Federation of Bidi, Bidi Leaves and Tobacco Merchants Vs State of Orissa and Another

R.K. Patra, J.@mdashFacts are few, the grounds of attack are limited but arguments in this application under Articles 226 and 227 of the Constitution of India have encompassed larger issues centering around the validity and propriety of the policy decision of" the Government in the matter of disposal of its property and the extent of judicial review on such decision. The petitioner being felt aggrieved by the decision of the Orissa Forest Development Corporation Limited in inviting sealed tenders as per the notice dated 24-12-1997 (Annexure 4) for purchase of processed and phal Kendu-leaf bags has prayed for a declaration that the same is unlawful and unconstitutional and claimed that the Kendu leaves should be directed to be sold in public auction as per the previous scheduled programme.

2. The petitioner claims to be a Federation comprising of more than 25 members who deal in purchase and sale of Bidi. Bidi leaves and Tobacco as manufacturers and traders. Its case is that since after nationalisation of trade in processed Kendu leaves in 1972, the Orissa Forest Development Corporation Limited, a Government of Orissa Undertaking (hereinafter referred to as the ''Forest Corporation'') -- opposite party No. 2 had been selling processed Kendu leaves by auction sale on terms and conditions contained in the respective auction sale notices. As a matter of fact for the crop year 1997-98 auction sales were held on three different occasions. The first, second and third auction sales were held respectively from 7-7-1997 to 12-7-1997, 28-8-1997 to 6-9-1997 and from 10-11-1997 to 14-11-1997. For the fourth auction sale notice was also issued fixing the date as "8-12-1997". It was, however, postponed as per notice dated 4-12-1997 (Annexure 3) "until further decision due to unavoidable circumstances". When the matter stood thus, the Forest Corporation published the impugned notice dated 24-12-1997 (Annexure 4) inviting sealed tenders from the purchasers registered with it for purchase of processed and ''phal'' Kendu leaves produced during the year 1997 and unsold leaves of earlier crop-year stored at different godowns on "as is where is basis". On 31-12-1997, the petitioner made representation (Annexure 5) questioning the propriety of the impugned tender call notice. According to the petitioner, switching over from auction sale to tender sale is without any valid reason and is a fraud on the public exchequer inasmuch as the amount of revenue that may be collected through such tender system would be much less than the revenue that may be collected from the auctioneering system.

3. On 3-1-1998 one of us (R. K. Patra, J.) as Vacation Judge issued rule nisi. On the prayer made on behalf of the petitioner for stay of operation of the impugned tender notice, it was ordered as follows :

"Let the process as envisaged in the impugned tender notice at Annexure 4 may be completed but no final decision be taken on it without leave of the Court."

4. The State of Orissa through the Secretary to the Government in the Forest and Environment Department is opposite party No. 1. The Forest Corporation through its Managing Director is opposite party No. 2. After service of notice, both of them have filed separate counter-affidavits.

In the counter-affidavit filed on behalf of the State, is has been pleaded that the State Government has monopoly in the matter of disposal of Kendu leaves under the Orissa Kendu Leaves (Control of Trade) Act, 1961 and it can do So in such manner it likes. In exercise of its power, the State Government has appointed the Forest Corporation as its agent for sale of the Kendu leaves. With regard to switching over to the sale through tenders, the State''s case is that the end user like the Bidi manufacturers are shy in participating in auction sales. In the auction sales which were conducted from time to time, there was ring formation amongst the bidders which stood on the way of garnering maximum revenue from sale of Kendu leaves. In order to have transparency in the procedure of disposal and to maximise revenue through competitive bids and offers, decision was taken to sell Kendu leaves through tenders. According to the State, the impugned modified sale procedure should be given a fair trial for the current year''s production and the policy may be reviewed next year for suitable modification, if required.

