W.P. No. 18671 (W) of 2009. Case: ERBIS Engineering Company Ltd. and Anr. Vs State of West Bengal and Ors.. High Court of Calcutta (India)

Judgment:

Soumitra Pal, J.

1. In the writ petition, the Petitioner No. 1, a company incorporated in Japan, having been granted certificate of establishment of place of business in India pursuant to an application under Section 592 of the Companies Act, 1956, and having its head office at Chennai and a branch at Kolkata and the Petitioner No. 2, its General Manager (East), have challenged the decision making process relating to the supply of USG Machines (black & white) pursuant to the tender notice dated 16th May, 2009 issued by the Government of West Bengal and have prayed for a direction upon the State not to issue work order in favour of Philips Electronics India Limited, the Respondent No. 5.

2. The matter was moved on 26th November, 2009, when directions were issued to file affidavits and an order was passed to the effect that steps taken by the Respondent authorities would abide by the result of the writ petition. Pursuant to the directions affidavits have been filed.

3. At the very outset, Mr. Bose, learned advocate for the State, submitted that since the Petitioner No. 1 company is not an Indian citizen, it cannot invoke the constitutional writ jurisdiction except for the purpose of protection of life and liberty under Article 21 of the Constitution and the writ petition is not maintainable. Besides, no right, if any, of the Petitioner company has been infringed. On merit, referring to paragraph 32 of the writ petition, it was argued since the Petitioners did not press the ground that the State Respondents did not consider the price of the machine under the "Buy Back System" and as the question whether the machines were "stand alone-cum-portable" was considered by an expert body, nothing is left to be decided. Submission was made that the argument of the Petitioners regarding the alleged violations by the State of the other terms and conditions of tender, particularly conditions 5(b), 8 and 13 cannot be considered as it has not been pleaded in the petition and thus the State, in its affidavit, had no opportunity to controvert. Since it has been pleaded in the writ petition that if no interim order was passed it would become infructuous and as no interim order was passed restraining the State from executing written agreement and/or contract with the Respondent No. 5 regarding the supply of machines, since machines have been delivered, the writ petition has become infructuous.

4. Mr. Gupta, learned senior advocate for the Petitioner, submitted that the Petitioners are neither claiming violation of the fundamental rights under Article 14 nor are they claiming any right under Article 19(1)(g) through Article 14. However, one need not be a citizen to enforce a legal right. Since the State had permitted the Petitioner No. 1 to establish offices in India under the Companies Act, 1956 and the Reserve Bank of India had granted 'no objection' certificate in opening offices in various cities of the country and since Article 14 is broad in its application as it stipulates the State shall not deny equality before law or equal protection of the laws within the territory of India, as in view of Article 367, the provisions in the General Clauses Act, 1897 ("1897 Act" for short) are applicable and as under the Act 'person' includes a company and as under Article 226 power has been granted to every High Court to issue writs or orders "for any other purpose", the Petitioner No. 1 has the locus standi to file a writ petition for enforcement of its legal rights which have been violated. Therefore, as the Petitioner No. 1 has been allowed by the State to carry on business and as the Petitioners have complained that terms and conditions of the tender have been given a go-by and the Petitioner No. 1 has been discriminated and thus, there has been denial by the State of equal protection of laws, the writ petition is maintainable. On merit, it was submitted that the Tender Selection Committee, the Respondent No. 4, had overlooked the fact that the machine of the Petitioner is the only detachable system as sought for in the notice inviting tender unlike that of the Respondent No. 5 which is not portable. Referring to the terms and conditions of the tender, particularly condition Nos. 5(b), 8 and 13 and to the statements in the writ petition and in the affidavits, particularly the affidavit of the Respondent No. 5, it was submitted that though the Petitioner had quoted the price for probes and the charges for Annual Maintenance Contract as stipulated, the Respondent No. 5 did not do so. Though the tender condition ruled out any change in price bid after the submission of tender, however by offering its own terms of sale, the Respondent No. 5 had compelled the State to alter the conditions of tender. Though the notice inviting tender does not discriminate between a manufacturer and a dealer, referring to paragraph 3(c) of the affidavit of the State it was submitted, the Petitioner being a dealer, has been discriminated. Moreover, in view of the fact that the terms and conditions offender stipulate that the price bid of a tenderer would be considered if the said tenderer was successful in the technical bid and the Petitioner No. 1 was admittedly successful in the technical bid stage, and in view of the fact that in the tender there were two stages - technical bid stage and price bid stage and the affidavit of the State does not speak of any intermediate stage, the affidavit of the Respondent No. 5 referring to such a non-existent intermediate stage and alleging that at the performance stage the claim of the Petitioner that the machine was upgradable was found to be false, are totally incorrect. Submission was, though not pleaded in the petition, as it is evident from the affidavits of the State and of the Respondent No. 5 that there have been apparent deviations from the terms and conditions of the tender and as purchase of machines involved expenditure of public money, Court should look at the substance and pass appropriate orders.

5. Mr. Sen, learned advocate for the Respondent No. 5, supporting the stand taken by the State submitted since there is lack if pleadings in the petition, particularly with regard to the alleged violations of condition Nos. 5(b), 8 and 13 of the terms and conditions of the tender, it amounted to waiver. Moreover, the writ petition has become infructuous as the Respondent No. 5, being the successful bidder, had delivered the machines.

6. Learned senior advocate for the Petitioner and the learned advocates for the State and the Respondent No. 5 had relied on several judgments in support of their submissions, which shall be dealt with appropriately.

7. The issues to be considered are i) Whether in the facts of the case the Petitioner No. 1, a foreign company, having been allowed by the State to carry on business under the provisions of the Companies Act, 1956, and having necessary clearance from the Reserve Bank of India and having its offices in India, can invoke the writ jurisdiction under Article 226 of the Constitution of India alleging violation of Article 14; ii) If the answer is in the affirmative whether the pleadings are sufficient to grant reliefs and iii) If not, whether the statements made and the documents annexed to the petition and to affidavits of the State and the Respondent No. 5 are sufficient to grant relief.

8. So far as...