BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/06/2008 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION (MD) No.2986 OF 2008 Socio Economic and Educational Development Trust (Reg.No.766/2004), represented by its Director Tmt.P.Subbulakshmi. ... Petitioner vs 1.The Commissioner, Tirunelveli Municipal Corporation, Tirunelveli. 2.The Secretary, Municipal Administration and Water Supply, Secretariat, Chennai-9. 3.Uthavum Karangal (Self Help Group) 1-93,6th Cross Street, Bala Packia Nagar, Tirunelveli Junction. 4.M/s.Food (Foundation of Occupational Development), represented by its Secretary Layola Joseph. ... Respondents Petition under Article 226 of the Constitution of India, praying for issuance of a writ of mandamus. !For petitioner ... Mr.S.Govindan for Mr.R.Rengaramanujam ^For respondent 1 ... Mr.M.Vallinayagam For respondent 3 ... Mr.K.Srinivasan For respondent 4 ... Mr.S.Palanivelayutham :ORDER
Petitioner has filed this Writ Petition, praying for issuance of a writ of
mandamus, directing the respondents 1 and 2 to award the contract to her, in
view of the offer made in pursuance to the tender made on 19.03.2008, being the
highest bidder, as per rule.
2. According to the petitioner, she is having adequate experience in the
field of maintenance of toilets and sanitation as a self help group organisation
in the district level rural development programmes and projects organised by
National Bank for Agriculture and Rural Development. While so, the first
respondent called for tender on 06.03.2008 and 13.03.2008 in Daily Thanthi
newspaper, for maintenance of Pay and Use Toilets and Free Toilets cum Bathroom,
Sanitation and Upkeeping, and as she has got necessary experience and
qualification in the said field, she applied for tender form on payment of
Rs.275/- and she was issued with the tender form on 12.03.2008. On receipt of
the tender form, she has gone through the conditions carefully and, as per the
requirements, she has paid Rs.10,000/- by Demand Draft towards E.M.D. and
submitted the same on the scheduled date along with the application on
19.03.2008 to the first respondent. The tender was opened by the first
respondent on 20.03.2008 in the presence of the Assistant Works Officer,
Superintendent, petitioner and other three tenderers and, on opening the tender,
it was noticed that the petitioner was the highest bidder and the other three
were the lowest bidders.
3. The petitioner further states that among the four persons participated
in the tender, she quoted the highest offer of Rs.2,01,050/-, being the monthly
rent payable to the first respondent Corporation, as against Rs.1,06,000/-
quoted by the third respondent and the other two tenders were rejected on the
ground of insufficient experience and, therefore, the petitioner and the third
respondent alone were eligible competitors for the above work. Also, as the
petitioner is the highest bidder, she is entitled to the award of contract.
However, the first respondent has informed that a decision has been taken to
award contract to the third respondent instead of the petitioner.
4. Aggrieved over the said decision taken by the first respondent and also
the second respondent, the petitioner gave a representation, stating that her
offer is for Rs.2,01,050/- whereas the offer of third respondent is for
Rs.1,06,000/- with a difference of Rs.95,050/- per month and altogether causing
a total revenue loss of approximately Rs.30.00 lakhs to the first respondent
Corporation for a period of three years. Further, as per Rule 26 of the Tamil
Nadu Transparency in Tender Rules 2000, the highest bidder should be considered
for award of the contract and, as such, the first respondent has not followed
the rules, as laid down in the Tenders Act. In addition, when her
representations were pending consideration, the first and second respondents
have completed the entire tender process. It is also her case that 80% of the
members of the petitioner trust belong to S.C.Community, deserving priority and
even otherwise, priority should have been given to the Women Self Help Group
like the petitioner and if the contract is awarded to the third respondent, the
first respondent, being the public institution, would incur heavy financial loss
and she would also be prejudiced.
