IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:15/10/2004 CORAM THE HONOURABLE MR.JUSTICE K.P.SIVASUBRAMANIAM W.P.No.17227 of 2003 M.Saravanachelvam .. Petitioner -Vs- 1. The Commissioner R.S.Mangalam Panchayat Union R.S.Mangalam Ramnad District. 2. Mr.Dorairaj Commissioner R.S.Mangalam Panchayat Union R.S.Mangalam Ramnad District. 3. V.T.Natarajan 4. Ravichandran .. Respondents 4th respondent impleaded as per order of Court dated 21.8.2003 in W.P.M.P.No.28628 of 2003 PRAYER: Writ Petition filed under Article 226 of the Constitution of India for the issue of a writ of Declaration declaring a proceedings pursuant to the Tender Notification Na.Ka.A2/1290/03 dated 27.05.20 03 of the first respondent herein as arbitrary, illegal and unconstitutional. !For petitioner : Mr.AR.L.Sundaresan ^For respondents-1 & 2 : Mr.P.S.Jayakumar For 3rd respondent : No appearance For 4th respondent : Mr.S.Parthasarathy :ORDER
The petitioner seeks for a writ of Declaration declaring all the
proceedings pursuant to the tender notification Na.Ka.A2/1290/03 dated
proceedings pursuant to the tender notification Na.Ka.A2/1290/03 dated
27.5.2003 of the first respondent as arbitrary, illegal and unconstitutional.
2. The petitioner submits that he is a registered Class-I Contractor
in Ramanathapuram District. He was granted certificate on 17.8.2001 enabling
him to take up all public works in the Panchayat Unions in the District upto
and above Rs.25 lakhs. He was, therefore, eligible to participate in the
tenders floated by all Panchayat Unions in Ramanathapuram District. The
petitioner further alleges that the third respondent is a Member of the
Legislative Assembly of the ruling party. He is also the husband of the
elected Chairman of the Panchayat Union. Though he does not have any role to
play in the affairs of the Panchayat Union, taking advantage of his political
affiliation and power, he was influencing all the officials of the Panchayat
Union and the officers were acting only according to his dictation.
3. The petitioner further states that a tender notification was
issued on 27.5.2003, inviting tenders in respect of six items of work. The
estimated value of the works, cost of tender schedules and the sales tax
payable thereon were fixed in the tender schedule conditions. It is also
mentioned that the tender schedules were to be obtained from the first
respondent on payment of cost of tender schedules and sales tax to the
Treasury of the Panchayat Union by 3.00 p.m. on 5.6.2 003 and the tenders
were to be submitted to the office of the first respondent by 3.00 p.m. on
6.6.2003 and the tender opening shall be at 4.00 p.m. on 6.6.2003. The
petitioner went to the office of the first respondent on 2.6.2003 for
obtaining the challan for remitting the cost for all the six works and to
obtain the tender schedule. However, the second respondent/ Commissioner
informed him that he has been instructed by the third respondent to restrict
the issuance of tender schedules only to the persons recommended by him and
unless the petitioner’s name was recommended, the second respondent would not
issue even the challan. Therefore, the petitioner was constrained to file
W.P.No.15274 of 2003, praying for a Mandamus to direct the first respondent to
issue the challan for payment of the cost and the sales tax. He also prayed
for an interim direction to issue tender schedule on receipt of the cost.
This Court, by order dated 4.6.2003, directed the first respondent to issue
the challan for payment of cost and sales tax and to issue the tender
schedule.
4. The petitioner further submits that on receipt of the copy of the
order of this Court, he went to the office of the first respondent on 5.6.2003
and submitted a copy of the order of this Court and requested issuance of
challan. The Assistant working in the office had received order copy at 12.20
p.m. Though the challan ought to have been issued on the same day, for
reasons which are obvious, at the instance of the third respondent, the second
respondent postponed the tender to 11.6.2003. According to the petitioner,
the said action was only to somehow see to it that the tender schedules were
not made available to the petitioner. Thereafter, he approached the office of
the first respondent and again, on 10.6.2003. A challan for a sum of Rs.4,1
04/- towards the cost and sales tax for all six items was issued. However, by
the time the petitioner was to remit the said amount, he was informed that
Item 1 out of six works was adjourned. A fresh challan was issued only for
Items 2 to 6 for a sum of Rs.1,944/- towards cost and sales tax, which amount
was remitted by the petitioner on 10.6.2003 itself.
