ERBIS Engineering Company Ltd. and Another Vs State of West Bengal and Others

Soumitra Pal, J.@mdashIn the writ petition, the Petitioner No. 1, a company incorporated in Japan, having been granted certificate of establishment of place of business in India pursuant to an application u/s 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 & 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.

3. 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.

4. 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 machine of the Petitioner is the only detachable system as sought for in the notice inviting tender unlike that of the Respondent No. 5 which is not portable. Referring to the terms and conditions of the tender, particularly condition Nos. 5(b), 8 and 13 and to the statements in the writ petition and in the affidavits, particularly the affidavit of the Respondent No. 5, it was submitted that though the Petitioner had quoted the price for probes and the charges for Annual Maintenance Contract as stipulated, the Respondent No. 5 did not do so. Though the tender condition ruled out any change in price bid after the submission of tender, however by offering its own terms of sale, the Respondent No. 5 had compelled the State to alter the conditions of tender. Though the notice inviting tender does not discriminate between a manufacturer and a dealer, referring to paragraph 3(c) of the affidavit of the State it was submitted, the Petitioner being a dealer, has been discriminated. Moreover, in view of the fact that the terms and conditions offender stipulate that the price bid of a tenderer would be considered if the said tenderer was successful in the technical bid and the Petitioner No. 1 was admittedly successful in the technical bid stage, and in view of the fact that in the tender there were two stages - technical bid stage and price bid stage and the affidavit of the State does not speak of any intermediate stage, the affidavit of the Respondent No. 5 referring to such a non-existent intermediate stage and alleging that at the performance stage the claim of the Petitioner that the machine was upgradable was found to be false, are totally incorrect. Submission was, though not pleaded in the petition, as it is evident from the affidavits of the State and of the Respondent No. 5 that there have been apparent deviations from the terms and conditions of the tender and as purchase of machines involved expenditure of public money, Court should look at the substance and pass appropriate orders.

5. Mr. Sen, learned advocate for the Respondent No. 5, supporting the stand taken by the State submitted since there is lack if pleadings in the petition, particularly with regard to the alleged violations of condition Nos. 5(b), 8 and 13 of the terms and conditions of the tender, it amounted to waiver. Moreover, the writ petition has become infructuous as the Respondent No. 5, being the successful bidder, had delivered the machines.

6. Learned senior advocate for the Petitioner and the learned advocates for the State and the Respondent No. 5 had relied on several judgments in support of their submissions, which shall be dealt with appropriately.

7. The issues to be considered are i) Whether in the facts of the case the Petitioner No. 1, a foreign company, having been allowed by the State to carry on business under the provisions of the Companies Act, 1956, and having necessary clearance from the Reserve Bank of India and having its offices in India, can invoke the writ jurisdiction under Article 226 of the Constitution of India alleging violation of Article 14; ii) If the answer is in the affirmative whether the pleadings are sufficient to grant reliefs and iii) If not, 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.

8. So far as the first issue is concerned, as seen, the Petitioner No. 1, a. foreign company, was allowed by the State to establish place of business in the country u/s 592 of the Companies Act, 1956. Thereafter, the Exchange Control Department of the Reserve Bank of India permitted the Petitioner No. 1 to open offices for carrying on business. In the process of carrying on business it had participated in a tender floated by the Government of West Bengal. In the writ petition the Petitioner has alleged that the entire decision making process regarding the grant of tender relating to supply of machines is irrational and the action is arbitrary and discriminatory and therefore is violative of Article 14 of the Constitution of India. It is to be noted that Article 14 provides that ''The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India" (Emphasis supplied). Therefore, the right conferred under Article 14 can be enforced by "any person". The word "person" is not defined in the Constitution. Since, Article 367(1) postulates "Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution....", answer is to be found in the 1897 Act. It is noteworthy, in view of Article 372, 1897 Act continues to be in force. In Section 3(42) of the 1897 Act, the word "person" has been defined as under:

Person shall include any company or association or body of individuals, whether incorporated or not;

