{"id":244088,"date":"2008-06-09T00:00:00","date_gmt":"2008-06-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/socio-economic-and-educational-vs-the-commissioner-on-9-june-2008"},"modified":"2016-09-22T06:20:32","modified_gmt":"2016-09-22T00:50:32","slug":"socio-economic-and-educational-vs-the-commissioner-on-9-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/socio-economic-and-educational-vs-the-commissioner-on-9-june-2008","title":{"rendered":"Socio Economic And Educational … vs The Commissioner on 9 June, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Socio Economic And Educational … vs The Commissioner on 9 June, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 09\/06\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE V.DHANAPALAN\n\nWRIT PETITION (MD) No.2986 OF 2008\n\nSocio Economic and Educational Development Trust\n(Reg.No.766\/2004),\nrepresented by its Director\nTmt.P.Subbulakshmi.\t\t\t...\t\tPetitioner\n\nvs\n\n1.The Commissioner,\n   Tirunelveli Municipal Corporation,\n   Tirunelveli.\n\n2.The Secretary,\n   Municipal Administration and Water Supply,\n   Secretariat,\n   Chennai-9.\n\n3.Uthavum Karangal\n   (Self Help Group)\n   1-93,6th Cross Street,\n   Bala Packia Nagar,\n   Tirunelveli Junction.\n\n4.M\/s.Food (Foundation of Occupational Development),\n   represented by its Secretary\n   Layola Joseph.\t\t\t...\t\tRespondents\n\n\n\tPetition under Article 226 of the Constitution of India, praying for\nissuance of a writ of mandamus.\n\t\n!For petitioner   ... Mr.S.Govindan\n\t              for Mr.R.Rengaramanujam\t\t\t\n^For respondent 1 ... Mr.M.Vallinayagam\nFor respondent 3  ... Mr.K.Srinivasan\nFor respondent 4  ... Mr.S.Palanivelayutham\n\n\n:ORDER\n<\/pre>\n
\tPetitioner has filed this Writ Petition, praying for issuance of a writ of
\nmandamus, directing the respondents 1 and 2 to award the contract to her, in
\nview of the offer made in pursuance to the tender made on 19.03.2008, being the
\nhighest bidder, as per rule.\n<\/p>\n
\t2. According to the petitioner, she is having adequate experience in the
\nfield of maintenance of toilets and sanitation as a self help group organisation
\nin the district level rural development programmes and projects organised by
\nNational Bank for Agriculture and Rural Development.  While so, the first
\nrespondent called for tender on 06.03.2008 and 13.03.2008 in Daily Thanthi
\nnewspaper, for maintenance of Pay and Use Toilets and Free Toilets cum Bathroom,
\nSanitation and Upkeeping, and as she has got necessary experience and
\nqualification in the said field, she applied for tender form on payment of
\nRs.275\/- and she was issued with the tender form on 12.03.2008.  On receipt of
\nthe tender form, she has gone through the conditions carefully and, as per the
\nrequirements, she has paid Rs.10,000\/- by Demand Draft towards E.M.D. and
\nsubmitted the same on the scheduled date along with the application on
\n19.03.2008 to the first respondent. The tender was opened by the first
\nrespondent on 20.03.2008 in the presence of the Assistant Works Officer,
\nSuperintendent, petitioner and other three tenderers and, on opening the tender,
\nit was noticed that the petitioner was the highest bidder and the other three
\nwere the lowest bidders.\n<\/p>\n
\t3. The petitioner further states that among the four persons participated
\nin the tender, she quoted the highest offer of Rs.2,01,050\/-, being the monthly
\nrent payable to the first respondent Corporation, as against Rs.1,06,000\/-
\nquoted by the third respondent and the other two tenders were rejected on the
\nground of insufficient experience and, therefore, the petitioner and the third
\nrespondent alone were eligible competitors for the above work.  Also, as the
\npetitioner is the highest bidder, she is entitled to the award of contract.