5. According to the petitioner, after remitting the cost, he
approached the first respondent for the grant of tender schedule. The first
respondent had stated that the tender schedules were not ready and that it
would be ready at 4.00 p.m. which the petitioner can collect at 4.00 p.m.
However, even at 4.00 p.m., the tender schedules were not issued. The
petitioner alleges that about 300 persons belonging to the third respondent
came to the Panchayat Union office along with his son, mobbed the Panchayat
Union office and prevented the first respondent from issuing the tender
schedule. The second respondent was colluding with the third respondent and
did not issue the tender schedule.
6. The petitioner is aggrieved by the fact that in spite of the
orders of this Court directing the issuance of the challan and issuance of
tender schedules, and even after having collected the cost of the tender
schedules, the first respondent wilfully refused to issue the tender
schedules. The tender schedules on 10.6.2003 should have been issued across
the counter and refusal to do so was arbitrary. It was an abuse of power by
the second respondent and due to the collusion between respondents-2 and 3.
The petitioner further contends that the respondents are now attempting to
award the contract in favour of other favoured contractors. The petitioner
also submits that on refusal of the first respondent to issue tender schedules
he had sent a telegraphic representation which was followed by a detailed
representation to the respondents and also to the District Collector and other
higher authorities. However, as the same did not yield any result and as the
third respondent was merrily carrying on with his illegal activities, he has
approached this Court.
7. A counter affidavit was filed by the first respondent along with a
petition to vacate the stay. In the counter affidavit, the first respondent
has submitted that the third respondent was not interfering with the affairs
of the Panchayat Union. The said contention was absolutely false. The
Chairman of the Panchayat Union was functioning without anybody’s compulsion
or instigation.
8. The first respondent had called for tender notification from the
registered Contractors upto 3.00 p.m. on 6.6.2003. But the tender was
subsequently postponed to 11.6.2003 due to administrative reasons. The
statement that the petitioner had met the first respondent on 2.6.2003 was
false. The contention that the first respondent had refused to issue tender
schedules was also false. The first respondent had also filed a counter
affidavit in W.P.No.16274 of 2003 denying the allegations. Subsequently, the
petitioner has remitted a sum of Rs.1,944/- towards the cost of tender
schedules and sales tax. Out of the six works, one work was postponed on
administrative reasons under the powers of the first respondent. For the
other five works, tender schedules have been issued. Therefore, the
petitioner was allowed to remit the cost of tender schedules for Items Nos.2
to 6 alone. Though the petitioner had remitted a sum of Rs.1,944/- at 12.30
p.m. on 1 0.6.2003, he did not contact the first respondent for the grant of
tender schedules. The petitioner’s statement that he was told that the tender
schedules would be ready at 4.00 p.m. and that the petitioner can collect the
same at 4.00 p.m. was false. The petitioner did not approach the first
respondent after remitting the cost of the tender schedule. The tender
schedule was kept ready for the sake of the petitioner till 5.45 p.m. on
10.6.2003. After having remitted the amount at 12.30 p.m., he went away
without intimating or approaching anybody. He did not come to the office upto
5.45 p.m. Therefore, the tender quotation was opened on 11.6.2003 at 4.15
p.m. and the highest quotation had been approved and the works were allotted.
The first respondent states that nobody was allowed to enter the office except
the contractors on the day of auction. He further states that the
postponement of auction to 11.6.2003 was only due to administrative reasons.
The contention of the petitioner that he has made a detailed telegraphic
representation to the first respondent is false. The telephonic
representation was not received by the first respondent from the petitioner.
9. In the meantime, one Ravichandran, was impleaded as the fourth
respondent in the writ petition, being the highest bidder in whose favour the
contract was awarded by the Panchayat Union. He has filed a counter affidavit
stating that he is a registered Contractor and was doing the contract work for
the past five years. He was the successful bidder in the auction held on
11.6.2003. The contract was also handed over to him and as per the tender
conditions, he commenced the works of Item Nos.2 to 6 and had completed Item
No.2. So far as Item Nos.3 to 6 were concerned, 50% of the works had been
completed. But, by virtue of the interim
order, the writ petitioner was preventing him from discharging the work. The
interim order was only in the event of the tender work not having been granted
and if only the tender work had not been awarded to anyone. But, in this
case, the tender was already granted and 50% of the work had been carried out
with reference to Item Nos.3 to 6. The further contentions in the affidavit
have been denied and the fourth respondent would state that he has invested
huge amounts and completed the contract work for Item No.2 and 50% of the
works for Item Nos.3 to 6. Therefore, he has sought for vacating the interim
order in W.V.M.P.No.2049 of 2003.
