted by a person or party, who owes dues to the Forest Department/federation or who is a minor or who is an insolvent or who has been blacklisted, were to be treated as invalid. According to clause. 14 of the tender notice, every tender shall be accompanied by Earnest Money deposit which shall be a sum equal to or more than an amount but in no case less than 20 percent of the purchasing capacity as mentioned by the tenderer in the tender-form. Out of this, the tenderer should produce with the tender a minimum of 5 percent of the purchasing capacity in form vi demand draft/bank draft on any scheduled bank, payable at Bhopal in favour of the Managing Director of Federation, and the balance 15 percent in the form of Bank guarantee, valid upto 30th April, 1990 in favour of Conservator of Forests and Ex-officio General Manager of Federation, where tender has to be submitted. Clauses 20, 21 and 22 of the Tender Notice, which are relevant for the purpose of the question raised in this petition, read as follows:

(2.) PURSUANT to the notice inviting tender, number of persons registered themselves as manufacturers or exporters of Bidi leaves including the petitioner submitted tenders. All these tenders were opened on 22-7-1989. All the tenders so submitted were scrutinized. Tenders found invalid were rejected and thus eliminated at that stage only. The tenders found valid alone were taken into consideration for sale of the lots to such tenderers.

(3.) THE' averments made in the return disclose the manner of consideration of those valid tenders. To each of the valid tenderers a Code number was assigned after arranging then) in a serial order. Then with the help of the computer, a list was prepared showing lot number, name of the society, quantity in standard bags, price offered per standard bag, price of the entire lot, name of tenderer with his priority and code number. Such a list is annexed as Annexure R-2. It will appear from this Annexure R-2 that with this process, in respect of each lot number, the price offered by a particular tenderer along with his priority was ascertained. Then further exercise was done with the help of the computer to prepare a list in respect of each tenderer, his purchasing capacity, the number of lots for which he made the offer/tender, his priority in respect of each lot and the rate offered per standard bag and the total value of the lot at that rate. The result so obtained giving the aforesaid informations are collected as Annexure R-3. Thus the respondents were able to find out highest offerer for each lot taken into account of the tenders submitted, Each lot was then allocated for sale to the tenderer whose offer was found to be highest subject to his purchasing capacity keeping in view the order of the priority given in his tender. The offers continued to be so considered in order of priority unless his purchasing capacity exhausted. After the purchasing capacity stood exhausted, further offers made by that particular tenderer were then excluded from consideration. After lots were allotted to the higher offerers but the purchasing capacity still survived to some extent, then the case of each such tenderer was considered for second highest offer in case the purchasing capacity of those offering highest bid had not exhausted. The process thus went on. The respondents claim that by this process, the highest offer for a given lot was the prime consideration and the purchasing capacity and the priority shown by the tenderer played their own parts at different stages.