The Forest Corporation in its consolidated counter-affidavit filed on 20-2-1998 besides disputing the locus of the petitioner to challenge the impugned notice claims that under the Orissa Kendu Leaves (Control of Trade) Act, 1961 carrying on the business of collection/purchase and sale of Kendu leaves is a State monopoly. Its case is that the purpose of State monopoly is to earn maximum revenue for the State and also simultaneously to pay reasonable amount to kendu-leaf collectors. Although Kendu leaves were being sold by holding public auctions previously, it was experienced in the recent past that the purchasers by forming cartol/ring have been controlling the price of Kendu leaves on pre-determined bids. On many occasions the proposed auctions were cancelled or deferred on account of the purchasers either boycotting the auction or preventing the Forest Corporation from conducting it. In the auction there was selective purchase of Kendu leaves and on account of such purchase substantial quantities remained unsold. As a result, the unsold Kendu leaves had to be taken to Calcutta and/or Chennai and sell them there by means of auction/tenders. In this process, over-head expenditure for disposal of kendu leaves increased as they had to be transported to distant places for sale. It was noticed that while the cost of procurement of Kendu leaves went higher up year after year, the price obtained by the Forest Corporation in course of auction sale went down which is evident from the following chart:

The aforesaid price behaviour is an indication that sale of Kendu leaves by auction was not beneficial to the Forest Corporation. Accordingly, a lot of discussions and deliberations were held between the Forest Corporation, Forest Department and the Finance Department of the Government. Having regard to the aforesaid reasons, it was decided to sell the Kendu leaves by way of tender which is an accepted mode in a commercial transaction instead of auction sale. In a system of sale by way of tender, purchasers quote the highest price unlike auction where bid starts from the lowest price. The tender sale fetches higher price than the open auction and the price can also be raised through negotiations. In view of such decision, the proposed auction scheduled to be held on 8-12-1997 was cancelled and the impugned notice was published inviting sealed tenders with a view to ensure transparency in the procedure of disposal of Kendu leaves and to maximise revenue through competitive offers by checking the possibility of formation of ring amongst the purchasers. The Forest Corporation asserts that the desired result has come out inasmuch as during the current crop year 1997-98, 2,19,931.20 quintals of Kendu leaves were sold in three auctions for a total consideration of Rs. 68,50,50,124/- whose average sale price works out to Rs. 3115/-. By the impugned tender-cum-negotiation method, a total sum of Rs. 12,20,08,160/- has been offered for 30,000 quintals of Kendu leaves of five forest divisions whose average sale value per quintal comes to Rs. 3156/-.

5. Locus:

It is the contention of opposite parties that the petitioner-Federation union consists of certain purchasers has no vested, legal or constitutional right to compel sale of Kendu leaves by auction and as such, the application at its instance is not maintainable. The petitioner asserts that its members are small traders and/or manufacturers and carry on their business within the State of Orissa by purchasing processed Kendu leaves in public auction held by the Forest Corporation and because of the sudden change of mode of sale through tender system, they would be wiped out from their business as they would not be able to arrange large amount of finance required for large lots without any guarantee regarding the quality of Kendu leaves.

It is true that although a citizen has a fundamental righ to carry on a trade or business, he has no fundamental right to carry on business in the properties or rights belonging to the Government. The fact, however, remains that for the crop year 1997-98, auction sales were conducted thrice and certain quantities of Kendu leaves were sold by auction and the date (8-12-1997) was notified for holding of the fourth auction but the same was postponed and a few days thereafter the impugned notice inviting sealed tenders was published. The petitioner might not have any legal right in regard to continuance of the system of auction sale but by enjoying some ''advantage'' as it claims under the pre-revised policy, it entertained legitimate expectation that on 8-12-1997 also there would be auction sale but the same was cancelled. In the circumstances, it cannot therefore be said that it has no locus standi to challenge the revised sale procedure.

