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K. Soosalrathnam vs The Divisional Engineer, … on 26 July, 1994

Madras High Court
K. Soosalrathnam vs The Divisional Engineer, … on 26 July, 1994
Equivalent citations: AIR 1995 Mad 90
Bench: A Hadi


ORDER

1. This writ petition seeks to quash the tender notification No. 5 of 1994 dated 7-5-1994 issued by the 2nd respondent and consequently to direct the 1st respondent to call for fresh tenders and award the work in question to the lowest bidder.

2. The material allegations in the supporting affidavit by the petitioner are as follows:– He is a registered contractor under class I category with the National’Highways Department throughout the State. The 2nd respondent floated the tender in the above referred to notification for purposes of two works under the National Highways Circle, Tirunelveli and Madurai-2 respectively. As per the said notification tender documents have to be received from the 1st respondent from 13-6-1994 to 21-6-1994, on paying a sum of Rs. 3,000/- towards tender cost and Rs. 173/- towards sales tax in the treasury
account. The petitioner intended to participate in the said tender pertaining to Item No. 1 of the tender notification and paid the tender cost in the treasury account on 16-6-1994 and approached the 1st respondent on 16-6-1994 itself for receiving the tender schedules. However, the 1st respondent refused to issue the tender schedules and stated that the contractor to whom the work has to be awarded has been selected by the higher authorities and, therefore, tender schedules will not be issued to other contractors. Immediately thereafter, the petitioner has sent application with the remittance copy of the challan to the 1st respondent. The 1st respondent, on seeing the petitioner’s address in the cover, refused to receive the cover and returned the same on 20-6-1994. The last date for receiving the tender schedules, viz., 21-6-1994 was a holiday, on account of Moharam. Since the tender schedules were not received till 22-6-1994, the petitioner once again approached the 1st respondent for receiving them on 22-6-1994. But, the 1st respondent once again refused to issue tender schedules and stated that the last date for receiving the tender schedules was pre-poned to 20-6-1994. Though the tender schedules have been opened on 23-6-1994, the same are yet to be confirmed. By the arbitrary and illegal act of the respondents 1 to 4, the petitioner has been deprived of the opportunity of participating in the above tender.

3. In the counter filed by the 1st respondent, the material allegations are as follows:– The statement of the petitioner that he approached the 1st respondent on 16-6-1994 and the 1st respondent refused to issue tender schedules, is not correct. The further statement of the petitioner about the refusal to issue tender schedules to him is also beyond truth. The Statement of the petitioner that on seeing his address in the cover, the 1st respondent refused to receive the same, is not correct. Since there are two different National Highways Divisional Engineer’s office in Palayamkottai, that is, one execution division and another one, planning division, ‘Tapal’ said to have been sent by the petitioner might have been returned for want of suffi-

cient address. In the abovesaid notification, the Superintending Engineer (NH) Tirunel-veli has prescribed the dates for the sale of tender schedules during working hours on all working days between 13-6-1994 to 21-6-1994. Subsequently due to the declaration of public holiday on 21-6-1994 by the Government and due to declaration of 22-6-1994 also as a local holiday for Tirunelveli and Palayam-kottai Taluk by the Collector of Tirunelveli in view of the car festival, tender schcduels were issued up to 20-6-1994, being the last working day. The statement of the petitioner that he again approached the 1st respodent, who again refused to issue the tender schedules, is false. Since 22-6-1994 was declared as a local holiday, the petitioner could not have met the 1st respondent on that date.

4. No doubt, a reply affidavit was filed by the petitioner. But, there is no necessity to traverse the same. C.M.P. No. 17415 of 1994 was filed by one R.C. Anantharaj for impleading himself in the writ petition as the 5th respondent. According to his affidvait in support of the said W.M.P., pursuant to the abovesaid notification he obtained tender schedules and submitted his tender for the abovesaid item No. 1 work, on the prescribed date, viz., 23-6-1994. Further, according to the said affidavit, the tenders received were opened on the same date (23-6-1994) and it was announced by the 3rd respondent that his tender was the lowest. Therefore, according to him, he is entitled to execute the said work under item No. 1. Therefore, he filed the abovesaid W.M.P. The said W.M.P., after hearing all the Counsel, was allowed on 18-7-1994 by me. Thereafter he was allowed to file a counter affidavit to the main writ petition.