10. The third respondent had filed a counter affidavit denying the
contention that he was interfering with the affairs of the Panchayat Union.
Being a Member of the Legislative Assembly, he has his own duties to discharge
in his constituency and he was not interfering with the affairs of the
Panchayat Union. As his wife was the Chairman of the Panchayat Union, the
petitioner was wantonly implicating him in order to cause hardship to him.
Regarding the allegation of the nongrant of tender schedules, the third
respondent states that he has no affairs to discharge in the Panchayat Union
office and he had never instructed any official to issue works to his own
persons or to harass the petitioner. The writ petition has been filed only to
harass him. He has no connection with the panchayat Union nor was he
influencing the panchayat union. The contention that the tender schedules
were not issued due to his influence and that about 300 members supporting him
mobbed the Panchayat Union office was not correct. He has no role to play in
the Panchayat Union office or in the context of the tenders, as alleged by the
petitioner. As the petitioner has failed to participate in the tender, he was
falsely implicating the third respondent. He has not colluded with anyone or
abused his official position nor had prevented free and fair competition. The
orders in W.P.No.16274 of 2003 had been obtained without making him as a
party. In fact, in the contempt petition filed by the petitioner, his name
was deleted. Now, the petitioner has filed the present writ petition
implicating the third respondent only to harass and cause hardship to the
third respondent.
11. An additional counter affidavit was filed by the first respondent
on 19.7.2004. In the additional counter affidavit, after restating the
contentions already raised in the first counter affidavit, the first
respondent further states that with reference to Item Nos.2 to 6, tenders were
opened according to the regulations and the highest quotation was approved by
the first respondent. Subsequently, the work regarding Item No.1 of the
tender schedule was cancelled by the District Collector, Ramanathapuram, and
hence, the first respondent has not notified the tender for Item No.1. It has
not been allotted to any nominee of the third respondent.
12. The first respondent further submits that the allegation that the
contract was finalised at the instance of the third respondent and the site
was handed over in anticipation of the contract was absolutely false. In the
tender auction held on 11.6.2004, only two members participated and the
highest quotation was approved by the first respondent. There was no
malpractice. The contention that the petitioner had made detailed telegraphic
representation was false and no telephonic representation was also received
from the petitioner.
13. Mr.AR.L.Sundaresan, learned counsel for the petitioner, contends
that it has become a regular practice in all the public contracts either by
the Government or by the local bodies to award the work only to a favoured
group and in the process, even tender documents are not supplied to the other
registered contractors. In this case, the third respondent is a Member of the
Legislative Assembly and is also the husband of the Chairman of the Panchayat
Union. He prevails upon the Panchayat Union to award the contract to his
benamis and as a result of non-supply of the tender documents, the petitioner
had to approach this Court even earlier. Even after getting a positive
direction from this Court for the supply of tender documents, the petitioner’s
participation has been prevented by the high-handed action of the third
respondent. The contention that the petitioner did not come again for
collecting the tender documents is totally inconceivable, unbelievable and it
would amount to stating that the petitioner had filed one writ petition and
subsequently had paid the amount only with the object of filing another writ
petition. The petitioner had immediately given a telegram to all the
authorities which would amply establish his bona fides. But, even the fact of
the telegram has been denied falsely in the counter affidavit, which was
sufficient to expose the ulterior motive of the respondents.
14. Mr.R.S.Jayakumar, appearing for the first respondent, contends
that the activities of the first respondent Panchayat Union were conducted in
a proper manner. The conduct of the petitioner in deliberately failing to
receive the tender schedule from the office discloses his inimical attitude.
Apparently, He was not prepared to execute the work but for reasons known to
himself, the petitioner was making baseless allegations. A perusal of the
Issue Register of the tender schedules would reveal that it has been endorsed
thereon that though the petitioner had paid the Earnest Money Deposit, he had
not turned up till 5.45 p.m. The petitioner cannot blame anyone for his own
default. In view of the interim order of this Court, it was not possible to
make the payment for the works executed by the contractor.
