The provisions of the Competition Act, 2002 do not apply to the establishment of the Pharmacy, and the tender process was found to be transparent and in the larger interest of the cancer patients.

P.G. Agarwal, J.

1. All these writ petitions were heard analogous and disposed of by this common order.

2. All these four writ petitions relate to the establishment of a Pharmacy at Dr. B. Barooah Cancer Institute (hereinafter referred to as the Institute for convenience sake). The Institute floated a tender vide NIT, dated 18-2-2004 for establishment of a Pharmacy at the said Institute to be named as BBCI Pharmacy for the convenience of the patients undergoing treatment at the said Institute. Pursuant to the said/NIT, M/s. New Barman Medicos, petitioner in WP (C) No. 2039/2004; M/s. Becon Drug Distributors, petitioner in WP (C) No. 1826/ 2004 and M/s. Jyotshna Medical, petitioner in WP (C) No. 2268/2004 submitted their tenders. The other petitioner M/s. East Line Projects Pvt. Ltd., did not submit any tender and they have challenged the said tender process on certain grounds to which we will be reverting at a later stage. The Committee of the Institute consisted of seven members (one was absent on the date of the meeting) met and opened the tenders? There were as many as nine tenders and four tenders were rejected in absence of requisite papers. The Committee scrutinized the tenders of the remaining five and thereafter approved the offer of respondent "M/s. Apollo Pharmaceuticals and accordingly decided to allot the contract of setting up of a Pharmacy to the respondent Apollo Pharmaceuticals Ltd.

3. The grievance of the petitioner past Line Projects Pvt. Ltd. a non-tenderer is that the NIT suffers from vagueness as the institute has not disclosed the size or the area of the Pharmacy and the stipulation fixing the rent at Rs. 30,000/- per month without mentioning the area to be given to the successful tenderer according to the petitioner is vague and uncertain and as such the entire tender process should be quashed. Clauses 15 and 16 of the NIT reads as follows :-

"15. The Institute will provide adequate space for the Pharmacy including space for storing medicines with adequate facilities for lighting etc. in its new OPD building.

16. The successful tenderer will be required to pay Rs. 30.000/- (Rupees thirty thousand only) per month towards rent for accommodation."

4. We do not find much force in the submission of the petitioner as the Institute has undertaken to provide adequate space for operating the Pharmacy from the Institute premises and as such the non-mentioning of the total space to be allotted is irrelevant. Likewise; it is .submitted that Clause 19 of the, NIT: is also vague;. Clause 19 reads as follows :-

" 19. That the tenderer will be required to quote the minimum percentage of profits on distributor's price of medicine and other items to be charged separately for (a) Chemotherapy Medicines, (b) General Medicines, and (c) other medical items (like surgical items etc.). However, allotment of the work will be determined mainly on the basis of the prices of Chemotherapy Medicines (Oncology Products)."

5. The learned counsel for the petitioner, Mr. G. N. Sahewalla, has submitted that the medicines were meant for the patients and in the medicines the MRP i.e. the maximum retail price is printed, the distributors price is not known to the customers and as such asking the tenderer to quote the distributors price for allotment of the contract was not proper and it is preventing the genuine tenderers from participating in the process.

6. The learned counsel appearing for the Institute and the learned counsel for the private respondent have challenged the locus of the petitioner stating that as the petitioner did not participate in the tender process and he is no way interested in the same, he cannot challenge the above condition of the NIT. The learned counsel appearing for the Institute, Mr. H. N. Sarma has submitted that the Pharmacy was meant for the poor patients undergoing treatment at the Institute and the Institute desires to provide their medicines at the lowest possible rates; Moreover, the distributors price is kn