BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/09/2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition(MD)No.8033 of 2010 and M.P.(MD).No.1 of 2010 Jeya Muthumani .. Petitioner Vs 1.The Managing Director, Tamil Nadu Civil Supplies Corporation Ltd, 12, Thambusamy Road, Kilapauk, Chennai-10. 2.N.Kumaresan 3.Albert .. Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Declaration, declaring the entire process of tender held on 24.06.2010 by the first respondent pursuant to his notification No.MT9/19652/2010(2) advertised in the daily news paper viz.,"Dhina Thanthi" on 11.04.2010 is null and void insofar as Virudhunagar, Ramanathapuram, Tuticorin and Kanyakumari Regions are concerned and further direct the first respondent to conduct fresh tender. !For petitioner ... Mr.G.Thalaimutharasu ^For 1st respondent ... Mr.R.Janakiramalu Spl.Govt.Pleader ****** :ORDER
This Writ Petition has been filed praying for a Writ of Declaration
declaring the entire process of tender held, on 24.06.2010, by the first
respondent pursuant to his notification No.MT9/19652/2010(2), advertised in the
daily news paper, namely, “Dhina Thanthi”, on 11.04.2010, as null and void,
insofar as Virudhunagar, Ramanathapuram, Tuticorin and Kanyakumari Regions are
concerned, and to further direct the first respondent to conduct a fresh tender.
2. The petitioner has stated that she has been a transport
contractor, under the first respondent, for more than a decade. She had been
allotted various contracts for the transportation of essential commodities from
the Food Corporation of India to the Tamil Nadu Civil Supplies Corporation
Storage Points. As such, she has been fulfilling the assigned works, without
any blemish.
3. It has been further stated that after the contractual period
of the petitioner, for the year 2009-2010, had come to an end, the first
respondent, vide his notification No.MT9/19652/2010(2), had advertised in the
daily newspaper, namely, ‘Dhina Thanthi’, on 11.04.2010, inviting tenders for
the transportation of essential commodities from the depots of the Food
Corporation of India to the storage points of the Tamil Nadu Civil Supplies
Corporation, for the period from 01.07.2010 to 30.06.2011. By the said
notification, tenders had been invited for 33 regions of the State of Tamil
Nadu. As per the tender conditions, the tenderers, who are found to be
qualified in the technical bid will be called to participate in the price bid.
Both the technical bid, as well as the price bid should be submitted at the same
time.
4. It had also been stated that as a transport contractor, the
petitioner had made an offer for four regions, namely, Virudhunagar,
Ramanathapuram, Tuticorin and Kanyakumari Regions. Two other persons had also
made the offers for the transportation of essential commodities. The last
date for submitting the tenders for Ramanathapuram region was on 20.05.2010 and
the last date for submitting the tender for the other three regions was
24.05.2010. The petitioner had submitted her tender on the scheduled dates.
The technical bid had been opened on the same day and the petitioner had been
found qualified to participate in the price bid. However, the first respondent
had not informed the petitioner about the date of the price bid. While so, the
first respondent had opened the tender, on 24.05.2010, for Virudhunagar and
Tuticorin regions. The second respondent had been selected as the lowest bidder
for Virudhunagar region and the third respondent had been selected as the lowest
bidder for Tuticorin region. No rejection order had been communicated to the
petitioner, till date. Since, the opening of the tender, by the first
respondent without inviting the petitioner to participate in the price bid, is
arbitrary, illegal and void, the petitioner has preferred the present Writ
Petition before this Court, under Article 226 of the Constitution of India.
