M.M.PUNCHHI, J. - (1.) Pithily put, the case of the petitioner is that it has been supplying meat to the Union of India through the Army Authorities of the Western Command for the last so many years. Somewhere in the year 1988, respondents Nos. 1 to 4 became pregnant with the idea that frozen meat be purchased in bulk quantities in order to send it to various stations governed under the Northern Command. The petitioner having come to know of it started correspondence with the respondents suggesting that it would be in a position to supply frozen meat, if asked to, at a competitive rate cheaper than others. The suggested case of the petitioner that the respondents were simultaneously negotiating with others also is factually not disputed but rather it is maintained by the respondents that three firms other than the petitioner were also in correspondence with it for the supply of frozen meat. And, as averred, as a matter of experiment, some frozen meat had been purchased in the year 1988 from M/s. Viking India Limited, respondent No.5. The situation seemed to be ripening towards entering into a regular contract with some party or the other. Since the petitioner was clamouring to have the contract, he sought clarity in regard thereof and offered to sell frozen meat at Rs. 28/- per kilogram. The respondents conveyed to him that at the appropriate time a tender would be floated in which the petitioner could also offer a tender in terms of the advertisement. Since no such tender was floated and respondents Nos. 1 to 4 went on to accept the offer of respondent No. 5 in providing meat at the rate of Rs. 29/- per kilogram as compared to Rs. 28/- per kilogram offered by the petitioner, the petitioner raising grouse has approached this Court primarily relying on the rule laid down by the Supreme Court in Haji T.M. Hassan Rawther v. Kerala Financial Corporation, AIR 1988 SC 157.
(2.) In the return, as hinted earlier, the respondents, instead of floating a tender, negotiated a contract with respondent No. 5 for obtaining supplies of meat at the rate of Rs. 29/- per kilogram. This was a case of obtaining property on price and not of selling property. The aforesaid precedent of the Supreme Court is a case where property of the Government was to be sold and the rule laid down by the Supreme Court confines to that situation of facts. It cannot be said to be applicable here in the facts and circumstances of this case. All what we are required to see here is whether there has been any unfairness on the part of the respondents or any unfair discrimination vis-a-vis the petitioner in the matter of grant of contract.
(3.) The desire of respondents to float a tender, though communicated to the petitioner, is not a statement which is binding in law or creating any promissory estoppel in favour of the petitioner. The contract has been negotiated with respondent No. 5 in the circumstances narrated in the return and more so in paragraph 11 thereof. It is cross-asserted that respondent No. 5 has the requisite infra-structure to provide frozen meat to the Army Authorities and the petitioner does not have, for the present, any such infrastructure. The petitioner disputes this and says that it has the infra-structure and given the time can provide the infra-structure if it is deficient in any manner. Whatever be the situation, the controversy between the parties is hardly one which need be determined in proceedings under Art.226 of the Constitution. As said before, we do not spell out any unfairness or unfair discrimination against the petitioner perpetrated by the respondents. In the matter like this, some element of "executive flexibility" is to be left with the respondents. Everything is not that mechanical as in a contractual obligation.;