6. Prerogative of opposite parties in the matter of disposal of Kendu leaves.

Shri G. Rath, learned senior counsel for the Forest Corporation, and the learned Additional Government Advocate for opposite party No. 1 contended that the State Government has absolute right to dispose of the Kendu leaves in such manner as it wishes. In this regard, the learned counsel trace the origin of the Government''s ''wish'' to dispose of the Kendu leaves in the manner it likes, to certain provisions of the Orissa Kendu Leaves (Control of Trade) Act, 1961 and the Rules framed thereunder. Let us, therefore, now have a close-up of these provisions referred to by the learned counsel.

7. The State Legislature has enacted the Orissa Kendu Leaves (Control of Trade) Act, 1961 (in short, ''the Act'') to provide for regulation of trade in Kendu leaves by creation of State monopoly. Section 3 of the Act restricts on purchase by stating that no person other than (a) the Government (b) an officer of the Government authorised in that behalf; or (c) an agent in respect of the unit in which the leaves have grown shall purchase or transport Kendu leaves. Section 8 of the Act empowers the Government to appoint agents for the purpose of purchase and trade in Kendu leaves. Section 10 of the Act states that Kendu leaves purchased by the Government or by their officers or agents shall be sold or otherwise disposed of in such manner as Government may direct in exercise of this power, the State Government has appointed the Forest Corporation as its agent to sell Kendu leaves vide notification No. 2396 dated 24-10-1973.

Rule 5-B of the Orissa Kendu Leaves (Control of Trade) Rules, 1962 deals with disposal of Kendu leaves. Sub-rule (1) thereof provides that Kendu leaves shall ordinarily be sold by entering into a contract in advance for which tenders shall be invited provided that the Government may without inviting tender sell the leaves of one or more units directly to the Forest Corporation on such terms and conditions. A detailed procedure has been provided for tender notice in other sub-rules of Rule 5-B. Sub-rule (9) which has bearing on the issue involved may be specifically noted. It gives overriding power to the State Government to sell or otherwise dispose of Kendu leaves in such manner as Government may deem proper.

On a conjoint reading of the aforesaid provisions of the Act and the Rules, it is evident that executive arrogance is writ large in those provisions which state that the Government or its agent is free to dispose of or sell Kendu leaves in the manner it deems proper. Such provisions are the manifestation of arbitrariness which is the very negation of the rule of law and as such it cannot be countenanced in the face of Article 14 of the Constitution of India. Accordingly, those provisions which seek to empower the Government or its agent to dispose of or sell Kendu leaves in such manner as it deems proper have to be read down to keep them within the bounds of constitutional provisions.

8. In this context we may now have a survey of the cases cited and referred to at the Bar.

In Kasturi Lal Lakshmi Reddy, Represented by its Partner Shri Kasturi Lal, Jammu and Others Vs. State of Jammu and Kashmir and Another, , the Supreme Court observed that unlike a private individual, the State cannot set as it pleases in the matter of giving largess, such as awarding a contract or selling or leasing out its property. The constitutional power conferred on the Government cannot be exercised by it arbitrarily or capriciously or in an unprincipled manner, it has to be exercised for the public good. Every activity of the Government has a public element in it and it must, therefore, be informed with reason and guided by public interest. If the Government awards a contract or leases out or otherwise deals with its property or grants any other largess, it would be liable to be tested for its validity on the touch-stone of reasonableness and public interest and if it fails to satisfy either test, it would be unconstitutional and invalid.

In Ram and Shyam Company Vs. State of Haryana and Others, , the Supreme Court held that owner of private property may deal with it in any manner he likes without causing injury to any one but the public property has to be dealt with for public purpose and in public interest. A owner of private property may have a number of considerations which may permit him to dispose of his property for a song but disposal of public property partakes the character of a trust in that in its disposal there should be nothing hanky-panky and that it must be done at the best price so that larger revenue coming into the coffers of the State administration would serve public purpose.