(Emphasis supplied)

9. Hence, the word "person" includes "any company". It is pertinent to note while Articles 15, 16 and 19 confer fundamental rights on the "citizens", Article 14 confers fundamental rights on "any person." This distinction between a "citizen" and a "person" was engrafted in our Constitution by its framers with a specific intent - to grant certain fundamental rights to its "citizens" and to grant certain rights or legal rights to a "person". There is no ambiguity in the language of the Articles and the intent is expressed with sufficient linguistic precision. Thus, the definition of "person" is wide enough to encompass a foreign company which has been permitted to establish business in the country by the authorities. Since fundamental rights have been granted in the Constitution and means have been provided for its enforcement and as securing justice is one of the objectives of the Constitution, in case of violation any of the such rights, its enforcement by the Courts is a part of administration of justice. Therefore, as the Petitioner No. 1 company - has been allowed by the authorities to establish place of business in India and has also been permitted to open offices in the country and is carrying on business, in my view, it is a "person" within the meaning of Article 14 of the Constitution of India.

10. Now admittedly while the Supreme Court, under Article 32 has the power to issue writs for the enforcement of fundamental rights if infringed, however, High Court under Article 226 has been conferred power not only to issue writs for enforcement of fundamental rights but also "for any other purpose", meaning thereby for enforcement of any legal right. Now it is a settled proposition of law that the words "for any other purpose" in Article 226, which are absent in Article 32, make the jurisdiction of the High Court wide and more extensive than that of the Supreme Court. Therefore, High Court can exercise its power to issue writs under Article 226 for two-fold purposes-for enforcement of (i) fundamental rights and ii) for enforcement of legal rights. Hence, if it is established by a party aggrieved that he has a legal right and such right has been infringed, an order or writ may be issued under Article 226. Now Article 14 speaks of "equality before the law" or "the equal protection of the laws". "Law" under Article 13(3)(a)

includes any Ordinance, order, bye-law, rule, Regulation, notification, custom or usage having in the territory of India the force of law;

(Emphasis supplied)

11. Therefore, "law includes" a "notification". In this writ petition under Article 226 of the Constitution of India, it has been stated that the Petitioner No. 1 is carrying on business after being allowed by the State to establish offices under the Companies Act, 1956. It was granted ''no objection'' certificate by the Reserve Bank of India. Accordingly pursuant to the notification by the State of West Bengal, calling for supply of machines, it had participated in the tender. It has been alleged that the terms and conditions of the tender have been violated and thus the action is arbitrary and hence there has been a breach of its legal rights. Since the Petitioner No. 1 company is a "person" u/s 3(42) of the 1897 Act and as it has been alleged by the Petitioners that there has been breach of the terms and conditions of the tender and thus legal rights have been violated and as a writ petition can be moved for enforcement of a legal right, in my view, the writ petition is maintainable. The principles of law in the judgment in Gipoint Development Limited Vs. Collector of Customs, Madras, and in Power Measurement Ltd. Vs. U.P. Power Corporation Ltd. and Others, relied on behalf of the Respondent No. 5 are not applicable as in none of the cases the Petitioners were having offices in India and had no legal right to carry on business. The judgment in Star India P. Ltd. Vs. The Telecom Regulatory Authority of India and Others, is not applicable as therein it was held "It is submitted that remedy available under Article 226 of the Constitution are wide and not restricted to violations of fundamental rights". This is obviously an argument in desperation because the bulwark and fulcrum of the Petitioners'' case is what they receive as a flouting of the freedoms of speech and expression guaranteed in Article 19 of the Constitution. In fact, the gravamen of the argument on behalf of the Petitioners relates to 19(l)(a) and not merely 19(I)(g) of the Constitution". (paragraph 12) Therefore, it is evident that argument therein was confined to the alleged violation of the fundamental rights under Article 19 and no case was made out that the Petitioner had a legal right, unlike in the case in hand where it has been alleged that legal rights have been violated. The principles of law laid down in paragraph 34 of the judgment of the Apex Court in Indo-China Steam Navigation Co. Ltd. Vs. Jasjit Singh, Additional Collector of Customs and Others, specifically relied on by the Respondents, are not applicable since I find from the facts therein that notices were served by the customs authorities on the'' owner''s agent at Calcutta and on the master of the vessel, whereas in the instant writ petition, Petitioner No. 1 was permitted under the laws of the land to establish place of business in India and to open offices in the country to carry on business. Besides it has been held in Indo China (supra) that not only as a company but also as a foreign company the Appellant was not entitled to claim the benefits of Article 19, whereas in the instant case the Petitioners are alleging violation of their legal right as the terms and conditions in the tender floated pursuant to the notice have been violated. The said judgment of the Supreme Court does not hold that violation of legal right under Article 14 itself cannot be a sufficient basis for challenge. That violation of Article 14 was not considered in isolation and the entire challenge was regarding deprivation of property is borne out from the judgment itself, the relevant portion of which is set out hereunder:

34. There is one more point which must be mentioned before we part with this appeal. Mr. Choudhary attempted to argue that it mens rea was not regarded as an essential element of Section 52A, the said section would be ultra vires Articles 14, 19 and 31(1) and as such, unconstitutional and invalid. We do not propose to consider the merits of this argument, because the Appellant is not only a company, but also a foreign company, and as such, is not entitled to claim the benefits of Article 19. It is only citizens of India who have been guaranteed the right to freedom enshrined in the said article. If that is so, the plea under Article 31(1) as well as under Article 14 cannot be sustained for the simple reason that in supporting the said two pleas, inevitably the Appellant has to fall back upon the fundamental right guaranteed by Article 19(l)(f). The whole argument is that the Appellant is deprived of its property by operation of the relevant provisions of the Act and these provisions are invalid. All that Article 31(1) provides is that no person shall be deprived of his property save by authority of law. As soon as this plea is raised, it is met by the obvious answer that the Appellant has been deprived of its property by authority of the provisions of the Art and that would be the end of the plea under Article 31(1) unless the Appellant is able to take the further step of challenging the validity of the Act, and that necessarily imports Article 19(1)(f). Similarly, when a plea is raised under Article 14, we face the same position. It may be that if Section 52A contravenes Article 19(1)(f) a citizen of India may contend that his vessel cannot be confiscated even if it has contravened Section 52A and in that sense, there would be inequality between the citizen and the foreigner, but that inequality is the necessary consequence of the basic fact that Article 19 is confined to citizens of India, and so, the plea that Article 14 is contravened also must take in Article 19 if it has to succeed...

(Emphasis supplied)

12. It has to be noted that judgment must be read in the background of the facts involved and the argument advanced and the observations therein have to be considered in the light of the issues which were before the Court. Therefore, while applying the principles of law laid down, Court must make an endeavor to ascertain the principles laid down in the judgment. It is well settled that a judgment is an authority for the questions of law determined in it and quite naturally such questions are determined in the context of the factual matrix of the case. The judgment in The British India Steam Navigation Co. Ltd. Vs. Jasjit Singh, Addl. Collector of Customs, Calcutta and Others, relied on by State is not applicable since the question raised was common to that in Indo China (supra) and was heard analogously and was held that foreign companies are not entitled to claim fundamental right guaranteed under Article 19(1)(f) of the Constitution which the Petitioners in the instant petition are not claiming. The judgment in Louis De Raedt and Others Vs. Union of India and others, relied on behalf of the State is not applicable to the facts of the case as therein Articles 19(1)(e) and 21 were considered and the Apex Court had no occasion to consider the violation of a legal right.