\nHowever, the first respondent has informed that a decision has been taken to
\naward contract to the third respondent instead of the petitioner.\n<\/p>\n
\t4. Aggrieved over the said decision taken by the first respondent and also
\nthe second respondent, the petitioner gave a representation, stating that her
\noffer is for Rs.2,01,050\/- whereas the offer of third respondent is for
\nRs.1,06,000\/- with a difference of Rs.95,050\/- per month and altogether causing
\na total revenue loss of approximately Rs.30.00 lakhs to the first respondent
\nCorporation for a period of three years.  Further, as per Rule 26 of the Tamil
\nNadu Transparency in Tender Rules 2000, the highest bidder should be considered
\nfor award of the contract and, as such, the first respondent has not followed
\nthe rules, as laid down in the Tenders Act.  In addition, when her
\nrepresentations were pending consideration, the first and second respondents
\nhave completed the entire tender process.   It is also her case that 80% of the
\nmembers of the petitioner trust belong to S.C.Community, deserving priority and
\neven otherwise, priority should have been given to the Women Self Help Group
\nlike the petitioner and if the contract is awarded to the third respondent, the
\nfirst respondent, being the public institution, would incur heavy financial loss
\nand she would also be prejudiced.\n<\/p>\n
\t5. First respondent has filed a counter, stating that in the
\nadvertisement, dated 13.03.2008, itself, he has made it clear that the
\nCorporation called for tender for maintenance of pay and use toilet at new Bus
\nStand only from registered NGOs (Non Governmental Organisations) and, therefore,
\nthe first and foremost requisite qualification for the applicant NGO to file
\ntender process is that it must be a registered NGO.  The petitioner has
\nsubmitted his tender papers on 19.03.2008, but, as per the conditions mentioned
\nin the publication, the tenderer has to make payment of deposit amount of
\nRs.10,000\/- in the Corporation Treasury on or before 18.03.2008 at 04.00 p.m.,
\nwhich condition the petitioner has not complied with and, instead, he made the
\ndeposit only on 19.03.2008, through a Demand Draft. The tender papers were
\nopened by the respondent in the presence of Corporation officials and the
\ntenderers.  Though six NGOs have received tender papers, only five of them
\nparticipated at the time of opening and scrutinizing the tender papers on
\n20.03.2008. Three NGOs viz., Uthavum Kakrangal, Poonjolai Sanitation Work
\nCommittee and Theepam Women Self Help Committee have made deposit before 04.00
\np.m. on 18.03.2008, whereas the NGOs, namely, SEED Trust (writ petitioner) and
\nBright Trust have made the deposit only on 19.03.2008.  The petitioner has not
\nenclosed the list of ongoing activities as contemplated in column No.5 of the
\ntender application along with the tender papers. Further, the petitioner has not
\ngiven any details of his previous experience in sanitation and upkeep of bus
\nstands.  Though the petitioner has enclosed the certificate of Executive Officer
\nof Courtallam (Special Grade Town Panchayat), the said certificate does not
\ndisclose any previous experience of the petitioner of maintaining of pay and use
\ntoilets in bus stands. Three tenders have been rejected due to the lowest offer.
\nHowever, the tender of the petitioner was rejected for the reasons (i) she has
\nnot produced the document to show that she is a registered NGO, (ii) she has not
\npaid the tender deposit of Rs.10,000\/- into the Treasury of the Corporation
\nbefore the stipulated time i.e., before 04.00 p.m. on 18.03.2008, (iii) she has
\nnot enclosed the list of ongoing activities along with the tender papers, (iv)
\nshe has not given any details of previous experience in sanitation and upkeep of
\nbus stands, (v) she has not submitted the tender papers with her signature,
\naccepting the terms and conditions and (vi) she has not produced records
\nregarding PF and ESI relating to their workmen, who are employed in the
\nsanitation works.\n<\/p>\n
\t6. It is also stated in the counter that the third respondent, namely,
\nUthavum Karangal, which is a registered NGO, has complied with all the necessary
\nrequirements and it is now attending to number of sanitation works in the
\nCorporation area, including the maintenance of pay and use toilets in the