In Shri Sachidanand Pandey and Another Vs. The State of West Bengal and Others, , the Supreme Court after taking note of Kasturi Lal Lakshmi Reddy, Represented by its Partner Shri Kasturi Lal, Jammu and Others Vs. State of Jammu and Kashmir and Another, and Ram and Shyam Company Vs. State of Haryana and Others, and other judgments on the point in paragraph 39 of the judgment laid down the law as follows :

"On a consideration of the relevant cases cited at the bar the following propositions may be taken as well established; State-owned or public-owned properly is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting lenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery ornepotism."

The same opinion was expressed by the Supreme Court in Haji T.M. Hassan Rawther Vs. Kerala Financial Corporation, . In paragraph 14 of the judgment, the Court observed as follows :

"The public property owned by the State or by any instrumentality of the State should he generally sold by public auction or by inviting tenders. This Court has been insisting upon that rule, not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities. They should undoubtedly act fairly. Their actions should be legitimate. Their dealings should be above board. Their transactions should be without aversion or affection. Nothing should he done by them which gives an impression of bias, favouritism or nepotism. Ordinarily these factors would be absent if the matter is brought to public auction or sale by tenders. That is why the Court repeatedly stated and reiterated that the State owned properties are required to be disposed of publicly. But that is not the only rule. As O. Chinnappa Reddy, J. observed "that though that is the ordinary rule, it is not an invariable rule". There may be situations necessitating departure from the rule, but then such instances must be justified by compulsions and not by compromise. It must be justified by compelling reasons and not by just convenience."

The ratio of Ram and Shyam Company Vs. State of Haryana and Others, and Haji T.M. Hassan Rawther Vs. Kerala Financial Corporation, was followed by the Supreme Court in Fasih Chaudhary Vs. Director General, Doordarshan and Others, .

A Bench of this Court, also (to which one of us namely, R. K. Patra, J. was a party) recently had the occasion to observe in Kons (India) v. Commissioner-cum-Secretary, School and Mass Education Department (1998) 85 C LT 227 as follows :

"We may stale that when the Government deals with public by way of purchasing goods for it or awards contracts or leases out or otherwise deals with its property, it cannot act arbitrarily and enter into relationship with any person it likes at its sweet will. Its action in such cases must pass the twin-test of reasonableness and public interest. .........."

9. Was the revised sale procedure by way of tender approved by the Government?

It is notified that the fourth general auction sale of Kendu leaves 1997 was to commence from. 8-12-1997. By a corrigendum dated 4-12-1997 (Annexure 3) it was postponed "until further decision due to unavoidable circumstances". A few days thereafter, the impugned notice dated 24-12-1997 was published inviting sealed tenders for purchase of Kendu leaves. It was the contention of Shri Mohanty that the decision postponing the preposed auction sale and switching over to the mode of open tender and negotiation as per the impugned lender notice is unauthorised in absence of approval by the State Government. The State Government and the Forest Corporation in their respective counter-affidavits denied the aforesaid contention and assert that the mode of sale of Kendu leaves by way of open tender and negotiation instead of public auction was adopted on the basis of the policy decision taken by the State Government in the Forest Department. According to the opposite parties, the said decision was taken because of the fact that it was noticed that the return from sale of Kendu leaves has been falling during the previous years although the cost of procurement and production has been on the rise. The fall in price was due to ring formation and collusion amongst the bidders/purchasers and hence, with a view to earn maximum revenue, the system of tender sale was adopted which is one of the known and accepted mode of business transaction in which purchasers quote the highest price unlike auction where bid starts from the lowest price. Accordingly, the proposed auction scheduled to commence from 8-12-1997 was cancelled and the impugned notice inviting sealed tender was published.