15. Learned counsel for the fourth respondent/ successful bidder,
after adopting the contentions raised by the learned counsel for the first
respondent, contends that the fourth respondent, having executed the work,
cannot be denied the payment due to him as a result of any controversy between
the Panchayat Union and the petitioner. The facts disclose that the
petitioner had not turned up for receiving the tender documents and having
failed to do so, he cannot prevent the successful bidder who had complied with
all the tender requirements.
16. I had considered the submissions of both sides.
17. At an earlier stage of the hearing, on 2.8.2004, considering that
much reliance was placed on the telegram alleged to have been sent by the
petitioner on 10/11.6.2003 and that the said allegation had been denied in the
counter affidavit, I directed the learned counsel for the first respondent to
verify positively from the first respondent, who was stated to be present in
Court, as to whether any such telegram had been received from the petitioner.
I also informed the learned counsel for the petitioner that he has to produce
the acknowledgment if he wants to rely on the Telegram. In view of the
urgency expressed by the learned counsel for the respondents for early
disposal of the writ petition to facilitate the payment of the bills, I had
passed the following order on 2.8.2004:
” The learned counsel for the petitioner states that there is no
reference to the two telegrams alleged to have been sent by him on 10 &
11.6.2003. The learned counsel for the respondent on instruction states that
no telegram has been received from the petitioner. Petitioner’s counsel is
directed to produce the materials regarding proof of service of the telegram
on the respondents. Call on 6.8.2004. ”
18. When the hearing was again taken up on 12.8.2004, the learned
counsel for the petitioner contended that the time was too short to obtain
official verification from the post office. However, the learned counsel for
the respondents has placed before this Court a letter from the first
respondent dated 3.8.2004 in Roc.A2/2513/2004 addressed to the counsel,
stating that the telegram sent by the petitioner on 11 .6.2003 had been
delivered at their office on 13.6.2003. The xerox copy of the telegram was
also enclosed along with the said letter to the counsel.
19. The crux of the dispute is whether really the petitioner was
denied supply of tender documents though he had complied with all the
requirements for receiving the same. While the petitioner would say that
though he had remitted the due amount well in time on 10.6.2003 itself, he was
informed that the papers were not ready and that he was asked to collect the
same at 4.00 p.m. and that even at 4.00 p.m., the tender schedule was not
issued and a group of men had prevented the first respondent from issuing the
tender to the petitioner, the first respondent would deny the same and state
that after remitting the amount, the petitioner did not turn up for receiving
the tender documents.
20. A close analysis of the overall facts and circumstances disclose
that the respondents are not speaking the truth. The episode only lends
strength to the frequent complaints which are made before the High Court that
in the award of contracts, the authorities concerned indulge in high-handed
attitude of not even supplying the tender documents to all the eligible
contractors and the contracts are cornered by a selected and favoured few.
The reasons for coming to that conclusion are as follows:
(i) The petitioner had approached the Court even earlier with the same
complaint and in W.P.No.16274 of 2003, he obtains a direction from this Court
on 4.6.2003 to the first respondent to issue challans for the payment of cost
and sales tax and also to issue tender schedule for the works, namely, Item
Nos.1 to 6 as referred in the tender notification dated 27.5.2003. Though the
allegation is denied by the respondents, the fact remains that the petitioner
had to approach the Court by filing a writ petition. Though the merits of the
allegations were not gone into, it can be safely presumed that no reasonable
man in the position of the petitioner would have approached this Court on
false allegations. He is also in the business and would not be anxious to
antagonise the authorities and he has approached the Court even before the
tender was finalised. He cannot be accused of having approached the Court in
the earlier writ petition as a disappointed rival after the tender had been
awarded to some other person.
(ii) The petitioner, then, approaches the first respondent on 5.6.200 3 on
the strength of the orders of this Court dated 4.6.2003. Apparently, irked by
the directions of this Court, the tender is postponed to 11.6.2003. Though
the reasons are stated to be administrative, the respondents do not choose to
say as to what exactly was the administrative reason to postpone the auction,
even on the face of the allegation of the petitioner that the postponement was
motivated.
(iii) On 10.6.2003, though a challan was issued first for a sum of
Rs.4,104/towards all the six items of work, a fresh challan was issued for
Rs.1,944/after suddenly deleting the first of the six items of work and
confining the tender only to the remaining five items. Judged from the
pre-auction amount which the petitioner was directed to deposit for the
remaining five works, the first item appears to be the substantial and major
item of work and no proper reason is given to exclude the said item of work.