13. Now the second and the third issues are whether the pleadings in the writ petition are sufficient to interfere with the decision of the tender committee and if not whether the statements made and documents annexed to the petition and to the affidavits of the State and the Respondent No. 5 are sufficient enough to grant relief to the Petitioner. It appears from paragraph 32 of the petition that the decision making process has been challenged, inter alia, on the grounds that the authorities did not consider the specification of the machine as mentioned in the tender document and secondly, the authorities did not consider the pricing of the said machine under the "Buy Back system" as quoted by the Petitioner No. 1 pursuant to the terms and conditions of the tender. However, since the "Buy back system" was not an essential condition, the Petitioners during argument did not press the said ground. So far as the first ground regarding the fulfillment of specification of the machine is concerned, since technical evaluation of the machine was carried out by an expert committee, in my view, Court should not interfere. Now the question is, can Court interfere when in the petition there is lack of pleadings. Relying on the judgment of the Apex Court in Vinod Kumar Arora Vs. Surjit Kaur, it was argued on behalf of the State since pleadings of the parties form the foundation of a case and as in the case in hand the petition lacks pleadings, it is not open to the writ Petitioner to give up the case and set out and propound a new case which cannot be met by the State. Mr. Sen, learned advocate for the Respondent No. 5, supporting the said argument submitted that points not urged in the petition amounted to waiver and cannot be agitated. Mr. Gupta relying on the judgments in Bhagwati Prasad Vs. Shri Chandramaul, , Ram Sarup Gupta (Dead) by Lrs. Vs. Bishun Narain Inter College and Others, and in Indian Oil Corporation Vs. Municipal Corporation, Jullundhar and others, submitted that pleadings should receive a liberal construction and Courts, for arriving at a decision, should consider the totality of the materials on record including the pleadings and other material. In the instant case at the time of admission, directions were issued for filing of affidavits. Affidavits have been filed by the State as well as by the Respondent No. 5. In the writ petition and in the affidavit in opposition of the Respondent No. 5, the notice inviting tender, its the terms and conditions, copies of the tender furnished by the Petitioner and by the Respondent No. 5 have been annexed. It appears that sealed tenders were invited from the manufacturers and distributors for supplying the machines. Some of the terms and conditions of the tender are non-essential and some are essential. In the instant case the dispute is regarding the supply of black and white machines. It is an established proposition of law that while non-essential conditions can be waived, however, conditions which are essential or mandatory must be adhered to. Let some of the essential terms and conditions be seen and let the documents on record be examined to find out whether there was any deviation of the tender conditions as submitted by the Petitioners. In this context it is appropriate to refer to condition 5(b) which is as under:

Rates must be quoted item-wise in the prescribed Tender Form in Indian Currency. No subsequent changes in Price bid after submission of the tender will be entertained under any circumstances...

(Emphasis supplied)

14. As seen though it was mandatory to quote rates item wise and no subsequent change in price bid after submission of the tender should have been "entertained under any circumstances", however it is evident from page 121 of the affidavit in opposition of the Respondent No. 5 that it had put its own "Terms of Sale". Some of those terms are as under:

1) Considering the present volatile global market situation our offer is valid till 31st December, 2010....

3) Customer has to enter into comprehensive AMC (CAMC) after expiry of warranty period -

7) Escalation clause on AMC charges: after expiry of 5 year warranty period, from 6th year onwards, escalation @ 5% per year on the CMC price is applicable, till the systems is in service.

(Emphasis supplied)

15. From a perusal of paragraph 1, of the ''Terms of Sale" I find that the validity of the offer of the Respondent No. 5 was limited till 31st December 2010 though the supply has to be till 30th June, 2011. So far as the condition No. 3 is concerned, I find that it compelled the "Customer", that is the State, to enter in the comprehensive AMC (CAMC) after the expiry of warranty period, which is in violation of the condition that no subsequent changes in price bid after the submission of the price bid would be entertained under any circumstances.

16. Now condition No. 8, which is essential, be examined. The relevant portion of the said condition is as under:

The rate should be quoted for a particular brand of the item (only one offer) as mentioned in the appropriate column of the Tender Form. The rates of main component of the machine and the probes of different types have to quote separately. Purchasing authority can place order according to their choice of probe. Any subsequent change in the brand may render the tender null and void....

(Emphasis supplied).

