HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.19384 of 2009 Date: October 20, 2009 Between: V. Purnachandra Rao … Petitioner And 1. The State of Andhra Pradesh, rep. by Special Chief Secretay to Government, Animal Husbandry, Dairy Development & Fisheries Department, Secretariat, Hyderabad and 2 others. …Respondents * * * ORDER: Heard Sri T.S. Venkataramana, learned counsel representing writ petitioner and learned Government Pleader for Animal Husbandry. 2. This Court ordered notice before admission on 17.9.2009. Counter-affidavit had been filed on behalf of respondent No.1. 3. V. Purnachandra Rao, the writ petitioner, filed the present writ petition for a writ of Mandamus declaring the action of the respondents in not extending the lease of the petitioner for supply of Milch Animals in the State of Andhra Pradesh under the ‘Pasu Kanthi Pathakam’ as considered and extended to the other persons, as illegal, arbitrary, void and against to the principles of natural justice and pass such other suitable orders. 4. Sri T.S. Venkataramana, learned counsel representing the writ petitioner had taken this Court through the contents of the affidavit filed in support of the writ petition and also referred to G.O.Ms.No.72 and the proceedings dated 28.11.2007, 10.11.2008, 29.12.2008 and the representation dated 18.6.2009 and the letters dated 22.8.2009 and 26.8.2009 and would further point out that having approved and having permitted to continue the contract in favour of other five persons declaring to continue as far as the writ petitioner is concerned, definitely is an arbitrary action, the same being unjust and illegal and violaive of Article 14 of the Constitution of India. The learned counsel also would maintain that in the light of the facts and circumstances the writ petitioner is bound to succeed and, hence, the writ petition to be allowed. 5. On the contrary, the learned Government Pleader for Animal Husbandry had taken this Court through the counter-affidavit and specifically pointed out to para 16 of the counter-affidavit and would maintain that the Government had issued letter to the petitioner that his case be considered in future in case the procurement of milch animals increases beyond 40,500, which is the proposed target for the year 2009-2010, and the same can be increased basing on the policy of the Government and in the light of this stand taken in the counter-affidavit inasmuch as the petitioner is not having any enforceable legal right as such, praying for such relief, the writ petition to be dismissed. The learned Government Pleader for Animal Husbandry also had pointed out to G.O.Ms.No.72, dated 22.8.2007, the Government Memo No.3859/AH.III(1)/09/1, dated 27.7.2009, Government Memo No.3859/AH.III(1)/09-2, dated 29.7.2009, Memo Roc.No.10161/ P/PII/2008, dated 13.3.2009, Memo Roc.No.10161/P/PII/2008, dated 23.3.2009, Memo Roc.No.32047/P/PII/2008, dated 24.2.2009, Letter No. nil of V.B.C. Livestock Agency, Hyderabad, dated 09.7.2009, Letter No.nil of V.B.C. Livestock Agency, Hyderabad, dated 19.02.2009, Letter No.nil of V.B.C. Livestock Agency, Hyderabad, dated 16.11.2007 and Memo Roc.No.32047/P/PII/2008, dated 22.6.2009 and would maintain that in the light of the clear stand taken in the counter-affidavit the writ petition to be dismissed. 6. Heard the counsel, perused the respective pleadings of the parties and also the material placed before this Court. 7. The relief prayed for in the writ petition already had been specified supra. It is the case of the writ petitioner that the State Government had started a scheme under the Chief Minister Special Package Scheme called as ‘Pasu Kranthi Pathakam’ for the benefit of farmers whose income is below poverty line and they will be provided with milk buffaloes and cows to eak out their livelihood. Subsequently, the Government issued G.O.Ms.No.72, dated 22.8.2007, for implementation of the farmer oriented welfare programme with an outlay of Rs.500.00 crores for the year 2007-2008 out of which an amount of Rs.303.00 crores is earmarked to Animal Husbandry sector for the year 2007-2008, 60,000 milk buffaloes and 30,000 CB Jercy cows had to be procured and the same had to be provided to the poor farmers whose income is below poverty line. 8. Further it is averred that under the scheme respondent No.2 will call for tenders for supply of milch animals from out side the State and supply them to beneficiaries by providing 50% subsidy as recommended by respondents 2 and 3. The milch animals i.e., buffaloes and cows having a capacity of 8 litres to 10 litres of milk will be purchased from Haryana and Gujarat with respect to cows it will be purchased from Maharashtra, Tamil Nadu, Karnataka and Haryana and the heifer animals will be purchased from the States of Haryana, Gujarat, Tamil Nadu and Karnataka. 