Though the allegation that the first item was intended to be awarded and was,
in fact, awarded to someone closer to the third respondent had neither been
proved nor substantiated, equally, no proper reason is forthcoming as to why
the first item was excluded at that time and had not been awarded to anyone
till date. As the first counter affidavit did not contain proper denial of
the petitioner’s allegations regarding the cancellation of the first item of
work, I gave an opportunity to the learned counsel for the respondents to file
an additional affidavit. The additional counter affidavit was filed on
19.7.2004, and in that counter affidavit also, no proper reasons have been
stated for cancellation of the first item, beyond stating that it was
cancelled due to administrative reasons under the power vested on the first
respondent in terms of Condition No.10 of the tender schedule. It was further
represented by the counsel for the respondents to the effect that Item No.1
was cancelled by order of the Collector dated 6.10.2003 in ROC R3/1261/2003
dated 6.10.2003, on the ground that in view of the pendency of the writ
petition, the grant/sanction made by the Government with reference to the
first item may lapse and hence, had to be cancelled. It is pertinent to note
that the cancellation by the Collector is much later, namely, four months
after cancellation by the first respondent. No reason is given for
cancellation of the first item by the first respondent even after giving
opportunity to file an additional counter affidavit. Power or discretion to
cancel under Condition No.10 of the tender cannot be capriciously or
arbitrarily exercised. When certain allegations are made before the Court, it
is the duty of the first respondent to have placed all the facts before the
Court. The silence on the part of the first respondent can only lead to the
inference that the power had been exercised arbitrarily as a retaliation to
the action of the petitioner in having obtained orders from the Court
directing issuance of the tender.
(iv) In the context of the cancellation of the first item, it is further
pertinent to note that N.V.Balasubramanian,J., by his order dated 4.6.2004 in
W.P.M.P.No.20354 of 2003, had positively directed the first respondent to
issue challans and also to issue tender schedule ” with respect to work Nos.1
to 6 in Tender Notification in Na.Ka.A-2/12 90/2003 dated 27.5.2003 if the
petitioner is otherwise eligible.” Notice had been taken by the Special
Government Pleader for the first respondent and even otherwise admittedly the
order had been served on the first respondent. Even so, the first respondent
chooses to cancel the first item of the work by using his administrative
discretion, without getting any clearance from the High Court. Order of the
High Court cannot be superseded administratively by first respondent. This
conduct exposes to what extent the respondents are prepared to go even by
disregarding the directions of the Court. The respondents cannot rely on the
orders of the Collector which came only four months later and there is no
explanation as to why and how the first item was cancelled by the Commissioner
even in the face of the specific directions of the High Court. This would
clearly establish the lack of bona fides on the part of the respondents.
(v) The most crucial feature of the sequence of events is what happened on
10.6.2003. While it is admitted that the petitioner had remitted the amount
at 12.30 p.m., the first respondent contends that the petitioner did not
approach the first respondent till 5.45 p.m., though the tender documents were
kept ready. The truth or otherwise of the mutual contentions can be tested
from the counter affidavit filed by the first respondent. The contention of
the petitioner that he had met the first respondent and that he had asked him
to come at 4.00 p.m. is denied. There is, of course, no positive proof for
the statement of the petitioner that he had approached the first respondent
immediately after the payment of the amount and that he was asked to come back
at 4.00 p.m. Some of the other circumstances indicate that the first
respondent had not been acting bona fide. The petitioner has positively
stated in Paragraph 11 of the affidavit that about 300 persons along with the
son of the third respondent had come in a car and prevented the first
respondent from issuing the tender and the second respondent, who was working
as the Commissioner, colluded with the third respondent and did not issue the
tender. This allegation is very casually dealt with in the counter affidavit
as follows:
” It is submitted that other than contractors registered in the
panchayat union nobody was allowed to enter this office on that day. In this
position it is true that the petitioner has failed to get his tender schedules
in this office on that day. ”
There is no attempt to deal specifically the positive allegation that
the third respondent’s son, with his men, had come to the office and prevented
him from issuing the tender.
