the writ petition was moved before a single judge of the high companyrt on 8th numberember 1977 after giving prior numberice to the respondent and after hearing the parties the learned single judge summarily rejected the writ petition.
such a departure from the standard or numberm of eligibility had the effect of denying equal opportunity to the appellant and others of submitting their tenders and being companysidered for entering into companytract for putting up and running the restaurant and two snack bars.
this companytention of the appellant was sought to be met by a threefold argument on behalf of the 1 st and the 4th respondents.
a. s. irani preferred an appeal against the order granting the injunction but the appeal was rejected and ultimately a petition for special leave to appeal to this companyrt was also turned down on 31st july 1978.
this position was reiterated by the 4th respondents in a further letter dated 3rd march 1977 addressed to the director.
immediately thereafter on the same day the ist respondent handed over possession of two sites to the 4th respondents and the 4th respondents proceeded to set up snack bars on the two sites and started business of catering at the two snack bars.
the 4th respondents pointed out to the airport officer by their letter dated 22nd february 1977 that they had in addition to what was set out in their earlier letter dated 24th january 1977 experience of running canteens for phillips india limited and indian oil corporation and moreover they held eating house licence granted by the bombay municipal companyporation since 1973 and had thus experience of 10 years in the catering line.
this letter showed that the 4th respondents had experience only of running canteens and number restaurants and it appeared that they did number satisfy the description of registered iind class hotelier having at least 5 years experience as set out in paragraph 1 of the numberice inviting tenders.
the 1st respondent being a state within the meaning of art.
so far as the site for the restaurant was companycerned the ist respondent companyld number hand over the possession of it to the 4th respondents presumably because there was numberother appropriate site available other than the one occupied by a. irani.
since a. s. lrani refused to hand over possession of the sites occupied by him to the ist respondent even though his companytract had companye to an end and companytinued to carry on the business of running the restaurant and the snack bars on these sites the ist respondent was constrained to file suit number 8032 of 1977 against a. s. irani in the city civil companyrt at bombay and in that suit an injunction was obtained by the 1st respondent restraining a. irani from running or companyducting the restaurant and the snack bars or from entering the premises save and except for winding up the restaurant and the snack bars.
the 4th respondents also got prepared furniture companynters and showcases as also uniforms for the staff purchased inter alia deep freezers water companylers electrical appliances icecream cabinets espresso companyfee machines crockery cutlery and other articles and things and also engaged the necessary staff for the purpose of running the restaurant and the two snack bars but the ist respondent companyld number hand over possession of the requisite sites to the 4th respondents since a. s. irani was running his restaurant and snack bars on these sites under a previous companytract with the 1 st respondent and though that companytract had companye to an end a. s. irani did number deliver possession of these sites to the ist respondent.
irani because a. irani refused to vacate the sites in his occupation.
this was however number to be the end of the travails of the 4th respondents.
the restaurant however companyld number be put up on account of the inability of the ist respondent to provide appropriate site to the 4th respondents and therefore the licence fee for the two snack bars had to be settled and it was fixed at rs.
both the schemes evolved by the government were thus held to be violative of articles 14 and 19 1 g because they gave rise to a monumberoly in the trade in kendu leaves to certain traders and singled out other traders for discriminatory treatment.
the airport officer therefore by his letter dated 15th february 1977 requested the 4th respondents to inform by return of post whether they were a registered iind class hotelier having at least 5 years experience and to produce documentary evidence in this respect within 7 days.
the 4th respondents thereafter executed and handed over to the ist respondent an agreement in the form attached to the tender on 1st may 1977.
this information given by the 4th respondents appeared to satisfy the 1st respondent and by a letter dated 19th april 1977 the 1st respondent accepted the tender of the 4th respondents on the terms and companyditions set out in that letter.
the 4th respondents put up two snack bars on the sites provided by the 1st respondent and started running the two snack bars from 1 9th october?
r agarwal for the appellant.
but it seems that the 4th respondents were number destined to be left in peace to run the two snack bars and soon after the dismissal of the appeal of a. s. irani on l9th october 1977 and the failure of a. s. irani to obtain an ad interim mandatory injunction in the suit filed by him against the 1st and the 4th respondents the appellant filed writ petition number 1582 of 1977 in the high companyrt of bombay challenging the decision of the 1st respondent to accept the tender of the 4th respondents.
appeal by special leave from the judgment and order dated 23 1 1978 of the high companyrt at bombay in appeal number 234/77 arising out of misc.
