Madras High Court
M/S Conductor Manufacturers ... vs The State Of Tamil Nadu on 5 February, 2021
W.P.No.2420 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:05.02.2021
Coram
The HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P.No.2420 of 2021
and
W.M.P.Nos.2730, 2731 and 2732 of 2021
1.M/s Conductor Manufacturers Association of Tamil Nadu,
represented by its Hon.Secretary, Mr.Ashok Jain,
61, TTK Road, 2nd Floor, Alwarpet,
Chennai – 600 018
2.M/s Sridhara Electrotek,
represented by its Partner, Mr.K.Bhaskaran,
Plot No.158, EE Industrial Estate,
OMR, Perungudi,
Chennai – 600 006 .... Petitioners
vs.
1.The State of Tamil Nadu
rep by its Secretary,
Department of Energy,
Secretariat, Fort.St.George,
Chennai – 600 009.
2.The State of Tamil Nadu,
rep by its Secretary,
1/12
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W.P.No.2420 of 2021
Department of Micro, Small, Medium Enterprises,
Secretariat,
Fort St.George,
Chennai – 600 009.
3. The State of Tamil Nadu,
rep. By its Secretary,
Department of Finance (Bureau of Public Enterprises),
Secretariat,
Fort St.George,
Chennai – 600 009
4.M/s Tamil Nadu Generation and Distribution Corporation Ltd,
rep by its Chairman cum Managing Director,
No.144, Anna Salai,
Chennai – 600 002.
5. The Chief Engineer,
Office of the Chief Engineer (Material Management),
Tamil Nadu Generation and Distribution Corporation Ltd.,
No.144, Anna Salai,
Chennai – 600 002.
6. The Superintending Engineer,
Office of the Chief Engineer (Material Management I),
Tamil Nadu Generation and Distribution Corporation Ltd.,
4th Floor, Western Wing,
No.800, Anna Salai,
Chennai – 600 002 .... Respondents
Petition filed under Article 226 of the Constitution of India praying to
issue a Writ of Certiorarified Mandamus to call for the records of the
Impugned Tender Notification dated 03.01.2021, bearing Specification
2/12
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W.P.No.2420 of 2021
No.M.33/2020-21 issued by the 6th Respondent, inviting tenders for the
supply of 7/4.09 MM ACSR Raccoon Conductor through E-tendering
scheduled to be conducted on 06.02.2021 at 3.00 PM and quash the same
and consequently, directing the Respondents to henceforth procure ACSR
Conductors upto 19 strands in conformity with the Government Order
bearing G.O.No.195 dated 04.05.1998 issued by the Finance (Bureau of
Public Enterprises) Department, the 3rd Respondent herein, as also the
assurance of the 2nd respondent vide its letter dated 10.01.2019.
For Petitioners .. Mr.N.L.Rajah
Senior Counsel for
K.R.Arun Shabari
For Respondents 1 to 3 .. Mr.P.S.Siva Shamuga Sundaram
Special Government Pleader
For Respondents 4 to 6 .. Mr.V.Anil Kumar
Standing Counsel
ORDER
This Writ Petition is filed as against the tender notification dated
03.01.2021 issued by the 6th respondent inviting tenders for supply of 7/4.09
MM ACSR Raccoon Conductors through E-tendering scheduled to be
conducted on 06.02.2021.
2.Mr.P.S.Sivashanmugasundaram, learned Special Government
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W.P.No.2420 of 2021
Pleader takes notice for 1st to 3rd respondents. Mr.V.Anil Kumar, learned
Standing Counsel takes notice for the 4 to 6th respondents.
3. The grievance of the petitioners is that by passing these SSI units,
vide impugned notification, the respondent TANGEDCO is intended to
procure ACSR Conductors upto 19 strands without following the guidelines
of the Government Order issued in G.O.Ms.No.195, Finance (BPE)
Department dated 04.05.1998 and the assurance given by the Secretary to
Government in his letter dated 10.01.2019.
4. When the matter is taken up for hearing, Mr.Anil Kumar, learned
Standing Counsel for the Tamil Nadu Electricity Board submits that the
impugned notification has been recalled by the respondent Board for some
consultation with the Government to proceed with the tender and he also
requested to dismiss the writ petition as infructuous, as they are not
intending to process the tender as of now.