(vi) The conflicting and incorrect stand taken by the first respondent as
regards the telegram alleged to have been issued by the petitioner immediately
after the incident would amply expose that the first respondent is not
speaking the truth. In paragraph 16 of the affidavit, the petitioner has
stated as follows:
” I submit that immediately on refusal of the respondents herein to
issue tender schedules to me, I caused a telephonic notice to be issued to the
respondents herein on 10.06.2003 itself and followed up the same with a
detailed telephonic representation to the respondents herein and also to the
District Colletor, Ramnad and other high dignitaries in the State complaining
of the arbitrary action of the respondents. However, the same has not yielded
any result whatsoever and the third respondent is merrily carrying on with his
illegal activities in the matters of tenders in the District. ”
It is true that by mistake, the petitioner had used the wrong
expression “telephonic” instead of “telegraphic”. But, it has been understood
properly by the first respondent and in his counter affidavit dated 18.7.2003,
he has stated as follows:
” It is submitted that the petitioner has represented detailed
Telegraphic representation to the Ist respondent which is false. It is
submitted that no such telephonic representation was received from the
petitioner by the Ist respondent. ”
In the additional counter affidavit dated 19.7.2004 which was filed after the
writ petition was taken up for hearing also, the same statement is reproduced.
During the hearing, I had specifically asked the learned counsel for the
respondents to ascertain from the first respondent as to whether any telegram
has been received or not, and on instructions, the counsel informed the Court
that no telegram had been received. I had informed the learned counsel for
the petitioner that if he is not able to produce any acknowledgment, it will
not be possible to accept his contention. On 2.8.2004, the hearing was
adjourned to 6.8.2004. On the next hearing date, surprisingly, the learned
counsel for the respondents had produced the following letter of the first
respondent/Commissioner dated 3.8.2004 addressed to him, which reads as
follows:
" Sub: Tender Case R.S. Mangalam
Panchayat Union W.P.17227/03 Filed
by Thiru M.Saravana selvan details
submitted Regarding.
Ref: 1) W.P. 17227/03 Filed by
M.Saravanaselvan.
With Regard to the above case, It is informed that the
Telegram was sent by Thiru.M.Saravana Selvan on 11.06.2003 as it was delivered
to our office on 13.06.2003 (Copy of the Telegram is enclosed).
It is further informed that Thiru M.Saravana Selvan has represented
detailed Telegraphic representation to the 1st respondent which is false.
It is also informed that item No.1 out of six works was post
poned later due to Administrative reason under the power of 1st respondent in
condition No.10 of Tender Schedule. Hence Tender Schedule was not given to
any of the contractors. Subsequently the District Collector Ramanathapuram
has cancelled the work Vide his Proceedings Roc.R3/1 261/2003 Dated 6.10.2003.
Further the same work has not been taken up in any other Scheme. The work is
physically pending now.
This is for your kind information and further action.
Sd/- xxxx
Commissioner
Panchayat Union
R.S.mangalam. ”
The xerox copy of the telegram is also enclosed therewith, which discloses
that the telegram had been received at the telegraphic office at Devakottai on
11.6.2003. It also bears the seal of the post office at Rajasingamangalam on
13.6.2003 and served at the first respondent’s office also on the same day.
In the background of the abovereferred material, it is rather shocking that
the first respondent should have taken the stand both in the first counter
affidavit and the additional counter affidavit that no telegraphic message had
been received and also orally instructed his counsel that no telegram had been
received. But later, when I had directed the counsel for the petitioner to
obtain the acknowledgment from the Postal Department, the truth comes out, the
respondent condescending to admit the receipt of the telegram. The action of
the first respondent thus misleading this Court by filing a false affidavit
does not only amounts to contempt of Court, but also throws light on the lack
of bona fides in the impugned grant of tender.
(vii) The subsequent conduct of the respondents also expose the disregard
for the rule of law by the respondents. When once the interim order had been
issued by this Court on 24.6.2003 and received by the respondents immediately
thereafter, the respondents ought not to have proceeded with the work
thereafter and the Commissioner should have approached this Court to obtain
further directions. But, it is only after one month, the Commissioner files
the petition on 24.7.2003 to vacate the stay. In the affidavit filed in
support of the petition, nothing is stated regarding the actual stage of
execution of the work. The successful bidder/fourth respondent files a
petition to vacate the interim order after a further period of one month on
29.8.2003, stating that he has completed the work relating to Item No.1 and
50% of the work in Item Nos.3 to 6. But the respondents do not bother about
the pendency of the writ petition or the interim order, but proceed further to
complete the work. The fact that all the works had been completed
subsequently is admitted. It is true that the tenor of the order dated
24.6.2003 is restricted, namely, “interim injunction if the work is not
allotted to third parties consequent to the opening of the tender”. But, the
first respondent, being a public official, owes a duty to the Court and ought
to have directed stoppage of work forthwith and to move the Court and to await
for further orders. The conduct of the respondents may not strictly amount to
contempt of Court or violation of the orders. But the series of happenings
disclose that the respondents are bent upon proceeding further in their own
interest without any anxiety to obtain clearance from the Court or by placing
all the facts before the Court at the earliest point of time. In fact, the
attitude of the respondents was found to be reprehensible by E.Padmanabhan,J.
