Madras High Court
Power Media vs The Managing Director on 25 January, 2022
W.P.(MD) No.1048 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
W.P.(MD) No.1048 of 2022
and W.M.P.(MD)Nos.882 and 883 of 2022
Power Media,
Represented by its Proprietor,
Santhana Mariappan ... Petitioner
vs.
The Managing Director,
Tamil Nadu State Transport Corporation (Tirunelveli) Limited,
Central Office,
Tirunelveli District. ... Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorari, to call for the records of the impugned tender
notification issued by the respondent in Tender No.
3215/O&M/Corp/TNSTC/TNV/2020 nil. dated and quash the same.
For Petitioner : Mr.M.Subash Babu
ORDER
I am not impressed with the submissions made by the learned counsel for
the petitioner.
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.1048 of 2022
2.The petitioner, had the benefit of a contract granted in his favour for
putting up advertisement boards and it was implied that the respondent Transport
Corporation would be running 901 buses. Owing to the Covid-19 pandemic, the
number of buses operated had drastically reduced to 198. Complaining about this
particular fact, though the contract was subsisting till 24.11.2023, the petitioner
had earlier filed W.P.(MD)No.15897 of 2021.
3.That came up for consideration before a learned Single Judge of this
Court and by order dated 06.09.2021, it had been directed that since the
agreement provided an arbitration clause, the petitioner should move appropriate
application seeking appointment of an arbitrator and seeks necessary reliefs. The
petitioner had taken up that particular direction of this Court and had filed A.O.P.
No.289 of 2021 which is now pending on the file of the Principal District Court at
Tirunelveli.
4.It is also mentioned that on the same day on 06.09.2021, when the learned
Single Judge had directed the petitioner herein to approach the arbitral tribunal,
the existing agreement had also been cancelled by the respondent. This naturally
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W.P.(MD) No.1048 of 2022
means that the petitioner has no contractual relationship with the respondent at
all.
5.The respondent had now, issued a tender schedule and the petitioner is
deeply aggrieved by the same. It is stated that the last date and time for
submission of tender is on 28.01.2022. The petitioner fears that a third party
might get the tender and therefore, the petitioner's interest would be deeply
affected and third party rights would also accrue.
6.But having approached the arbitral tribunal and having also mentioned in
the petition filed before the arbitral tribunal that the respondent intends to call for
new tenders, the petitioner may very well approach the arbitral tribunal seeking
necessary reliefs. The Arbitrator and Conciliation Act, 1996 is comprehensive in
nature. The writ petition cannot be maintained. There cannot be an injunction
restraining the respondent from calling for tenders.
7.With respect to the issue on tenders, the Hon'ble Supreme Court in Uflex
Limited Vs. The Government of Tamil Nadu and others reported in 2021 SCC
Online 738, had categorically come down on Courts interfering with tender
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W.P.(MD) No.1048 of 2022
matters and had stated that it is exclusively the domain of the Tender Issuing
Authority and the Court under Article 226 of the Constitution of India cannot sit
as an Appellate Authority over every act done by the Tender Issuing Authority.
Paragraph No.40 in the said Judgment is as follows:-
“..40.We must begin by noticing that we are examining the case, as
already stated above, on the parameters discussed at the inception. In
commercial tender matters there is obviously an aspect of commercial
competitiveness. For every succeeding party who gets a tender there may be
a couple or more parties who are not awarded the tender as there can be
only one L-1. The question is should the judicial process be resorted to for
downplaying the freedom which a tendering party has, merely because it is a
State or public authority, making the said process even more cumbersome.
We have already noted that element of transparency is always required in
such tenders because of the nature of economic activity carried on by the
State, but the contours under which they are to be examine are restricted as
set out in Tata Cellular Vs. Union of India reported in (1994) 6 SCC
651 and other cases. The objective is not to make the Court an appellate
authority for scrutinizing as to whom the tender should be awarded.
Economics must be permitted to play its role for which the tendering
authority knows best as to what is suited in terms of technology and price
for them.”
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W.P.(MD) No.1048 of 2022
8.I may also referred to Vidya Drolia and Others Vs. Durga Trading
Corporaiton, reported in 2021 (2) SCC Page 1, wherein, a larger Bench of the
Supreme Court had very clearly stated that arbitrability of an any issue should be
taken up only before the arbitral tribunal and it is not for the Courts to examine
the issue of arbitrability.
9.All the issues raised in the writ petition can be agitated before the Arbitral
Tribunal and hence, no further directions are required. The Writ Petition stands
dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
25.01.2022
Index : Yes / No
Internet : Yes / No
sji
Note:
In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.1048 of 2022
C.V.KARTHIKEYAN,J.
sji
To
The Managing Director,
Tamil Nadu State Transport Corporation (Tirunelveli) Limited,
Central Office,
Tirunelveli District.
W.P.(MD) No.1048 of 2022
25.01.2022
https://www.mhc.tn.gov.in/judis