In letter No. 2078 dated 3-2-1997 (Annexure K/2) the Additional Secretary to the Government in the Forest and Environment Department wrote to his counterparts in other Departments of the Government as well as to the Chief Conservator of Forests (K. L.), Orissa and the Managing Director of the Forest Corporation to offer their written views about the Kendu leaf policy for 1997-98 crop. In the said letter, concern was expressed that there was sharp fall of sales realisation on Kendu leaves. The Additional Secretary also enclosed a copy of the opinion of the Minister, Forest wherein the latter had noted that Kendu leaves had been sold at a lower price than the price fixed and in view of the bumper crop during the current year the collection of revenue should have been more but unfortunately it was not so. According to the Minister, the loss to the revenue was due to "totally defective sale policy" and it "needs aradical change". Thereafter, office order No. 4337 dated 4-3-1997) (Annexure L/2) was issued by the Additional Secretary of the Government in the Forest and Environment Department wherein it was stated that a comprehensive sales policy of Kendu leaf should be formulated before the ensuing "1997 crop disposal". In the said order, an Official Committee consisting of the General Manager, Forest Corporation, Assistant Chief Conservator of Forests (K. L.) and Manager (K. L.) Forest Corporation was constituted. The committee was advised to draft the sale policy to include inter alia, sales procedure (i) by auction, (ii) by tender, (iii) through negotiation. The Managing Director, thereafter, in letter No. 29378 dated 20-12-1997 (Annexure M/2) while sending the draft revised Kendu leaves sales policy to the Joint Secretary to the Government in the Forest and Environment Department indicated that since the approval of the revised policy would take some time and the date for next tender sale had been fixed to 5-1-1992 steps were being taken for formation of the lots as proposed in the revised sale policy. The Managing Director in his D.O. letter dated 3-1-1998 (Annexure N/2) wrote to the Special Secretary to Government in Forest and Environment Department requesting him to intimate the Government order approving the revised sale policy as the tender to dispose of the Kendu leaves had already been floated and the date of tender had been scheduled to 5-1-1998. From the file No. KL (B) 16/96 of the Forest and Environment Department which was produced by the learned Additional Government Advocate, we find that draft policy was approved by the Government on 6-1-1998. The Joint Secretary to the Government in the Forest and Environment Department in letter No. 1434 dated 20-1-1998 (Annexure D2 communicated the decision of the Government approving the revised sale procedure of Kendu leaves to the Managing Director of the Forest Corporation by enclosing a copy thereof.

10. On careful consideration of the submission of the counsel for the parties and on perusal of the letters of correspondence between the Forest Corporation and the Government in the Forest Department, it would appear that their attention was engaged to find out solution to the malady of fall in price of Kendu leaves in the recent past by evolving a pragmatic policy. It was the view of the Government that fall in price of Kendu leaves was due to the auction where it was not possible to fetch the highest price for various reasons. As it would take come time to work out a comprehensive policy and the proposed public auction scheduled to be held on 8-12-1997 might frustrate the desired result, awaiting approval of the Government, the impugned notice was issued inviting sealed tenders for purchase of Kendu leaves after cancelling the scheduled public auction. As per programme contained in the impugned notice, tenders were opened on the date fixed. In the meantime, the draft policy containing "open tender and negotiation" was approved by the Government on 6-1-1998 which was circulated by letter dated 20-1-1998 (Annexure P/2).. The State Government having accorded post facto approval to the policy, it cannot be said that the revised sale procedure adopted by the Forest Corporation is without any authority.