17. Keeping this tender condition No. 8 in mind, though it appears from page 41 of the writ petition that the Petitioner had quoted the price of the probes separately, the Respondent No. 5, as it appears from page 113 of its affidavit, had filed a comprehensive rate which is violative of the said tender condition.

18. Now let condition No. 13, which is extracted herein below, be examined:

The approved supplier shall render a free maintenance service during the warranty period for the USG machine supplied and installed in the hospitals.

Tenderers shall have to provide free warranty service over a period of five years for USG machine.

A.M.C. will start after expiry of warranty period (i.e. after 5 (five) years.

Tenderer have to quote the AMC cost in both cases -

a. Comprehensive AMC including all spare parts.

b. Non-Comprehensive AMC with a separate list of all the spare parts.

(Emphasis supplied)

19. It appears from a comparison of page 34 of the petition and page 119 of the affidavit filed by the Respondent No. 5, though, as sought for, the Petitioner had quoted rates of comprehensive annual maintenance contract including all parts and non-comprehensive annual maintenance contract with a list of all spare parts separately, Respondent No. 5 did not quote non-comprehensive annual maintenance contract but had quoted "Comprehensive annual maintenance charges from sixth year onward till the machine is in service" which is in breach of condition. That apart the Respondent No. 5 in its "Terms of Sale" had provided an "Escalation clause on AMC charges" @ the rate of 5% per year on the comprehensive maintenance contract price applicable in violation of the terms of tender. Looking at the language of the tender condition Nos. 5(b), 8 and 13 there is no dispute that those are essential. These conditions have been referred to and the tenders quoted by the Petitioner No. 1 and the Respondent No. 5 relating to these conditions have been referred to in some detail to bring out the fact that how far parties have adhered to some of the essential conditions. In this context it is appropriate to refer to the judgment of the Apex Court in B.S.N. Joshi and Sons Ltd. Vs. Nair Coal Services Ltd. and Others, relied on by the Petitioner wherein it has been held:

i) if there are essential conditions, the same must be adhered to;

ii) if there is no power of general relaxation, ordinarily the same shall not. be exercised and the principle of strict compliance would be applied whether it is possible for all the parties to comply with all such conditions fully;

iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing;" (Paragraph 66).

20. Therefore, unless there is general power of relaxation, essential conditions in the tender must be adhered to. In Jagdish Mandal Vs. State of Orissa and Others, it has been held "Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice on, decision is made "lawfully" and not to check whether choice or decision is "sound" (Paragraph 22). Hence, when parties or any of them do not stick to the essential conditions, the State while evaluating the tenders must ensure that the bids conform to the essential conditions. If the State gives the conditions a go-by, if allegations are levelled, Court should step in to see whether the decision making process was lawful and was not arbitrary and unreasonable. If deviation is found, Courts must pass appropriate order to put a check to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Therefore, it is to be seen whether the decision making process was in conformity with tender conditions and was legal. In this context it is appropriate to refer to the law laid down in Food Corporation of India Vs. M/s. Kamdhenu Cattle Feed Industries, , wherein it was held as under:

In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is ''fairplay in action''. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision-making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review. (Paragraph 7)

21. However, can the submission of the Petitioner regarding the alleged violation of the terms and conditions of the tender be taken note of since it has not been pleaded in the petition and the Respondents have not been able to controvert the same in their respective affidavits. In my view, it is obvious that the bid of the Respondent No. 5 was a part of the Government records and it was not in the possession of the Petitioner. After directions were issued for filing of affidavits, affidavits were submitted. The bid of the Respondent No. 5 formed part of the affidavit of the said private Respondent - the successful bidder. Therefore, quite naturally, when the petition was moved the Petitioners were not in a position to deal with the infirmities in the bid of the Respondent No. 5 which have been highlighted during argument. Now in the petition prayer has been made for issuing writ in the nature of Certiorari. It is well settled that where a body of persons having legal authority and determining question regarding rights, acts in excess of their authority legally conferred and when there is error apparent on the face of the record, Certiorari may be issued.