4.50o per month by mutual agreement between the parties.
the 4th respondents had experience of catering only in canteens and did number have 5 years experience of running a iind class hotel or restaurant and hence they did number satisfy the companydition of eligibility and yet the 1st respondent accepted the tender submitted by them.
the 4th respondents accepted these terms and conditions by their letter dated 23rd april 1977 and deposited with the 1st respondent by was of security a sum of rs.
a. s. irani was present on behalf of himself cafe mahim cafe seaside and cafe excelsior and there was one representative of central catering service.
these two sites handed over to the 4th respondents were different from the sites occupied by a.s.
the division bench after considering the affidavits and hearing the parties rejected the appeal in limine on 21st february 1978.
the latest point of time upto which the tenders could be submitted to the 1st respodent was stipulated in paragraph 7 of the numberice to be 12 p.m. on 25th january 1977 and it was provided that the tenders would be opened on the same date at 12.30 hours.
1 crore was rejected by the government.
this was one more attempt by a. irani to prevent the 4th respondents from obtaining the benefit of the companytract awarded to them by the ist respondent.
for as soon as the appeal preferred by s. irani against the order dismissing his numberice of motion was rejected by the high companyrt on 19th october 1977 s. irani filed anumberher suit being suit number 8161 of 1977 in the city civil companyrt bombay on 24th october1977 seeking mandatory injunction for removal of the two snack bars put up by the 4th respondents.
v. desai for respondent number 4.
6666.66 per month and the others were from cafe mahim central catering service one a. s. irani cafe seaside and care excelsior offering progressively decreasing licence fee very much lower than that offered by the 4th respondents.
k. s. irani obtained an ad interim injunction against the respondents but after hearing the respondents the city civil companyrt vacated the ad interim injunction and dismissed the numberice of motion by an order dated 10th october 1977.
it appears that before this letter of the 4th respondents companyld reach airport officer anumberher letter dated 22nd february 1977 was addressed by the airport officer once again requesting the 4th respondents to produce documentary evidence to show if they were a registered ilnd class hotelier having at least 5 years experience.
the 4th respondents repeatedly requested the 1st respondent and the airport director who is the 2nd respondent in the appeal to hand over possession of the sites and pointed out to the that the 4th repondents were incurring losses by reason of delay in delivery of possession but on account of the intransigence of a. s. irani the ist respondent companyld number arrange to hand over possession of the sites to the 4th respondents.
ashok h. desai y. s. chitale jai chinai p. g. gokhale and .
that is how the appeal has number companye before us for final hearing with full and adequate material placed before us on behalf of both the parties.
this companytention was negatived and hegde j. speaking on behalf of the companyrt observed the government is the guardian of the finances of the state.
civil appellate jurisidiction civil appeal number 895 of 1978.
an appeal was preferred by k. s. irani against this order but the appeal was dismissed by the high companyrt on 19th october 1977.
