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2017 Supreme(J&K) 856
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
TASHI RABSTAN, J.
Himalaya Research Laboratory and Ors. - Appellants
Versus
State of J&K and Ors. - Respondents
OWP No. 1823 of 2016 and M.P. No. 01 of 2016
Decided On : 11-04-017
Advocate Appeared:
For the Appellant :U.K. Jalali, Senior Advocate and Shivani Jalali, Advocate.
For the Respondent: H.A. Siddiqui, Sr. A.A.G.
The decision of the government or the authorities concerned, after due consideration of all viewpoints and full application of mind, is immune from judicial review.
Headnote:
Writ petitions filed by petitioners challenging the cancellation of supply orders issued to them by the Director General of Indian System of Medicines-Respondent No. 2, for the supply of classical Ayurvedic and Unani Medicines for the year 2015-16 and second e-Tender No. DISM/Medicines/02 of 2016 for supplying proprietary/patent Ayurvedic and Unani Medicines, were dismissed by the court. The court held that the impugned decision of the respondents was immune from judicial review and that the petitioners were free to fall back on the remedy as available to them under and in terms of the contract that they had entered into with the respondent department.
Fact of the Case:
Petitioners, who are SSI unit, engaged in manufacturing process of Ayurvedic and Unani Medicines, responded to e-Tenders (Annexure D & E to petition) issued by Respondent No. 3. Respondent No. 2, after petitioner's successful qualification, issued supply orders dated 2nd September, 8th November and 21st November 2016 (Annexure F, G & H). In terms of order dated 30th November 2016, supply orders dated 8th and 23rd November 2016 have been directed to be cancelled/withdrawn consequently the addendum; Petitioners are contended to have on next day, i.e. 1st December 2017 (Annexure K to petition), cancelled/withdrew supply orders dated 8th and 23rd November 2016. Petitioners insist that after impugned order dated 30th November 2016 was issued, the Government of Jammu and Kashmir through J & K Medical Supplies Corporation Limited (JKMSCL), a Government owned Company, incorporated under Companies Act in the year 2013, has issued fresh tenders through e-Tendering process, uploaded on website of JKMSCL on 18th January 2017 and petitioner, if eligible, in terms of this tender notice, can always participate in fresh tendering process.
Finding of the Court:
The court held that the impugned decision of the respondents was immune from judicial review and that the petitioners were free to fall back on the remedy as available to them under and in terms of the contract that they had entered into with the respondent department.
Issues: Whether the impugned decision of the respondents was immune from judicial review?
Ratio Decidendi: The court held that the impugned decision of the respondents was immune from judicial review. The court observed that the decision was taken after due consideration of all perspectives and full application of mind. The court also noted that the petitioners had not made out a case for interference.
Final Decision: The writ petitions were dismissed.
TASHI RABSTAN, J.
1. Director General of Indian System of Medicines-Respondent No. 2, issued e-Tender Notice No. DISM/Medicines/01 of 2016 for supply of classical Ayurvedic and Unani Medicines for the year 2015-16 and second e-Tender No. DISM/Medicines/02 of 2016 for supplying proprietary/patent Ayurvedic and Unani Medicines. Tenders in both Notices were invited from original manufacturers, registered with Health and Medical Education Department/Directorate of Indian System of Medicines. One of the conditions of e-Tender notices is Clause 16, specifying that if any issue/dispute arises during course of supply between supplier and purchaser that shall be decided by Purchasing Committee for Directorate of Indian System of Medicines, J & K, whose decision shall be final and binding upon the parties and any other condition not indicated in the tender can be incorporated in the supply order or agreement at any point of time if need arises which will be binding on the parties. Petitioner, amongst others, responded to above e-Tenders. Respondent No. 2, after petitioner's successful qualification, issued supply orders dated 2nd September, 8th November and 21st November 2016 (Annexure F, G & H). In terms of order dated 30th November 2016, supply orders dated 8th and 23rd November 2016 have been cancelled, of which petitioner is aggrieved.
2. The case set up by petitioner is that petitioner is an SSI unit, engaged in manufacturing process of Ayurvedic and Unani Medicines. Respondent No. 3 issued e-Tenders (Annexure D & E to petition). Petitioner responded thereto. Supply Order No. DG-ISM/PS/2016/636-40, dated 2nd September 2016 (Annexure F to writ petition) was issued. The supply was made to respondents within time compliant with supply order. This was followed by orders, being No. ISM/PS/2016/7675-70, dated 8th November 2016 and No. DG-ISM/PS/2016/743-48, dated 23rd November 2016 (Annexure G & H to writ petition) for supply of more classical and proprietary medicines. Petitioner pleads that aimed at complying supply orders dated 8th and 23rd November 2016, petitioner put its machinery in action and purchased raw material from inside and outside the State and commenced manufacturing process. While petitioner was busy in manufacturing medicines for making supply in time, it received letter No. DG-ISM/PS/2016/2027, dated 29th November 2016, informing petitioner as to incorporation of Clause 16-A to Clause 16 of Supply Orders, enabling Directorate of Indian System of Medicines to withdraw or cancel supply orders, partially or in full, at any time before supply is received and before agreement in terms of Clause 9 of Supply Order is executed. Respondents are contended to have on next day, i.e. 30th November 2016 (Annexure K to petition), cancelled/withdrew supply orders dated 8th and 23rd November 2016.
3. On the foundation of case set up, petitioner seeks following relief:
(i) Certiorari, quashing Order No. DG-ISM/PS/2016/2045-49, dated 30th November 2016, whereby supply orders dated 8th November 2016 and 23rd November 2016 have been directed to be cancelled/withdrawn consequently the addendum;
(ii) Mandamus, commanding respondents to abide by tendering process initiated vide e-Tender Notice No. DISM/Medicines/01 of 2016, and e-Tender Notice No. DISM/Medicines/02/2016, thereby to allow petitioner to make supplies in accordance to the supply orders dated 8th and 23rd November 2016;
(iii) Prohibition, prohibiting respondent No. 1 from shifting funds allocated for purchase of medicines to any other corporation or authority whatsoever.
4. Respondents, in their reply, aver that petitioner has alternate remedy available under Clause 32, which provides for a mechanism of redressal of dispute, if any, against respondents through arbitral process. Respondents' assertion is that in response to NIT, petitioner tendered to supply medicines by expressly accepting all conditions, including provision of arbitration and that it is settled in view of al