\nTirunelveli Junction Bus Stand and it has 60 sanitation workers and it has also
\nproduced the document to show that it provides PF and ESI facilities to its
\nworkers.  Further, after completing the tender process, the respondent placed
\nthe subject matter before the Council of Corporation and after an elaborate
\ndiscussion, the Council unanimously accepted the tender of the third respondent
\nand passed a resolution unanimously to that effect vide resolution No.643, in
\nits meeting dated 26.03.2008.  Rule No.26 of the Tamil Nadu Transparency in
\nTender Rules 2000 mentioned in the writ petition deals with the time taken for
\nevaluation and it does not deal with the matter in dispute.  Also, the
\nresolution of the Council of the Corporation accepting the tender of the third
\nrespondent and rejecting the tender of the petitioner with reasons has been
\ncommunicated to the petitioner. The petitioner has submitted only two papers
\nfrom and out of the tender application form received from this Corporation on
\n19.03.2008.  The petitioner has produced the terms and conditions signed by her
\nin the typed set, whereas those papers have not been produced along with her
\ntender papers and hence the petitioner is not entitled for the relief prayed
\nfor.  In addition, the petitioner cannot maintain the writ of mandamus, without
\nasking for quashing the tender process and, therefore, on that sole ground, this
\nWrit Petition has to be dismissed.\n<\/p>\n
\t7. Third respondent has also filed a counter, stating that in the tender
\nnotification, a certain condition with reference to submit the tender form and
\nthe remittance of EMD has been stipulated. However, the petitioner remitted the
\nEMD only on 19.03.2008 and not as per the notice inviting tenders, as per which
\nthe EMD should be remitted before 04.00 p.m. on or before 18.03.2008.  Though
\nthe petitioner is the highest bidder, her tender was not accepted, as she did
\nnot have the required experience of the specific purpose for which tenders are
\ninvited.  Besides, the petitioner has not produced any record relating to the
\nGroup Insurance Coverage, Provident Fund, ESI etc.  As such, the tender of the
\npetitioner was rejected. The Corporation, being a public body, is about to
\nprovide best services for the benefit of the public at large and the alleged
\nrevenue loss cannot be a ground to invoke the jurisdiction of this Hon’ble Court
\nby way of writ petition. The Corporation Council considered the experience of
\nthis respondent and was satisfied with the requirements relating to ESI, PPF,
\nGroup Insurance Coverage and Workmen Compensation as per the conditions referred
\nto in the tender form and also the condition that 60 persons should be employed
\nfor the purpose of the work to undertake.\n<\/p>\n
\t8. It is also stated in the counter that this respondent is a society
\nfounded in the year 2000 with various objects particularly to maintain
\nenvironment and also to provide toilet facilities and it is a registered one.
\nFurther, it has got the experience for upkeeping the sanitation at various
\nplaces like Central Bus Stand, Tirunelveli Junction, Palayamkottai Gandhi
\nMarket, Palayamkottai 5 Car Streets, Tirunelveli Town 4 Car Streets and Bose
\nMarket.  Besides, this respondent also possesses modern machineries for
\nmaintaining the sanitation and has remitted the EMD as per the conditions
\nimposed. Therefore, this respondent, being the successful bidder, is entitled to
\nmaintain the toilets, as per the lease allotted.\n<\/p>\n
\t9. Learned counsel for the petitioner would contend that the decision
\ntaken by the first respondent in awarding contract to the third respondent is
\nunjust, arbitrary and against the provisions of Tamil Nadu Transparency in
\nTenders Act 1998 and the Rules 2000, which would result in huge financial loss
\nto the first respondent Corporation.  The petitioner had applied for tender on
\npayment of Rs.275\/- and received the same on 12.03.2008 along with Tender
\nBulletin and as there was only seven days time, she submitted the same in time
\non 19.03.2008 along with E.M.D. and other relevant documents attached with the
\ntender form. In the tender bulletin issued by the first respondent along with
\nthe application, General Condition page 7 para 5 clearly states that the E.M.D.