9. It is also stated in para 6 of the affidavit filed in support of the writ petition that the second respondent had called for e-tenders in the year 2007 for the year 2007-2008 and five tenderers had participated as herunder. (1) M/s. Khurana Dairy Farm, Rohtak (2) M/s. Bharat Livestock Agency, Rohtak (3) M/s. Sachdeva Dairy Farm, Rohtak (4) M/s. Sri Ayyappa Enterprises, Hyderabad (5) M/s. Sri Vigneshwara Agencies, Hyderabad The five tenderers were accepted, but as they were not sufficient, the application of the petitioner was accepted for supply of milch buffaloes, even though petitioner had not participated in e-tenders, by invoking condition No.21.3 of the terms and conditions of the tender. 10. Further it is stated that for the year 2007-2008 petitioner had supplied milch animals and C.B. Heifers/Murrah Heifers to Adilabad, Medak and Nizamabad districts. The first respondent had issued proceedings on 28.11.2007 directing the second respondent to give contract to the petitioner for supply of milch animals. Even for the subsequent period i.e., 2008-2009 the first respondent had issued proceedings on 10.11.2008 and 29.12.2008 granting permission to the second respondent to continue the contract of the petitioner for supply of milch animals. Based on the approval by the first respondent, respondent No.2 entered into agreement with the petitioner and entrusted the contract of supply of milch animals in Medak, Adidlabad and Nizamabad districts. 11. It is also averred that the petitioner as well as other five persons as mentioned above were given this contract for 2007-2008, 2008- 2009 and the contract period lapsed on 31.3.2009. Even after the lapse, the petitioner and others till May, 2009 continued to provide the milch animals to the respondents. As the contract period of the petitioner was over and the respondents did not allow the petitioner to supply milch animals from June onwards, the petitioner submitted a representation, dated 18.6.2009, to continue the contract and entered into agreement with the petitioner for further period i.e., 2009-2010. 12. Specifically it was pleaded in para 10 of the affidavit filed in support of the writ petition that the second respondent, after receiving the representation, had forwarded to the first respondent for permission and approval along with other five persons who were given contract of supply of milch animals along with the petitioner in the last two years. Surprisingly, respondent No.1 had approved only the under noted persons (1) M/s. Khurana Dairy Farm, Rohtak (2) M/s. Bharat Livestock Agency, Rohtak (3) M/s. Sachdeva Dairy Farm, Rohtak (4) M/s. Sri Ayyappa Enterprises, Hyderabad (5) M/s. Sri Vigneshwara Agencies, Hyderabad and refused to continue the contract for the period 2009-2010. 13. It is further averred that it is pertinent to note that the above five persons had not made any representation to respondent No.2 for continuation which is evident from the letter dated 22.8.2009 given by the second respondent on the request of the petitioner under Right of Information Act. Same request was also made to the first respondent who addressed a letter dated 26.8.2009 which are conflicting to each other and the said letters also had been placed before this Court. It is also stated that the second respondent in his letter dated 22.8.2009 categorically stated that the five persons mentioned above had not made any representation and on the contrary the petitioner and six others had submitted representations for giving the contract by also quoting less price. 14. Further it is averred that the first respondent had stated in the letter dated 26.8.2009 that the contract of the petitioner for supply of milch animals could not be continued, as procurement of milch animals for the year 2009-2010 is only 40,500, but not for any other reasons. If that is so, the supply of 40,500 of milch animals can be distributed to all the five persons mentioned above including the petitioner, as all the six persons were supplying to the Government since 2007 till today. 15. It is further stated that the action of the first respondent in not according permission to the petitioner for supply of milch animals to the Government as per G.O.Ms.No.72 AHDD & F (AF.III) Department, dated 22.8.2007, by invoking the powers under Clause 21.3 of terms and conditions of the tender for supply of milch animals which was invoked with respect to the five persons as mentioned above is nothing but arbitrary, illegal and against to the principles of natural justice. 16. Further it is averred that the petitioner invested amount in respect of this contract by taking loan from the bank and employed number of persons and purchased vehicles for getting his milch animals from different States to supply them to the State Government and if the contract is not continued, the petitioner will suffer irreparable loss financially and also the other persons who are employed will loose their livelihood. In such circumstances, the writ petitioner being left with no other remedy, had approached this Court by filing the present writ petition invoking the jurisdiction of this Court under Article 226 of the Constitution of India. 