Calcutta High Court (Appellete Side)
Dipankar Mukherjee & Ors vs State Of West Bengal & Ors on 13 January, 2014
Author: Dipankar Datta
Bench: Dipankar Datta
1
13.01.2014 W.P. No. 34020 (W) of 2013
Dipankar Mukherjee & ors.
versus
State of West Bengal & ors.
Mr. Sagar Bandyopadhyay
Ms. Soma Kar Ghosh
Mr. Niladri Banerjee
..... for the petitioners.
Mr. Ashok Kumar Roy
Mr. Debashish Ghosh
...... for the respondents.
1. Rabindra Bharati University (hereafter the University), for the purpose of selection of printers for printing study materials and for other module printing jobs, issued a tender notice on October 21, 2013. Admittedly, such tender notice was not published in any of the local or outstation newspapers. However, the same was displayed on the website of the University on October 22, 2013. The petitioners, partners of M/s. New Luxmi Press, complain that in the absence of publication of the tender notice in any newspaper, they had no knowledge of the intention of the University and 2 as such the firm could not participate in the process of selection of printers.
2. Mr. Bandyopadhyay, learned advocate representing the petitioners, contends that for ensuring maximum participation the University ought to have ensured wide publication of the tender notice by having the same published in the newspapers instead of restricting its display only on its website. The action smacks of arbitrariness and he urges that the Court should cancel the tender process and direct the process to commence afresh.
3. In support of his contention, Mr. Bandopadhyay relies on paragraph 12 of the decision of the Supreme Court reported in AIR 1995 SC 1632 [Chairman and Managing Director, SIPCOT, Madras and others vs. Contromix Pvt. Ltd. by its Director (Finance) Seetharaman, Madras and another], reading as follows:
"12. In the matter of sale of public property, the dominant consideration is to secure the best price for the property to be sold. This can be achieved only when there is maximum public participation in the process of sale and every body has an opportunity of making an offer. Public auction after adequate publicity ensures participation of every person who is 3 interested in purchasing the property and generally secures the best price. But many times it may not be possible to secure the best price by public auction when the bidders join together so as to depress the bid or the nature of the property to be sold is such that suitable bid may not be received at public auction. In the event, the other suitable mode for selling of property can be by inviting tenders. In order to ensure that such sale by calling tenders does not escape attention of an intending participant, it is essential that every endeavour should be made to give wide publicity so as to get the maximum price. ***"
4. Per contra, Mr. Roy, learned advocate representing the University contends that high costs of publication of advertising material in the newspapers has been the reason for the University not to resort to such action and that the last time publication of tender notice was made in the newspapers was way back in 2009. According to him, since that date tender notices are being displayed on the website of the University and not only that, even information required to be made available to the students is not published in newspapers but displayed on the website for the students to access the same. It is further contended by him that the petitioners had approached the office of the University, when they were told to watch the 4 website of the University for knowing the details but even then the petitioners did not choose to offer any bid. Lastly, he submits that 6 (six) parties responded to the tender notice and, therefore, the question of the process being restricted to very few parties does not arise. Since the process of selection does not suffer from any infirmity, he prays for dismissal of the writ petition.
5. In reply, Mr. Bandyopadhyay has denied that the petitioner was told to keep a watch on the website of the University for knowing the details. The financial rules of the State Government were referred to by him in support of the contention that publication of tender notice in the newspapers is a mandatory requirement for work in excess of Rs.50 lakh. Countering the submission that 6 (six) parties participated in the process, he submits that 5 (five) of them were enlisted before and obviously they had the means to know that a fresh selection is in the contemplation of the University and the firm of the petitioners being 5 an outsider had no such means. He reiterates that the petitioners' right to participate in the process having been curbed illegally, the Court ought to set aside the process and direct fresh initiation.
6. Having heard the learned advocates for the parties, the only question that I am called upon to decide is whether omission to publish the tender notice in the newspapers is fatal warranting interference.
