Madras High Court
Sri Masadachi Amman Construction vs The Chief Engineer In Chief ... on 8 February, 2021
WA.No.1151 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.02.2021
CORAM :
The Hon'ble Mr.SANJIB BANERJEE, THE CHIEF JUSTICE
AND
The Hon'ble Mr.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.A.No.1151 of 2020
and C.M.P.Nos.14194 and 14195 of 2020
Sri Masadachi Amman Construction,
Rep. by its Managing Partner R.Sundaram,
3/1-F, Santhaipettai, Singalanthapuram Post,
Rasipuram Taluk, Namakkal District. .. Appellant
-vs-
1.The Chief Engineer in Chief (General),
Public Works Department (Buildings),
Chepauk, Chennai 600 005.
2.The Chief Engineer,
Public Works Department (Buildings),
Chengulam Colony, Circuit House,
Trichy-20.
3.The Superintending Engineer,
Public Works Department,
Building (Construction & Maintenance) Circle,
P.B.No.724, Kumarasamipatti Post,
Salem 636 007. .. Respondents
Appeal filed under Clause 15 of the Letters Patent against the
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WA.No.1151 of 2020
order dated 06.11.2020 passed in W.P.No.16008 of 2020 on the file of
this Court.
For Appellant : Mr.A.M.Esakkiappan
For Respondents : Mr.V.Jayaprakash Narayanan
State Government Pleader
JUDGMENT
(Delivered by The Hon'ble Chief Justice)
The appeal is directed against an order of November 6, 2020,
passed on the appellant's writ petition. By such order, the writ
petition, challenging a tender process on the ground that the
petitioner's bid had been arbitrarily refused, was rejected.
2. The short case of the appellant-writ petitioner is that the time
to receive the tender papers was originally fixed till October 10, 2020,
but later extended till 3 pm of October 22, 2020. At paragraph 7 of
the writ petition, it has been averred that the writ petitioner's tender
application along with earnest money deposit were sent to the third
respondent to the petition by post on October 21, 2020. The further
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WA.No.1151 of 2020
case made out is that on October 22, 2020, the third respondent
refused to receive the cover and returned the same. The copy
envelope relied upon in course of the proceedings also reveals the
endorsement “Refused” and bears the date of October 22, 2020.
3. The Writ Court wondered why the writ petitioner had waited
till the last moment before posting the application. The Writ Court also
noticed that the time of receipt of tender forms was extended till 3 pm
of October 22, 2020 and observed that the writ petitioner had been
unable to establish that his papers were delivered to the third
respondent by 3 pm on October 22, 2020.
4. While it is open to any tenderer to choose the very last minute
to deposit his bid – just as when the issue of limitation is raised, the
Court cannot question why the person approached the forum at the
last minute – but the second ground indicated in the impugned order is
unimpeachable. For the petitioner to have succeeded in demonstrating
that the petitioner's tender papers were arbitrarily refused or
wrongfully not received by the third respondent to the writ petition,
the appellant ought to have asserted and established that the delivery
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WA.No.1151 of 2020
was effected prior to 3 pm of October 22, 2020. There is no assertion
to such effect in the writ petition, far less any attempt to establish the
same.
5. In the light of the material that was before the Writ Court, the
Writ Court could not have arrived at any conclusion other than the writ
petitioner's failure to establish that the writ petitioner had caused the
tender papers to be delivered to the appropriate office of the third
respondent within the time permitted.
6. It appears that better sense dawned on the appellant after the
horse had bolted. An RTI application has subsequently been made and
the answer furnished to the query is sought to be relied upon at this
stage. Such a procedure would be clearly unacceptable since the writ
petition had made no attempt to obtain the necessary information and
rely thereon before the Court of the first instance. It is elementary
that for an Appellate Court to receive additional evidence, the
appellant must establish that the evidence was not available to the
appellant despite exercise of due diligence at the relevant point of
time. In this case, the appellant had made no attempt to contact the
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WA.No.1151 of 2020
postal authorities or obtain any information from them as to the time
of delivery of the postal cover. Indeed, as noticed above, paragraph 7
of the writ petition did not even assert the time of delivery of the
relevant postal article. In such circumstances, particularly when the
tender process has been completed and even the work order issued,
little can be done for the petitioner at this stage.
7. For the reasons aforesaid, W.A.No.1151 of 2020 is dismissed.
There will be no order as to costs. Consequently, C.M.P.Nos.14194
and 14195 of 2020 are also dismissed.
(S.B., CJ.) (S.K.R., J.)
08.02.2021
Index : Yes/No
sra
To
1.The Chief Engineer in Chief (General),
Public Works Department (Buildings),
Chepauk, Chennai 600 005.
2.The Chief Engineer,
Public Works Department (Buildings),
Chengulam Colony, Circuit House,
Trichy-20.
https://www.mhc.tn.gov.in/judis/
WA.No.1151 of 2020
The Hon'ble Chief Justice
and
Senthilkumar Ramamoorthy, J.
(sra)
3.The Superintending Engineer,
Public Works Department,
Building (Construction & Maintenance) Circle,
P.B.No.724, Kumarasamipatti Post,
Salem 636 007.
W.A.No.1151 of 2020
08.02.2021
https://www.mhc.tn.gov.in/judis/