while dealing with the petition to vacate the stay. By his order dated
12.8.2003, the learned Judge recorded a finding that the stand taken by the
respondents as regards not furnishing tender schedule was rather unbelievable
and the Commissioner was directed not to make any payment to the Contractor
who had been awarded, and that any violation of the order would be viewed
seriously. Subsequently, D.Murugesan,J. dismissed the petition to vacate the
interim stay holding that he did not find any merit to vacate the stay. In
spite of the aforesaid orders, the respondents have chosen to proceed further
and complete the work, even after they had themselves approached the Court to
vacate the interim stay and their petition was ultimately dismissed and
interim order was made absolute.
21. It is true that Contempt Petition No.622 of 2003, which was filed
by the writ petitioner, was dismissed on 28.11.2003 by N.V.
Balasubramanian,J., but not without recording his displeasure at the conduct
of the respondents, which is as follows:
” I therefore close the contempt petition, but with reluctance as I am
not able to appreciate the act of the respondents.
When the petitioner remitted the money by chalan, the respondents
should have taken steps to issue tender schedules as soon as they received the
money. The plea taken by them that the petitioner was asked to come again to
collect tender schedules by 4.00 p.m. is not a practice which can be
appreciated by the Court. The respondents should have acted in a professional
manner and when the money was paid for the issue of tender schedules, the
respondents should have issued tender schedules then and there, particularly
when the tender was postponed from one date to another. Though the action of
the respondents is not commendable, I do not find that they committed any
contempt of Court. Accordingly, the contempt petition is closed. No costs.
Connected sub Application is also closed. ”
22. It is true that the third respondent, a Member of Legislative
Assembly, had filed a separate counter affidavit denying the allegations of
the petitioner and also contending that though his wife is the President of
the Panchayat Union, he has not been interfering with the affairs of the
Panchayat Union in any manner. There is no substantial material to implicate
the third respondent directly and he is therefore exonerated. But as
commented by the counsel for petitioner, it is seen that the counter affidavit
by the third respondent has been filed without filing any vakalat but through
the counsel representing the first respondent, against whom, allegations of
collusion have been made. Such indiscreet action should have been avoided.
23. The facts of this case, disclose a dismal pattern of conduct
which is being brought to the notice of this Court frequently, namely, that
not even tender documents are issued to all eligible contractors and that the
supply of the documents is restricted only to a favoured syndicate or
individuals. Some of the officials and non-officials who wield the power at
various levels and involved in the process of tender, appear to think that
they are above the law and even after the matters are brought to the notice of
the High Court, appear to adopt tactics even to render orders of Court
ineffective by total disregard even to the process of Court. Even after the
passing of the legislation under the Tamil Nadu Transparency of Tenders Act,
1998, the grant of many of the tenders, small or big, do not conform to the
provisions of the said Act and Regulations. A citizen has to come before this
Court even to obtain tender documents and even after orders are issued,
auction is deliberately postponed and different methodology is adopted to deny
the benefits of the order. Not only the contention that the petitioner went
away after paying the initial amount and that he did not return till 5.45 p.m.
sounds very artificial and improbable, but is also belied by the subsequent
conduct of the respondents, as dealt with above, inclusive of filing of false
affidavits regarding the telegram sent by the petitioner.
24. In fact, this Court, on earlier occasions in similar cases had
directed the Government to ensure that the officials in the lower level do not
indulge in such high-handed practice of even refusing to give the tender
documents to the eligible contractors. Even though there is a general
instruction to the effect that any contractor, if he chooses to receive the
tender document by post or courier, that also should be complied with subject
to the contractor making the additional payment, as required, the same state
of affairs continue.
