Back
HIGH COURT OF CALCUTTA
SOUMITRA PAL, J.
Erbis Engineering Company Ltd. - Appellants
Vs
State Of West Bengal - Respondents
W.P. No. 18671 (W) of 2009
Decided on: March 30, 2011
TENDER - ESSENTIAL CONDITIONS - DEVIATION - JUDICIAL REVIEW - WRIT JURISDICTION - ARTICLE 14 - FOREIGN COMPANY - LEGAL RIGHT - ENFORCEMENT - ARTICLE 226 - WRIT OF CERTIORARI - ERROR APPARENT ON THE FACE OF THE RECORD.
Fact of the Case:
Petitioner No.1, a company incorporated in Japan and granted a certificate of establishment of a place of business in India, challenged the decision-making process relating to the supply of USG Machines pursuant to a tender notice issued by the Government of West Bengal. The petitioner alleged that the terms and conditions of the tender had been violated and prayed for a direction upon the State not to issue a work order in favor of the respondent No.5.
Finding of the Court:
The Court held that the petitioner, as a foreign company that had been permitted to establish a place of business in India and had been granted a 'no objection' certificate by the Reserve Bank of India, had the locus standi to file a writ petition for the enforcement of its legal rights, which had been violated. The Court further held that the tender conditions regarding the pricing of the machines, the inclusion of comprehensive AMC after the expiry of the warranty period, and the quotation of rates for probes and AMC separately had been violated by the respondent No.5. The Court also found that the State had relaxed some of the essential conditions to the detriment of the petitioner, which was not permissible in the absence of power of such relaxation.
Issues: 1. Whether a foreign company, having been permitted to establish business in India, can invoke the writ jurisdiction under Article 226 of the Constitution of India alleging violation of Article 14. 2. Whether the pleadings are sufficient to grant reliefs. 3. 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.
Ratio Decidendi: 1. A foreign company that has been permitted to establish a place of business in India and has been granted a 'no objection' certificate by the Reserve Bank of India has the locus standi to file a writ petition for the enforcement of its legal rights under Article 226 of the Constitution of India. 2. The pleadings in a writ petition may be supplemented by the statements made and the documents annexed to the petition and to the affidavits of the parties, and the Court can consider the totality of the materials on record to arrive at a decision. 3. Where essential conditions of a tender have been violated by a party and the State has relaxed some of the conditions to the detriment of another party, the decision-making process is vitiated and the Court can interfere by issuing a writ of certiorari to quash the decision.
Final Decision: The Court allowed the writ petition, set aside and quashed the work order awarded to the respondent No.5, and directed the State to evaluate afresh the price bids of the petitioner and the respondent No.5, and other tenderers, if any, who had succeeded in the technical bid, and to reassess the price of the parties mentioned in the light of the terms and conditions of the tender.
Soumitra Pal, J.
1. IN the writ petition, the petitioner No.1, a company incoporated 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 and 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.
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.
3. 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 machi
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
