2009 Supreme(SC) 1777

2009(8) Supreme 183
SUPREME COURT OF INDIA
K.G. Balakrishnan, CJI., P. Sathasivam and J.M. Panchal, JJ.
Brihan Mumbai Electric Supply Transport Undertaking & Anr. — Appellants
versus
Laqshya Media P. Ltd. & Ors. — Respondents
Civil Appeal No. 7907 of 2009
(Arising out of S.L.P. (C) No. 363 of 2009)
Decided on : 01-12-2009

IMPORTANT POINT
Nothing should be done by the public authorities which gives an impression of bias, favoritism and ordinarily these factors would be absent if the matter is brought to public auction by inviting tenders. In exceptional cases having regard to the nature of the trade or largesse or for some other good reason, a contract may have to be granted by private negotiation, but clearly that should not be done without adequate reasons as it shakes the public confidence.

Headnote:Constitution of India,1950 – Article 226 – Mumbai Municipal Corporation Act, 1888 – Section 460M – BEST floated a tender for awarding contracts of sole agency for advertisement rights on Bus Queue Shelters in Brihan Mumbai for 2005 – 2008 –Respondent Nos. 1 and 2 also participated in the said tender for awarding contracts of sole agency for advertisement rights on Bus Queue Shelters in Brihan Mumbai – But, as Bennett Coleman & Co. Ltd. – Respondent No. 4 was the highest bidder for Lot No.II – the Western Suburbs and Lot No.III – the City and Respondent No. 5, Prithvi Associates was the highest bidder for Lot No. I – the Eastern Suburbs, the tender came to be allotted in favour of them – In December, 2006, BEST floated the offer document for erection of Bus Queue Shelters in place of existing Bus Stop Poles and display of advertisement thereon under “First Finder Scheme” – Respondent Nos. 1 and 2 tendered their bid for the Scheme – It was their grievance that the tender having been called only for display of advertisement on existing Bus Queue Shelters till 31.12.2008 not only was an unilateral extension thereof but an act of arbitrariness and discrimination – Grievance of respondents that under the guise of extension, BEST favoured BCCL and Prithvi Associates by granting them a long extension and new benefits under the original tender – Case of respondents that action of the authorities in negotiating for extension of work orders without issuing tenders was contrary to the terms of the tender – Writ Petition filed by Respondent Nos. 1 and 2 seeking to issue a writ of mandamus in the nature of direction to the BEST, an undertaking of the State of Maharashtra Appellant No.1 to invite fresh tenders from the public by terminating work orders/contracts awarded to Bennett Coleman & Co.Ltd and Prithvi Associates – Respondent Nos. 4 & 5 under tender and to restrain the BEST from extending or modifying the terms of the work orders/contracts awarded to Respondent Nos. 4 and 5 following the tender system – Said Writ Petition was allowed by High Court – Appeals thereagainst – Proviso to sub-section (2) of Section 460M enables General Manager to deviate the process of inviting tenders subject to reasons duly recorded by the BEST Committee – Empowered Committee of BEST consisting of Chief Secretary and other senior officers of various departments after deliberation and taking various relevant aspects authorized the General Manager to finalise the work with Respondent Nos. 4 & 5 since they are having existing contract in advertisement in bus shelters/poles – By this contract with Respondent Nos. 4 & 5, the BEST administration was assured of not only regular revenue but also better facilities to the general public as well – Taking note of all these aspects and peculiar position and in order to render substantial and complete justice to the parties, that at this juncture, continuation of the contract by BEST with the Respondent Nos. 4 and 5 was the only acceptable solution – Appeals disposed of. (Paras 23 to 28)

        Interpretation of Statues – Heading in a particular section lends, though not normally a part of statutory provision, assistance in interpreting the statutory intent since the ‘heading’ always serves as a guide to depict the intention. It also makes it clear that the marginal note to a section cannot be referred to for the purpose of construing the section but it can certainly be relied upon as indicating drift of the section – It also shows that the heading/marginal notes, prima facie, furnish some clue as to the meaning and purpose of the section. (Para 16)

       Facts of the Case :

        BEST floated a tender for awarding contracts of sole agency for advertisement rights on Bus Queue Shelters in Brihan Mumbai for 2005-2008 herein in the instant case. Respondent Nos. 1 and 2 also participated in the said tender for awarding contracts of sole agency for advertisement rights on Bus Queue Shelters in Brihan Mumbai. But, as Bennett Coleman & Co. Ltd. - Respondent No. 4 was the highest bidder for Lot No.II - the Western Suburbs and Lot No.III - the City and Respondent No. 5, Prithvi Associates was the highest bidder for Lot No. I - the Eastern Suburbs, the tender came to be allotted in favour of them . In December, 2006, BEST floated the offer document for erection of Bus Queue Shelters in place of existing Bus Stop Poles and display of advertisement thereon under “First Finder Scheme” .Respondent Nos. 1 and 2 tendered their bid for the Scheme. It was their grievance that the tender having been called only for display of advertisement on existing Bus Queue Shelters till 31.12.2008 not only was an unilateral extension thereof but an act of arbitrariness and discrimination. Grievance of respondents that under the guise of extension, BEST favoured BCCL and Prithvi Associates by granting them a long extension and new benefits under the original tender. Writ Petition was filed by Respondent Nos. 1 and 2 seeking to issue a writ of mandamus in the nature of direction to the BEST, an undertaking of the State of Maharashtra Appellant No. 1to invite fresh tenders from the public by terminating work orders/contracts awarded to Bennett Coleman & Co.Ltd and Prithvi Associates . Respondent Nos. 4 & 5 under tender and to restrain the BEST from extending or modifying the terms of the work orders/contracts awarded to Respondent Nos. 4 and 5 following the tender system .Said Writ Petition was allowed by High Court .

        2. Present appeals have been filed against said order of High Court.

       Findings of the Court :

        Proviso to sub-section (2) of Section 460M enables General Manager to deviate the process of inviting tenders subject to reasons duly recorded by the BEST Committee. Empowered Committee of BEST consisting of Chief Secretary and other senior officers of various departments after deliberation and taking various relevant aspects authorized the General Manager to finalise the work with Respondent Nos. 4 & 5 since they are having existing contract in advertisement in bus shelters/poles . By this contract with Respondent Nos. 4 & 5, the BEST administration was assured of not only regular revenue but also better facilities to the general public as well.Taking note of all these aspects and peculiar position and in order to render substantial and complete justice to the parties, held that at this juncture, continuation of the contract by BEST with the Respondent Nos. 4 and 5 was the only acceptable solution.Appeals disposed of.