- (1.) IN this writ petition, the petitioners have prayed for a writ of mandamus in the nature of a direction to the respondents not to accept deliveries and not to proceed with procurement of 12000 Telecommunication towers on the basis of private treaties from respondents 5 to 7 and not to give effect to the work orders issued to respondents 5 to 7 under Annexure 6.
(2.) THE petitioner is an approved supplier of telecommunication towers, poles etc. and is an approved empanelled supplier of respondent No. 2, the Indian Telephone Industries Limited, in short, ITI. In the whole country, there are twenty -three approved suppliers whose prototype of towers stands approved by the telecommunication Department. THE. petitioners claimed to have the necessary infra -structure to supply the goods in issue and writing to supply the goods in question even at a lower price than the one at which the contract in issue has been negotiated in favour of the contesting respondents No. 5 to 7. Petitioner No. 1 is a registered partnership firm and all partners of the petitioner No. 1 are citizens of India and petitioner No. 2 is a partner of petitioner No. 1. THE petitioner No. 1 carries on business of manufactur ing various engineering products required by the department of telecommunication. THE factory of the petitioner is solely depending on the requirement of engineering products by the Department of telecommunication. Any supplier who intends to supply towers to telecommunication Department is required to have his design approved by Structural Engineering Research Cen tre, Madras, which is a Council of Scientific and Industrial Research Centre. THE telecommunication towers are used and procured by the Department of telecommunication, Government of India for installing telecommunication Centre in rural areas. THE telecommunication tower is a highly technical product. The respondent No. 2, Indian Telephone Industries Limited, (ITI) is a fully Government owned company incorporated under the provisions of Companies Act and carries on business at Mirzapur Road, Naini, Allahabad U. P. The respondent No. 2 has been engaged by the Department of Tele communication, Government of India, for procurement of telecommunication towers for it. On or about 15th January, 1995, as it is alleged by the peti tioner No. 1, they came to know that respondents No. 5 to 7 have procured orders for telecommunication towers from respondent No, 2. They came to know from the reliable sources that procurement is being made for 1200 pieces of telecommunication towers worth Rs. 12 crores on the basis of private treaties negotiated by the respondents with selected three parties, respondents 5 to 7. It is alleged that the petitioners representative approached the office of United Commercial and Industrial Company Private Ltd. to know the details of enquiry No NTH 4q 448 and 'they received a copy of the enquiry and the correspondence regarding the said enquiry from the said company. It was submitted on behalf of the petitioners that the respondent No. 2 Indian Telephone Industries Limited being the authority within the meaning of Article 12 of the Constitution of India could not have any absolute discretion to place orders or consider selected suppliers, which is violative of Article 14 of the Constitution, The petitioners have a right to participate in the enquiry quoted by the respondents. The respondent No. 2 being a fully owned Govern ment company could not pick and choose a few persons to the exclusion of others. All actions of the authorities within the meaning of Article 12 of the Constitution must specify the test of reasonablenes and public interest and must be within the norms laid down for procurement of goods. A Govern ment owned company doing business is still a Government company and it is not open for it to make discretionary favouritism to the selected persons. In the present case, the respondents allowing only four persons to participate in the treaty have favoured them in violation of Article 14 of the constitution and placement of order of 12000 pieces to respondents 5 to 7 is illegal and violative of Article 14 of the constitution. It was stated that the placement of work order of 4500 pieces to each of the respondents 5 and 7 and 300 pieces to respondent No, 6 was done without floating any tender of notice or without advertisement of notice or enquiry in any newspaper and it was mandatory on the part of a Government owned company to float a tender and enquiry was required to be advertised in the newspaper. Thus, the action of respondents 2 to 4 has been challenged as violative of Articles 14, 19 (i) (g) and 3000 -A of the Constitution of India.
(3.) RESPONDENTS 5 to 7 have filed separate counter affidavits but have adopted a common stands. They have disputed and denied that respondent No. 2 settled the contract either secretly or collusively. According to them, the tender enquiry made by the respondent No. 2 was opened in public. The negotiation was made by respondent No 2 with these respondents because the other tenderers did not turn up. The tender enquiry was, in fact, issued to respondents 5 to 7 and two others in order to avoid prolixity and in the facts and circumstances of the case the newspaper publication was not necessary. The respondent No. 2 the Indian Telephone Industries Limited was under an obligation to supply the towers to the department of telecommunication within a stipulated period of time and respondent No. 2, while issuing the order in favour of respondents 5 to 7 followed the norms set down for the pur chasing the goods. The Department of telecommunication floated a tender by publication in newspaper which was opened on 27th September, 1994 and the rate quoted pursuant to the said tender by the petitioner was Rs. 10,530 for self supporting 15 meters tower which is the self -same item in the present case. Respondent No. 5 has alleged that on or about 3rd September 1993, the respondent No. 2 issued an enquiry bearing No. DGN (MM) T. 022 with regard to supply of 40 metres self -supporting towers. In pursuance of the said tender enquiry he duly quoted its rates. Subsequent to the submission of quotation, the respondent No. 2 inspected the factory or respondent No. 5. By letter dated 12th August, 1994 respondent No. 2 requested him to attend a meeting to be held on 26th August, 1994 for discussions with regard to supply of 40 and 15 meters self -supporting towers. In August, 1994, the respondent No. 2 issued a tender enquiry bearing No. NTC 4 Q 425 for supply of 40 meters self - supporting towers. In pursuance of the said enquiry, the respon dent No. 5 submitted its quotation to respondent No. 2 for supply of 40 meters self -supporting towers. After negotiation on 29th September, 1994, the respondent No. 2 requested him to submit a revised offer which was duly submitted on 29th September, 1994 and on 10th October, 1994 a letter of intent was issued to respondent No. 5 for supply of 75 pieces of 40 meters self -supporting towers.;