- (1.) This Mandamus-Appeal is at the instance of the writ-petitioners and is directed against an order dated August 16, 2010 passed by a learned Single Judge of this Court by which His Lordship dismissed the writ-application on the ground that the writ-petitioner No.1 by participating in the process of tender waived its alleged accrued right, for enforcement of which, the writ-application was filed.
(2.) Being dissatisfied, the writ-petitioners have come up with this Mandamus-Appeal.
(3.) The following facts have been established from the materials placed before us by the parties: 1) The appellant No.1 is a company incorporated under the Companies Act, 1956 and the appellant No.2 is one of its directors. The Respondent No.1 is the State of West Bengal represented by the Respondent No.2 who is the Principal Secretary, the Department of Information and Cultural Affairs, Government of West Bengal, and the Respondent No.3 is the Kolkata Metropolitan Development Authority, a body corporate constituted under Section 3 of the Kolkata Metropolitan Development Authority Act, 1972. 2) On October 25, 2005, the Respondent No.2 issued an advertisement inviting tenders from the experienced agencies for installation and maintenance of double hoardings in the districts of Jalpaiguri, Bankura, Purulia, Coochbehar, Birbhum, South 24-Parganas and North 24-Parganas. According to the appellants, by the said advertisement tenders were also invited from the agencies for installation and maintenance of backlit passengers bus shelters in Kolkata Municipal Area on the same terms and conditions. 3) The appellant No.1 along with others became successful and as such, the respondent No.2 empanelled fourteen different agencies including the appellant No.1 for installation of double hoarding and backlit passengers' bus shelter and pursuant to such empanelment, the appellant No.1 has installed various hoardings in different parts of the districts of South 24-Parganas, North 24-Parganas and Hooghly. 4) On September 21, 2009 the appellants drew the attention of the Respondent No.2 to the fact that some of the selected agencies similarly placed with the appellant No.1, viz. M/s. Karukrit Publicity Private Ltd., M/s. Arun Sign and M/s. Pioneer Publicity Corporation, were already allotted few hording sites on E. M. Bye-Pass, but the appellant No.1, in spite of being one of such selected agencies, has not been conferred with such benefit and as such, requested the Respondent No.2 to pass necessary order for allotment of such hoardings in favour of the appellant No.1 for erecting five hoardings. 5) As the said request was not adhered to by the Respondents, the appellants, in the past, made written representation before the Respondent No.2 for allotment of such hoardings on the E.M. Bye- Pass but the Respondents took no notice of the said representation. In view of such inaction of the Respondents, the appellants earlier moved a writ-application being W.P. No. 2067(W) of 2010 before Dipankar Datta, J. on March 1, 2010 after service of notice upon all the Respondents. 6) Dipankar Datta, J. on March 22, 2010 disposed of the said writapplication by directing the Respondent No.2 to consider and dispose of the grievance of the appellants by passing a reasoned order after hearing all the parties concerned. 7) Pursuant to the said direction given by His Lordship, the Respondent No.2 took a decision thereby requesting the Chief Executive Officer of the Respondent No.3 to give allotment of three sites between Parama Island and Baishnabghata Crossing on the E. M. Bye-Pass to the Appellants for installation of the hoardings. 8) As the Respondent No.3 paid no heed to the request of the Respondent No.2 to allot three hoardings in favour of the appellants, they had drawn attention of such fact to the Respondent No.2 but no action had been taken. 9) The appellants also drew the attention of the CEO of the Respondent No.3 pointing out the inaction and also complaining that such request of the Respondent No.2 to allot hoardings to the three other successful agencies has been implemented by the Respondent No.3. 10) The appellants, ultimately, filed a fresh writ-application thereby praying for direction of compliance with the order dated April 26, 2010 issued by the Respondent No.2 pursuant to the order passed by Dipankar Datta, J. thereby approving the allotment of three sites in favour of the appellants on the E. M. Bye-Pass and for prohibiting the Respondent No.3 from floating any fresh tender in respect of those three sites. 11) At the time of hearing of the said writ-application, the attention of the learned Single Judge was drawn to the fact that the appellants had already participated in the tender process for those three sites issued by the Respondent No.3, and that the appellant No.1 being the sole bidder in such process, the Respondent No.3 had decided to call fresh tender by following its norm that the bid of the single bidder is not accepted. 12) The learned Single Judge, by the order impugned in this appeal, dismissed the writ-application on the ground that by the participation in the process of tender, the appellants have waived their right to get allotment pursuant to the order of the Respondent No.2 favouring the allotment by acceptance of their plea. Mr. Banerjee, the learned Senior Advocate appearing on behalf of the appellants, has made twofold submissions before this Court. First, according to Mr. Banerjee, the learned Single Judge erred in law in holding that by mere participation in the process of tender his clients have waived their right to erect the hoardings permitted by the Respondents No.2 by totally overlooking the fact that his clients obtained the order of allotment pursuant to a judicial order passed by Dipankar Datta, J. in the earlier writapplication filed by his clients where all the respondents were parties.;