PARTHA ROY CHOWDHURY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This writ application was moved as a public interest litigation. The petitioner is a Councillor of the Calcutta Municipal Corporation. The subject matter of the writ application is possibility of award of contract in favour of respondent No. 5 for construction of six fly overs in the city of Calcutta. The averments in the application purported to make out a case that notice inviting application for pre-qualification bidding had been issued in Jan., 1998 and in response thereto several well-known companies such as Larson and Toubro, Trafalgar House Construction, Bridge and Roof, Hindustan Construction, Mecon India, National Building Construction Company as also respondent No. 5 applied for the said contract and selection of respondent No. 5, after short listing, to compete with the other firms, as mentioned above, as per publication in a newspaper, namely, Anandabazar Patrika, dated 18th Oct., 1998, had been made in disregard of all norms of equality and fair play, in compromise of the required criteria for having necessary eligibility for such selection; the ineligibility was alleged to be due to absence of experience of respondent No. 5 in any major construction of fly overs, which included construction of Steel Bridges in the past, required financial strength, opening up a possibility of national disasters; the reason for such undue favourable treatment, in case of respondent No. 5, was alleged to be the close acquaintance of one Mr. Kajal Sengupta, an influential personality in respondent No. 5, with different persons of the Government of West Bengal involved in making the selection of tenderers and the policy decisions regarding the constructions in question. By paragraph 22 of the application, Annexures 'C' series were sought to be made parts of the said application and such annexures appear to include Directors' Report for the year 31st March, 1996, Auditor's Report for the said year, Balance Sheet upto 31st Jan., 1996, Profit and Loss Account upto 31st March, 1996 and the various schedules annexed to the Balance Sheet and the Profit and Loss Account; the said paragraph 22 was affirmed as 'information derived from the newspaper and other sources'.

(2.) The application was directed to appear under the heading "To be Mentioned" on 28th Oct., 1998, and, on that date, the same was adjourned till 30th Oct., 1998 on the ground of illness of the learned Advocate General; on 30th Oct., 1998, the matter was heard in part and directed to appear on 5th Nov., 1998, on the prayer made, at 2-00 p.m. and thereafter from time to time fixation whereof was made suiting the Convenience of Court and Counsel, the matter was continued to be heard; in course of such hearings, two supplementary affidavits were filed by the writ petitioner, one on 6th Nov., 1998 and the other on 19th Nov., 1998 which purported to deal with certain documents, handed over on behalf of respondent No. 5, and supplementary affidavits were also intended to bring the official copies of such documents, obtained by the writ petitioner, on record as also the calculations made by the writ petitioner of the current bid capacity. The second supplementary affidavit was claimed to have been filed in compliance with a direction by this Court to disclose the source of documents, which were made Annexure "A" to the writ application, and by paragraph 6 of the said supplementary affidavit, the source disclosed was "one of the petitioner's colleague" who was holding a discussion as a member of a trade union, who handed over the copies of Annexure "A" but did not disclose the source of his receipt of the documents included in such Annexure' "A". It is pertinent to note, at this stage, that necessity for disclosure of source of documents, which comprised Annexure "A", was felt, as, at page 19, the name of the person or the firm to which the same was issued was carefully inked out and a point was raised on behalf of the respondent that non-disclosure should lead to a presumption that some failed or un-successful bidder might be trying to reap a benefit by stalling the entire process of finalisation of tenders and consequential construction by initiating the instant public interest litigation, through the petitioner, in a speculative way. The learned Senior Counsel for the petitioner, from day one of the commencement of the present proceeding and through out the continuance thereof, had been reiterating his prayer, which according to him was absolutely innocuous, to issue a Rule and an interim order, restraining the respondents 1 to 4 from finally awarding the contract to respondent No. 5. We, however, were unable to accept such prayer, after giving very serious consideration to the stage at which the prayer was made, the magnitude of probable public mischief that might ensue, if a routine and formal course, as suggested by the petitioner, was followed, particularly, when, incontrovertibly the case pleaded through the present application was mainly attempted to be based on newspaper reports and unidentified sources of documents. We felt persuaded by our conscience that 'fascinating exercise', which the Court was to undertake, must not allure to the extent of keeping its discerning eyes closed and shut and thus by its action jeopardise the "public interest" itself, which it has the solemn duty to protect through this newly devised concept of judicial interference.

(3.) We have already indicated that because of the magnitude of public mischief, we decided to, prima facie, find out the merit of the present application before issuing directions for affidavits though no doubt the sincerity and forensic dexterity of the Counsel, representing the different parties resulted in lengthy hearings. It will be advantageous to narrate the points of such dispute over which the arguments had been made. Annexure "A" to the writ application, reference to which has already been made by us, embodied a clause, being clause No. 5.2, which required a minimum criteria to include current bid capacity of not less than 60% of the estimated amount of the respective packages; the method for calculation of current bid capacity was also embodied, and, to follow the same, average annual turn over (with updating) in the last five years was to be found out. The counsel for the contesting parties advanced their own construction of the term 'turn over'. According to Mr. Roy, the learned Counsel for the petitioner, the same meant only sums received and receivable during the year, aggregate amount of sales effected or work done and such meaning and definition, according to him, conformed to the definition as given in section 43A of the Companies Act, 1956; in a simpler form, 'turn over', according to Mr. Roy, meant the amount of money, which was turned over in the business of a firm. On behalf of the contesting respondents, the said argument of Mr. Roy, was attempted to be countered by placing reliance on clause 2.7.02 of the documents, which laid down the manner in which evaluation was to be made and by reference to xerox copies of the documents, already filed along with the tender papers, which constituted the records before the authorities concerned, it was asserted that the respondent No. 5 had the requisite bid capacity and in doing so the approaches between the petitioner and respondents differed on the propriety of inclusion of value of owner-issued materials-once that was allowed to be included it could not be contended that the respondent No. 5, did not have the necessary bid capacity. The required bid capacity for packages 1 and 2, were 3,600 lakhs and 1,800 lakhs respectively whereas the bid capacities of the respondent No. 5 worked out to 4088.75 lakhs.