\nhas to be paid before 05.00 p.m. by all means the previous day of the opening of
\nthe tender on 20.03.2008 and as per the tender conditions, the petitioner has
\nsubmitted all the required documents along with the E.M.D. within the scheduled
\ntime on 19.03.2008 before 03.30 p.m. Further, the petitioner has complied with
\nall the tender conditions and as such the petitioner is qualified for pre-
\nqualification tender as per Rule 32 of the Transparency in Tender Rules,2000 and
\nas per the evaluation and the comparative statement of the tender, the
\npetitioner is the highest bidder than that of the third respondent with a
\ndifference of approximately Rs.1.00 lakh per month and Rs.34.00 lakhs per three
\nyears contract period and, therefore, the petitioner is the eligible bidder for
\nthe award of contract, being the highest bidder with adequate experience and
\nhence the first respondent is estopped from raising any objections with regard
\nto the payment of E.M.D. and qualification after the approval of the pre-
\nqualification.  When that be so, the contract was awarded to the third
\nrespondent, in violation of the rules and regulations of the Act.\n<\/p>\n
\t10. Learned counsel for the petitioner would further contend that as per
\nRule 20, the minimum time required for submission of tender is 15 days, but the
\n1st respondent allowed only seven days time for submission of the tender, in
\nviolation of the transparency in tender rules. Further, there is a saving clause
\nwith deeming provision in the general conditions of the contract of the tender
\nbulletin that if any tenderer tendered and participated, the tenderer is deemed
\nto have studied and agreed to the conditions of the contract. The petitioner has
\nalso complied with the condition as an NGO approved by the proceedings of the
\nState Project Officer, by an order dated 29.08.2005.  The petitioner trust was
\napproved by the Tamil Nadu Social Welfare Board, Chennai, for the Government
\ngrant and the Income-tax Department has exempted the trust and approved the
\nexemption for the period from 01.04.2005 to 31.03.2009 and hence the question of
\napproval and registration of the petitioner trust does not arise and, as such,
\nthe petitioner should have been awarded the contract. The petitioner has paid
\nthe EMD on 19.03.2008 well within time the previous day of the opening the
\ntender and the question of payment of contribution for ESI and PF will arise
\nonly after the employment of staff concerned to the particular work.  The
\ncontention of the first respondent that the third respondent is a registered NGO
\nand has 60 sanitary works is far from truth, as all the employees were covered
\nunder the ESI Act only from 11\/2007 and the employees account code obtained in
\n12\/2007.  Moreover, the acceptance of tender of the third respondent and the
\nrejection of the tender of the petitioner were not communicated even though
\nthere is a statutory provision to keep the minutes of meeting open to the
\nmembers of the contract and for the inspection of the public on payment of cost
\nand only after filing of the writ petition, the respondent has come forward to
\nshow the resolution of award of contract to the third respondent. The averment
\nthat the petitioner has not signed in the tender papers is not correct, as there
\nis a saving clause in the tender condition for acceptance of the tender form and
\nit cannot be a reason for rejecting the award of contract to the petitioner.
\nThe petitioner, being the highest bidder and recognized N.G.O. both by the State
\nand the Central Government, is entitled for award of the contract. With regard
\nto the contention that the petitioner has not submitted the tender in full form
\nwith details about the ongoing scheme and about the previous experience in the
\nfield, the petitioner has submitted the tender form with full particulars as
\ncalled for in the tender, which can be evident from the tender comparative
\ntabulation by the respondent.  In addition, for the work of sweeping, savaging,
\nlatrine and unskilled and manual in nature, no high technical expertise is
\nneeded and therefore the employment of any number of persons for the upkeep and
\nits maintenance is not a problem for an organisation like the petitioner which
\nruns about 230 self help groups with 80% of it are downtrodden people of the
\nsociety. Accordingly, the learned counsel prayed for allowing the writ petition.\n<\/p>\n
\t11. In support of his contention, the learned counsel has cited the
\nfollowing decisions :\n<\/p>\n
\t(i) Ram and Shyam Company v. State of Haryana and Others, 1985 (3) Supreme
\nCourt Cases 267 ;\n<\/p>\n
\t“It must, therefore, be taken to be the law that where the Government is
\ndealing with the public, whether by way of giving jobs or entering into
\ncontracts or issuing quotas or licencdes or granting other forms of largesse,
\nthe Government cannot act arbitrarily as its sweet will and, like a private
\nindividual, deal with any person it pleases, but its action must be in
\nconformity with standard or norms which is not arbitrary, irrational or
\nirrelevant.”\n<\/p>\n
\t(ii) Harminder Singh Arora v. Union of India and Others,<\/a> 1986 (3) Supreme
\nCourt Cases 247 :\n<\/p>\n
\t“Once the Government decides to award contract on the basis of bid by
\ntender, it must abide by the terms of the tender.  In the absence of any policy,
\naward of contract to a Government Undertaking by granting price preference and
\nrejecting the most suitable offer of a private contractor in contravention of
\nterms of the tender is arbitrary, capricious and violative of Article 14.”\n<\/p>\n
\t(iii) Food Corporation of India v. Kamdhenu Cattle Feed Industries, AIR<\/a>
\n1993 SUPREME COURT 1601 :\n<\/p>\n
\t“10…The object of inviting tenders for disposal of a commodity is to
\nprocure the highest price while giving equal opportunity to all the intending
\nbuilders to complete.  Procuring the highest price for the commodity price
\nundoubtedly in public interest since the amount so collected goes to public
\nfund….”\n<\/p>\n
\t(iv) S.Selvarani v. The Commissioner, Karaikudi Municipality, Karaikudi,<\/a>
\n2005 (1) CTC 81 :\n<\/p>\n
\t“9.Thus, the law is very clear that ordinarily all contracts by the
\nGovernment or by an instrumentality of the State should be granted only by
\npublic auction or by inviting tenders, after advertising the same in well known
\nnewspapers having wide circulation, so that all eligible persons will have
\nopportunity to bid in the same.”\n<\/p>\n
\t(v) Madras Security Printers v. State of Tamil Nadu,<\/a> 2008 (2) CTC 24.
