Patna High Court
Ranjit Kumar Ghosh vs State Of Bihar And Ors. on 2 December, 2004
Equivalent citations: 2004(3)BLJR2242
Author: Aftab Alam
Bench: Aftab Alam
ORDER Aftab Alam, J.
1. Among the countless things that the Election Commission needs for the proper conduct of elections in this the largest democracy of the world, indelible ink is one. It is used for putting a mark on the index finger of the voter at the time of casting vote in order to ensure that no voter should exercise-his franchise more than once. The Commission seems to know exactly what it needs and where to get it from." As the time comes for holding an election, it buys indelible ink in required quantity and in suitable packages from a particular source.
2. The petitioner is the proprietor of a unit called, Bihar Ink Company which is engaged in manufacture of indelible ink for the past 40 years. The petitioner views the purchase of indelible ink by the Commission purely as a commercial transaction and resents his being kept out of this particular piece of business. The petitioner seeks to challenge the restrictive clause in the tender notice issued by the State Election Commission, Bihar, that required the tenderer to have the know-how transferred from/licensed by the National Research Development Corporation, New Delhi for the manufacture of indelible ink.'
3. Seeking substantially the same reliefs, the petitioner had earlier come to this Court on two occasions. He first filed CWJC No. 1825 of 2001, challenging the decision of the State Election Commission, Bihar, to purchase indelible ink from M/s. Mysore Paints and Varnish Limited without inviting any tenders. A single Judge dismissed that writ petition, observing that the decision of the Election Commission could not be called unreasonable and it did not justify interference by the Court because the supply order was given to a Government concern. Against the order passed by the learned Judge, the petitioner preferred appeal being LPA No. 197 of 2001. The appeal was dismissed by order, dated 10.4.2001 on the ground that the election was to start from the following day and hence, the issuance of any writ would be futile. The appellate Court, however, made the observation that :-
"In our view, the appellant has made out an arguable case in the sense that the earlier practice of inviting tenders for supply of the ink has been done away with at the time of holding Gram Panchayat election."
4. It needs to be clarified here that the materials on record of the case do not show that on earlier occasions the State election Commission purchased any ink for holding Gram Panchayat elections by inviting tenders. For purchase of indelible ink in connection with earlier Gram Panchayat elections tenders were issued by the department of Panchayati Raj of the State Government.
5. On the second occasion, the petitioner filed CWJC No. 15452 of 2001, once again challenging the decision of the State Election Commission, Bihar, to purchase indelible ink from M/s. Mysore Paints and Varnish Ltd. The writ petition was once again dismissed and against the order passed by the learned single Judge the petitioner again filed appeal being LPA No. 39 of 2002. In this appeal too, the Division Bench declined to interfere on the ground that the date of election had been fixed and steps had been taken for purchase of the ink and any interference at that stage would hamper the process of election. The Bench, however, made the following observation :-
"However, we make it clear that in future whenever the steps are taken to purchase indelible ink, the State Election Commission is directed to invite tenders and select the best one amongst them. The Government undertaking has no monopoly in law and it has also to compete along with other similarly situated persons or industries."
6. Thus, compelled by the Court's direction the State Election Commission, Bihar, issued a short tender notice on 4.11.2003 for supply for indelible ink evidently for being used in the last Parliamentary Election held in the month of April. The tender notice had the restrictive clause as indicated above by virtue of which the. petitioner and many others were excluded from submitting their tenders.
7. This writ petition challenging the tender notice was filed on 11.11.2003 but it could be taken up only in October, 2004 and by that time the election was already over. It would be, therefore, easy to dispose of this case by holding that it had become infructuous. But that would not be quite fair to the petitioner and it would leave the matter open to be once again agitated by him when the occasion arises for the Election Commission to get the new supplies of indelible ink. I, therefore, proceed to decide this case on merits.
8. It appears that the petitioner had earlier written to the Election Commission of India for the empanelment of his unit as one of the suppliers of indelible ink. In reply the Election Commission of India wrote a letter dated 18.3.1996 (Annexure-3) stating that it was considering inclusion of additional manufacturers for the supply of indelible ink for use in Parliamentary/Assembly elections held in the country. In that regard, the Commission asked the petitioner to get a sample of the indelible ink manufactured by him tested by the National Physical Laboratory, New Delhi. The petitioner duly got his ink tested by the National Physical Laboratory, that gave it test report, dated 27.8.1996 (Annexure-5) recording the finding that the sample met the requirements of IS : 13209/1991 in all respects. Apart from the National Physical Laboratory, the petitioner got his ink tested by the National Test House, Alipor, Calcutta, and the two certificates, dated 4.10.1996 and 20.5.1997 issued by the National Test House are at Annexure-6 and 7. It, However, seems that the Election Commission of India on a consideration of the whole matter decide to stick to the one supplier, namely, M/s. Mysore Paints and Varnishes Ltd., Mysore, and in that regard issued a letter dated 23.10.2000 addressed to all the State Election Commissioner (Annexure-9). This letter is quite important and it is, therefore, reproduced here in full :-
"Subject : Indelible Ink.
"I am directed to say that the Indelible ink, which is being applied to the fingers of voters at the time of elections, was developed by National Physical Laboratory, a constituent laboratory of CSIR as far back as 1961. In view of various considerations in manufacture, supply and application of the ink for election purposes it was decided at that time to license the know how to M/s. Mysore Paints and Varnishes Ltd., Mysore, which is a State Public Sector Undertaking. Since then the said firm is the sole supplier of the ink."