5. First respondent has filed a counter, stating that in the
advertisement, dated 13.03.2008, itself, he has made it clear that the
Corporation called for tender for maintenance of pay and use toilet at new Bus
Stand only from registered NGOs (Non Governmental Organisations) and, therefore,
the first and foremost requisite qualification for the applicant NGO to file
tender process is that it must be a registered NGO. The petitioner has
submitted his tender papers on 19.03.2008, but, as per the conditions mentioned
in the publication, the tenderer has to make payment of deposit amount of
Rs.10,000/- in the Corporation Treasury on or before 18.03.2008 at 04.00 p.m.,
which condition the petitioner has not complied with and, instead, he made the
deposit only on 19.03.2008, through a Demand Draft. The tender papers were
opened by the respondent in the presence of Corporation officials and the
tenderers. Though six NGOs have received tender papers, only five of them
participated at the time of opening and scrutinizing the tender papers on
20.03.2008. Three NGOs viz., Uthavum Kakrangal, Poonjolai Sanitation Work
Committee and Theepam Women Self Help Committee have made deposit before 04.00
p.m. on 18.03.2008, whereas the NGOs, namely, SEED Trust (writ petitioner) and
Bright Trust have made the deposit only on 19.03.2008. The petitioner has not
enclosed the list of ongoing activities as contemplated in column No.5 of the
tender application along with the tender papers. Further, the petitioner has not
given any details of his previous experience in sanitation and upkeep of bus
stands. Though the petitioner has enclosed the certificate of Executive Officer
of Courtallam (Special Grade Town Panchayat), the said certificate does not
disclose any previous experience of the petitioner of maintaining of pay and use
toilets in bus stands. Three tenders have been rejected due to the lowest offer.
However, the tender of the petitioner was rejected for the reasons (i) she has
not produced the document to show that she is a registered NGO, (ii) she has not
paid the tender deposit of Rs.10,000/- into the Treasury of the Corporation
before the stipulated time i.e., before 04.00 p.m. on 18.03.2008, (iii) she has
not enclosed the list of ongoing activities along with the tender papers, (iv)
she has not given any details of previous experience in sanitation and upkeep of
bus stands, (v) she has not submitted the tender papers with her signature,
accepting the terms and conditions and (vi) she has not produced records
regarding PF and ESI relating to their workmen, who are employed in the
sanitation works.
6. It is also stated in the counter that the third respondent, namely,
Uthavum Karangal, which is a registered NGO, has complied with all the necessary
requirements and it is now attending to number of sanitation works in the
Corporation area, including the maintenance of pay and use toilets in the
Tirunelveli Junction Bus Stand and it has 60 sanitation workers and it has also
produced the document to show that it provides PF and ESI facilities to its
workers. Further, after completing the tender process, the respondent placed
the subject matter before the Council of Corporation and after an elaborate
discussion, the Council unanimously accepted the tender of the third respondent
and passed a resolution unanimously to that effect vide resolution No.643, in
its meeting dated 26.03.2008. Rule No.26 of the Tamil Nadu Transparency in
Tender Rules 2000 mentioned in the writ petition deals with the time taken for
evaluation and it does not deal with the matter in dispute. Also, the
resolution of the Council of the Corporation accepting the tender of the third
respondent and rejecting the tender of the petitioner with reasons has been
communicated to the petitioner. The petitioner has submitted only two papers
from and out of the tender application form received from this Corporation on
19.03.2008. The petitioner has produced the terms and conditions signed by her
in the typed set, whereas those papers have not been produced along with her
tender papers and hence the petitioner is not entitled for the relief prayed
for. In addition, the petitioner cannot maintain the writ of mandamus, without
asking for quashing the tender process and, therefore, on that sole ground, this
Writ Petition has to be dismissed.
7. Third respondent has also filed a counter, stating that in the tender
notification, a certain condition with reference to submit the tender form and
the remittance of EMD has been stipulated. However, the petitioner remitted the
EMD only on 19.03.2008 and not as per the notice inviting tenders, as per which
the EMD should be remitted before 04.00 p.m. on or before 18.03.2008. Though
the petitioner is the highest bidder, her tender was not accepted, as she did
not have the required experience of the specific purpose for which tenders are
invited. Besides, the petitioner has not produced any record relating to the
Group Insurance Coverage, Provident Fund, ESI etc. As such, the tender of the
petitioner was rejected. The Corporation, being a public body, is about to
provide best services for the benefit of the public at large and the alleged
revenue loss cannot be a ground to invoke the jurisdiction of this Hon’ble Court
by way of writ petition. The Corporation Council considered the experience of
this respondent and was satisfied with the requirements relating to ESI, PPF,
Group Insurance Coverage and Workmen Compensation as per the conditions referred
to in the tender form and also the condition that 60 persons should be employed
for the purpose of the work to undertake.