\n\t“33. The object of the enactment is to foster and encourage effective
\nparticipation by tenderers in the process of tenders; to promote healthy
\ncompetition among tenderers; to provide for fair and equitable treatment of all
\ntenderers; to eliminate irregularities, interference and corrupt practices in
\nthe matters relating to tender process by providing transparency in such matters
\nand also to promote the integrity of the process of tenders and to promote
\nfairness and public confidence in the processing of tenders by ensuring
\ntransparency in the procedure relating to procurement.”\n<\/p>\n
\t12. Conversely, Mr.M.Vallinayagam, learned counsel for the first
\nrespondent would contend that totally six persons purchased the tender papers
\nand only five of them submitted the tender documents to the first respondent. As
\nper the notification made on 13.03.2008, the tenderer must be a registered NGO
\nand the EMD has to be made on 18.03.2008 itself.  That apart, as per the tender
\napplication, the tenderer has also to satisfy the conditions, namely, previous
\nexperience in sanitation and upkeep of bus stands, compliance of statutory
\nrequirements such as ESI, PF etc.  At the time of opening of tenders on
\n20.03.2008, all the five tenderers were present and the sealed tenders were
\nopened in the presence of the tenderers by the Corporation authorities. The writ
\npetitioner has made EMD only on 19.03.2008. Hence, the petitioner has not
\ncomplied with the eligibility criteria for scrutinizing the paper itself.
\nFurther, the petitioner has not at all produced the documents to show that it is
\na registered NGO along with the tender papers, which is also a non-compliance of
\nthe eligibility criteria. Therefore, on these two grounds, the tender papers
\nsubmitted by the petitioner have to be rejected even before scrutinizing the
\nsame.  Though the petitioner has mentioned the registration number of the trust
\ndeed as 766\/04, the requirement of registration of the NGO is under the Tamil
\nNadu Societies Registration Act or under any other enactments.  The tender
\npapers of the petitioner and the third respondent were placed before the Council
\nof the Corporation in the meeting held on 23.06.2008 and the Council transacted
\nthe matter thoroughly and unanimously rejected the tender of the petitioner for
\nthe reasons that  (i) she has not produced the document to show that it is a
\nregistered NGO, (ii) she has not paid the tender deposit of Rs.10,000\/- into the
\nTreasury of the Corporation before the stipulated time i.e., before 04.00 p.m.