22. In the instant case going through the essential terms and conditions of the tender and perusing the tender documents of the Petitioners and the private Respondent No. 5, it appears that some of the essential conditions have not been adhered to by the Respondent No. 5 and the State had relaxed some of the conditions to the detriment of the Petitioner No. 1. In my view, in the absence of power of such relaxation, the decision making process by the State suffers from infirmity. Now the question comes whether in the absence of pleadings in the petition, can Court interfere. In my opinion, as prayer for issuance of writ of Certiorari has been made in the petition and as the tender conditions and the tender documents, annexed to the affidavits, are before the Court and as noted there are errors apparent on the face of the record and as purchase of machines involves expenditure of public money, appropriate orders should be issued since supply of machines pursuant to the tender notice is to be made till 30th June, 2011.

23. In this context, there are some other aspects which require consideration. Though in the tender condition it has been spelt out that "Price bid of a particular tenderer will be opened only if the technical bid matches with the specification..." and the price bids of the Petitioner and the Respondent No. 5 were considered as they were successful in the technical bid and though the affidavit of the State does not speak of any intermediate stage in between the technical bid stage and price bid stage, however, it appears that there was some evaluation by the State in between the said two stages since in paragraph 4(h) of the affidavit in opposition of the Respondent No. 5, it has been stated as follows:

It is further pertinent to mention that although technical bid of the Petitioner, appearing at page 47 of the said petition, mentions of USG machines (Black and White) being upgradeable to CDR the said claim turned out to be false and incorrect at the performance stage of the bid process which was interregnum to the technical bid stage and the price bid stage in as much as the said machines of the Petitioner were discovered to be non-upgradeable to CDR.

24. It is surprising how the Respondent No. 5 could level such an allegation when there was neither any such stage as evident from the tender condition nor does the State say so in its affidavit. That apart though sealed tenders were invited from "Manufacturing and Authorised Distributors for supplying USG machine" and the Petitioner and Respondent No. 5 were to be treated at par, however it appears from paragraph 3(e) of the affidavit of the State that a distinction was made between a manufacturer and a dealer, that is, between the Respondent No. 5 and the Petitioner No. 1 respectively, since therein if has been stated as under:

The lowest tenderer Philips, for both the Items, Black and White Ultra Sono graphic Machines as also Colour Doppler Machines is a direct manufacturer. The Petitioner company is only a dealer of Toshiba Machines.

25. The statements in paragraph 3(e) go to show that extraneous considerations had weighed with the Respondent No. 4 as there is nothing in the tender condition to suggest that a manufacturer shall have preference. Hence, as there have been deviations from the terms and conditions of the tender in the bid filed by the Respondent No. 5 and the statements in the affidavits by the State and the Respondent No. 5 show that in the decision making process some other factors had weighed with the Respondent No. 4 regarding the grant of bid to the Respondent No. 5, in my view, the entire process needs to be reevaluated by the. State. Thus, for the reasons as aforesaid, the work order awarded to the Respondent No. 5 by the Respondent Nos. 3 and 4 for supply of USG black and white machines is set aside and quashed. The writ petition is allowed. Since under the tender notice dated 16th May, 2009 supply of the machines is to be made till 30th June, 2011, the Deputy Director of Health Services (E and S) and the Tender Selection Committee,, the Respondent Nos. 3 and 4, respectively are directed 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 shall reassess the price of the parties mentioned in the light of the terms and conditions of the tender without being influenced by any of the observations made in this judgment and shall issue work order afresh for supply of machines within one month from the date of communication of this order:

No order as to costs.

Later:

Mr. Bose and Mr. Dutta, learned advocates for the Respondents pray for stay of the operation of the judgment and order as according to them, pursuant to the contract, machines have been delivered and there is no further need of machines.

Since I find that the notice inviting tender stipulates that supply is to be made till 30th June, 2011, prayer for stay is rejected.

Let urgent photostat certified copy of this judgment and order, if applied for, be furnished to the appearing parties on priority basis.