17. In the counter-affidavit filed it is stated that tenders were called in the month of July 2007 and the financial bids were opened on 07.8.2007 as per schedule. State Level Committee was constituted for examination of the tenders and accordingly the State Level Committee made recommendations to the Government and based on the recommendations of the Committee, the Government approved the rates and issued G.O.Ms.No.72, Animal Husbandry, Dairy Development & Fisheries (AH.III) Department, dated 22.8.2007. The petitioner did not participate in the said tender process. 18. It is also averred that in view of the heavy requirement of milch animals (i.e., 1.30 lakhs) for the year 2007-2008, though the petitioner had not participated in the tender, his application, dated 16.11.2007 was examined by the Government by considering the clause No.21.3 of the tender document which permits the Director to enter in to parallel agreement with other suppliers. It is not true that the application of the petitioner was accepted within few days after the tender date. The petitioner was permitted to supply milch animals for the year 2007- 2008 from Gujarat and other States vide Government Memo No.9140/AH.III (2)/07-1, dated 28.11.2007, as per approved rates and terms and conditions of the tender. The permission given to M/s.VBC Livestock Agency, Hyderabad, is purely due to forecasting the heavy demand of milch animals for the year 2007-2008. 19. Further it is averred that the Government proposed to procure 1,30,000 and 96,400 animals during the year 2007-2008 and 2008- 2009 respectively. But, due to various field problems and non-support of financial institutions for sanctioning the loans to the beneficiaries, the Department supplied only 40,334 and 62,672 milch animals and heifers during the year 2007-2008 and 2008-2009 respectively which is 31% and 65% respectively. 20. Out of 1,03,006 milch animals and heifers procured during the year 2007-2008 and 2008-2009 the petitioner supplied only 1377 numbers which comes to 1.33% of the total supplies, for the two years which is very small in number as against the other five suppliers. 21. It is also stated that based on the heavy requirement of milch animals during the year 2007-2008 and 2008-2009 and the expected supply capacity of 500 milch animals per month by the petitioner, permission had been accorded by the Government to enter into parallel agreement with M/s. VBC Livestock Agency for supply of milch animals during the year 2007-2008 and 2008-2009. 22. Further, the petitioner in his letter dated 19.02.2009 addressed to the Director of Animal Husbandry that he had concluded to supply milch buffaloes from Gujarat due to end of calving season in buffaloes. Based on the requisition of the petitioner, the Animal Husbandry Department permitted to supply cross breed cows from Gujarat and requested to enter into agreement vide Lr.No.32047/P/PII/2008, dated 24.02.2009, of Director of Animal Husbandry, Hyderabad. But however, the petitioner did not enter into any agreement and as such the respondents are under no obligation to continue the supplies. 23. It is also stated that the facts are misrepresented by the petitioner. The procurement of milch animals and heifers were suspended due to election model Code of Conduct applicable from 02.3.2009 and also clarified to all the field staff not to procure milch animals and heifers even after 31.3.2009/election Code of Conduct, since the agreement lapses with the suppliers on 31.3.2009. It is true that the petitioner had applied on 18.6.2009 for further continuation of supplies for the year 2009-2010 and the Department had disposed the application and informed through Letter No.32047/P/PII/CMP, dated 22.6.2009, that the Department is likely to call for fresh tenders through e-procurement for the year 2009-2010. 24. The Government accorded permission to enter into agreement with the existing (5) milch animals’ suppliers approved through e- tender during the year 2007-2008 for supply of milch animals and heifers vide ref. Govt. Memo No.3859/AH.III (1)/09-1, dated 27.7.2009 & 29.7.2009, of Animal Husbandry, Dairy Development & Fisheries (AH.III) Department. 25. Government proposed to induct 40,500 milch animals during the year 2009-2010 and after reviewing the budget position, the Government decided to entrust the work of procurement of 15000 milch animals by allocating 3000 milch animals to each of the (5) suppliers approved through e-tender during the year 2007-2008 to avoid unhealthy competition among the firms to get the quality of milch animals. 