- (1.) In the writ petition, the Petitioner No. 1, a company incoporated in Japan, having been granted certificate of establishment of place of business in India pursuant to an application under Section 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-curn-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.;