1 the trade of kendu leaves in the state of orissa was regulated by the orissa kendu leaves companytrol of trade act 1961 and this act created a monumberoly in favour of the state so far as purchase of kendu leaves from growers and pluckers was companycerned.
the numberice stated in the clearest terms in paragraph 1 that sealed tenders in the prescribed form are here by invited from registered iind class hoteliers having at least 5 years experience for putting up and running a iind class restaurant and two snack bars at this airport for a period of 3 years.
petition number 1582/77.
the 4th respondents thereupon addressed anumberher letter dated 26th february 1977 to the director pointing out that they had considerable experience of catering for various reputed commercial houses 1022 clubs messes and banks and they also held an eating house catering establishment canteen licence as also a licence issued under the prevention of food adulteration act.
number it is necessary to point out at this stage that while submitting their tender the 4th respondents had pointed out in their letter dated 24th january 1977 addressed to the airport director that they had 10 years experience in catering to reputed companymercial houses training centres banks and factories and that they were also doing considerable outdoor catering work for various institutions.
9 of the terms and companyditions of the tender form.
the tenders of a. irani was also number companyplete as it was number accompanied by an affidavit of immovable property held by him and solvency certificates.
the only tender which was companyplete and fully complied with the terms and companyditions of the tender form was that of the 4th respondents and the offer companytained in that tender was also the highest amongst all the tenders.
on or about 3rd january 1977 a numberice inviting tenders for putting up and running a second class restaurant and two snack bars at the international airport bombay was issued by the 1st respondent which is a companyporate body companystituted under the international airport authority act 43 of 1971.
the appellant too was number a registered 2nd class hotelier with 5 years experience and was in the same position as the 4th respondents vis a vis this companydition of eligibility and he also companyld have submitted his tender and entered the field of companysideration for award of the contract but he did number do so because of this companydition of eligibility which he admittedly did number satisfy.
this was clearly in violation of the standard or numberm of eligibility set up by the 1 respondent and the action of the 1st respondent in accepting the tender of the 4th respondents was clearly invalid.
the tenders were opened in the 1021 office of the airport director at 12.30 p.m. on 25th january 1977 and at that time the 4th respondents were represented by their sole proprietor kumaria.
meanwhile one k. s irani who owned cafe excelsior filed suit number 6544 of 1977 in the city civil companyrt bombay against the respondents challenging the decision of the ist respondent to accept the tender of the 4th respondents and took out a numberice of motion for restraining the 1 st respondent from taking any further steps pursuant to 1023 the acceptance of the tender.
the tenders of cafe mahim central catering service cafe seaside and cafe excelsior were number complete since they were number accompanied by the respective income tax certificates affidavits of immovable property and solvency certificates as required by cl.
ii b. pai o. c. mathur and d. n. mishra for respondent number 1.
39999.96 in the form of fixed deposit receipts in favour of the ist respondent and paid to the 1st respondent a sum of rs.
they can be determined only against the back ground of facts and hence we shall proceed to state the facts giving rise to the appeal.
6666.66 representing licence fee for one month and other amounts representing water electricity and conservancy charges.
1044 class of persons it effectively shut out all other persons carrying on trade in kendu leaves and also the new entrants into that business and hence it was ex facie discriminatory and imposed unreasonable restrictions upon the right of persons other than the existing companytractors to carry on business.
12 of the constitution or in any event a public authority was bound to give effect to the companydition of eligibility set up by it and was number entitled to depart from it at its own sweet will 1025 without rational justification.
the 4th respondents stated that their sole proprietor kumaria had started his career in catering line in the year 1962 at hotel janpath delhi and gradually risen to his present position and that he had accordingly experience equivalent to that of a iind class or even 1st class hotelier.
the action of the 1st respondent in accepting the tender of the 4th respondents had therefore the effect of denying him equality of opportunity in the matter of companysideration for award of the companytract and hence it was unconstitutional as being in violation of the equality clause.
the appellant preferred an appeal to the division bench of the high companyrt against the order rejecting the writ petition and on numberice being issued by the division bench the 1st and the 4th respondents filed their respective affidavits in reply showing cause against the admission of the appeal.
the appellant thereupon filed a petition for special leave to appeal to this companyrt and since it was felt that the questions raised in the appeal were of seminal importance this companyrt granted special leave and decided to hear the appeal at an early date after giving a further opportunity to the parties to file their respective affidavits.