5. The material allegations in his counter affidavit to the writ petition are as follows:–The prayer in the writ petition is not at all maintainable since the abovesaid tender notification is at bestonly notice, which cannot be quashed by a writ of certiorari. Further, since the petitioner is only an intending participant for the abovesaid item No.1, he has no right at all to maintain the writ petition.

6. In the light of the above referred to averments in the respective affidavit, learned Counsel for the petitioner, learned Counsel for
the 1st respondent and learned Counsel for the 5th respondent made their submissions and I have considered their submissions. I am of the view that a very short point is involved in the present-writ petition and that, is whether the tender schedules have been refused to the petitioner unlawfully despite his effort to get the said schedules within the time he could legally avail of, No doubt, admittedly, the tender notification states that the tender scheduels could be obtained between 13-6-1994 and 21-6-1994. However, though originally 21-6-1994 was a working day as on 7-5-1994, the date of notification, subsequently the Government has declared 21-6-1994 as a holiday on account of Moharam. It is also found from the counter affidavit of the 1st respondent himself that even 22-6-1994 was a local holiday for Tirunelveli and Palayamkottai towns. If that is so, as per the principles underlying Section 10 of General Clauses Act, it should be taken that the last date for receiving the tender schedules by the intending bidders gets extended to the next working day, viz., 23-6-1994 and the 1st respondent cannot contend that the tender schedules can be issued only up to 20-6-1994, the last working day prior to the abovesaid date 21-6-1994. No doubt, learned Counsel for the 1st respondent laid emphasis on the undermentioned passage in the above referred to notification dated 7-5-1994:–

So, according to learned Counsel for the 1st respondent if the original last dale fixed, viz., 21-6-1994 becomes a holiday, subsequently the intending bidders could get the schedules only up to the previous working day, viz., 20-6-1994. But, I am unable to agree. Though Section 10 of the General Clauses Act, cannot in terms apply to the present case the last date for obtaining the schedules should get extended to the next working day if the last date originally fixed becomes a holiday subsequently, on the general principles underlying the said section. It has also been held in AIR 1972 SC 239, C.F. Angadi v. Y.S. Hirannayya, that similar rule can be applied on general principles.

6-A. At any rate, even before 21-6-1994, according to paragraph 4 of the affidavit in support of the writ petition, the petitioner paid the tender cost in the treasury account on 16-6-1994 and “approached the 1st respndent on 16-6-1994 itself for receiving the tender schedules. However, the first respondent refused to issue ihe tender schedules, and stated that the contractor to whom the work has to be awarded has been selected and identified by the Higher authorities and therefore the tender schedules will not be issued to other contractors.” As against the allegations in paragraph 4, all that the counter affidavit of the 1st respondent says is as follows: —

“With reference to the averments in para 4 it is stated that the statement of the petitioner that he approached the first respondent on 16-6-1994 and the first Respondent refused to issue tender schedule is not correct. The Petitioner is hereby called upon to strict proof for the said allegation. The further statement of the Petitioner about the refusal to issue Tender Schedule to him is also beyond truth.”

It is clear to me that this is only an evasive denial. As against the abovesaid allegation in paragraph 4 of the supporting affidavit, the 1st respondent has not specifically and positively asserted that the petitioner did not approach him at all on 16-6-1994 or on any other date for receiving the tender schedules. If really the petitioner had not met the 1st respondent on 16-6-1994 for receiving the tender schedules, the 1st respondent could have easily asserted in his affidavit that he did not approach him at all on 16-6-1994 or any other date and if that is so, he could have also asserted positively that since the 1st respondent did not approach him at all, the question of refusal by him does not arise at all. Order 8 Rule 5, C.P.C. specifically provides that every allegation of fact, if not denied specifically or by necessary implication, shall be taken to be admitted except as against the person under disability. The same principles would apply here also. Further, there is also no denial of the allegation that the tender cost was paid on 16-6-1994 in the treasury account.

