Madras High Court
Also At vs Tamil Nadu Electricity ... on 24 February, 2021
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
1/37
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 24.2.2021
CORAM
THE HON'BLE MR.JUSTICE B.PUGALENDHI
W.P.No.4357 and 4389 of 2021
and
W.M.P.Nos.4957, 4958 & 4980 of 2021
Ind-Vigo Coal Pvt. Ltd.,
rep. by its Authorized Signatory,
Mr.S.Thirumalaisamy,
4-106-B, CGE Colony, 3rd Street,
(Near Thiraviyam Ortho Hospital),
Tuticorin 628 002.
Also at
New No.4/1, Old No.23/1, 1st Floor,
Kanniappa Nagar, 86th Street,
Ashok Nagar, Chennai 600 083. Petitioner in W.P.No.4357/2021
P.T.Catur Azung Rizki,
rep. by Mrs.Suba Priya,
Liasoning Manager,
JI, Raya Hamkam Pura Melati,
Indahll, A-4, Pondok Melah,
Bekasi, West Java,
Indonesia 17444. Petitioner in W.P.No.4389/2021
vs.
Tamil Nadu Electricity Generation
and Distribution Company Ltd
(TANGEDCO), rep. by its Chairman,
NPKRR Maaligai, 144 Anna Salai,
Chennai 600 002. Respondent in W.P.No.4357/2021
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
Tamil Nadu Generation and
Distribution Corporation Ltd.,
rep. by its Chief Engineer/Mech/Coal,
II Floor, NPKRR Maaligai,
144 Anna Salai,
Chennai 600 002. Respondent in W.P.No.4389/2021
Writ Petition No.4357 of 2021 is filed under Article 226 of the
Constitution of India seeking issuance of a writ of certiorari calling for
the records of the respondent in relation to the impugned E-Tender
issued by the respondent in SPECIFICATION No.COAL-74 dated
18.1.2021 and quash the same as being in contravention of the Tamil
Nadu Transparency in Tenders Rules, 2000 and Amendments in Public
Procurement (Preference to Make in India) Order, 2017 published by
the Government of India.
Writ Petition No.4389 of 2021 is filed under Article 226 of the
Constitution of India seeking issuance of a writ of certioraried
mandamus calling for the records relating to the impugned Tender
Specification No.Coal-74 dated 18.1.2021 passed by the respondent
herein and quash Section I, Clause 6.0 of the impugned Tender
Specification No.Coal-74 dated 18.1.2021 and direct the respondent to
extend the time for filing of the bid upto 23.3.2021.
For Petitioner in
W.P.No.4357/2021 : Mr.Sathish Parasaran, Senior Counsel for
Mr.R.Parthasarathy
For Petitioner in
W.P.No.4389/2021 : Mr.M.S.Krishnan, Senior Counsel for
Mr.Adith Narayan Vijayaraghavan
For Respondent : Mr.Vijay Narayan, Advocate General and
Mr.P.H.Aravind Pandian,
Additional Advocate General assisted by
Mr.N.Damodaran and Mr.Vijaya Mehanath
Standing Counsels
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
COMMON ORDER
The respondent TANGEDCO invited Online bids from the eligible
bidders for supply of 20 lakh tonnes of imported coal of any origin
having GCC 6000 KCAL/kg at, Kamarajar Port, Ennure vide Notification
in Specification No.COAL-74 dated 18.1.2021. The said notification is
under challenge in the above writ petitions by two different Companies
engaged in the business of trading and exporting coal.
2. Since the same notification is challenged in both these writ
petitions, the same are taken up together and disposed of by this
common order.