11. Policy decision -- Scope of Judicial Review :

Counsel for opposite parties contended that the Government''s revised Kendu leaf sale policy on the basis of which the impugned tender call notice was issued cannot be made the subject-matter of judicial review. Relyingon the judgment of the Supreme Court in Tata Cellular Vs. Union of India, , it was contended that judicial review cannot be directed against the decision but it should be confined to the examination of the decision-making process. We may state that the task of interpreting the provisions of the Constitution is entrusted to the Judiciary. Therefore, it is permissible to the Court to test the validity of an action of every authority functioning under the Constitution in order to ensure that the said authority does not transgress the limitations in exercise of its power. This power of judicial review is, therefore, implicit in a written Constitution and unless expressly excluded by a provision of the Constitution, the power of judicial review is available in respect of exercise of powers under any provision of the Constitution. It needs to be emphasised here that while considering the scope and extent of judicial review, the distinction between judicial review and justiciability of a particular action has to be kept in view. Justiciability relates to a particular field falling within the purview of the power of judicial review. There are certain matters which are not susceptible to judicial process on account of want of judicially managable standards. Such matters are non-justiciable. The wisdom behind or expediency of a policy or whether a better policy could have been evolved and such allied matters are non-justiciable. This is the basis why it has been held that judicial review is directed not against the decision but is confined to the examination of the decision-making process. In course of examining the decision-making process if it is found that the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever, or suffers from the vice of discrimination, or infringes any statute or provision of the Constitution, the ultimate decision becomes vulnerable (See A.K. Kaul and another Vs. Union of India and another, and Krishnan Kakkanth Vs. Government of Kerala and ohters, ). On careful examination of the revised sale policy, we are satisfied that it does not suffer from any of the vices referred to above and, as such, no exception can be taken to the impugned policy as well as the impugned tender notice.

12. Open tender and negotiation -- Meaning thereof:

Shri Mohanty sneered at the method of open tender and negotiation as envisaged under the impugned policy. He submitted that where sale is done by way of tender, holding of further negotiation is unheard of particularly in the business of Kendu leaves. According to the learned counsel the so-called sale by negotiation lacks in transparency and is a kind of fraud practiced on the business of purchase of Kendu leaves. By referring to the different provisions of the policy, it was contended by Shri G. Rath that the policy is fool-proof where there is total transparency in the dealings. Relying on the judgment of the Supreme Court in State of Orissa and Others Vs. Harinarayan Jaiswal and Others, , he further submitted that sale by negotiation is not impermissible.

13. We have given our anxious consideration to the submission of the counsel for parties.

In State of Orissa and Others Vs. Harinarayan Jaiswal and Others, , there was public auction of exclusive privilege of selling by retail the country liquor in eight specified shops. The highest bid offered by a party was provisionally accepted by the Collector. When the bids were sent to the Government for confirmation, it rejected the highest bid by taking the view that inadequate price was offered as a result of collusion between the bidders. The Government accordingly directed the Excise Commissioner to call for tender in respect of the shops in question. After tenders were received the Government accepted the tender in respect of one shop and rejected the offers in respect of others as it was again of the view that the price quoted was inadequate. Thereafter the Government sold the remaining seven shops by negotiation with some of the tenderers. The price ultimately fetched was substantially more than that was offered either at the auction or as per the tenders. Aggrieved by such decision the highest bidder of the public auction filed a writ application which was allowed by this Court on several grounds out of which two of them have bearing on the case at hand. The first ground was that the Government was bound to satisfy the Court that there was collusion between the bidders. The second reason was that having had recourse to the auction method ones, the Government was precluded from either calling for tenders or sale by negotiation. When the matter was taken in appeal, the Supreme Court while reversing the impugned judgment held that the High Court was not sitting in appeal over the order passed by the Government and the inference of the Government that there was collusion between the bidders may be right or wrong, but it was not open to judicial review so long as it was not proved that it was a make-believe one. The real opinion formed by the Government was that the price fetched was not adequate. Regarding the other ground, the Supreme Court held that once the Government declined to accept the highest bid, the auction held became useless and same was the effect when the Government refused to accept the highest tender. That left the Government free to have recourse to the other methods which included the sale of privilege by private negotiations.

Having regard to different provisions contained in the impugned policy, we are inclined to hold that after tenders are opened, with a view to secure higher price negotiations can be made openly with the competitive parties. It will be presently shown that the task of negotiation is entrusted to a high-level body which is under obligation to public accountability.