8. It is also stated in the counter that this respondent is a society
founded in the year 2000 with various objects particularly to maintain
environment and also to provide toilet facilities and it is a registered one.
Further, it has got the experience for upkeeping the sanitation at various
places like Central Bus Stand, Tirunelveli Junction, Palayamkottai Gandhi
Market, Palayamkottai 5 Car Streets, Tirunelveli Town 4 Car Streets and Bose
Market. Besides, this respondent also possesses modern machineries for
maintaining the sanitation and has remitted the EMD as per the conditions
imposed. Therefore, this respondent, being the successful bidder, is entitled to
maintain the toilets, as per the lease allotted.
9. Learned counsel for the petitioner would contend that the decision
taken by the first respondent in awarding contract to the third respondent is
unjust, arbitrary and against the provisions of Tamil Nadu Transparency in
Tenders Act 1998 and the Rules 2000, which would result in huge financial loss
to the first respondent Corporation. The petitioner had applied for tender on
payment of Rs.275/- and received the same on 12.03.2008 along with Tender
Bulletin and as there was only seven days time, she submitted the same in time
on 19.03.2008 along with E.M.D. and other relevant documents attached with the
tender form. In the tender bulletin issued by the first respondent along with
the application, General Condition page 7 para 5 clearly states that the E.M.D.
has to be paid before 05.00 p.m. by all means the previous day of the opening of
the tender on 20.03.2008 and as per the tender conditions, the petitioner has
submitted all the required documents along with the E.M.D. within the scheduled
time on 19.03.2008 before 03.30 p.m. Further, the petitioner has complied with
all the tender conditions and as such the petitioner is qualified for pre-
qualification tender as per Rule 32 of the Transparency in Tender Rules,2000 and
as per the evaluation and the comparative statement of the tender, the
petitioner is the highest bidder than that of the third respondent with a
difference of approximately Rs.1.00 lakh per month and Rs.34.00 lakhs per three
years contract period and, therefore, the petitioner is the eligible bidder for
the award of contract, being the highest bidder with adequate experience and
hence the first respondent is estopped from raising any objections with regard
to the payment of E.M.D. and qualification after the approval of the pre-
qualification. When that be so, the contract was awarded to the third
respondent, in violation of the rules and regulations of the Act.
10. Learned counsel for the petitioner would further contend that as per
Rule 20, the minimum time required for submission of tender is 15 days, but the
1st respondent allowed only seven days time for submission of the tender, in
violation of the transparency in tender rules. Further, there is a saving clause
with deeming provision in the general conditions of the contract of the tender
bulletin that if any tenderer tendered and participated, the tenderer is deemed
to have studied and agreed to the conditions of the contract. The petitioner has
also complied with the condition as an NGO approved by the proceedings of the
State Project Officer, by an order dated 29.08.2005. The petitioner trust was
approved by the Tamil Nadu Social Welfare Board, Chennai, for the Government
grant and the Income-tax Department has exempted the trust and approved the
exemption for the period from 01.04.2005 to 31.03.2009 and hence the question of
approval and registration of the petitioner trust does not arise and, as such,
the petitioner should have been awarded the contract. The petitioner has paid
the EMD on 19.03.2008 well within time the previous day of the opening the
tender and the question of payment of contribution for ESI and PF will arise
only after the employment of staff concerned to the particular work. The
contention of the first respondent that the third respondent is a registered NGO
and has 60 sanitary works is far from truth, as all the employees were covered
under the ESI Act only from 11/2007 and the employees account code obtained in
12/2007. Moreover, the acceptance of tender of the third respondent and the
rejection of the tender of the petitioner were not communicated even though
there is a statutory provision to keep the minutes of meeting open to the
members of the contract and for the inspection of the public on payment of cost
and only after filing of the writ petition, the respondent has come forward to
show the resolution of award of contract to the third respondent. The averment
that the petitioner has not signed in the tender papers is not correct, as there
is a saving clause in the tender condition for acceptance of the tender form and
it cannot be a reason for rejecting the award of contract to the petitioner.
