- (1.) LEAVE granted.
(2.) ALL these appeals are directed against the final order and judgment dated 19. 11. 2008 passed by the High Court of Judicature at Bombay in Writ Petition No. 1344 of 2007 whereby the High Court allowed the writ petition filed by Laqshya Media Private limited and Alok Jalan of Mumbai and set aside the work orders/contracts awarded to bennett Coleman and Co. Ltd.- Respondent no. 4 and Prithvi Associates- Respondent No. 5 by the Brihan Mumbai Electric Supply and transport Undertaking (hereinafter referred to as the "best") in respect of Bus Queue shelters and directed the BEST to invite fresh tenders as required under Section 460m of the Mumbai Municipal Corporation Act, 1888 (in short "mmc Act" ). Aggrieved by the said order, the BEST has filed S. L. R (C) No. 363 of 2009, Prithvi Associates has filed S. L. R (C)No. 426 of 2009 and Bennett Coleman and co. Ltd. has filed S. L. P. (C) No. 510 of 2009. Since all the appeals question the correctness of the very same order of the High Court, they are being disposed of by the following common order. For convenience, let us refer the parties as arrayed in Civil Appeal arising out of slp (C) No. 363 of 2009. Laqshya Media pvt. Ltd. and one Alok Jalan of Mumbai (Respondent Nos. 1 and 2 herein) approached the High Court of Bombay under Article 226 of the Constitution of India seeking to issue a writ of mandamus in the nature of direction to the BEST, an undertaking of the State of maharashtra (Appellant No. 1 herein) to invite fresh tenders from the public by terminating the work orders/contracts awarded to bennett Coleman and Co. Ltd and Prithvi Associates - Respondent Nos. 4 and 5 herein under the tender and to restrain the BEST from extending or modifying the terms of the work orders/contracts awarded to Respondent Nos. 4 and 5 following the tender system. According to the appellants, on 31. 03. 2005, the best floated a tender for awarding contracts of sole agency for advertisement rights on Bus queue Shelters in Brihan Mumbai for 2005-2008. For operational ease, the entire area of Brihan Mumbai was divided into three lots, namely, Lot No. 1 - Eastern Suburbs, Lot No. II - the Western Suburbs and Lot No. III - the city. Tenderers were required to offer lumpsum display charges for the period of contract, i. e. , till December, 2008. The tenders received would be evaluated on the basis of total lump-sum display charges offered by the tenderers for an individual lot. The contract would be awarded for individual lots to different agencies depending on the offers received. Respondent Nos. 1 and 2 herein, also participated in the said tender for awarding contracts of sole agency for advertisement rights on Bus Queue Shelters in Brihan mumbai. But, as Bennett Coleman and Co. Ltd. (in short 'bccl') - Respondent No. 4 was the highest bidder for Lot No. II - the Western suburbs and Lot No. III - the City and Respondent No. 5, Prithvi Associates was the highest bidder for Lot No. I - the Eastern Suburbs, the tender came to be allotted in favour of them. However, no formal contract was signed between the BEST and the BCCL and the Prithvi Associates and that the tender came to be allotted on the basis of the acceptance letters/work orders issued by the BEST which was contrary to Clause 24 of the Conditions of Contract. In December, 2006, the BEST floated the offer ocument for erection of Bus queue Shelters in place of existing Bus Stop poles' and display of advertisement thereon under "first Finder Scheme" (hereinafter referred to as the 'scheme' ). Respondent Nos. 1 and 2 tendered their bid for the Scheme. It was their grievance that the tender having been called only for display of advertisement on existing Bus Queue Shelters till 31. 12. 2008 not only is an unilateral extension thereof but an act of arbitrariness and discrimination. It is their further grievance that under the guise of extension, BEST favoured bccl and Prithvi Associates by granting them a long extension and new benefits under the original tender. The action of the authorities in negotiating for extension of the work orders without issuing tenders and their action in refusing to act in fair and transparent manner or to disclose their intention are arbitrary, discriminatory, illegal, mala fide, contrary to the terms of the tender and violation of the fundamental rights and thereby deprived respondent Nos. 1 and 2 of their rights guaranteed under Article 19 (1) (g) of the Constitution of India, hence, they prayed for appropriate directions by way of writ of mandamus.
(3.) BEFORE the High Court, the BEST filed an affidavit through its Chief Engineer explaining their stand. It was stated therein that under the Scheme there is no question of competitive bidding and parties are free to choose the specific Bus Stops they wish to develop. The writ petitioners (Respondent nos. 1 and 2 herein) themselves selected 22 bus stops under the Scheme without competitive bidding. Respondents 4 and 5 who, under their earlier licences/contracts dated 09. 06. 2005 and 04. 07. 2005 respectively, had secured the right to advertise on existing bus Queue Shelters which was valid till 31. 12. 2008, were invited by the 2nd appellant as suggested by the BEST Committee to participate in the Scheme with reference to the existing bus shelters under their control for modernizing the same. It is the further case of BEST that the Government of Maharashtra had constituted an Empowered Committee under the chairmanship of the Chief Secretary to monitor the progress of implementation of Mumbai transformation Project. The Committee consisted of the Chief Secretary and other Secretaries of various departments. Its agenda, item No. 2 (v) referred to beautification of bus shelters and Item No. (6) of the said Minutes of the Meeting referred to presentation to be made on bus shelters and the approval of the model of Modern Bus Queue Shelters presented by the BEST. As per the decision recorded in the meeting dated 02. 09. 2006 of the Empowered Committee, the BEST obtained prior approval from the BEST Committee vide BCR 474 dated 07. 12. 2006 for erection of Bus Queue Shelters in place of bus stop poles and display of advertisement thereon. The idea was to call for bids to develop the Bus Queue Shelters on the basis of the Scheme. Interested parties such as Respondent Nos. 1, 2, 4, and 5 could bid for as many Bus Stop Poles as they may wish to develop and were free to choose any location they preferred. Consequently, in implementation of the Scheme, the BEST in the month of December, 2006 offered to interested persons, documents for erection of Bus queue Shelters in place of the existing bus stop poles.;