3. Mr.Sathish Parasaran, learned Senior Counsel representing
the learned counsel on record in W.P.No.4357 of 2021, pointing out
several violations in the said Notification, submits that the Tender
conditions are coined in such a manner to eliminate the participation of
Indian traders in this tender process. The Tender value is about
Rs.1330 crores and the required EMD is Rs.13 crores, but the period
for submission of Tenders is fixed as 15 days in violation of the
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
mandatory provision in Rule 20 of the Tamil Nadu Tender
Transparency Rules 2000. As per this Rule the Tender inviting
Authority shall ensure that adequate time is provided for the
submission of Tenders and a minimum time limit is also prescribed
between the date of publication of the Notification inviting Tenders and
the last date for submission of Tenders. If the value of the Tender is
in excess of Rupees two crores, 30 days is prescribed under the Rule,
but in the impugned Notification, 15 days time alone has been
provided.
4. The learned Senior Counsel has also pointed out that yet
another violation of section 9(3) of the Tamil Nadu Transparency in
Tenders Act 1998 and a Rule 11(1) of the Tamil Nadu Tender
Transparency Rules.
5. Sub-section (3) of Section 9 of the Tamil Nadu Transparency
in Tenders Act 1998 (hereinafter called as 'the Act') mandates the
tender inviting authority to invite tenders in the form of a notice
containing such particulars and shall also publish the notice inviting
tenders in Indian Trade Journal and in daily newspapers having wide
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
circulation depending upon the value of the procurement prescribed.
The requirement of the publication of the Tender Notification in the
Indian Trade Journal is also reiterated in Rule 11(1) of the Tamil Nadu
Transparency in Tenders Rules, 2000 (hereinafter called as 'the
Rules').
6. The learned Senior Counsel appearing for the petitioner has
also made his submission that certain clauses have been incorporated
in the Tender Notification and as per clause 1.18(xvi) in Section II
GENERAL INSTRUCTIONS TO TENDERERS, a scanned copy of
original Export Licence from the respective country for export of the
coal needs to be produced and clause 7.14.2 in Section III
COMMERCIAL insists that the bidder should have valid Export Licence
of the respective countries for exporting coal and submit copy of the
same alongwith the bid.
7. According to the learned Senior Counsel for the petitioner, the
above conditions have been incorporated in order to eliminate the
bidders from India by stipulating a time limit of 15 days as no person
from India can get a license from the respective country for the export
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
of the coal and it requires a process and that cannot be completed
within the stipulated time.
8. By referring the conditions at clause 2.7 (c) & (h) in
Section III COMMERCIAL, the learned Senior Counsel has made his
submissions that these conditions are also onerous to restrict the
Suppliers and to favor a few individuals.
9. The learned Senior Counsel has also pointed out that the
administrative approval has not been obtained as per the TNEB
Manual. Clause 489 of the Tamil Nadu Electricity Board Manual
stipulates that for almost all works, the administrative approval of the
Board is necessary and in this case, only after the Notification, the
approval is sought for from the Board.
10. The learned Senior Counsel has also made elaborate
argument, by referring the Guidelines issued by the Central Vigilance
Commission, Government of India for improvement in the Procurement
System and pointed out that the publication of this e-Notification in
any national newspaper, particularly in Indian Trade Journal, Calcutta
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
is also emphasized in the said guidelines and as per the said
Guidelines, the main purpose of issuing wide publicity, generate
enough competition and to avoid favoritism and the time limit
suggested by the Vigilance Commission is that 4 to 6 weeks minimum
must be provided in the case of global tenders and 3 to 4 weeks in
case of limited tenders.
11. The learned Senior Counsel has also pointed out a Circular
issued by the Central Vigilance Commission dated 20.4.2018, by which
the vigilance Commission as directed all the Chief Vigilance Officers to
exercise oversight on all Contracts over an amount of Rs. 5 crores so
as to ensure that restrictive under discriminative clauses against
domestic suppliers are not included in the tender documents for
procurement of goods and services.
12. The learned Senior Counsel has also relied upon an Office
Memorandum issued by the Ministry of Finance dated 18.11.2020 and
submit that it is the policy of the Government that first the domestic
tender has to be floated before the Global Tenders.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
13. The learned Senior Counsel has relied upon the following
judgments in support of his submissions:-
i) Sri Venkatram Spinners Pvt. Ltd. and others vs.
