Judgment

H. HIDAYATULLAH, J. : This is a petition under Art. 32 of the Constitution by one C.. K. Achuthan, who claims to have held a contract for the supply of milk and other articles of diet for the year 1958-1959 but whose contract for supply of milk is said to have been cancelled by the District Medical Officer (second respondent herein.) The contract for the supply of milk has now been given to the third respondent, the Cooperative Milk Supplies Society, Cannanore.

2. From the petition, it appears that the petitioner held contracts for the supply of milk to the Government Hospital at Cannanore (Kerala State) ever since 1946, and that previous to this, his brother in the same business held similar contracts from 1936.

3. In 1957, a "uniform procedure for fixing up contracts" was adopted, and by a notification, conditions for acceptance of tender were laid down. The petitioner as well as the third respondent submitted their respective tenders, which were to be opened by the Superintendent of the Hospital in the presence of interested parties. We need not refer to all the conditions under which tenders were to be accepted, except those which have a bearing upon this matter. It was stated in the conditions that no tender marked at "current market rates would be accepted, and further that in the supply of milk, preference would be given to approved Co-operative Milk Supply Unions and Societies, if their tender was within a margin of 5 per cent over the market rate or the lowest tendered rate, whichever was less. All persons making tender for the contract had to produce a certificate of solvency and tax clearance certificates, and to make a deposit with the tender.

4. On 20th January 1958, the tenders which were submitted were serutinised and the tender of the petitioner for the supply of milk was accepted and that of the third respondent rejected. It appears that the Superintendent (respondent No. 2) communicated to the Director of Public Health, her reasons for accepting the tender of the petitioner and not accepting that of the third respondent. Certain correspondence then ensued between the Director of Health Services and the second respondent, as a result of which the petitioner was informed that the contract for the supply of milk given to him was cancelled. He was informed that it was the policy of Government that in the matter of supply to Government medical institutions in Cannanore District the Co-operative Milk Supplies Union was to be given contracts on the basis of prices fixed by the Revenue Department. It appears that some more correspondence between the Director of Health Services and the second respondent ensued, and it was pointed out to the second respondent that action should have been taken under Cl. 20 of the conditions of the tender and the contract only cancelled after giving a month s notice to the petitioner. In furtherance of these instructions, the second respondent issued a notice in terms of Cl. 20 of the tender, and cancelled the contract after the notice period.

5. The present petition has been filed to question the several orders referred to above. It may be pointed out that previous to this, the petitioner had applied under Art. 226 of the Constitution to the High Court of Kerala, but his petition (O. P. No. 201 of 1958) was rejected by Raman Nayar, J. on 6th June 1958. A Letters Patent Appeal was also dismissed by Koshi, C. J. and Vaidialingam, J. C. K. Achuthan v. State of Kerala, A. S. No. 354 of 1958 decided on 7th July 1958). The High Court held that the present matter was no more than a breach, if any, of the contract by the State Government, and that the appropriate remedy was to file a civil suit and not to proceed under Art. 226.

6. It appears that no special leave to appeal was sought from this Court against the orders, and the matter has been brought for adjudication, not by way of appeal but directly under Art. 32 of the Constitution as an infringement of the fundamental right of the pe