Madras High Court
K.Durvasulu vs S.Mahadevan on 5 January, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2022
Coram
The Hon'ble Mr. Justice PARESH UPADHYAY
and
The Hon'ble Mr. Justice SATHI KUMAR SUKUMARA KURUP
W.A.No. 7 of 2022
and C.M.P.Nos.99 and 101 of 2022
K.Durvasulu ..Appellant
Vs
1.S.Mahadevan
2.The Commissioner,
Greater Chennai Corporation,
Rippon Buildings,
Chennai – 600 003.
3.The Superintending Engineer,
Bus Route Roads Department,
Greater Chennai Corporation,
Rippon Buildings,
Chennai – 600 003.
4.Tamil Nadu Pollution Control Board,
Rep. By its District Environmental Engineer,
Gummidipoondi,
Tiruvallur District. ..Respondents
Appeal preferred under Clause XV of Letters Patent against the
order dated 23.12.2021 made in W.P.No.28002 of 2021.
For Appellant .. Mr.AR.L.Sundaresan
Senior Counsel
for Ms.AL.Ganthimathi
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2
JUDGMENT
(Delivered by PARESH UPADHYAY, J.)
Challenge in this appeal is made to the order passed by learned
Single Judge dated 23.12.2021 recorded on W.P.No. 28002 of 2021.
The appeal is by a third party, who was granted leave by this Court
vide order dated 04.01.2022 recorded on C.M.P.No.72 of 2022.
2. Mr.AR.L.Sundaresan, learned Senior Advocate for the
appellant has submitted that the learned Single Judge, by the
impugned order fell in error by granting extension of time to submit
valid Pollution Control Board Certificate which would be relevant
factor to decide the eligibility of the original writ petitioner. It is
submitted that the same ought not to have been done. Reliance is
placed on the decision of the Supreme Court of India in Ramana
Dayaram Shetty Vs. International Airport Authority of India and
Others (1979) 3 SCC 489. Attention of this Court is also invited to
the tender condition no. 9.1 (at page 41), the corrigendum therein at
page 164 dated 14.12.2021 and the document at page 166 to point
out that the application of the original writ petitioner dated
09.12.2021 was already rejected by the Pollution Control Board on
21.12.2021. Reference is also made to the document at page 182
dated 31.12.2021, which is clearance certificate issued by the
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Pollution Control Board in favour of the original writ petitioner
pursuant to the order of learned Single Judge. It is submitted that the
impugned order is unsustainable and the same needs to be
interfered with.
3. Having heard the learned senior advocate for the
appellant and having considered the material on record, this Court
finds as under :-
3.2 The original writ petitioner had approached this Court
with the following prayer:-
"Writ petition under Article 226 of the
Constitution of India praying for the issuance of a
writ of mandamus, directing the third respondent
to process the petitioner's application dated
09.12.2021 and pass orders within a period of 7
days and direct the 2nd respondent to extend the
time for submitting the Pollution Control Board
Certificate before the 2nd respondent Board by
another 4 weeks and not to reject the petitioner's
tender till then in E-Tender Short Tender Notice in
BRR.C.No.B4/4716/2021 uploaded on 03.12.2021
on the file of the 2nd respondent for the Work
No.2 to 11."
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3.3 In the writ petition, the respondents were the
Commissioner, Greater Chennai Corporation so also the Tamil Nadu
Pollution Control Board being respondents 1 and 3 respectively, both
being instrumentalities of the State.
4. It is not in dispute that the bidding process was by the
first respondent and the requirement therein was production of
clearance from the third respondent. The grievance of the original
writ petitioner was that, though he had made application to the
respondent No.3 who is one instrumentality of the State, he is yet to
give that clearance and because of non-compliance of that condition,
over which the original writ petitioner can not be said to have any
control, the second instrumentality of the same Government
(respondent No.1) should not be permitted to treat the original
petitioner as ineligible to bid. It is under these circumstances,
learned single Judge, after hearing the concerned parties passed the
order, the relevant of which reads as under:
“10. Since the condition 3.4(e)(i) was issued only
by way of a corrigendum after the tender notice
dated 03.12.2021 and thereafter only the
petitioner since has applied to the third
respondent for getting the certificate and it will
take a reasonable time, this Court feels that at
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least time up to 31.12.2021 can be given to the
petitioner and the other similarly placed tenderers
in respect of the tender notice in question to
produce the certificate obtained from the Pollution
Control Board under Clause 3.4(e)(i).
11. In view of the above, there shall be a
direction to the first respondent to extend the
time, to produce the Pollution Control Board
certificate as claimed through the corrigendum
notification issued in the tender notification, by
Clause 3.4(e)(i), up to 31.12.2021.
12. In view of the above direction, there
shall be a direction to the third respondent, on
behalf of whom Mrs.V.Yamunadevi, learned
Special Government Pleader takes notice, to
process the application of the petitioner and
decide the request of the petitioner for grant of
NOC within a period of 5 days from today. It is
made clear that on or before 31.12.2021, if the
petitioner has not produced the necessary
certificate under Clause 3.4(e)(i), it is open to the
respondent to proceed and finalize the tender in
accordance with the tender conditions.
With the above direction, this writ petition is
disposed of. No costs.”
5. We find that, complying with the condition of submitting
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valid Pollution Control Board Certificate was already thought proper to
be relaxed and for that purpose cut-off date was changed vide
corrigendum dated 14.12.2021, which is on record. That is not under
challenge.
6. A citizen cannot be condemned by any public authority
saying that, my own authority needs to do something within
stipulated time, which it has not, and therefore you are not eligible to
participate in the bidding process. Keeping this in view, learned
single Judge, after hearing the submissions of the concerned parties
including the Pollution Control Board has exercised discretion, which
in our view, can not be said to be an error which may call for any
interference in an intra-court appeal. This appeal therefore needs to
be dismissed.
7. So far reliance on the decision of the Supreme Court of India
in Ramana Dayaram Shetty (supra) is concerned, in our view, in
the facts noted above, the same will not change the complexion of
the matter. We also note that the order of learned single Judge has
already stood complied with even by the Pollution Control Board and
clearance certificate is also issued in favour of the original writ
petitioner on 31.12.2021.
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8. For the above reasons, this writ appeal is dismissed. No
costs. Consequently, connected miscellaneous petitions are closed.
(P.U.J.,) (S.S.K.J.,)
05.01.2022
Index:Yes/No
mmi/13
To
1.The Commissioner,
Greater Chennai Corporation,
Rippon Buildings,
Chennai – 600 003.
2.The Superintending Engineer,
Bus Route Roads Department,
Greater Chennai Corporation,
Rippon Buildings,
Chennai – 600 003.
3.The District Environmental Engineer,
Tamil Nadu Pollution Control Board,
Gummidipoondi,
Tiruvallur District.
https://www.mhc.tn.gov.in/judis
PARESH UPADHYAY, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
mmi
W.A.No.7 of 2022
05.01.2022
https://www.mhc.tn.gov.in/judis