The petitioner, being the highest bidder and recognized N.G.O. both by the State
and the Central Government, is entitled for award of the contract. With regard
to the contention that the petitioner has not submitted the tender in full form
with details about the ongoing scheme and about the previous experience in the
field, the petitioner has submitted the tender form with full particulars as
called for in the tender, which can be evident from the tender comparative
tabulation by the respondent. In addition, for the work of sweeping, savaging,
latrine and unskilled and manual in nature, no high technical expertise is
needed and therefore the employment of any number of persons for the upkeep and
its maintenance is not a problem for an organisation like the petitioner which
runs about 230 self help groups with 80% of it are downtrodden people of the
society. Accordingly, the learned counsel prayed for allowing the writ petition.
11. In support of his contention, the learned counsel has cited the
following decisions :
(i) Ram and Shyam Company v. State of Haryana and Others, 1985 (3) Supreme
Court Cases 267 ;
“It must, therefore, be taken to be the law that where the Government is
dealing with the public, whether by way of giving jobs or entering into
contracts or issuing quotas or licencdes or granting other forms of largesse,
the Government cannot act arbitrarily as its sweet will and, like a private
individual, deal with any person it pleases, but its action must be in
conformity with standard or norms which is not arbitrary, irrational or
irrelevant.”
(ii) Harminder Singh Arora v. Union of India and Others, 1986 (3) Supreme
Court Cases 247 :
“Once the Government decides to award contract on the basis of bid by
tender, it must abide by the terms of the tender. In the absence of any policy,
award of contract to a Government Undertaking by granting price preference and
rejecting the most suitable offer of a private contractor in contravention of
terms of the tender is arbitrary, capricious and violative of Article 14.”
(iii) Food Corporation of India v. Kamdhenu Cattle Feed Industries, AIR
1993 SUPREME COURT 1601 :
“10…The object of inviting tenders for disposal of a commodity is to
procure the highest price while giving equal opportunity to all the intending
builders to complete. Procuring the highest price for the commodity price
undoubtedly in public interest since the amount so collected goes to public
fund….”
(iv) S.Selvarani v. The Commissioner, Karaikudi Municipality, Karaikudi,
2005 (1) CTC 81 :
“9.Thus, the law is very clear that ordinarily all contracts by the
Government or by an instrumentality of the State should be granted only by
public auction or by inviting tenders, after advertising the same in well known
newspapers having wide circulation, so that all eligible persons will have
opportunity to bid in the same.”
(v) Madras Security Printers v. State of Tamil Nadu, 2008 (2) CTC 24.
“33. The object of the enactment is to foster and encourage effective
participation by tenderers in the process of tenders; to promote healthy
competition among tenderers; to provide for fair and equitable treatment of all
tenderers; to eliminate irregularities, interference and corrupt practices in
the matters relating to tender process by providing transparency in such matters
and also to promote the integrity of the process of tenders and to promote
fairness and public confidence in the processing of tenders by ensuring
transparency in the procedure relating to procurement.”
12. Conversely, Mr.M.Vallinayagam, learned counsel for the first
respondent would contend that totally six persons purchased the tender papers
and only five of them submitted the tender documents to the first respondent. As
per the notification made on 13.03.2008, the tenderer must be a registered NGO
and the EMD has to be made on 18.03.2008 itself. That apart, as per the tender
application, the tenderer has also to satisfy the conditions, namely, previous
experience in sanitation and upkeep of bus stands, compliance of statutory
requirements such as ESI, PF etc. At the time of opening of tenders on
20.03.2008, all the five tenderers were present and the sealed tenders were
opened in the presence of the tenderers by the Corporation authorities. The writ
petitioner has made EMD only on 19.03.2008. Hence, the petitioner has not
complied with the eligibility criteria for scrutinizing the paper itself.