State of Tamil Nadu and others (W.P.Nos.17261,
18987 and 18988 of 2017 dated 11.8.2017)
ii) Sree Balaji International v. The State of Tamil
Nadu and another (W.P.No.29054 of 2017 dated
16.11.2017)
iii) Salem District Tamil Nadu Water Supply and
Drainage Board Construction and Maintenance
Contractors Welfare Association v. The
Superintending Engineer, TWAD Board, Salem
(W.P.No.9955 of 2018 dated 23.4.2018)
iv) R.Kanagasabapathy v. The Commissioner,
Tirunelveli Municipal Corporation and others
(W.P.(MD) Nos.15537 & 15327 of 2020 dated
5.11.2020).
14. Mr M.S.Krishnan, learned senior counsel appearing for the
petitioner in W.P.No.4389 of 2021 has also raised the same grounds
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
more particularly, the time limit prescribed for submission of the
Tenders. The e-Tender Notification dated 7.2.2021 was published on
8.2.2021 on at 11:30 hours in the Tamil Nadu Government E-
Procurement Portal and the petitioner was able to access it only on
12.2.2021 and the deadline for submitting the tender documents is
fixed as 23.2.2021. According to the learned Senior Counsel for the
petitioner, the petitioner, a Company operating from Indonesia is
involved in the business of coal mining and in view of the 15 days time
limit as provided in the Tender Notification they are deprived from
participating in the Tender and the time limit prescribed is in violation
of Tamil Nadu Transparency in Tenders Rules, 2000.
15. Mr.Aravind Pandian, learned Additional Advocate General
took notice in these matters when the matters were listed for hearing
on 22.2.2021. Today, when the matters were taken up for hearing,
the learned Advocate General appearing for the respondent, at the
outset, has raised a preliminary objection on the maintainability of the
writ petitions that the petitioners are not eligible to participate in the
tenders since these petitioners do not have required qualifications
prescribed under clause 7.0 in Section I INVITATION TO BID.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
The said clause reads as under:-
"7.0 bid qualification requirement:
(i) Tenderer should have supplied 5.00 Lakh
Tonnes of imported steam coal of any origin
directly or through Public Sector Undertakings or
through trader to any of the Public and/or Private
Power Utilities and/or Public/Private industrial units
in India in any one of the preceding three financial
years i.e., 2017-18, 2018-19 and 2019-20. The
details of supply shall be furnished as per
Schedule-C. Documentary proof in the form of
copy of purchase orders placed on the tenderers
and the proof for successful execution of the same
in the form of Certificate in Original from the end
user for direct supplier (as per Schedule D) or from
end user and Public Sector Undertaking for indirect
suppliers (as per Schedules E & F), or from trader
(as per the Schedule-R) for quantity of imported
coal supplied and for satisfactory performance
should be furnished.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
ii) Tenderer should have turnover of Rs.335 Crore
in any one of three financial years (i.e., 2017-18,
2018-198 and 2019-20)"
16. The petitioners, in their Affidavits have not stated that they
are having eligible qualification to participate in the tender and when
these petitioners cannot participate in the tender, they cannot
challenge this Tender Notification and they ought to have challenged
same as a public interest litigation.
17. The learned Additional Advocate General would further
submit that the 15 days time limit fixed for submission of tenders
considering the requirement of coal for summer and the Code of
Conduct to be observed on account of the ensuing Assembly Election.
18. Rule 20(2) of the Tamil Nadu Transparency in Tenders Rules,
2000 enables the Authorities in reduction in the time stipulated. As
per sub Rule (1) of Rule 20, any reduction in the time stipulated as
per sub-rule (1) has to be specifically authorized by an authority
superior to the Tender Inviting Authority, for reasons to be recorded in
writing.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
19. The learned Advocate Advocate General also produced the
reasons recorded by the competent authority for reducing the time for
submission to 15 days on account of demand for energy during the
summer and to ensure uninterrupted supply of coal for the Thermal
Power Plants and in view of the Code of Conduct to be observed on
account of the ensuing Assembly Election.