7. I am not persuaded to agree with Mr. Bandyopadhyay. While it is true that publication of notice inviting tenders in newspapers might ensure greater participation and that the University could have published a small advertisement in any one of the newspapers having circulation in this State to the effect that all details pertaining to the tender process would be available on its website, omission to do so and/or omission to publish the tender notice in the print media per se does not have the effect of vitiating the process, on facts and in the circumstances of the present 6 case. It is settled law that the purpose of judicial review of administrative action is to check whether choice or decision has been made 'lawfully' and not to check whether choice or decision is 'sound', and that a tender process can be interfered with on limited grounds, viz. illegality, irrationality, procedural impropriety or mala fides. No statutory rule, binding on the University, has been shown requiring publication of the tender notice in newspapers. The University, being an autonomous body, is not bound by the financial rules of the State Government. Question of an error of law having been committed does not, therefore, arise. Irrationality or procedural impropriety is also not manifest. Having regard to advancement of science and technology, publication of tender notice on the website nowadays is by and large an acceptable practice. The approach of the University is not so shockingly outrageous amounting to an abuse of power that the Court ought to interdict. In fact, sufficiency of the tender notice is not a matter for the writ court 7 to review. The test in such a case would not be as to whether the decision not to publish the tender notice in the print media is sound or unsound, but the review ought to be directed to examine as to whether the process has been lawful i.e. transparent giving the parties interested a fair deal. It has not been shown by the petitioner that there has been publication of notice inviting tenders at the instance of the University in any newspaper after 2009. They have referred to an advertisement that was published on November 14, 2009. If during the 4 (four) years prior to the impugned tender notice there had in fact been publication of tender notice(s) in the print media, one could have set up a claim of legitimate expectation leading to enforceable expectation. The University having refrained itself from publishing tender notice(s) in the print media all these years right from 2009 (on the ground of cost factor) and the petitioners not being able to show to the contrary, all on a sudden they could not have reasonably expected the University to 8 publish the tender notice in a newspaper this time and cannot urge the Court to find fault in the process for extending relief to them.
8. Apart from the above, a disputed question of fact arises on the pleadings of the parties which cannot be effectively adjudicated in a writ proceeding. The assertion of the University while dealing with paragraph 4 of the writ petition that the petitioners were asked to visit its website has been denied by the petitioners in their reply. It is difficult to believe one of the two contradictory versions, but in any event it cannot be over-emphasized that in the absence of any material to prove newspaper publication of a tender notice at the instance of the University post 2009, the petitioners ought to have been diligent and visited the website of the University, apart from keeping watch on the newspapers, to find out as to whether it was initiating any process for selection of printers or not, if at all they were interested to participate. Not having done so, they cannot be heard to complain that the University has acted illegally 9 or in an arbitrary manner in not publishing the tender notice in the newspapers.
9. Significantly, there appears to be no allegation of mala fides. In the absence thereof, the last of the grounds based whereon interference could be made, does not survive.
10. The decision in Contromix Pvt. Ltd. (supra) was rendered nearly two decades ago when internet, website etc. were practically unknown in India. It has been ascertained from wikipedia that the history of internet in India started with the launch of services by VSNL on August 15, 1995, whereas the said decision was pronounced on May 12, 1995. Obviously, there is no reference of the internet therein. In any event, what the said decision emphasizes is that the intention to award contracts ought to be made known to as much people as possible so as to attract maximum offers. The said decision is not an authority for the proposition that non- publication of a tender notice in the newspapers would render the process vulnerable. No authority of recent origin having binding effect 10 has been brought to my notice by Mr. Bandopadhyay nor have I found one based on my research which lays down the law that display of tender notice on the website is not sufficient and that publication in the newspapers is a must.
11. I, therefore, find no merit in this writ petition. The same stands dismissed, without costs.
12. Before parting I wish to observe that the University may, for obviating any feeling of deprivation in any party arising out of circumstances of the present nature, consider the desirability of making its intention to invite tenders known and advising the parties interested to visit its website for details by publishing a small advertisement in any one of the newspapers having circulation in the State. Such step would not only be cost effective but would also ensure in the process fingers not being pointed at the officials of the University. Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.
11(DIPANKAR DATTA, J.) 12