Further, the petitioner has not at all produced the documents to show that it is
a registered NGO along with the tender papers, which is also a non-compliance of
the eligibility criteria. Therefore, on these two grounds, the tender papers
submitted by the petitioner have to be rejected even before scrutinizing the
same. Though the petitioner has mentioned the registration number of the trust
deed as 766/04, the requirement of registration of the NGO is under the Tamil
Nadu Societies Registration Act or under any other enactments. The tender
papers of the petitioner and the third respondent were placed before the Council
of the Corporation in the meeting held on 23.06.2008 and the Council transacted
the matter thoroughly and unanimously rejected the tender of the petitioner for
the reasons that (i) she has not produced the document to show that it is a
registered NGO, (ii) she has not paid the tender deposit of Rs.10,000/- into the
Treasury of the Corporation before the stipulated time i.e., before 04.00 p.m.
on 18.03.2008, (iii) she has not enclosed the list of ongoing activities along
with the tender papers, (iv) she has not given any details of previous
experience in sanitation and upkeep of bus stands, (v) she has not submitted the
tender papers with her signature, accepting the terms and conditions and (vi)
she has not produced records regarding PF and ESI relating to their workmen, who
are employed in the sanitation works. In the same meeting, after rejecting the
tender papers of the petitioner, the Council accepted the tender of the third
respondent for the reasons that the third respondent has (i) produced a copy of
the certificate of registration issued by the Deputy Registrar of Societies,
Tirunelveli, vide its Registration No.56/2000; (ii) made the EMD on 18.03.2008
and thus he has complied with the eligibility criteria at the time of
scrutinizing the tender papers; (iii) got experience in sanitation works and now
it is attending the sanitation work of maintaining the pay and use toilets in
the Tirunelveli Bus Stand of the Corporation and it has 60 number of sanitation
workers, which is comparatively higher than the petitioner Trust; (iv) produced
the document to show that it provided PF and ESI facility to its workers and (v)
not committed any default in payment of monthly instalments in respect of
subsisting works undertaken by it in the Corporation. Therefore, the Council has
undertaken the process of the tender papers in accordance with rules.
13. The learned counsel has also argued that it well settled that when an
alternative remedy like appeal is available, the writ is not maintainable
without exhausting that remedy. Under Section 11 of the Tamil Nadu Transparency
in Tenders Act, any tenderer aggrieved by the order of accepting the tender of
another may appeal to the Government within 10 days from the date of receipt of
the order and the Government is empowered under the said Section to pass
interlocutory order also. Since the petitioner has not availed the said appeal
remedy, this Writ Petition is not maintainable.
14. To substantiate his contentions, the learned counsel has cited the
following decisions :
(i) S.Selvarani v. The Commissioner, Karaikudi Municipality, Karaikudi and
another, 2005 Writ L.R.30 :
“18….the Supreme Court observed that the highest bidder can claim no
right to have his tender accepted, although this power to reject the highest
tender should not be exercised arbitrarily.”
(ii) G.Jayakrishnan v. Tamil Nadu State Marketing Corporation Ltd.,
Coimbatore, AIR 2006 MADRAS 81 :
“3… Learned counsel for the appellant submitted that in the present
case, the value of the tender is less than rupees two crore and hence, the
minimum period, according to Rule 20 (1) of the Rules, for submission of the
tender forms should be fifteen days. Learned counsel for the appellant has not
disputed that the appellant has submitted his tender before 4-1-2005, which was
the last date prescribed by respondents for submitting the tender. Hence, the
appellant cannot be said to have suffered any prejudice even if Rule 20 (1) of
the said Rules was violated.”
“4…. To obtain a writ, the petitioner must also show that he has
suffered some prejudice on account of such violation of law. This is because
writ jurisdiction is equity jurisdiction. To obtain a writ, the petitioner must
satisfy the Court on both points viz., (1) violation of law by the respondent
and (2) on account of such violation, the petitioner has suffered some
prejudice. If the petitioner only shows violation of law but fails to satisfy
the Court that he has suffered some prejudice, no writ will be issued in his
favour.”