20. However, the Advocate General has fairly submitted
that if the Election Commission is impleaded as party to the writ
petition and if any order has been passed by this court for extending
the time, he would advise the respondent to extend the period for
submission of tenders by another 15 days by issuing necessary
Corrigendum. The learned Advocate General has pointed out that
considering the need of more energy during the summer, it is
the duty of the Government to ensure uninterrupted supply of coal to
the Thermal Power Plants. He would further submit that this
Tender has been floated for procurement of 20 Lakh tonnes of
imported coal and this is almost 6% of the requirement of coal for the
Thermal Power Plants and they are also procuring coal from various
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
Indian Coal Companies to an extent of 180 lakh tonnes. As a technical
specification, this coal is procured for using the same by mixing with
the Indian coal to achieve the calorific value of 6000 kcal/kg. It does
not depend only on the calorific value and it also depends on the ash
content and certain other technical things.
21. The learned Advocate General Mr.Vijay Narayan, by referring
the Tender Notification, would submit that the Tender Notification does
not restrict supply of 20 lakh tonnes of coal from any particular
country and it can be from any origin but with a specification of 6000
kcal/kg and therefore, it is not correct to say that Indian Suppliers are
discriminated and eliminated from participating in the tender process.
22. The learned Advocate General has also relied upon the
orders of the honourable Supreme Court in Jagdish Mandal V. State
of Orissa and others reported in (2017) 14 SCC 517 wherein the
Hon'ble Apex Court has held as follows:-
"19. Judicial review of administrative action is
intended to prevent arbitrariness, irrationality,
unreasonableness, bias and malafides. Its purpose is
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
to check whether choice or decision is made 'lawfully'
and not to check whether choice or decision is
'sound'. When the power of judicial review is invoked
in matters relating to tenders or award of contracts,
certain special features should be borne in mind. A
contract is a commercial transaction. Evaluating
tenders and awarding contracts are essentially
commercial functions. Principles of equity and natural
justice stay at a distance. If the decision relating to
award of contract is bona fide and is in public
interest, courts will not, in exercise of power of
judicial review, interfere even if a procedural
aberration or error in assessment or prejudice to a
tenderer, is made out. The power of judicial review
will not be permitted to be invoked to protect private
interest at the cost of public interest, or to decide
contractual disputes. The tenderer or contractor with
a grievance can always seek damages in a civil court.
Attempts by unsuccessful tenderers with imaginary
grievances, wounded pride and business rivalry, to
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
make mountains out of molehills of some
technical/procedural violation or some prejudice to
self, and persuade courts to interfere by exercising
power of judicial review, should be resisted. Such
interferences, either interim or final, may hold up
public works for years, or delay relief and succour to
thousands and millions and may increase the project
cost manifold. Therefore, a court before interfering in
tender or contractual matters in exercise of power of
judicial review, should pose to itself the following
questions :
i) Whether the process adopted or decision
made by the authority is mala fide or intended
to favour someone.
OR
Whether the process adopted or decision
made is so arbitrary and irrational that the
court can say : 'the decision is such that no
responsible authority acting reasonably and in
accordance with relevant law could have
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
reached.'
ii) Whether public interest is affected.
If the answers are in the negative, there should
be no interference under Article 226. Cases involving
black-listing or imposition of penal consequences on a
tenderer/contractor or distribution of state largesse
(allotment of sites/shops, grant of licences,
dealerships and franchises) stand on a different
footing as they may require a higher degree of
fairness in action."
23. This court paid its anxious consideration to the rival
submissions and also perused the materials placed on record.
