Aftab Alam, J.

1. Among the countless things that the Election Commission needs for the proper conduct of elections in this the largest democracy of the world, indelible ink is one. It is used for putting a mark on the index finger of the voter at the time of casting vote in order to ensure that no voter should exercise-his franchise more than once. The Commission seems to know exactly what it needs and where to get it from." As the time comes for holding an election, it buys indelible ink in required quantity and in suitable packages from a particular source.

2. The petitioner is the proprietor of a unit called, Bihar Ink Company which is engaged in manufacture of indelible ink for the past 40 years. The petitioner views the purchase of indelible ink by the Commission purely as a commercial transaction and resents his being kept out of this particular piece of business. The petitioner seeks to challenge the restrictive clause in the tender notice issued by the State Election Commission, Bihar, that required the tenderer to have the know-how transferred from/licensed by the National Research Development Corporation, New Delhi for the manufacture of indelible ink.

3. Seeking substantially the same reliefs, the petitioner had earlier come to this Court on two occasions. He first filed CWJC No. 1825 of 2001, challenging the decision of the State Election Commission, Bihar, to purchase indelible ink from M/s. Mysore Paints and Varnish Limited without inviting any tenders. A single Judge dismissed that writ petition, observing that the decision of the Election Commission could not be called unreasonable and it did not justify interference by the Court because the supply order was given to a Government concern. Against the order passed by the learned Judge, the petitioner preferred appeal being LPA No. 197 of 2001. The appeal was dismissed by order, dated 10.4.2001 on the ground that the election was to start from the following day and hence, the issuance of any writ would be futile. The appellate Court, however, made the observation that :-

"In our view, the appellant has made out an arguable case in the sense that the earlier practice of inviting tenders for supply of the ink has been done away with at the time of holding Gram Panchayat election."

4. It needs to be clarified here that the materials on record of the case do not show that on earlier occasions the State election Commission purchased any ink for holding Gram Panchayat elections by inviting tenders. For purchase of indelible ink in connection with earlier Gram Panchayat elections tenders were issued by the department of Panchayati Raj of the State Government.

5. On the second occasion, the petitioner filed CWJC No. 15452 of 2001, once again challenging the decision of the State Election Commission, Bihar, to purchase indelible ink from M/s. Mysore Paints and Varnish Ltd. The writ petition was once again dismissed and against the order passed by the learned single Judge the petitioner again filed appeal being LPA No. 39 of 2002. In this appeal too, the Division Bench declined to interfere on the ground that the date of election had been fixed and steps had been taken for purchase of the ink and any interference at that stage would hamper the process of election. The Bench, however, made the following observation :-

"However, we make it clear that in future whenever the steps are taken to purchase indelible ink, the State Election Commission is directed to invite tenders and select the best one amongst them. The Government undertaking has no monopoly in law and it has also to compete along with other similarly situated persons or industries."

6 Thus, compelled by the Courts direction the State Election Commission, Bihar, issued a short tender notice on 4.11.2003 for supply for indelible ink evidently for being used in the last Parliamentary Election held in the month of April. The tender notice had the restrictive clause as indicated above by virtue of which the.