W.P.No.23986 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.09.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE N.MALA
W.P.No.23986 of 2022
and W.M.P.No.22965 of 2022
S.Thangappan .. Petitioner
vs
1.The State of Tamil Nadu
Rep.by its Secretary to Government
Energy Department,
Fort St.George, Chennai 600 009.
2.The Chairman
TANGEDCO
Anna Salai, Chennai 600 002.
3.The Director-Generation
TANGEDCO, Anna Salai
Chennai – 600 002.
4.The Chief Engineer
MTPS-I, Mettur Dam – 636 404. .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Declaration declaring that the tender floated by
the 4th respondent on 25.07.2022 in specification No.CE/MTPS-
I/SE/M.II/OT.No.62/2022-23 as being illegal and contrary to public
interest.
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Page 1 of 12
https://www.mhc.tn.gov.in/judis
W.P.No.23986 of 2022
For the Petitioner : Mr.T.Sai Krishnan
For the Respondents : Mr.R.Shunmugasundaram
Advocate General assisted by
Mr.P.Muthukumar, State Govt.Pleader
Mrs.R.Anitha, Special Government
Pleader and Ms.G.Shakeenaa – for R1
Mr.P.Wilson, Senior Counsel
for M/s.L.Jai Venkatesh
- for Respondents 2 to 4
ORDER
(Order of the Court was made by the Hon'ble Chief Justice) The Public Interest Litigation is filed to challenge the tender floated by the fourth respondent on 25.07.2022 by the petitioner claiming to be a person involved in politics rendering service to the society.
2. The petitioner was the councilor of the 6 th Ward of Mettur Municipality elected in the local body election held in the year 2011 as the candidate sponsored by AIADMK. He is said to be the Joint Secretary of MGR Mandram, Mettur Town which is affiliated to the political party of AIADMK. The petitioner's annual income is said to be ___________ Page 2 of 12 https://www.mhc.tn.gov.in/judis W.P.No.23986 of 2022 Rs.72,000/- and it is averred that he has paid Rs.10,000/- towards professional fees for filing this writ petition which is filed in public interest. We appreciate that the petitioner has fairly stated about his involvement in politics and that he is a member of AIADMK, a political party.
3. The petitioner has challenged the tender notice dated 25.07.2022 mainly in regard to the condition of Earnest Money Deposit (EMD) which is said to be more than 1% of the total value of the work as it is in violation of Rule 14 of the Tamil Nadu Transparency in Tenders Rules 2000 (hereinafter referred to as Rules). Though the petitioner is not a participant in the tender process, he claims to be espousing the cause of the public as the tender condition may affect the public exchequer and the petitioner being a public spirited person, has filed the present writ petition.
4. Learned counsel for the petitioner submits that the petitioner has gathered the details of the value of work done by each of the contractor who are presently carrying out the works and has furnished the same in the typed set of papers. A reference to the said annexure ___________ Page 3 of 12 https://www.mhc.tn.gov.in/judis W.P.No.23986 of 2022 shows that the annual value of the work to be undertaken would be approximately Rs.14.5 Crores and 1% of the annual value comes to Rs.14.54 lakhs approximately, whereas the EMD quantified by the respondents refers to a sum of Rs.3.99 Crores and thus not only it violates Rule 14 of the Rules but it would also require public exchequer and therefore the public interest litigation has been initiated to challenge the tender conditions. The last date for submission of tender/bid was 30.08.2022. The writ petition has been filed on 02.09.2022 immediately after the last date for submission of the bids.
5. Mr.R.Shunmugasundaram, learned Advocate General appearing for the State and Mr.P.Wilson, learned Senior Counsel appearing for TANGEDCO / respondents 2 to 4 submitted that the public interest litigation is politically motivated in the hands of the councilor of a political party and it does not involve any public interest. The averments made by the petitioner based on the information from the contractors cannot be said to be authentic so as to represent the total quantity of the work annually as otherwise the duration of the tender is for five years. The condition of EMD under challenge does not affect the tender process and the petitioner has failed to show as to ___________ Page 4 of 12 https://www.mhc.tn.gov.in/judis W.P.No.23986 of 2022 how the public exchequer could be affected other than to make a statement for it.
6. Learned counsel for the respondents submit that this Court may not cause interference in the tender at the instance of the person who is not involved in the tender process, rather is a political person and the petitioner has failed to show as to how the public exchequer would be affected. Accordingly, the learned counsel pray for dismissal of the writ petition.
7. We have considered the submissions made by the learned counsel for both sides and have gone through the materials placed before this Court.
8. The writ petition has been filed at the instance of a political person as declared by the petitioner himself. It is otherwise by a person having income to the extent of only Rs.6000/- per month as disclosed in the writ petition and has paid Rs.10,000/- towards professional fees for filing this writ petition. The aforesaid is only one part, otherwise the writ petition has been filed after collecting ___________ Page 5 of 12 https://www.mhc.tn.gov.in/judis W.P.No.23986 of 2022 information by the petitioner on his own to find out the annual value of the work. The said statement cannot be considered to be authentic because the collection of information by the petitioner is from different contractors and not from the respondents.
9. The issue raised by the petitioner is that the tender violates Rule 14 of the Rules of 2000. The said Rule is quoted hereunder for ready reference.