24. The respondent invited online bids for supply of 20 lakhs of
imported coal of any origin having calorific value of 6000 kcal/kg vide
the Tender Notification dated 18.1.2021. The main grievance of the
petitioners is that the Tender value is 3500 crores, but the time limit
prescribed for submission of tenders is fixed as 15 days from the date
of notification of the tender which is in violation of the Tamil Nadu
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
Transparency in Tenders Rules, 2000
25. Rule 20 of the Tamil Nadu Transparency in Tenders Rules,
2000 reads as under:-
"20. Minimum time for submission of tenders.-
(1) The Tender Inviting Authority shall ensure
that adequate time is provided for the
submission of tenders and a minimum time is
allowed between date of publication of the
Notice Inviting Tenders in the relevant Tender
Bulletin or in the newspapers whichever is
later and the last date for submission of
tenders. This minimum period shall be as
follows.-
(a) for tenders upto rupees two crores
in value, fifteen days; and
(b) for tenders in excess of rupees two
crores in value, thirty days.
(2) Any reduction in the time stipulated
as per sub-rule (1) has to be specifically
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
authorized by an authority superior to the
Tender Inviting Authority for reasons to be
recorded in writing."
26. Rule 20 prescribes a time limit for submission of Tenders and
sub rule (2) of Rule 20 enables the Authority superior to the Tender
Inviting Authority for reducing the time stipulated as per sub rule (1)
of Rule 20 for the reasons to be recorded in writing. In this case, the
authority superior to the Tender Inviting Authority has also recorded
certain reasons on the requirement of demand of energy during the
summer season under to ensure uninterrupted supply of coal to the
Thermal Power Plants to ensure supply of electricity to all the citizens.
The authority has also pointed out about the Code of Conduct to be
observed on account of the ensuing Assembly Election from March
2021 and therefore had taken such a decision to reduce the time limit
for submission of tenders.
27. During the course of arguments, the learned Advocate
General has fairly submitted that he advised to provide sufficient time
by issuing Corrigendum. This court, by order dated 23.2.2021,
has recorded the same and granted a liberty to issue the Corrigendum
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
if they are so advised.
28. Mr. M.S.Krishnan, learned Senior Counsel appearing for the
petitioner in W.P.No.4389 of 2021 expressed his concern that if the
time limit is extended by the Corrigendum, then his client has no other
grievance.
29. Mr.Sathish Parasaran, the learned Senior Counsel for the
petitioner in W.P.No.4359 of 2021, has canvassed that the other
mandatory requirements in this tender process like publication of
tender documents in Indian Trade Journal is also violated and as per
clause 1.18(xvi), the Tender Inviting Authority is insisting for a copy of
the original export license from the respective country for export of the
coal which cannot be completed within a stipulated time and this
condition was not in the previous year's tender documents.
30. Mr.Aravind Pandian, learning Additional Advocate General
has submitted that this condition is not introduced in this year and it
was also very much available in the previous tender notifications and
this document is expected as a condition to ensure only the
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
uninterrupted supply of coal to the Thermal Power Plants.
31. This court in Sree Balaji International v. The State of
Tamil Nadu and another (W.P.No.29054 of 2017 dated
16.11.2017) has held that requirement of publication of Tender
Notification in the Indian Trade Journal is mandatory and the Tender
Notification, with regard to which such a mandatory requirement was
not complied, cannot be sustained. The relevant portion of the said
order is extracted hereunder:
"8.There is no dispute to the fact that the value of
the procurement prescribed in this case requires
such publication of notice not only in the daily
newspaper and also in the Indian Trade Journal.
Therefore, the respondents cannot escape by
saying that publication in the daily newspapers is
sufficient more particularly, when the petitioner is
aware of the tender process by noticing such
publication in the newspapers. Needless to say
that compliance of the mandatory requirements
under law, by the statutory authorities, has to be
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
ascertained and get satisfied based on the action
of the authorities and not to be valued based on
the act of the other party. In other words,
knowledge to the other party through daily
newspapers publication cannot be construed as
sufficient compliance of the mandatory
requirement of Section 9(3) of the said Act, in the
absence of publication of notice in the Indian
Trade Journal. In this case, admittedly, no such
publication was made in the Indian Trade Journal.