5. Mr.N.L.Rajan, learned Senior Counsel appearing for the
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W.P.No.2420 of 2021
petitioners, however, pointed out that by way of the impugned notification,
the respondents Board has given a goby to the earlier Government Order
made in G.O.Ms.No.195 Finance (BPE) Department dated 04.05.1998,
wherein the Government has taken a stand with regard to the procurement
of ACSR conductors upto 19 strands and the relevant portion of the said
G.O. reads as follows:
“2. The Government has reviewed the order issued
in para 5 and 6 of the G.O sixth read above and in
partial modification of the orders issued in the
G.O sixth read above, issue the following orders:-
The purchase preference for Small Scale
Industries in the state which existed prior to the
issue of the G.O sixth read above, be restored in
respect of 350 items reserved by the GOI for
exclusive purchase from SSIs. The list of these
items is annexed to the order. These items will be
purchased from SSIs in the State through open
tender.
3. Functional registrars of Co-operative Societies
should communicate this order to all the Co-
operative Institutions under their control. Director
of Municipal Administration / Director of Town
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W.P.No.2420 of 2021
Planning / Director of Rural Development /
Director General of Municipal Corporation
should communicate this order to all the Local
Bodies under their control. The Director of
Stationery & Printing shall publish this order in
the Government Gazette in the earliest issue.”
6. Learned Senior Counsel for the petitioners has also pointed out the
letter of the Secretary to Government, Micro, Small and Medium
Enterprises (F) Department, Secretariat, Chennai-9, in Letter
No.7491/F/2018-2 dated 10.01.2019, wherein the Secretary has informed
the petitioners Association that while considering the representation, in the
meeting held on 25.09.2018, they have has discussed the subject and have
directed to follow the earlier procedure and reservation made for
procurement of ACSR Conductor exclusively from SSI Units and it will be
continued, till such time a clarification is obtained from the Government of
Tamilnadu. Without getting clarification from the Government, the present
tender has been issued effecting procurement of ACSR conductors from SSI
Units.
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W.P.No.2420 of 2021
7. In this regard, the petitioners Association has made a
representation on 09.01.2021 which is also filed in the typed set of papers
along with the letter of authorisation from the 1st petitioner dated
25.01.2021 to the Government and the Chairman of TANGEDCO and
requested for a direction to atleast consider their representation in the light
of the above Government Order and the letter of the Secretary and the
judgment of the Hon'ble Apex Court reported in 1992(4) SCC 477
(Navjyoti Coop. Group Housing Society v. Union of India), wherein the
Hon'ble Apex Court has held at paragraph Nos.15 and 16 as follows:
“15. It also appears to us that in any event the new
policy decision as contained in the impugned memorandum of
January 20, 1990 should not have been implemented without
making such change in the existing criterion for allotment
known to the Group Housing Societies if necessary by way of a
public notice so that they might make proper representation to
the concerned authorities for consideration of their view-
points. Even assuming that in the absence of any explanation
of the expression "first come first served" in Rule 6(vi) of
Nazul Rules there was no statutory requirement to make
allotment with reference to date of Registration, it has been
rightly held, as a matter of fact, by the High Court that prior
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W.P.No.2420 of 2021
to the new guideline contained in the memo of January 20,
1990 the principle for allotment had always been on the basis
of date of Registration and not the date of approval of the list
of members. In the brochure issued in 1982 by the DDA even
after Gazette Notification of Nazul Rules on September
26,1981 the policy of allotment on the basis of seniority in
registration was clearly indicated. In the aforesaid facts, the
Group Housing Societies were entitled to 'legitimate
expectation' of following consistent past practice in the matter
of allotment, even though they may not have may legal right in
private law to receive such treatment. The existence of
'legitimate expectation' may have a number of different
consequences and one of such consequences is that the
authority ought not to act to defeat the 'legitimate expectation'
without some overriding reason of public policy to justify its
doing so. In a case of 'legitimate expectation' if the authority
proposes to defeat a person's 'legitimate expectation' it should
afford him an opportunity to make representations in the
matter. In this connection reference may be made to the
discussions on 'legitimate expectation' at page 151 of Volume
1(1) of Halsbury's Laws of England - Fourth Edition (Re-
issue). We may also refer to a decision of the House of Lords
in Council of Civil Service Union and Ors. v. Minister for
Civil Service reported in [1985] 3 All England Reporter page
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W.P.No.2420 of 2021
935. It has been held in the said decision that an aggrieved
person was entitled to judicial review if he could show that a
decision of the public authority affected him of some benefit or
advantage which in the past he had been permitted to enjoy
and which he legitimately expected to be permitted to continue
to enjoy either until he was given reasons for withdrawal and
the opportunity to comment on such reasons.