“14. Commercial Conditions.- 14[(1) The tender documents shall require all tenderers without exception to pay an Earnest Money Deposit (EMD) ordinarily not exceeding one per cent of the value of the procurement by means of [electronic mode of payment or] in the form of a demand draft, bankers cheque, specified small savings instruments or where the procuring entity deems fit, irrevocable bank guarantee in a prescribed form. The tender documents shall clearly state that any tender submitted without the Earnest Money Deposit (EMD) in the approved form be summarily rejected:”
10. Rule 14(1) of the Rules of 2000 requires tenderers to pay EMD not exceeding 1% of the value of procurement. The use of the word “ordinarily” would not mean that the EMD cannot exceed 1% of ___________ Page 6 of 12 https://www.mhc.tn.gov.in/judis W.P.No.23986 of 2022 the value of the procurement. The petitioner, however, gave an interpretation of Rule 14 of the Rules of 2000 as if in no case the EMD can exceed 1% of the value of procurement and alleging that the condition of EMD in the tender in question is exceeding 1% of the value of the procurement.
11. This is apart from the fact that this Court may not cause interference in the terms and conditions of the tender as the judicial review should be exercised with great care, caution and circumspection and the Court should not ordinarily interfere with the policy decisions of the Government in financial matters even according to the judgment cited by the learned counsel for the petitioner in the case of Centre for Public Interest Litigation -Vs- Union of India reported in (2012) 3 S.C.C. 1, where the Hon'ble Apex Court has held as follows.
"99. In majority of judgments relied upon by learned Attorney General and Learned Counsel for the Respondents, it has been held that the power of judicial review should be exercised with great care and circumspection and the Court should not ordinarily interfere with the policy decisions of the Government in financial matters. There cannot be any quarrel with the proposition that the Court cannot substitute its opinion for the one formed by the experts in the particular field and due ___________ Page 7 of 12 https://www.mhc.tn.gov.in/judis W.P.No.23986 of 2022 respect should be given to the wisdom of those who are entrusted with the task of framing the policies. We are also conscious of the fact that the Court should not interfere with the fiscal policies of the State. However, when it is clearly demonstrated that the policy framed by the State or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the Court to exercise its jurisdiction in larger public interest and reject the stock plea of the State that the scope of judicial review should not be exceeded beyond the recognised parameters.
100. When matters like these are brought before the judicial constituent of the State by public spirited citizens, it becomes the duty of the Court to exercise its power in larger public interest and ensure that the institutional integrity is not compromised by those in whom the people have reposed trust and who have taken oath to discharge duties in accordance with the Constitution and the law without fear or favour, affection or ill will and who, as any other citizen, enjoy fundamental rights and, at the same time, are bound to perform the duties enumerated in Article 51A. Reference in this connection can usefully be made to the judgment of the three Judge Bench headed by Chief Justice Kapadia in Centre for P.I.L. v. Union of India, (2011) 4 SCC 1."
12. Another judgment cited by the learned counsel for the petitioner is in the case of Natural Resources Allocation In RE ___________ Page 8 of 12 https://www.mhc.tn.gov.in/judis W.P.No.23986 of 2022 Special Reference No.1 of 2012 reported in (2012) 10 S.C.C.1 in particular reference to Para 107 of the said judgment, wherein it was held as follows.
“4.2 From a scrutiny of the trend of decisions it is clearly perceivable that the action of the State, whether it relates to distribution of largesse, grant of contracts or allotment of land, is to be tested on the touchstone of Art.14 of the Constitution. A law may not be struck down for being arbitrary without pointing out a constitutional infirmity. Therefore, a State action has to be tested for constitutional infirmities qua Art.14 of the Constitution. The action has to be fair, reasonable, nondiscriminatory, transparent, non- capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment. It should conform to the norms which are rational, informed with reasons and guided by public interest, etc. All these principles are inherent in the fundamental conception of Art.14. This is the mandate of Art.14.of the Constitution of India.”
13. We are of the opinion that the case in hand does not require any interference of this Court in tender condition when the impugned tender notice is not in violation of Article 14 of the Constitution and the petitioner has even failed to show as to how the public exchequer would be affected by the condition of the EMD given under the ___________ Page 9 of 12 https://www.mhc.tn.gov.in/judis W.P.No.23986 of 2022 impugned tender. The petitioner has not given any facts and figures to indicate the effect on the public exchequer by incorporating the amount quoted by participation of number of contractors in the tender process or any other relevant fact to make out a case. The assumption of effect on the public exchequer cannot be presumed unless authentic and quantified data is supplied to the Court. Thus, even the allegation of effect on public exchequer is made for the sake of it.
14. We do not find any case for causing interference in the impugned tender notice. Accordingly the writ petition fails and it is dismissed. No costs. Consequently, connected miscellaneous petition in W.M.P.No.22965 of 2022 is closed.
(M.N.B., CJ.) (N.M., J.) 07.09.2022 Index : Yes/No kst ___________ Page 10 of 12 https://www.mhc.tn.gov.in/judis W.P.No.23986 of 2022 To:
1.The State of Tamil Nadu Rep.by its Secretary to Government Energy Department, Fort St.George, Chennai 600 009.
2.The Chairman TANGEDCO Anna Salai, Chennai 600 002.
3.The Director-Generation TANGEDCO, Anna Salai Chennai – 600 002.
4.The Chief Engineer MTPS-I, Mettur Dam – 636 404.
___________ Page 11 of 12 https://www.mhc.tn.gov.in/judis W.P.No.23986 of 2022 The Hon'ble Chief Justice and N.Mala, J.
(kst) W.P.No.23986 of 2022 07.09.2022 ___________ Page 12 of 12 https://www.mhc.tn.gov.in/judis