7. Subsequently “immediately” after 16-6-1994, the petitioner has sent his application
from Nagercoil asking for schedules, by registered post, that has reached the Divisional Engineer, National Highways, Palayamcottai on 20-6-1994 as shown by the postal seals on the postal cover. In this connection, in paragraph 5 of the counter affidavit of the 1st respondent it is averred as follows:–

“Since there are two different National Highways Divisional Engineer’s Offices available in Palayamcotta i.e., one Execution Division and another one Planning Division, the Tapal said to have been sentt by the petitioner might be returned for want of sufficient address as notified in the tender notice dated 7-5-1994”.

8. But, first of all, it must be noted that the above referred to tender notification dated 7-5-1994 did not specifically refer to the two divisions of the abovesaid Division, Engineer’s office. It only says that tender schedules could be obtained from Divisional Engineer (National Highways) Tirunclveli. While so, I do not think that the 1st respondent is justified in having returned the abovesaid registered cover, which reached him on 20-6-1994. Learned Counsel for the 5th respondent in this connection no doubt pointed out that ihe tender notification, though did not mention the above referred to two divisions of the office of the Divisional Engineer (National Highways), mentioned the address from which the tender schedules could be obtained, as Divisional Engineer, (National Highways), Tirunelveli at 59A, Tiruvanandapuram Road (at Tirunelveli), But, it must be noted that the 1st respondent in his counter affidavit has not positively averred that the abovesaid registered letter of the petitioner did not reach the said address, viz., 59A, Tiruvanandapuram Road. So, it has to be taken that the registered letter reached that address.

9. The endorsement on the returned postal cover as shown by its copy filed in the typedset, reads as follows:–

(Mailer in vernacular omitted — Ed.)

This very endorsement also shows that the
above referred to office of execution division of Divisional Engineer’s office has, with some ulterior motive, returned the postal cover, even though it reached only the above referred to execution division. Simply because the term “execution division” has not been mentioned in the postal cover, normaily no one would return the said post. That is more so, when as already mentioned the tender notification itself only says that tender schedule could be obtained from “Divisional Engineer (National Highways), Tirunelveli”. It did not specify whether the abovesaid Divisional Engineer is of execution division or planning division. In this connection, I am also reminded of the observation of the Supreme Court in S.K. Verma v. Mahesh, (1983) 4 SCC 214 : (AIR 1984 SC 1462) and Trustees of Port of Bombay v. Premier Automobiles Ltd. (1974) 4 SCC 710 : (AIR 1974 SC 923). In the latter case, the observation runs thus:

“Public institutions convict themselves of untrustworthiness out of their own mouth by resorting to such defences.”

9A. No doubt, the tender notification says that tender schedules would not be sent by post. But, after receiving the registered letter on 18-6-1994 or at least on 20-6-1994, the 1st respondent could have informed the petitioner that he should come personally and receive the tender schedules at least on 23-6-1994 since it is said that both 21-6-1994 and 22-6-1994 turned out to be holidays.

10. All said and done, it is clear to me that the petitioner has done whatever could be done in the situation in his efforts to obtain the tender schedules and the respondents are not justified in having not given him the tender schedules.

11. Lastly, I may deal with one other submission of learned Counsel for the 5th respondent, that is, since the petitioner was only an intending participant for Item 1 of the said notification, he has no right to maintain the writ petition since he is not a person actually aggrieved. This contention has absolutely no merit. When tender schedules have been refused illegally to an intending participant, there can be no doubt that he is an aggrieved party. The decision cited by the said
learned Counsel in this regard, viz., K.V. Sivaprakasam v. The Deputy Commissioner, H.R. & C.E. (Admn.) Department 1993 Writ LR 52 (Madras) has no application to the present case. There, the challege was against the award of the contract to the sole applicant for the tender and the writ petitioner was not an applicant for the tender at all. Only in that context the writ petition was dismissed.

12. The net result is, the above referred to impugned notification dated 7-5-1994 is quashed and the writ petition is allowed. However, in the circumstances of the case, there will be no order as to costs. It is open to the National Highways to call for fresh tenders.

13. Petition allowed.

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