The very same issue was considered by the
learned Judge of this Court in W.P.Nos.17261,
etc., of 2017, wherein after elaborately discussing
the facts and circumstances and the relevant
provision of law, the learned Judge has observed
at paragraph Nos.14 and 15 as follows:
"14.The Division Bench of the
Karnataka High Court in the on-
reported judgment made in Writ Appeal
No.4066 of 2011 and 4739 of
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
2011(cited supra) also held that non-
publication of the notification inviting
tender in the Indian Trade Journal, as
required under Rule 10 of the
Karnataka Transparency Public
Procurement Act, 1999, is fatal and
vitiates the entire tender processing.
The ratio laid down in the said
judgment squarely applies to the
present case.
15.Since the tender notification has not
been published as per the provisions of
the Act, on this ground alone, the
notification is liable to be quashed."
Therefore, I am of the firm view that the tender
notification impugned in this writ petition without
complying with such mandatory requirement of
publishing the tender notice in the Indian Trade
Journal, cannot be sustained.
9.In so far as the next contention viz., want
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
of 30 days time is concerned, it is contended by
the learned Additional Advocate General that
sufficient permission as required under Rule 20(2)
from the Superior Officer has been obtained for
reduction of time in view of the urgency in this
matter for supply of sugar to the public.
Therefore, he submitted that the petitioner is not
justified in contending otherwise.
10.No doubt, Rule 20(2) of the Tamilnadu
Transparency in Tenders Rules 2000, empowers
the reduction of time and however, such power
has to be exercised only by the Authority, who is
superior to the tender inviting authority, by
specifically stating and recording the reasons for
reducing such time limit. It is true that in this
case, the respondents seemed to have obtained
such permission. However, as this court is
satisfied to set aside the impugned tender
notification on the first ground viz., want of
publication in the Indian Trade Journal, the
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
respondents have to go ahead with fresh
publication only by following all the procedures.
Therefore, they are not entitled to harp upon the
permission already obtained from the superior
authority in respect of the tender, which is being
set aside herein for not complying with the
mandatory requirement under Section 9(3) of the
said Act. Accordingly, this writ petition is allowed
and the impugned tender notification is set aside
with liberty to the respondents to proceed afresh
by strictly following the mandatory requirement of
law. No costs. The connected miscellaneous
petitions are closed."
32. The learned Additional Advocate General referring to the
provision for publication of Tender Notification in the Indian Trade
Journal, would submit that it is only directory in nature.
33. This court in Sri Venkatram Spinners Pvt. Ltd. and
others vs. State of Tamil Nadu and others (W.P.Nos.17261,
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
18987 and 18988 of 2017 dated 11.8.2017), has elaborately
discussed the issue as to whether the provision for publication of
Tender Notification in the Indian Trade Journal is mandatory or
directory and has held that it is mandatory and quashed the
Notification. The relevant portions of the order passed by this court is
as follows:-
"The Supreme Court in the case of SHARIF-UD-
DIN v. ABDUL GANI LONE, AIR 1980 SC 303,
dealing with the question whether a rule is
mandatory or directory, has held as under:
"9. The difference between a mandatory
rule and a directory rule is that while the
former must be strictly observed, in the
case of the latter, substantial compliance
may be sufficient to achieve the object
regarding which the rule is enacted.