\non 18.03.2008, (iii) she has not enclosed the list of ongoing activities along
\nwith the tender papers, (iv) she has not given any details of previous
\nexperience in sanitation and upkeep of bus stands, (v) she has not submitted the
\ntender papers with her signature, accepting the terms and conditions and (vi)
\nshe has not produced records regarding PF and ESI relating to their workmen, who
\nare employed in the sanitation works. In the same meeting, after rejecting the
\ntender papers of the petitioner, the Council accepted the tender of the third
\nrespondent for the reasons that the third respondent has (i) produced a copy of
\nthe certificate of registration issued by the Deputy Registrar of Societies,
\nTirunelveli, vide its Registration No.56\/2000; (ii) made the EMD on 18.03.2008
\nand thus he has complied with the eligibility criteria at the time of
\nscrutinizing the tender papers; (iii) got experience in sanitation works and now
\nit is attending the sanitation work of maintaining the pay and use toilets in
\nthe Tirunelveli Bus Stand of the Corporation and it has 60 number of sanitation
\nworkers, which is comparatively higher than the petitioner Trust; (iv) produced
\nthe document to show that it provided PF and ESI facility to its workers and (v)
\nnot committed any default in payment of monthly instalments in respect of
\nsubsisting works undertaken by it in the Corporation. Therefore, the Council has
\nundertaken the process of the tender papers in accordance with rules.\n<\/p>\n
\t13. The learned counsel has also argued that it well settled that when an
\nalternative remedy like appeal is available, the writ is not maintainable
\nwithout exhausting that remedy.  Under Section 11 of the Tamil Nadu Transparency
\nin Tenders Act, any tenderer aggrieved by the order of accepting the tender of
\nanother may appeal to the Government within 10 days from the date of receipt of
\nthe order and the Government is empowered under the said Section to pass
\ninterlocutory order also.  Since the petitioner has not availed the said appeal
\nremedy, this Writ Petition is not maintainable.\n<\/p>\n
\t14. To substantiate his contentions, the learned counsel has cited the
\nfollowing decisions :\n<\/p>\n
\t(i) S.Selvarani v. The Commissioner, Karaikudi Municipality, Karaikudi and<\/a>
\nanother, 2005 Writ L.R.30 :\n<\/p>\n
\t“18….the Supreme Court observed that the highest bidder can claim no
\nright to have his tender accepted, although this power to reject the highest
\ntender should not be exercised arbitrarily.”\n<\/p>\n
\t(ii)  G.Jayakrishnan v. Tamil Nadu State Marketing Corporation Ltd.,
\nCoimbatore, AIR<\/a> 2006 MADRAS 81 :\n<\/p>\n
\t“3… Learned counsel for the appellant submitted that in the present
\ncase, the value of the tender is less than rupees two crore and hence, the
\nminimum period, according to Rule 20 (1) of the Rules, for submission of the
\ntender forms should be fifteen days.  Learned counsel for the appellant has not
\ndisputed that the appellant has submitted his tender before 4-1-2005, which was
\nthe last date prescribed by respondents for submitting the tender. Hence, the
\nappellant cannot be said to have suffered any prejudice even if Rule 20 (1) of
\nthe said Rules was violated.”\n<\/p>\n
\t“4…. To obtain a writ, the petitioner must also show that he has
\nsuffered some prejudice on account of such violation of law.  This is because
\nwrit jurisdiction is equity jurisdiction.  To obtain a writ, the petitioner must
\nsatisfy the Court on both points viz., (1) violation of law by the respondent
\nand (2) on account of such violation, the petitioner has suffered some
\nprejudice. If the petitioner only shows violation of law but fails to satisfy
\nthe Court that he has suffered some prejudice, no writ will be issued in his
\nfavour.”\n<\/p>\n
\t15. Learned counsel for the third respondent has relied on the following
\ndecisions :\n<\/p>\n
\t(i) Tata Cellular v. Union of India,<\/a> 1994 (6) Supreme Court Cases 651 :
\n\t“While Court does not interfere with Government’s freedom of contract,
\ninvitation of tender and refusal of any tender which pertain to policy matter,
\nbut whether the decision\/action is vitiated by arbitrariness, unfairness,
\nillegality, irrationality or ‘Wednesbury unreasonableness’ i.e., when decision
\nis such as no reasonable person on proper application of mind could take or
\nprocedural impropriety can be looked into by Court.”\n<\/p>\n
\t(ii) Chennai Metropolitan Water Supply and Sewerage Board Chennai, v.