25. I am, therefore, fully convinced that the overall facts stated in
the affidavit resulting in unfair denial of tender documents to the petitioner
is amply established. The first respondent, whether by himself, for his own
reasons or at the behest of someone, had acted in a clandestine manner in
disregard to his duties and also with an intention to deny the petitioner not
only his lawful rights but also to circumvent the orders of this Court.
Cancellation of the first item of work is contrary to the specific orders of
this Court. The conduct of the Commissioner, namely, whoever was the
individual discharging his duties at the relevant period, is highly improper.
The first counter affidavit had been filed by one Dorairaj and the additional
counter affidavit had been filed by P.V.Muthuramalingam. Dorairaj has been
impleaded by name in the writ petition. It is made clear that whoever was the
official functioning as the Commissioner at the relevant point of time, is
answerable and if he is not willing to speak the truth, namely, at whose
behest he was acting, he has to reap the consequences. Any directions against
him should have deterring effect and a warning to such officials who feel that
extraneous factors are more important than rule of law.
26. It is now represented that the entire work has been completed and
only the payment to the contractor remains to be complied with. The writ
petition cannot be rendered infructuous or ineffective by act of parties
deliberately and high-handedly aimed at nullifying or rendering the process of
Court ineffective. The petitioner has approached the Court twice but without
any avail though the action of the respondents is found to be illegal. A writ
Court exercising its extraordinary jurisdiction, as provided under the
Constitution, cannot be a mute spectator to such deliberate and illegal acts
and is not powerless to mould the relief accordingly. The entire illegal
exercise was obviously for the benefit of the fourth respondent and he cannot
also wriggle out of the consequences which are bound to follow. Even after
filing a petition to vacate the stay belatedly, the fourth respondent, without
waiting for further orders had proceeded further to complete the works which
attitude discloses utter disregard to the process of Court and on the
assumption that once he completes the work nothing could be done against him.
27. However, since the entire works are stated to have been
completed, innocent third parties, the workers under the contractor, should
not be denied payment of their dues/wages and at the same time, it would be
just and proper to impose heavy and exemplary costs on both the Commissioner
and the fourth respondent for their illegal conduct.
28. It is desirable that the Government formulates a proper procedure
to avoid such illegal grant of tenders at the lower level in total disregard
to the basic obligations of the Government. Refusal to grant even the tender
schedules is bound to reflect very badly on the administration and such
incidents have to be curbed by stern measures, if one believes in the rule of
law. Contractors also would be well advised to apply through post or courier,
which will avoid such denial of tender schedules and the Government/local
bodies should provide for such facility if it is not already made available.
There should be sufficient time gap between the calling for tender and
submission of the tender. In the interest of the Government and the public
bodies, this would also eliminate frivolous complaints.
29. In the above circumstances, I am inclined to pass the following
order:
(i) The writ petition is allowed declaring all the proceedings pursuant to
the impugned tender notification as arbitrary and illegal;
(ii) However, as the works are stated to have been completed, payments due
to the fourth respondent shall be made subject to the following conditions.
(iii) The second respondent-Commissioner who was actually in charge of the
Panchayat at the time of the auction, shall pay an exemplary cost of
Rs.15,000/-, out of which, Rs.5,000/- shall be paid to the writ petitioner and
Rs.10,000/- to the Tamil Nadu State Legal Services Authority, Chennai, within
a period of four weeks from the date of receipt of a copy of this order. The
amount shall be paid by him personally and not from the funds of the Panchayat
Union. This direction against the respondent-Commissioner shall also be
recorded in his service register. A copy of this order shall be forwarded to
the District Collector for such action.
(iv) The fourth respondent, beneficiary under the illegal tender, shall
also pay exemplary cost of Rs.15,000/-, out of which, Rs.5,000/- shall be paid
to the writ petitioner and Rs.10,000/- to the Tamil Nadu State Legal Services
Authority, Chennai, within four weeks from the date of receipt of a copy of
this order.
(v) The District Collector, Ramanathapuram District, shall file a
compliance report of the directions contained in paragraph 29(iii) above, on
or before 22.11.2004.
Index: Yes
Internet: Yes
ksv
To:
1. The Commissioner
R.S.Mangalam Panchayat Union
R.S.Mangalam
Ramnad District.
2. Mr.Dorairaj
Commissioner
R.S.Mangalam Panchayat Union
R.S.Mangalam
Ramnad District.
3. The District Collector
Ramanathapuram District.