16. It may be indicated here that the doctrine of
'legitimate expectation' imposes in essence a duty on public
authority to act fairly by taking into consideration all relevant
factors relating to such 'legitimate expectation'. Within the
conspectus of fair dealing in case of 'legitimate expectation',
the reasonable opportunities to make representation by the
parties likely to be affected by any change of consistent past
policy, come in. We have not been shown any compelling
reasons taken into consideration by the Central Government
to make a departure from the existing policy of allotment with
reference to seniority in Registration by introducing a new
guideline. On the contrary, Mr. Jaitley the learned Counsel
has submitted that the DDA and/or Central Government do
not intend to challenge the decision of the High Court and the
impugned memorandum of January 20,1990 has since been
withdrawn. We therefore feel that in the facts of the case it was
only desirable that before introducing or implementing any
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W.P.No.2420 of 2021
change in the guideline for allotment, an opportunity to make
representations against the proposed change in the guideline
should have been given to the registered Group Housing
Societies, if necessary, by way of a public notice.
8. This Court has paid its anxious consideration on the rival
submissions made.
9. In view of the submission made by the learned Standing Counsel
appearing for the TANGEDCO that this tender notification itself has been
withdrawn for consultation with the Government, no order is required in
this writ petition as against the said tender notification.
10. Therefore, without expressing any view on the merits of the
claim made by the petitioners Association, this Court directs the
respondents 1 and 4 to consider the petitioners' representation dated
09.01.2021 in the light of the Government Order in G.O.Ms.No.195 Finance
(BPE) Department dated 04.05.1998, the letter of the Secretary to
Government dated 10.01.2019 and the judgment of the Hon'ble Apex Court
reported in 1992(4) SCC 477 (Navjyoti Coop. Group Housing Society v.
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W.P.No.2420 of 2021
Union of India) and to take a decision within a period of four weeks from
the date of receipt of a copy of this order.
11. Accordingly, this Writ Petition is disposed of. No costs.
Consequently, connected miscellaneous petitions are closed.
05.02.2021
vsi
Index:Yes/No
Internet:Yes
Speaking /Non-speaking order
To
1. The Secretary, to Government.
Department of Energy,
Secretariat, Fort.St.George,
Chennai – 600 009.
2.The State of Tamil Nadu,
rep by its Secretary,
Department of Micro, Small, Medium Enterprises,
Secretariat, Fort St.George, Chennai – 600 009.
B.PUGALENDHI,J.
vsi
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W.P.No.2420 of 2021
3. The State of Tamil Nadu,
rep. By its Secretary,
Department of Finance (Bureau of Public Enterprises),
Secretariat,
Fort St.George,
Chennai – 600 009
4.M/s Tamil Nadu Generation and Distribution Corporation Ltd,
rep by its Chairman cum Managing Director,
No.144, Anna Salai,
Chennai – 600 002.
5. The Chief Engineer,
Office of the Chief Engineer (Material Management),
Tamil Nadu Generation and Distribution Corporation Ltd.,
No.144, Anna Salai,
Chennai – 600 002.
6. The Superintending Engineer,
Office of the Chief Engineer (Material Management I),
Tamil Nadu Generation and Distribution Corporation Ltd.,
4th Floor, Western Wing,
No.800, Anna Salai, Chennai – 600 002
W.P.No.2420 of 2021
05.02.2021
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