\nM\/s.Khrunichev State Research and Production Space Centre, Chennai, and<\/a> another,
\nAIR 2005 MADRAS 149 :\n<\/p>\n
\t“64….In the absence of relevant particulars relating to any particular
\nindividual or offer, we are unable to attach any importance to the bald
\nstatements….”\n<\/p>\n
\t“66.We are, therefore, of the considered view that the allegations of mala
\nfide or demand of bribe have absolutely no basis….”\n<\/p>\n
\t(iii) R.Kumar v. Chief Engineer, Mettur Thermal Power Station, Mettur Dam,<\/a>
\n2008 (3) MLJ 173 :\n<\/p>\n
\t“10…. the authority calling for the tender is the best judge to
\nprescribe the terms and conditions of the tender.  Further, the terms of the
\ninvitation to tender are not open to judicial scrutiny, the same being in the
\nrealm of contract.  The Board must have a free hand in setting the terms of the
\ntender.  It must have reasonable play in its joints as a necessary concomitant
\nfor an administrative body in an administrative sphere.  The Courts would
\ninterfere with the administrative policy decision only if it is arbitrary,
\ndiscriminatory, mala fide or actuated by bias.  It is entitled to pragmatic
\nadjustments which may be called for by the particular circumstances. The Courts
\ncannot strike down the terms of the tender prescribed by the Government, merely
\nbecause it feels that some other terms in the tender would have been fair, wiser
\nor logical.  The Board can choose its own method to arrive at a decision.  It
\ncan fix its own terms of invitation to tender and that is not open to judicial
\nscrutiny.  In addition, in the matter of policy decisions or exercise of
\ndiscretion by the Government, so long as the infringement of fundamental rights
\nis not shown, Courts will have no occasion to interfere and the Court will not
\nand should not substitute its own judgment for the judgment of the executive in
\nsuch matters.”\n<\/p>\n
\t16. I have heard the learned counsel for the parties and given my
\nthoughtful consideration to their respective submissions and also the decisions
\ncited by them.\n<\/p>\n
\t17. On an analysis of this case, it is seen that the first respondent has
\ncalled for a tender on 06.03.2008 and 13.03.2008 in Daily Thanthi newspaper, for
\nmaintenance of Pay and Use Toilets and Free Toilets cum Bathrooms, Sanitation
\nand Upkeeping. It is also seen that the petitioner has applied for a tender form
\non payment of the prescribed fee and she was issued with a tender form on
\n12.03.2008.  After a perusal of the terms and conditions of the tender document,
\nshe has paid the EMD of Rs.10,000\/- and submitted the application on 19.03.2008
\nand the tender was opened on 20.03.2008.\n<\/p>\n
\t18. It is pertinent to state that a reading of the tender notification,
\ndated 13.03.2008, would indicate that the last date for payment of EMD was
\n18.03.2008 before  04.00 p.m. So, the contention of the learned counsel for the
\npetitioner that the last date for payment of EMD was 19.03.2008 is rejected. The
\nfurther contention of the learned counsel for the petitioner that the tender
\nnotice dated 13.03.2008 is not in compliance with Rule 20 (1) of the Tamil Nadu
\nTransparency in Tenders Rules on the ground that 15 days time has not been given
\nfrom the date of application to the date of submission of tender papers is not
\nsustainable, because, if really the petitioner has got any grievance regarding
\nthe said notification, she ought to have questioned the notification itself,
\nwithout purchasing the tender papers and submitting the same. When the
\npetitioner purchased the tender papers and submitted the same quoting the
\nvaluation as per the rule, the writ cannot be entertained and hence no prejudice
\nis caused to the petitioner.  Further, the tender has been awarded in favour of
\nthe third respondent by a resolution dated 26.03.2008, whereas this Writ
\nPetition was filed on 27.03.2008 and the same got listed on 30.03.2008.  Once
\nthe tender process is completed, the writ of mandamus alone is not maintainable,
\nwithout asking for quashing the tender process.\n<\/p>\n
\t19. It is also seen that the petitioner has not produced the document to
\nshow that she is a registered NGO; she has not paid the tender deposit of
\nRs.10,000\/- into the Treasury of the Corporation before the stipulated time
\ni.e., before 04.00 p.m. on 18.03.2008; she has not enclosed the list of ongoing
\nactivities along with the tender papers; she has not given any details of
\nprevious experience in sanitation and upkeep of bus stands; she has not
\nsubmitted the tender papers with her signature, accepting the terms and
\nconditions and she has not produced records regarding PF and ESI relating to
\ntheir workmen, who are employed in the sanitation works. In the absence of the
\nabove details, this Court does not find it appropriate to issue a writ of
\nmandamus, as prayed for by the petitioner.\n<\/p>\n
\t20. The decisions cited by the learned counsel for the petitioner are of
\nno avail to the petitioner, whereas the decisions relied upon by the respondents
\nhave much relevance to the case on hand and applying the ratio laid down
\ntherein, the case of the petitioner has to be rejected. If the petitioner is
\naggrieved over the decision of the first respondent accepting the tender of the
\nthird respondent, she should have appealed the same to the Government within 10
\ndays from the date of receipt of the order under Section 11 of the Tamil Nadu
\nTransparency in Tenders Act, which remedy is not exhausted by her. In
\nS.Selvarani’s case (referred to above), the Supreme Court has categorically held
\nthat the highest bidder can claim no right to have his tender accepted. Even in
\nthe case of R.Kumar (cited supra), this Court has held that the authority
\ncalling for the tender is the best judge to prescribe the terms and conditions
\nof the tender and the terms of the invitation to tender are not open to judicial
\nscrutiny, the same being in the realm of contract. The Corporation must have a
\nfree hand in setting the terms of the tender.  It must have reasonable play in
\nits joints as a necessary concomitant for an administrative body in an
\nadministrative sphere.  The Court would interfere with the administrative policy
\ndecision only if it is arbitrary, discriminatory, mala fide or actuated by bias.