Certain broad propositions which can be
deduced from several decisions of Courts
regarding the rules of construction that
should be followed in determining
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
whether a provision of law is directory or
mandatory may be summarised thus:
The fact that the statute uses the word
'shall' while laying down a duty is not
conclusive on the question whether it is a
mandatory or directory provision. In
order to find out the true character of the
legislation, the Court has to ascertain the
object which the provision of law in
question is to subserve and its design
and the context in which it is enacted. If
the object of a law is to be defeated by
non-compliance with it, it has to be
regarded as mandatory. But when a
provision of law relates to the
performance of any public duty and the
invalidation of any act done in disregard
of that provision causes serious prejudice
to those for whose benefit it is enacted
and at the same time who have no
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
control over the performance of the duty,
such provision should be treated as a
directory one. Where however, a
provision of law prescribes that a certain
act has to be done in a particular manner
by a person in order to acquire a right
and it is coupled with another provision
which confers an immunity on another
when such act is not done in that
manner, the former has to be regarded
as a mandatory one. A procedural rule
ordinarily should not be construed as
mandatory if the defect in the act done in
pursuance of it can be cured by
permitting appropriate rectification to be
carried out at a subsequent stage unless
by according such permission to rectify
the error later on, another rule would be
contravened. Whenever a statute
prescribes that a particular act is to be
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
done in a particular manner and also lays
down that a failure to comply with the
said requirement leads to a specific
consequence, it would be difficult to hold
that the requirement is not mandatory
and the specific consequence should not
follow."
...
8. From the aforesaid proposition of law, it
becomes clear that where the statute uses the
word 'shall' while laying down a duty it is not
conclusive on the question whether it is a
mandatory or directory provision. In order to
find out the true character of the legislation, the
Court has to ascertain the object which the
provision of law in question is to subserve and
its design and the context in which it is enacted.
If the object of law is to be defeated by non-
compliance with it, it has to be regarded as
mandatory. A procedural rule ordinarily should
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
not be construed as mandatory.
(vi) AIR 2005 Pat 136 [Smt.Sunita Devi
and others Vs. Abdesh Kumar Sinha alias
Kamleshwari Pd. Sinha and others]
wherein the Patna High Court held as
follows:
...
15. However, with regard to the
amended provision of Rule 1 of Order
VIII of the Code, two expressions used
therein, namely, 'shall' and 'not later
than ninety days' have to be
considered. It is a well settled principle
of law that where 'May' and 'Shall'
both are used in the same provision. It
will be mandatory where 'Shall' is used
and it will be directory where 'May' is
used as has been made clear by
Maxwell on Interpretation of Statute
(12th Edition) at page 282. But even
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
then the Courts can still ascertain the
real intention of the Legislature as has
been held by the Hon'ble Apex court in
the case' of Govind Lal Chaggan Lal
Patel v. The Agriculture Produce
Market Committee, reported in AIR
1976 SC 263, which relied upon the
following passage of Crawford on
'Statutory Construction' (Edn. 1940,
Art. 261, Page 516);
"The question as to whether a statute is
mandatory or directory depends upon
the intent of the Legislature and not
upon the language in which the intent
is clothed. The meaning and intention
of the Legislature must govern, and
these are to be ascertained, not only
from the phraseology of the provision,
but also by considering its nature, its
design, and the consequences which
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
would follow from construing it the one
way or the other."
13.On a careful consideration of the materials
available on record and the submissions made
by the learned counsel on either side and also
the judgments relied upon by the learned
counsel on either side, it is not in dispute that
the 3rd respondent had issued the tender
notification published in the Newspaper on
22.06.2017 for the supply of polyester yarn for
production of polycot Sarees and Dhoties under
cost free distribution of Sarees and Dhoties
Scheme Pongal 2018. The last date for
submission of bid was 11.00 am on 07.07.2017.
Admittedly, the tender notification was published
only in the Newspapers and in the State Tender
Bulletin. As per the provisions of Section 9(3) of
the Tamil Nadu Transparency in Tenders Act,
1998, the Tender Inviting Authority shall also
publish the notice inviting tenders in Indian
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
Trade Journal and in daily Newspapers having
wide circulation depending upon the value of the
procurement prescribed. As per Rule 11 (1) of
the Tamil Nadu Transparency in Tenders Rules,
2000, the Tender Inviting Authority shall have
the notice inviting tenders published in the
Indian Trade Journal in all cases where the value
of procurement exceeds Rs.50 crores. On
01.11.2011, a Government Order was also
issued in G.O.Ms.No.307 Finance (Salaries)
Department wherein while specifying the
financial limits for advertising tender notice, the
Government had framed guidelines that if the
value of the tender is more than Rs.50 crores,
the tender notice should be published in Indian
Trade Journal. Therefore, as per Section 9(3) of
the Act and Rule 11 (1) of the Rules and also
G.O.Ms.No.307 dated 01.11.2011, if the value of
the tender is more than Rs.50 crores, the tender
notice should be published in the Indian Trade
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
Journal. Admittedly, the tender notification
dated 22.06.2017 was not published in the
Indian Trade Journal. The provisions of Section
9(3) and Rule 11(1) are mandatory and the said
provisions cannot be given a go-by, by the
authorities.