26. In view of the above, the Government already informed M/s.VBC Livestock Agency through Govt. Letter No.4226/AH.III(2)/09-1, dated 26.8.2009, that his request will be considered in future in case the procurement of milch animals increases beyond 40,500. 27. It is also stated that other than 5 suppliers approved through e- tender, 7 more supplies including the petitioner had applied voluntarily to accord permission to supply milch animals during the year 2009-10. Since the target is very less, permitting all the 7 suppliers to enter into parallel agreement will lead to unhealthy competition among the suppliers and may result in procurement of poor quality of milch animals. 28. It is also stated that in the letter issued on 22.8.2009 by the Director of Animal Husbandry in reply to the information sought by the petitioner, it is clearly indicated that other than the approved suppliers through e-tendering process, 7 firms including the petitioner had voluntarily submitted application to accord permission to supply milch animals & heifers for the year 2009-2010. In fact, the Government, at no point of time, invited any application for supply of milch animals and heifers. It was proposed to go for fresh tenders for procurement of milch animals and heifrs for the year 2009-2010, but considering the increase in rate, loss of season for availability of milch animals and time factor etc., the Government had permitted the Director of Animal Husbandry to enter into agreement with the suppliers approved through e-tender process during the year 2007-2008 for supply of milch animals and heifers. 29. Further it is stated that as per the circumstances, field demand and need basis, the Government had power to invoke the clause No.21.3 to entrust the work of procurement of milch animals by entering the parallel agreement with other firms. It is also stated that since the target is less and 5 suppliers approved through e-tender during the year 2007-2008 are available, the Government felt that there is no need to invoke clause 21.3. The Government is constrained to go with the suppliers approved through the e-tender only as the demand is very less. 30. It is also further stated in reply to para 16 of the affidavit filed in support of the writ petition that the Government had issued a letter to the petitioner that his case will be considered in future in case the procurement of milch animals increases beyond 40,500 which is the proposed target for the year 2009-2010 and can be increased basing on the policy of the Government. 31. Thus, specific stand had been taken that the permission is accorded to 5 suppliers approved through e-tender during the year 2007-2008 in a very transparent manner and there is no change in the basic cost for supply of milch animals and heifers. The petitioner was given opportunity to provide milch animals during the year 2007-2008 and 2008-2009 under agreement dated 28.11.2007 for the year 2007- 2008 and second agreement dated 06.01.2009 and the same was ended by 31.3.2008 and 31.3.2009 respectively. 32. As already aforesaid, clear stand had been taken in para 16 of the counter-affidavit that the Government had issued a letter to the petitioner that his case will be considered in future in case the procurement of milch animals increases beyond 40,500 which is the proposed target for the year 2009-2010 and can be increased basing on the policy of the Government. 33. The only principal ground which had been argued in elaboration by the learned counsel representing the writ petitioner is that having extended the period in case of similarly placed persons, the writ petitioner was discriminated and there is no justification at all. Incidentally, the learned counsel for writ petitioner also referred to the representation dated 18.6.2009. It is no doubt true that in the light of the specific stand taken in para 10 of the counter-affidavit when the first respondent had approved and had decided to continue the contract for the period 2009-2010 in favour of 5 persons specified therein, the first respondent could have consider the case of the petitioner also, but however, it is not in serious controversy that the petitioner is not having any legal enforceable right as such in this regard. But however, the writ petitioner is complaining of discrimination and arbitrary action being violative of Article 14 of the Constitution of India. 34. In the light of the same, let the first respondent consider the case of the petitioner also taking into consideration the facts and circumstances well explained in the affidavit filed in support of the writ petition in accordance with law within a period of two months from the date of receipt of this order. This Court does hope that the case of the petitioner also be considered in consonance with the justice, equity and good conscience and fair play as well. 35. The writ petition is accordingly disposed of. No order as to costs. ____________________ (P.S. NARAYANA, J) Date: October 20, 2009. BSB