15. Learned counsel for the third respondent has relied on the following
decisions :
(i) Tata Cellular v. Union of India, 1994 (6) Supreme Court Cases 651 :
“While Court does not interfere with Government’s freedom of contract,
invitation of tender and refusal of any tender which pertain to policy matter,
but whether the decision/action is vitiated by arbitrariness, unfairness,
illegality, irrationality or ‘Wednesbury unreasonableness’ i.e., when decision
is such as no reasonable person on proper application of mind could take or
procedural impropriety can be looked into by Court.”
(ii) Chennai Metropolitan Water Supply and Sewerage Board Chennai, v.
M/s.Khrunichev State Research and Production Space Centre, Chennai, and another,
AIR 2005 MADRAS 149 :
“64….In the absence of relevant particulars relating to any particular
individual or offer, we are unable to attach any importance to the bald
statements….”
“66.We are, therefore, of the considered view that the allegations of mala
fide or demand of bribe have absolutely no basis….”
(iii) R.Kumar v. Chief Engineer, Mettur Thermal Power Station, Mettur Dam,
2008 (3) MLJ 173 :
“10…. the authority calling for the tender is the best judge to
prescribe the terms and conditions of the tender. Further, the terms of the
invitation to tender are not open to judicial scrutiny, the same being in the
realm of contract. The Board must have a free hand in setting the terms of the
tender. It must have reasonable play in its joints as a necessary concomitant
for an administrative body in an administrative sphere. The Courts would
interfere with the administrative policy decision only if it is arbitrary,
discriminatory, mala fide or actuated by bias. It is entitled to pragmatic
adjustments which may be called for by the particular circumstances. The Courts
cannot strike down the terms of the tender prescribed by the Government, merely
because it feels that some other terms in the tender would have been fair, wiser
or logical. The Board can choose its own method to arrive at a decision. It
can fix its own terms of invitation to tender and that is not open to judicial
scrutiny. In addition, in the matter of policy decisions or exercise of
discretion by the Government, so long as the infringement of fundamental rights
is not shown, Courts will have no occasion to interfere and the Court will not
and should not substitute its own judgment for the judgment of the executive in
such matters.”
16. I have heard the learned counsel for the parties and given my
thoughtful consideration to their respective submissions and also the decisions
cited by them.
17. On an analysis of this case, it is seen that the first respondent has
called for a tender on 06.03.2008 and 13.03.2008 in Daily Thanthi newspaper, for
maintenance of Pay and Use Toilets and Free Toilets cum Bathrooms, Sanitation
and Upkeeping. It is also seen that the petitioner has applied for a tender form
on payment of the prescribed fee and she was issued with a tender form on
12.03.2008. After a perusal of the terms and conditions of the tender document,
she has paid the EMD of Rs.10,000/- and submitted the application on 19.03.2008
and the tender was opened on 20.03.2008.
18. It is pertinent to state that a reading of the tender notification,
dated 13.03.2008, would indicate that the last date for payment of EMD was
18.03.2008 before 04.00 p.m. So, the contention of the learned counsel for the
petitioner that the last date for payment of EMD was 19.03.2008 is rejected. The
further contention of the learned counsel for the petitioner that the tender
notice dated 13.03.2008 is not in compliance with Rule 20 (1) of the Tamil Nadu
Transparency in Tenders Rules on the ground that 15 days time has not been given
from the date of application to the date of submission of tender papers is not
sustainable, because, if really the petitioner has got any grievance regarding
the said notification, she ought to have questioned the notification itself,
without purchasing the tender papers and submitting the same. When the
petitioner purchased the tender papers and submitted the same quoting the
valuation as per the rule, the writ cannot be entertained and hence no prejudice
is caused to the petitioner. Further, the tender has been awarded in favour of
the third respondent by a resolution dated 26.03.2008, whereas this Writ
Petition was filed on 27.03.2008 and the same got listed on 30.03.2008. Once
the tender process is completed, the writ of mandamus alone is not maintainable,
without asking for quashing the tender process.