14.The Division Bench of the Karnataka High
Court in the un-reported judgment made in Writ
Appeal No.4066 of 2011 and 4739 of 2011
(cited supra) also held that non-publication of
the notification inviting tender in the Indian
Trade Journal, as required under Rule 10 of the
Karnataka Transparency Public Procurement Act,
1999, is fatal and vitiates the entire tender
processing. The ratio laid down in the said
judgment squarely applies to the present case.
15.Since the tender notification has not been
published as per the provisions of the Act, on
this ground alone, the notification is liable to be
quashed."
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
34. Admittedly, in this case the Tender Notification has not been
published in the Indian Trade Journal as mandated under section 9(3)
of the Tender Transparency Act and Rule 11(1) of the Tamil Nadu
Tender Transparency Rules.
35. However, since the learned Additional Advocate General has
pointed out the need of uninterrupted supply of coal for the Thermal
Power Plants with the Calorific Value to meet out the energy demand
during the summer, this court is not inclined to set aside the Tender
Notification. The respondent shall take necessary steps to publish the
Tender Notification in the Indian Trade Journal as mandated under
section 9(3) of the Tender Transparency Act and Rule 11(1) of the
Tamil Nadu Tender Transparency Rules.
36. The other grounds raised by the learned Senior Counsel for
the petitioner cannot be considered in the light of the ratio laid down
by the Hon'ble Apex Court in Jagdish Mandal vs. State of Orissa
and others ((2007) 14 SCC 517).
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
37. Further, it is also reported that the Corrigendum has been
issued extending the time limit by providing additional 15 days time
and therefore the respondent shall ensure the publication of Tender
Notification in the Indian Trade Journal for enabling other bidders to
participate in the Tender. Even if Code of Conduct is issued, it is open
to the respondent to approach the Election Commission for proceeding
with the work by referring the need for the coal.
The Writ Petitions are, accordingly, disposed of. No order as to
costs. The connected Miscellaneous Petitions are closed.
24.2.2021.
Index: Yes/No.
ssk.
Note to office:-
Issue copy of this order
by today itself.
To
1. Tamil Nadu Electricity Generation
and Distribution Company Ltd
(TANGEDCO), rep. by its Chairman,
NPKRR Maaligai, 144 Anna Salai,
Chennai 600 002.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
2. Tamil Nadu Generation and
Distribution Corporation Ltd.,
rep. by its Chief Engineer/Mech/Coal,
II Floor, NPKRR Maaligai,
144 Anna Salai,
Chennai 600 002.
3. Ind-Vigo Coal Pvt. Ltd.,
rep. by its Authorized Signatory,
Mr.S.Thirumalaisamy,
4-106-B, CGE Colony, 3rd Street,
(Near Thiraviyam Ortho Hospital),
Tuticorin 628 002.
Also at
New No.4/1, Old No.23/1, 1st Floor,
Kanniappa Nagar, 86th Street,
Ashok Nagar, Chennai 600 083.
4. P.T.Catur Azung Rizki,
rep. by Mrs.Suba Priya,
Liasoning Manager,
JI, Raya Hamkam Pura Melati,
Indahll, A-4, Pondok Melah,
Bekasi, West Java,
Indonesia 17444.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.4357 & 4389 of 2021
Dt.24.2.2021
B.PUGALENDHI, J.
Ssk.
W.P.No.4357 & 4389 of 2021
24.2.2021.
https://www.mhc.tn.gov.in/judis/
