Madras High Court

Rml.Mani vs The District Collector Cum ... on 27 April, 2023

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 27.04.2023

                                                    CORAM

                              THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

                                           W.P.(MD)No.7668 of 2023
                                                    and
                                          W.M.P.(MD)No.7129 of 2023

                     RML.Mani                                       ... Petitioner

                                                       vs.
                     1.The District Collector cum Chairman,
                     District Rural Development Agency,
                     Sivagangai District, Sivagangai.

                     2.The Project Director,
                     District Rural Development Agency,
                     Sivagangai District, Sivagangai.

                     3.The Assistant Director of Panchayat,
                     Sivagangai District, Sivagangai,

                     4.The Block Development Officer/Tender Inviting Authority,
                     Kalaiyarkovil Union, Sivagangai District.

                     5.Sivakumar                                    ... Respondents

                     PRAYER: Writ Petition filed under Article 226 of the Constitution of
                     India for issuance of Writ of Certiorarified Mandamus, to call for the
                     records relating to the impugned order of the fourth respondent, dated


                     1/11

https://www.mhc.tn.gov.in/judis
                     30.03.2023 in Na.Ka.A2/1999/2022 and to quash the same as illegal and
                     consequently, to direct the respondents 1 to 4 to declare the petitioner as
                     successful bidder forthwith for the tender in strengthening of the road
                     from Samathuvapuram at Purasaiudaippu Village in Mudikkarai
                     Panchayat under Periyar Ninaivu Samathapuram Scheme 2022-23.

                                       For Petitioner     :Mr.A.Mohan
                                       For R1 to R4       :Mr.N.Muthu Vijayan
                                                         Special Government Pleader
                                       For R5             :Mr.V.Kannan
                                                            *****


                                                         ORDER

This Writ Petition had been originally filed in the nature of a

Mandamus seeking a direction against the first to fourth respondents to

open and accept the e-bid submitted by the petitioner to carry out civil

work, namely, “strengthening of road from Samathuvapuram at

Purasadaiudaippu Village in Mudikkarai Panchayat” under Periyar

Ninaivu Samathuvapuram Scheme-2022-2023 and to consider the same

along with other e-bids and declare the petitioner as a successful bidder.

2.Pending the Writ Petition, it had come to the knowledge of the

petitioner that his bid had been rejected by an order, dated 30.03.2023

https://www.mhc.tn.gov.in/judis and consequently, the Writ of Mandamus was amended to a Writ of

Certiorarified Mandamus, calling upon the respondents to produce the

records relating to the rejection of the e-bid offered by the petitioner

dated 30.03.2023 and to quash the same.

3.It must also be mentioned that after the bid of the Writ Petitioner

had been rejected, the officials respondents had awarded the contract to

the fifth respondent by a work order, dated 31.03.2023. The grant of that

work has not been challenged till date. It would effectively mean that

this Court can only examine the rejection of the bid of the petitioner, but

cannot examine the grant of work order to the fifth respondent.

4.Heard Mr.A.Mohan, learned Counsel for the petitioner,

Mr.N.Muthu Vijayan, learned Special Government Pleader for the

respondents 1 to 4 and Mr.V.Kannan, learned Counsel for the fifth

respondent.

5.The main contention raised by the learned Counsel for the

petitioner is that the conditions for submission of documents stipulated

https://www.mhc.tn.gov.in/judis that they should be submitted on or before 03.00 pm on 30.03.2023

through online.

6.My attention had been drawn to the bid submission confirmation

received by the petitioner herein, which reflects that the petitioner had

submitted the documents on 30.03.2023 at 02.13 pm even before the

closing time of 03.00 pm. It had also stated by the leaned Counsel for

the petitioner that the petitioner wanted to produce the hard copies,

particularly, the original demand draft and other documents, but they

were refused to be received by the respondents and immediately,

thereafter, on the very same day, he had also preferred a complaint to the

District Collector complaining about the refusal to receive the documents

of the petitioner herein.

6.The learned Counsel for the petitioner also pointed out that on

the very same day, 30.03.2023, in a hurried manner, the bid submitted by

the petitioner was rejected and apparently, the fifth respondent had been

issued with the contract. It is under those circumstances, this Writ

Petition has been filed questioning now the rejection of the bid of the

https://www.mhc.tn.gov.in/judis petitioner.

