The petition challenging a tender condition mandating Transfer of Technology from DRDE was dismissed. The Court held the matter is squarely covered by the precedent Godrej Sara Lee Ltd. vs. UOI, finding no grounds to interfere.
Petition and pending applications dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
R K GUPTA .....Petitioner Through: Mr. Rakesh Chaudhary, Advocate
versus
UNION OF INDIA AND ORS. .....Respondents Through: Mr. Ankur Mittal, CGSC with Ms. Pinky Pawar, GP and Ms. Ikshita Parihar, Advocates for UOI.
Date of Decision: 07th November, 2024
CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
MANMOHAN, CJ : (ORAL)
Signature Not Verified
Digitally Signed By:JASWANT SINGH RAWAT Signing Date:08.11.2024 19:54:15
W.P.(C) 15465/2024
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that the bidder must be a ToT (“Transfer of Technologies”) holder from respondent No.3.
Signature Not Verified
Digitally Signed By:JASWANT SINGH RAWAT Signing Date:08.11.2024 19:54:15
W.P.(C) 15465/2024
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Technology from DRDO as a condition precedent for the manufacturer being treated eligible for making the required supplies. The answer to the said question would, in turn, depend upon whether the formulation is in any way unique or at least different from the one which the petitioner is presently using for the manufacture of its products. If the formulation which the DRDO has evolved, allegedly after conducting various tests and trials, is indeed unique or at least different from the formulation/specification under which petitioner manufactures its products, it would be open to the respondents to argue that the party offering to make supply must possess the technology for the preparation of the product. That technology, it can insist, can be transferred only when the party concerned applies to the authority who holds the secret knowhow and who alone can license its manufacturer by transferring the knowhow as to the components, formulae and techniques involved in the same. The position may have been different, if the agency that has the technology, was unwilling to share the same with other parties thereby dis-entitling such parties from entering the competitive field not only for manufacture of the product but also for its marketing or supply to the Armed Forces. The respondents have, however, at no stage declined to offer the Transfer of Technology to the petitioner. On the contrary their case is that the petitioner has, despite opportunity, deliberately omitted to seek any such transfer. The petitioner ostensibly believes that its formulation is as effective as the one evolved by the DRDO and the one it would not require adoption of the said formulation to qualify for making the supplies. In a petition seeking judicial review of a tender process, this Court cannot authoritatively determine the rival claims which the parties may take as to the efficacy of their respective preparations. As to which of the two preparations is more effective as a mosquito repellent is a matter that only extensive tests and trials by scientists and users can determine. We must, in fairness to Mr. Virmani, mention that he did not call upon us to judicially determine the efficacy of the petitioners preparations vis-a-vis that of the respondents. All that Mr. Virmain contended before us was that DEPA 20% and DEPA 50% contained components that were freely available in the market. Mr. Virmani argued that the components of its product DEPA 20% are as under:
| Ingredient | % | |
|---|---|---|
| DEPA 20% v/v IPA |
in | 74.00 |
| Perfume | 01.00 | |
| LPG | 25.00 | |
| Total | 100.00 |
Signature Not Verified
Digitally Signed By:JASWANT SINGH RAWAT Signing Date:08.11.2024 19:54:15
W.P.(C) 15465/2024
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9. A perusal of the said compilation would show that the petitioner manufactures its products using three distinct components namely DEPA 20% v/v in IPA, Perfume & LPG in ratio of 74%, 1% and 25% respectively. A perusal of the work instructions for the product would reveal that while DEPA 20% is used with IPA and perfume, the IPA and perfume are of 100% purity. DEPA 20% used in the manufacture of the product is with 99.24% purity. The method of manufacture has also been set out in the form of a flow chart by the petitioner. This information when compared with the specifications and the formula which the DRDO has evolved would show that there is considerable difference not only in terms of the inputs that go into the preparation of the product which the army requires for its personnel but also the method by which the said product is prepared. We cannot, for obvious reasons, enlist the salient features that distinguish the two preparations in terms of the method of manufacture or the composition of the product. Any such exercise is bound to result in a public disclosure of what is, according to the DRDO, a secret formula evolved by it which it is ready to share with only those willing to approach it for the transfer of the technology. Suffice it to say that there is a significant difference in the formula which the petitioner, on the one hand and respondent/DRDO on the other, use for manufacture of their respective products. Such being the position, the DRDO is entitled to argue, as indeed it has, that its product is custom-made for the Armed forces no matter any one, who seeks a Transfer of Technology from it, would be entitled not only to make supplies to the Army but also market the product within and outside the country. In that view, therefore, the requirement of obtaining a transfer of technology from the DRDO cannot be said to be irrelevant or arbitrary nor can it be said that the said requirement has been stipulated to benefit only the chosen few manufacturers of the product. It was and continues to be open to the petitioner to seek a proper transfer of a technology from the DRDO and thus, acquire the qualification prescribed by the Directorate General for making of the supply of the said product which must conform to the specifications and the formula that has been prepared by the DRDO on the basis of extensive tests and experiments. Such being the position, we see no reason to interfere with the ongoing tender process insofar as the same insists on the Transfer of Technology from the DRDO as a condition of eligibility for the manufacturers to submit their tenders in response to the tender inquiry issued by the Directorate General of Supplies of Transport.
10. In the result, this petition succeeds but only in part and to the extent that the respondents shall, in keeping with our order dated 15th January, 2008, have the capacity of the petitioner verified and its sample tested and upon the tests and verification report going in its favour place an order
Signature Not Verified
Digitally Signed By:JASWANT SINGH RAWAT Signing Date:08.11.2024 19:54:15
W.P.(C) 15465/2024
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for the supply of balance of DEPA 50% Lotion from the petitioner. Insofar as the petitioner's grievance against tender inquiry for the year 2007-08 and the Transfer of Technology as a condition of eligibility is concerned, the writ petition fails and is dismissed but in the circumstances without any order as to costs.”
MANMOHAN, CJ
TUSHAR RAO GEDELA, J
NOVEMBER 7, 2024 js
Signature Not Verified
Digitally Signed By:JASWANT SINGH RAWAT Signing Date:08.11.2024 19:54:15
W.P.(C) 15465/2024
Page 5 of 5
2 issues framed by the court
Whether the requirement of obtaining Transfer of Technology from DRDO as a condition for tender eligibility is arbitrary or irrelevant given the precedent set in Godrej Sara Lee.
Whether the present writ petition challenging the tender condition is maintainable in light of the settled judgment in Godrej Sara Lee Ltd. vs. UOI.
Colour shows how this judgement treated each authority
Godrej Sara Lee Ltd. vs. UOI & Ors.Followed¶6
Godrej Sara Lee Ltd. vs. UOI & Ors., W.P.(C) 17267/2006 dated 11th April, 2008
R K Gupta
Union of India
Manmohan
Tushar Rao Gedula
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
Judgements on the same questions, provisions and authorities, from every court
