{"id":35003,"date":"2004-10-15T00:00:00","date_gmt":"2004-10-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-saravanachelvam-vs-the-commissioner-on-15-october-2004"},"modified":"2016-06-18T02:40:17","modified_gmt":"2016-06-17T21:10:17","slug":"m-saravanachelvam-vs-the-commissioner-on-15-october-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-saravanachelvam-vs-the-commissioner-on-15-october-2004","title":{"rendered":"M.Saravanachelvam vs The Commissioner on 15 October, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
M.Saravanachelvam vs The Commissioner on 15 October, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED:15\/10\/2004\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE K.P.SIVASUBRAMANIAM\n\nW.P.No.17227 of 2003\n\nM.Saravanachelvam                      ..                      Petitioner\n\n-Vs-\n\n1.  The Commissioner\n   R.S.Mangalam Panchayat Union\n   R.S.Mangalam\n   Ramnad District.\n\n2. Mr.Dorairaj\n   Commissioner\n   R.S.Mangalam Panchayat Union\n   R.S.Mangalam\n   Ramnad District.\n\n3. V.T.Natarajan\n4. Ravichandran                 ..                          Respondents\n\n4th respondent impleaded as per\norder of Court dated 21.8.2003\nin W.P.M.P.No.28628 of 2003\n\n\nPRAYER: Writ Petition filed under Article 226 of the Constitution of India for the issue of a writ of Declaration declaring a\nproceedings pursuant to the Tender Notification Na.Ka.A2\/1290\/03 dated 27.05.20\n03 of the first   respondent herein as arbitrary, illegal and\nunconstitutional.\n\n!For petitioner                 :       Mr.AR.L.Sundaresan\n\n^For respondents-1 & 2          :       Mr.P.S.Jayakumar\n\nFor 3rd respondent              :       No appearance\n\nFor 4th respondent              :       Mr.S.Parthasarathy\n\n:ORDER\n<\/pre>\n
        The  petitioner  seeks  for  a  writ  of Declaration declaring all the
\nproceedings  pursuant  to  the  tender  notification  Na.Ka.A2\/1290\/03   dated
\nproceedings pursuant to the tender notification Na.Ka.A2\/1290\/03 dated
\n27.5.2003 of the first respondent as arbitrary, illegal and unconstitutional.\n<\/p>\n
        2.   The petitioner submits that he is a registered Class-I Contractor
\nin Ramanathapuram District.  He was granted certificate on 17.8.2001  enabling
\nhim  to  take up all public works in the Panchayat Unions in the District upto
\nand above Rs.25 lakhs.  He was, therefore,  eligible  to  participate  in  the
\ntenders floated  by  all  Panchayat  Unions  in  Ramanathapuram District.  The
\npetitioner further alleges that the  third  respondent  is  a  Member  of  the
\nLegislative Assembly  of  the  ruling  party.    He is also the husband of the
\nelected Chairman of the Panchayat Union.  Though he does not have any role  to
\nplay  in the affairs of the Panchayat Union, taking advantage of his political
\naffiliation and power, he was influencing all the officials of  the  Panchayat
\nUnion and the officers were acting only according to his dictation.\n<\/p>\n
        3.   The  petitioner  further  states  that  a tender notification was
\nissued on 27.5.2003, inviting tenders in respect of six items of  work.    The
\nestimated  value  of  the  works,  cost  of tender schedules and the sales tax
\npayable thereon were fixed in the tender schedule  conditions.    It  is  also
\nmentioned  that  the  tender  schedules  were  to  be  obtained from the first
\nrespondent on payment of cost  of  tender  schedules  and  sales  tax  to  the
\nTreasury of  the  Panchayat  Union  by 3.00 p.m.  on 5.6.2 003 and the tenders
\nwere to be submitted to the office of the first respondent by 3.00  p.m.    on
\n6.6.2003 and the  tender  opening  shall  be  at  4.00 p.m.  on 6.6.2003.  The
\npetitioner went to  the  office  of  the  first  respondent  on  2.6.2003  for
\nobtaining  the  challan  for  remitting  the cost for all the six works and to
\nobtain the tender schedule.   However,  the  second  respondent\/  Commissioner
\ninformed  him  that he has been instructed by the third respondent to restrict
\nthe issuance of tender schedules only to the persons recommended  by  him  and
\nunless  the petitioner’s name was recommended, the second respondent would not
\nissue even the challan.  Therefore, the petitioner  was  constrained  to  file
\nW.P.No.15274 of 2003, praying for a Mandamus to direct the first respondent to
\nissue the  challan  for payment of the cost and the sales tax.  He also prayed
\nfor an interim direction to issue tender schedule  on  receipt  of  the  cost.