\nIt is entitled to pragmatic adjustments which may be called for by the
\nparticular circumstances. The Court cannot strike down the terms of the tender
\nprescribed by the Government, merely because it feels that some other terms in
\nthe tender would have been fair, wiser or logical. The Corporation can choose
\nits own method to arrive at a decision. It can fix its own terms of invitation
\nto tender and that is not open to judicial scrutiny.  In addition, in the matter
\nof policy decisions or exercise of discretion by the Government, so long as the
\ninfringement of fundamental rights is not shown, Court will have no occasion to
\ninterfere and the Court will not and should not substitute its own judgment for
\nthe judgment of the executive in such matters.  When the Council of the first
\nrespondent found the third respondent suitable in all respects for the execution
\nof the work, the writ petitioner, who has not satisfied the requirements
\naccording to the tender notification, will have no say that she, being the
\nhighest bidder, has to be awarded the contract. Highest bidding alone is not
\nsufficient for awarding the Government contract, but fulfilment of the
\nconditions is also equally important. If the conditions are ignored, the
\nexecution of work may not be qualitative, resulting in sub-standardness, which
\ncannot be allowed.\n<\/p>\n
\t21. The Supreme Court has laid down the proposition in various rulings
\nthat scope of judicial review in the matter of tender is limited and the only
\nscope is to examine as to whether the decision making process of the tender
\ninviting authority is vitiated by arbitrariness, unfairness, illegality,
\nirrationality or unreasonableness. When the decision is proper and it is made in
\naccordance with the law contemplated and there is no procedural impropriety,
\nthis Court cannot interfere with the same, that too in the absence of any
\narbitrariness or unreasonableness.  Therefore, the petitioner has not made out
\nany case to show that there is arbitrariness in rejecting her bid, which
\nrejection had, in fact, come to be made only for not satisfying the requirements
\nof the contract. However, since the learned counsel for the petitioner has made
\na consistent plea that the representation of the petitioner giving details is
\nthough not materially placed before this Court has been made to the respondents
\n1 and 2 and the same is pending, it is open to the respondents 1 and 2 to
\nconsider the representation of the petitioner and pass appropriate orders on
\nmerits and in accordance with law.  One more contention that the petitioner has
\nquoted the highest bid amount and therefore she has to be awarded the contract
\ndoes not hold good, for the reason that though fetching higher revenue is a
\nmatter of importance in the tender process, the awarding of contract should not
\nbe at the cost of other conditions.\n<\/p>\n
\t22. For all the foregoing reasons, I do not find any irregularity or
\nillegality in the action of the first respondent in rejecting the tender of the
\nwrit petitioner. Therefore, this Writ Petition is dismissed with the above
\nobservation.  No costs.  Consequently, the connected M.P.Nos.1,2 and 4 are
\nclosed.\n<\/p>\n
dixit<\/p>\n
To\n<\/p>\n
1.The Commissioner,
\n   Tirunelveli Municipal Corporation,
\n   Tirunelveli.\n<\/p>\n
2.The Secretary,
\n   Municipal Administration and Water Supply,
\n   Secretariat,
\n   Chennai-9.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Socio Economic And Educational … vs The Commissioner on 9 June, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-244088","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSocio Economic And Educational ... vs The Commissioner on 9 June, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/socio-economic-and-educational-vs-the-commissioner-on-9-june-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Socio Economic And Educational ... vs The Commissioner on 9 June, 2008 - 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