"2. No private manufacturers are licensed by National Research Development Corporation for the manufacture of indelible ink. However, some private firms are approaching the Commission from time to time to approve them as manufacturer of indelible ink. After taking all relevant factors into account the Commission had decided that there was no need adding any additional manufacturer/supplier for this election material.
"3. I am to request to that the State Election Commission may purchase indelible ink only from the manufacturers approved by the commission i.e., Mysore Paints and Varnish Limited. The price of indelible ink is as under:-
(i) Rs. 22.00 per phial of 7.5 cc capacity. All inclusive but excluding Central Excise and Central Sales Tax which
(ii) Rs. 16.00 (Rupees sixteen only) per may be claimed at actuals and will be phial of 5.00 cc capacity. paid by the Consignee."
9. It was in the light of the decision of the Election Commission of India and the instruction given it that the State Election Commission, Bihar, inserted the restrictive clause in the impugned tender notice that for all intent purposes excluded all manufacturers of indelible ink other than M/s. Mysore Paints and Varnish Ltd., Mysore.
10. The petitioner assails the tender notice issued by the State Election Commission, Bihar, but curiously does not question the decision of the Election Commission of India, on the basis of which the impugned tender notice was issued nor is the Election Commission of India made party-respondent in this writ petition. This case might be dismissed on that score alone but as noted above, this Court does not intend to non-suit the petitioner on any technical ground(s) but proposes to decide his claim on merits.
11. On behalf of the petitioner it is stated that the restrictive clause in the tender notice that tends to exclude the petitioner and other manufacturers of indelible ink is arbitrary and unreasonable. It is further stated that the impugned tender notice is contrary to a number of directions/resolutions issued by the State Government in regard to purchase of materials. It is also stated on behalf of the petitioner that the Panchayati Raj department of the State Government had earlier taken supplies of indelible ink from the petitioner for the conduct of Gram Panchayat elections in the past and the State Election Commission too had taken supplies of indelible ink from the petitioner for holding the election of Jharkhand Autonomous Council.
12. The answer to the question whether or not the claim of the petitioner is justified would largely depend upon how the purchase of indelible ink by the Election Commission is to be viewed. If it is seen as a commercial and profit- making transaction then, of course, the case of the petitioner may appear to have some substance. But, I find it very difficult to view the purchase of indelible ink by the Election Commission as a commercial venture. To me the purchase of indelible ink appears to be quite essential and integral to the holding of election and that completely alters the perspective.
13. The grant of a contract or the purchase of any material by the State or a constitutional authority/institution may not always be seen purely from a financial angle and in complete disregard of the object and purpose of the contract or the nature, function and application of the material under purchase.
14. In M/s. Prem Printing Press v. Bihar State Text Book Publishing Corporation Ltd. and Ors., 2001 (4) PLJR 311, this Court dealt with a dispute with regard to the grant of a contract for printing text-books. In that decision, the Court made the following observations :-
"What is the purpose of getting the school text-books printed? The common man may feel nonplussed by such a question and answer the obvious that text-books were meant to be read by school children. In this litigation this simple and self-evident truth appears to have been over-looked by everyone, unfortunately including this Court, and this case seems to suggest that the object of getting test books printed was that a handful of private printers and contractors may make their profits."
15. What was observed in the case of printing of text-books applies with greater force to this case. Democracy is basic to and inseparable from our constitutional scheme. The survival of democracy depends upon proper conduct of elections and the importance of indelible ink is quite obvious for the proper conduct of elections. The purchase of indelible ink therefore cannot be taken in the same way as the purchase of other common materials such as office furniture, stationary and other articles of ordinary use by the Election Commission. Putting the purchase of indelible ink at par with the other regular purchases would throw the field open to private players and one predictable out-come of it would be that the purchase of indelible ink would inevitably get embroiled in Court cases. On each occasion one or the other of the unsuccessful tenders would drag the dispute with regard to the grant of the supply order to Court. This would be at a time when elections are very near and all the resources and attention of the Election Commission should be focussed on holding the elections properly. At that stage a notice from the Court to meet the objections of the unsuccessful tenders in the matter of purchase of ink would naturally have a debilitating effect on the Commission and it may also be reflected in the conduct of elections by it. Such a situation, the Court would like to avoid at all costs.
16. What is discussed above are important considerations in the matter of purchase of indelible ink for holding elections. Nevertheless, this Court should have put aside these considerations, howsoever, weighty, had it been satisfied that the present arrangement for the purchase of the ink was tainted with arbitrariness or unreasonableness or it had the slightest tinge of mala fide but on an over all examination of the matter the Court feels satisfied that the arrangement does not suffer from any of those vices. The arrangement was evolved by the Election Commission, with the aid of Government controlled agencies when the constitutional republic of India was only twelve years old and when no private trader might have come forward to help the commission in its work on his expenses. The Commission has stuck to the arrangement that was evolved forty years ago. The arrangement does not confer any material benefits upon anyone and it does not lead to the profiteering by any individual person, inasmuch as, M/s. Mysore Paints and Varnishes Ltd. is a Government concern. In these circumstances, the purchase of indelible ink by the Commission from the Government owned company cannot be described as distribution of any largess by the State.
17. thus, on an over all consideration of the matter and having regard to the larger interest that far outweighs the interests of any individual, this Court is not inclined to interfere in this matter.
18. This writ application is, accordingly, dismissed but with no order as to costs.