7.A counter affidavit had been filed by the fourth respondent/Block

Development Officer and he had stated that the petitioner had submitted

the e-bid tender through online. It had also stated that the original

documents and the demand draft should also be submitted before 03.00

pm on 30.03.2023, but the petitioner has failed to comply with this

condition. It is also stated that at 03.00 pm, after the closing time, the

said official respondents had assessed the documents and ascertained that

only three persons have submitted the documents, namely, the petitioner

herein, the fifth respondent and another individual, Anbunathan. The

original documents of the petitioner and the demand drafts were checked

and it was found that they had not been submitted within the time

stipulated and therefore, the bid of the petitioner had not been considered

as per the applicable rules.

8.It had also stated that the bid of the fifth respondent was the

lowest bid and therefore, he was awarded with the contract. It had also

been stated that the petitioner has no locus to question the proceedings,

https://www.mhc.tn.gov.in/judis as his bid had been rejected particularly because he had not submitted the

entire documents as were required within the time stipulated.

9.A counter had also been filed by the fifth respondent, who has

been awarded the contract and in his counter, he had given the list of

documents, which he had submitted within the time on 30.03.2023. It

had also been stated that thereafter, the work order has been granted to

him and it was stated that it was a time bound work order to be

completed within one month and therefore, even on the date of filing of

the counter affidavit, namely, 12.04.2023, it has been stated that the fifth

respondent had completed about 25% of the work. Today, a

representation was made that substantially more percentage of the work

had been completed and that the work is ongoing.

10.The fourth respondent had also filed the documents which the

petitioner had filed along with his bid. It is seen that the petitioner had

not filed an affidavit as is required, which had been filed by the fifth

respondent and also by the other contesting party, Anbunathan. The fifth

respondent had filed, as is seen from the records, a certificate from the

https://www.mhc.tn.gov.in/judis bank, an annexure which is called 'F' affidavit, an annexure, 'G'

undertaking, a term deposit advice from the Karur Vysya Bank. The

petitioner herein along with the e-bid had submitted a copy of the

demand draft, PAN card issued from the Income Tax Department, GST

Certificate. Two affidavits, as are required, had not been submitted.

11.The primary issue to be examined are the allegations of the

petitioner that the petitioner had handed over the hard copies, but they

were refused to be received and that immediately, thereafter, he had given

a complaint before the District Collector. This fact has been denied in

the counter. The learned Counsel for the petitioner stated that it is only a

general denial. But the fact is that the respondents had denied that the

petitioner had produced necessary documents to be submitted along with

the e-bid.

12.These are issues, which have to be examined only by the

respondents. If the respondents had, according to the petitioner, refused

to receive the documents of the petitioner, then the petitioner should have

taken recourse to Section 11 of the Tamil Nadu Transparency in Tenders

https://www.mhc.tn.gov.in/judis Act, 1998. Section 11 of the Act provides an appeal to be filed by any

tenderer aggrieved by an order passed by the Tender Accepting Authority.

When an alternative remedy is available, the petitioner had given a

complaint to the District Collector. Even though that might be an initial

step taken by the petitioner herein, still the proper step would have been

to file an appeal as provided under Section 11 of the Tamil Nadu

Transparency in Tenders Act, 1998. This Court cannot examine

contractual disputes between the parties.

10.In Uflex Ltd. Vs Government of Tamil Nadu and others,

reported in 2021 SCC OnLine SC 738, the Hon’ble Supreme Court held

as follows:

“42. 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 a public authority, making the said process even more cumbersome…. 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.”

https://www.mhc.tn.gov.in/judis

11.The Honourable Supreme Court had frowned upon High Courts

examining issues relating to grant/non-grant of tenders. The judgment

cited was an appeal, which went from the Madras High Court to the

Supreme Court questioning an interference in the grant of tender. The

Supreme Court had come down heavily on the Court and stated that High

Courts should not, as a matter of regularity, interfere with grant or

otherwise of tenders and the matter should be proceeded only in

accordance with the permission of the Act, namely, the Tamil Nadu

Transparency in Tenders Act, 1998.

12.It is also seen that the fifth respondent had been awarded the

contract and that has not been challenged, which effectively means that

the fifth respondent can continue to do the work, as has been granted to