Calcutta High Court (Appellete Side)
Association & Another vs The State Of West Bengal & Ors on 7 September, 2017
Author: Debangsu Basak
Bench: Debangsu Basak
1
September 07,
2017
R.C.
W.P. 22474 (W) OF 2017
WITH
CAN 8623 OF 2017
Agrosheet Manufactures Welfare
Association & Another.
Vs.
The State of West Bengal & Ors.
=-=
Mr. Naresh Balodia,
...for Petitioner
Mr.Sandip Kumar Bhattacharyya,
...for Added Party
Respondents
Mr.Hashnuhana Chakraborty Mr. Promod Kumar Bagaria, ...for NKB. Extrution Pvt. Ltd.
Mr.Abhratosh Majumdar Ld.AAG Mr.,Soumitra Mukherjee Mr. Praniti Bandopadhyay, ...for State RE:CAN 8623 OF 2017 This is an application seeking modification of the order dated August 28, 2017 and stay of a tender process.
The learned advocate for the petitioner draws the attention of the Court to the terms and conditions of the tender particularly Schedule no.1 and 2 thereof. Referring to the 4th Column of such tender conditions he submits that, the tender conditions provide that, earnest money exemption would be allowed in terms of a Government order bearing no.10500-Y (F) dated November 19, 2004. He draws the attention of the Court to the Schedule I of the terms and conditions of 2 the tender which lays down the pre-qualification criteria. He submits that, the requirement is that the bidders must have manufacturing units within the State of West Bengal to avail of the reservation of the tender in terms of the Government order bearing no.10500-Y (F) dated November 19, 2004. Referring to such Government order dated November 19, 2004, the learned advocate for the petitioner submits that, the Rule 47A of the West Bengal Financial Rules provides that, all registered Small Scale Industrial units of the State are to be given 15 % price preference vis-à-vis large and medium scale industrial units and other Small Scale Industrial units located outside the State. He submits that, these conditions of the tender does not provide a level playing field for the participants in the tender. It discriminates between a Unit situated within the State of West Bengal as against the Unit situated outside the State of West Bengal. He contends that, Articles 14, 19, 301 of the Constitution of India stands violated by such tender conditions. The authorities are required to provide a level playing field to all participants in the tender process. In support of such contentions, he relies upon 2010 (1) Supreme Court Cases 139 (Becil- Vs-Arraycom India Limited & Ors), 2005 (1) Supreme Court Cases 679 (Association of Registration Plates-Vs-Union of India & Ors.) and 2009 (6) Supreme Court Cases 171 (Meerut Development Authority-Vs- Association of Management Studies and Another. He submits referring to the AIR (1975) Supreme Court 2299 ( Smt. Indhira Nehru Gandhi- Vs-Shri Raj Narain) that, the tender conditions breaches the principles of equalaity The application is being opposed by the State. The learned Additional Advocate General appearing for the State submits that, the first writ petitioner is situated in the State of Gujarat. The State of Gujarat has a similar Government order for itself. He submits that, the first petitioner is a constituent of legal entities. Since the point of equality is raised, it would be appropriate for the Court to require all 3 the members of the first petitioner to be added as party respondents in this writ petition as also the respective State Governments in which such individual members have their units located. The first writ petitioner should also disclose the Government circulars or orders of such respective States so that the Court is in a position to appreciate the contentions of equality as raised by the petitioner its perspective. The contention of equality as raised be looked at and considered on the basis of the subsisting Government orders on a pan India basis. The State of West Bengal cannot be singled out for the purpose of imposition of principles of equal opportunity and the equality at the behest of a writ petitioner who is enjoying similar facilities in the State it is located. Any other view would be a travesty of justice. The learned Additional Advocate General submits that, the writ petition is not maintainable as the first writ petitioner is registered under the Societies Registration Act, 1860 and is not entitled to espouse a trade cause.
The learned advocate appearing for the East Hooghly Polymers Pvt.Ltd. submits that, although he was present on August 28, 2017 when the first order was passed in the writ petition, necessary application for addition of party could not be made due to inadvertent reasons. He draws the attention of the Court to the fact that, in the interim application filed by the writ petitioner, his client has been named as one of the opposing non-parties. In such circumstances, he seeks a direction from the Court to have his client added as a respondent in the writ petition on the basis of the cause title given in the interim application. Relying upon the provisions of the Representations of Peoples Act, 1950 and the General Clauses Act, he submits that, the second writ petitioner who is the elected post holder of the first writ petitioner is not entitled to delegate his authority to any person for the purpose of litigation.
4The learned advocate appearing for the NKB Extrusions Pvt. Ltd. submits that, although her client was represented on August 28, 2017, no application for addition of party could be made as in spite of request being made to the writ petitioner it did not serve a copy of the writ petition on her client. She adopts the submissions made on behalf of the learned advocate appearing for East Hooghly Polyplast Pvt. Ltd, so far as the addition of party is concerned.
An application making interim reliefs at the behest of the writ petitioner is under consideration. The writ petitioner assails a tender notice dated August 9, 2017. The question of grant of interim order was considered on August 28, 2017. It was not granted. Directions for filing of affidavits were given. The time to file such affidavits is yet to expire. The interim application is for the purpose of modification of the order dated August 28, 2017 and grant of interim relief. Essentially, the writ petitioner seeks a stay on the e-tender process. The materials sought to be placed before the Court for the purpose of grant of interim relief are the same materials which were available to the writ petitioner on August 28, 2017. The points raised today were not raised at that point of time. The writ petitioner cannot be allowed to have repeated bites at the interim cherry. The prayer for interim relief is rejected.
The contention of the learned Additional Advocate General has substantial substance. It appears that, a legal authority seeking to espouse the cause of its members and located in the State of Gujarat, assails the tender conditions on the ground of breach of the principles of equality. The allegation is that, the tender conditions discriminates between a Unit situated within the State of West Bengal and the Units situated elsewhere, as the tender conditions seek to give a benefit of price differential to Units located within the State of West Bengal. It is not a case where Units located outside the territory of the State of West Bengal are prevented from participating in the tender process. The tender conditions singled out by the petitioner gives a price differential 5 to a SSI Unit located within the State of West Bengal. He contends that, similar Government order prevails in the State of Gujarat.
In such circumstances, the question of equality and the other issues raised are required to be adjudicated on the basis of Government orders subsisting in other States where the members of the first petitioner have their Units located. Parties cannot claim negative equally. Parties to the litigation particularly a writ petitioner in a writ petition is required to come with clean hands. In all fairness, the first petitioner will, therefore, disclose the entire list of its members and will take steps for the purpose of adding them individually as parties to this writ petition as their rights may stand affected by the decision that may be rendered in this writ petition. In the event the contentions of the writ petitioner are upheld, such individual members who may have obtained contracts from States on the basis of such Clauses subsisting in respect of Government orders of such States, would be required to cancel such tender as the same infringes Articles 14, 19, 31, and 301 of the Constitution of India. The writ petitioner will also add the respective States where its respective members are located as respondents in this writ petition. It is imperative to ascertain of such parties to the issue of equality as raised. On the next date of hearing, the details of the Government orders prevailing in other States of the Country containing similar terms on this issue should be provided by the writ petitioners so all of the same can be looked at and considered in its entirety on the anvil of equality as raised.
At this stage, the learned advocate for the writ petitioner seeks three week's time for the purpose of complying with the order passed today. Three week's time as prayed for will take us into vacation.
In such circumstances, list the CAN 8623 OF 2017 on October 23, 2017 along with W.P. 22474 (W) OF 2017.
6Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
( DEBANGSU BASAK, J. )