19. It is also seen that the petitioner has not produced the document to
show that she is a registered NGO; she has not paid the tender deposit of
Rs.10,000/- into the Treasury of the Corporation before the stipulated time
i.e., before 04.00 p.m. on 18.03.2008; she has not enclosed the list of ongoing
activities along with the tender papers; she has not given any details of
previous experience in sanitation and upkeep of bus stands; she has not
submitted the tender papers with her signature, accepting the terms and
conditions and she has not produced records regarding PF and ESI relating to
their workmen, who are employed in the sanitation works. In the absence of the
above details, this Court does not find it appropriate to issue a writ of
mandamus, as prayed for by the petitioner.
20. The decisions cited by the learned counsel for the petitioner are of
no avail to the petitioner, whereas the decisions relied upon by the respondents
have much relevance to the case on hand and applying the ratio laid down
therein, the case of the petitioner has to be rejected. If the petitioner is
aggrieved over the decision of the first respondent accepting the tender of the
third respondent, she should have appealed the same to the Government within 10
days from the date of receipt of the order under Section 11 of the Tamil Nadu
Transparency in Tenders Act, which remedy is not exhausted by her. In
S.Selvarani’s case (referred to above), the Supreme Court has categorically held
that the highest bidder can claim no right to have his tender accepted. Even in
the case of R.Kumar (cited supra), this Court has held that the authority
calling for the tender is the best judge to prescribe the terms and conditions
of the tender and the terms of the invitation to tender are not open to judicial
scrutiny, the same being in the realm of contract. The Corporation must have a
free hand in setting the terms of the tender. It must have reasonable play in
its joints as a necessary concomitant for an administrative body in an
administrative sphere. The Court would interfere with the administrative policy
decision only if it is arbitrary, discriminatory, mala fide or actuated by bias.
It is entitled to pragmatic adjustments which may be called for by the
particular circumstances. The Court cannot strike down the terms of the tender
prescribed by the Government, merely because it feels that some other terms in
the tender would have been fair, wiser or logical. The Corporation can choose
its own method to arrive at a decision. It can fix its own terms of invitation
to tender and that is not open to judicial scrutiny. In addition, in the matter
of policy decisions or exercise of discretion by the Government, so long as the
infringement of fundamental rights is not shown, Court will have no occasion to
interfere and the Court will not and should not substitute its own judgment for
the judgment of the executive in such matters. When the Council of the first
respondent found the third respondent suitable in all respects for the execution
of the work, the writ petitioner, who has not satisfied the requirements
according to the tender notification, will have no say that she, being the
highest bidder, has to be awarded the contract. Highest bidding alone is not
sufficient for awarding the Government contract, but fulfilment of the
conditions is also equally important. If the conditions are ignored, the
execution of work may not be qualitative, resulting in sub-standardness, which
cannot be allowed.
21. The Supreme Court has laid down the proposition in various rulings
that scope of judicial review in the matter of tender is limited and the only
scope is to examine as to whether the decision making process of the tender
inviting authority is vitiated by arbitrariness, unfairness, illegality,
irrationality or unreasonableness. When the decision is proper and it is made in
accordance with the law contemplated and there is no procedural impropriety,
this Court cannot interfere with the same, that too in the absence of any
arbitrariness or unreasonableness. Therefore, the petitioner has not made out
any case to show that there is arbitrariness in rejecting her bid, which
rejection had, in fact, come to be made only for not satisfying the requirements
of the contract. However, since the learned counsel for the petitioner has made
a consistent plea that the representation of the petitioner giving details is
though not materially placed before this Court has been made to the respondents
1 and 2 and the same is pending, it is open to the respondents 1 and 2 to
consider the representation of the petitioner and pass appropriate orders on
merits and in accordance with law. One more contention that the petitioner has
quoted the highest bid amount and therefore she has to be awarded the contract
does not hold good, for the reason that though fetching higher revenue is a
matter of importance in the tender process, the awarding of contract should not
be at the cost of other conditions.
22. For all the foregoing reasons, I do not find any irregularity or
illegality in the action of the first respondent in rejecting the tender of the
writ petitioner. Therefore, this Writ Petition is dismissed with the above
observation. No costs. Consequently, the connected M.P.Nos.1,2 and 4 are
closed.
dixit
To
1.The Commissioner,
Tirunelveli Municipal Corporation,
Tirunelveli.
2.The Secretary,
Municipal Administration and Water Supply,
Secretariat,
Chennai-9.