From the revised policy, it appears that a ''sale strategy'' has been evolved. According to the strategy, at first the Forest Corporation will adopt a policy of open auction and open tender as per the procedure mentioned hereunder :

(a) To begin with, a maximum quantity of about 50,000 quintals of stock of Kendu leaves may be put to public auction (Mini auction) to know the prevailing market price which will be a guide for fixing the up-set prices for disposal of Kendu leaves in subsequent sales.

(b) About 50,000 quintals of Kendu leaves would be ear-marked for disposal to the traditional bulk buyers and also for disposal through outside sale centres.

(c) Balance stock may be disposed of through sealed tender. The tenders will be open for all including the Bidi Manufacturers and exporters and will be through newspaper advertisements. The tenders will be received and opened at the Corporate office of the Corporation at Bhubaneswar. If it is found that the open tender has failed to fetch expected price, open auction should be resorted to by dividing the larger lots into smaller lots, if necessary.

The aforesaid procedure, as the policy dealers, is to ensure transparency in the procedure of disposal and check the possibility of ring formation between the bidders and to maximise revenue on the basis -of competitive bids and offers of sale price. Paragraph 9 of the policy deals with constitution, functions and powers of negotiation committee. The Chairman of the Forest Corporation is the Head of the said committee which comprises, amongst others, of the Managing Director of the Forest Corporation, the Principal Chief Conservator of Forests, Orissa, the Chief Conservator of Forests, Kendu leaves, the Secretary to the Government in the Forest Department and the Secretary to the Government in the Finance Department. The negotiation committee is authorised to take all decisions on tender sale and bulk tender-cum-negotiation sales taking into account the prevalent market conditions about demand and supply of Kendu leaves in the country. From the aforesaid, we have no doubt that the negotiation committee owes public accountability for its decision. The job of negotiation having been entrusted to a high-level committee, it is expected that its decision would be based on the motto to fetch the highest price and is not based on any collateral purposes. For the reasons mentioned above, we do not find any legal infirmity to void the revised policy.

14. Outcome of tender-cum-negotiation held on 5-1-1998.

By referring to the calculation sheet at Annexure O/2, learned counsel for the Corporation submitted that the sale of Kendu leaves by tender-cum-negotiation held in respect of five Forest Divisions has fetched better price. Patnagarh, Padampur, Bhavanipatna, Khariar and Phulbani Forest Divisions respectively have fetched average price of Rs. 3780/-, Rs. 3000/-, Rs. 2200/-, 2900 and Rs. 2700/- against the average bid price of Rs. 3618,87, Rs. 2909, 37, Rs. 2739,55, Rs. 3000/- and Rs. 2396,55 respectively. Shri Mohanty, on the other hand, by referring to sheet No. 6 of Annexure 9 submitted that the price of Rs. 3750.00 perquintal as claimed for Patnagarh Forest Division is erroneous and had it been put to public auction, it would have fetched Rs. 4102/- per quintal. This is how he arrives at the figure Rs. 4102/- per quintal.

15. On careful consideration of the rival contentions of the parties, we are of the opinion that a writ Court should avoid embarking on the exercise to determine what should be or should have been the sale price had the Kendu leaves been put to public auction or sold by tender method. The writ Court has certain inherent limitations in undertaking such exercise. The Government being the guardian of the finance of the State is expected to protect it.

16. Towards the close of the hearing of the case, we suggested to Shri Mohanty whether the petitioner is agreeable to purchase all the Kendu leaves covered under the impugned tender notice at Rs. 3750/- per quintal. He took a day''s adjournment to consult his party and reported on the next day that since the petitioner comprises of about 250 members, it was not possible on his part to offer any specific price. We need not express any opinion on the conduct of the petitioner in this regard.

17. In the result, we do not find any merit in this writ application which is accordingly dismissed. With the disposal of the writ application, all applications for interim relief stand disposed of.

R.K. Dash, J.

18. I agree.