5. Counter affidavits have been filed on behalf of the first and
the second respondents denying the averments and allegations made on behalf of
the petitioner. In the Counter affidavit filed on behalf of the first
respondent, it has been stated that certain lorries belonging to the petitioner
had been intercepted by the Flying Squad and on receipt of a complaint from the
Special Tahsildar Flying Squad, the Inspector of Police Food Cell, Virudhunagar,
had registered a case, in Crime No.167 of 2009, under the relevant provisions of
the Essential Commodities Act,1955. As against the seizure of the vehicles for
carrying rice meant for the shops run under the public distribution system, the
petitioner had filed a Writ Petition before this Court, in W.P.(MD).No.8835 of
2009. This Court had disposed of the Writ Petition directing the District
Revenue Officer, Virudhunagar to return the rice bags, if they had not been
disposed of or sold till then, subject to the petitioner furnishing immovable
property security for the entire quantity of seized rice at Rs.25/- per kilo
gram. In the Writ Appeal filed by the District Revenue Officer,
Virudhunagar, in W.A.No.725 of 2009, a Division Bench of this Court had issued a
direction stating that the proceedings initiated against the first respondent
therein should be decided in accordance with law.
6. It had also been submitted that a person, in order to
participate in the tender and to enter into the commercial bid, is to submit
xerox copies of the Registration Certificate books to prove his ownership of at
least ten lorries, either in his name or in the name of a firm. Even though the
petitioner was not having ten lorries, as per Part-1 Clause-III of the tender
conditions, the petitioner was qualified in the technical bid as one of his
partners, namely, one D.Harris Kennady, had furnished the necessary documents to
show his ownership of five lorries. However, before the price bid had taken
place, the petitioner had been disqualified from participating in the same due
to the letter, dated 15.06.2010, submitted by the said D.Harris Kennady
withdrawing his consent to provide the lorries in favour of the petitioner, for
the supply of essential
commodities. Therefore, the petitioner was disqualified from participating in
the price bid even though she had been qualified at the stage of technical bid,
held on 20.05.2010 and 24.05.2010. It had also been stated that the order
rejecting the tender of the petitioner had been communicated to him.
7. The learned counsel appearing on behalf of the first
respondent had also submitted that the Writ Petition filed by the petitioner is
not maintainable as the petitioner ought to have availed the alternative remedy
of filing an appeal, under Section 11 of the Tamil Nadu Transparency in Tenders
Act,1998.
8. In view of the submissions made by the learned counsels
appearing on behalf of the petitioner, as well as the respondents and in view of
the records available, this Court is of the considered view that the petitioner
has not shown sufficient cause or reason to grant the relief, as prayed for by
the petitioner in the present Writ Petition. It is
clear that even though the petitioner had been qualified in the technical bid,
held on 20.05.2010 and 24.05.2010, she was disqualified from participating in
the price bid due to the fact that her partner, namely, D.Harris Kennady, had
submitted a letter, dated 15.06.2010, withdrawing his offer to provide the
necessary number of lorries, in favour of the petitioner, for the transportation
of essential commodities, to fulfil the requirement that the owner ought to have
ownership of atleast ten lorries for participating in the price bid. Further,
it is also seen that, even though it was open to the petitioner to file an
appeal, before the appropriate authority, under Section 11 of the Tamil Nadu
Transparency in Tenders Act,1998, the petitioner has chosen to invoke the
jurisdiction of this Court, under Article 226 of the Constitution of India. The
petitioner has not been in a position to show as to how she was qualified to
participate in the price bid after the letter, dated 15.06.2010, had been
submitted by D.Harris Kennady, withdrawing his offer to provide the lorries for
the supply of essential commodities as required under the
tender conditions. As such, the Writ Petition filed by the petitioner is devoid
of merits and therefore, it is liable to be dismissed. Hence, it is dismissed.
No costs. However, it is made clear that it would be open to the petitioner to
avail the appellate remedy provided, under Section 11 of the Tamil Nadu
Transparency in Tenders Act,1998, if so advised, before the appropriate
authority, in the manner known to law. Consequently, connected miscellaneous
petition is closed.
To
The Managing Director,
Tamil Nadu Civil Supplies Corporation Ltd,
12, Thambusamy Road,
Kilapauk,
Chennai-10.