\nThis  Court,  by  order dated 4.6.2003, directed the first respondent to issue
\nthe challan for payment of  cost  and  sales  tax  and  to  issue  the  tender
\nschedule.\n<\/p>\n
        4.   The petitioner further submits that on receipt of the copy of the
\norder of this Court, he went to the office of the first respondent on 5.6.2003
\nand submitted a copy of the order of this  Court  and  requested  issuance  of
\nchallan.  The Assistant working in the office had received order copy at 12.20
\np.m.   Though  the  challan  ought  to  have  been issued on the same day, for
\nreasons which are obvious, at the instance of the third respondent, the second
\nrespondent postponed the tender to 11.6.2003.  According  to  the  petitioner,
\nthe  said  action was only to somehow see to it that the tender schedules were
\nnot made available to the petitioner.  Thereafter, he approached the office of
\nthe first respondent and again, on 10.6.2003.  A challan for a sum  of  Rs.4,1
\n04\/- towards the cost and sales tax for all six items was issued.  However, by
\nthe  time  the  petitioner  was to remit the said amount, he was informed that
\nItem 1 out of six works was adjourned.  A fresh challan was  issued  only  for
\nItems  2 to 6 for a sum of Rs.1,944\/- towards cost and sales tax, which amount
\nwas remitted by the petitioner on 10.6.2003 itself.\n<\/p>\n
        5.   According  to  the  petitioner,  after  remitting  the  cost,  he
\napproached the  first  respondent for the grant of tender schedule.  The first
\nrespondent had stated that the tender schedules were not  ready  and  that  it
\nwould be  ready  at  4.00  p.m.  which the petitioner can collect at 4.00 p.m.
\nHowever, even at 4.00 p.m.,  the  tender  schedules  were  not  issued.    The
\npetitioner  alleges  that  about 300 persons belonging to the third respondent
\ncame to the Panchayat Union office along with his son,  mobbed  the  Panchayat
\nUnion  office  and  prevented  the  first  respondent  from issuing the tender
\nschedule.  The second respondent was colluding with the third  respondent  and
\ndid not issue the tender schedule.\n<\/p>\n
        6.   The  petitioner  is  aggrieved  by  the fact that in spite of the
\norders of this Court directing the issuance of the  challan  and  issuance  of
\ntender  schedules,  and  even  after  having  collected the cost of the tender
\nschedules,  the  first  respondent  wilfully  refused  to  issue  the   tender
\nschedules.   The  tender schedules on 10.6.2003 should have been issued across
\nthe counter and refusal to do so was arbitrary.  It was an abuse of  power  by
\nthe  second  respondent  and due to the collusion between respondents-2 and 3.
\nThe petitioner further contends that the respondents  are  now  attempting  to
\naward the  contract  in  favour of other favoured contractors.  The petitioner
\nalso submits that on refusal of the first respondent to issue tender schedules
\nhe had sent a telegraphic representation which  was  followed  by  a  detailed
\nrepresentation to the respondents and also to the District Collector and other
\nhigher authorities.   However, as the same did not yield any result and as the
\nthird respondent was merrily carrying on with his illegal activities,  he  has
\napproached this Court.\n<\/p>\n
        7.  A counter affidavit was filed by the first respondent along with a
\npetition to  vacate  the stay.  In the counter affidavit, the first respondent
\nhas submitted that the third respondent was not interfering with  the  affairs
\nof the Panchayat  Union.    The  said  contention  was  absolutely false.  The
\nChairman of the Panchayat Union was functioning without  anybody’s  compulsion
\nor instigation.\n<\/p>\n
        8.   The  first respondent had called for tender notification from the
\nregistered Contractors upto 3.00 p.m.   on  6.6.2003.    But  the  tender  was
\nsubsequently postponed  to  11.6.2003  due  to  administrative  reasons.   The
\nstatement that the petitioner had met the first  respondent  on  2.6.2003  was
\nfalse.   The  contention that the first respondent had refused to issue tender
\nschedules was also false.  The first  respondent  had  also  filed  a  counter
\naffidavit in  W.P.No.16274 of 2003 denying the allegations.  Subsequently, the
\npetitioner has remitted a  sum  of  Rs.1,944\/-  towards  the  cost  of  tender
\nschedules and  sales  tax.    Out  of the six works, one work was postponed on
\nadministrative reasons under the powers of the  first  respondent.    For  the
\nother five   works,  tender  schedules  have  been  issued.    Therefore,  the
\npetitioner was allowed to remit the cost of tender schedules for  Items  Nos.2
\nto 6  alone.   Though the petitioner had remitted a sum of Rs.1,944\/- at 12.30
\np.m.  on 1 0.6.2003, he did not contact the first respondent for the grant  of
\ntender schedules.  The petitioner’s statement that he was told that the tender
\nschedules would be ready at 4.00 p.m.  and that the petitioner can collect the
\nsame at 4.00  p.m.    was  false.    The petitioner did not approach the first
\nrespondent after remitting the cost  of  the  tender  schedule.    The  tender
\nschedule was  kept  ready  for  the  sake of the petitioner till 5.45 p.m.  on
\n10.6.2003.  After having remitted the amount  at  12.30  p.m.,  he  went  away
\nwithout intimating or approaching anybody.  He did not come to the office upto
\n5.45 p.m.    Therefore,  the  tender quotation was opened on 11.6.2003 at 4.15
\np.m.  and the highest quotation had been approved and the works were allotted.
\nThe first respondent states that nobody was allowed to enter the office except
\nthe contractors  on  the  day  of  auction.    He  further  states  that   the
\npostponement  of  auction to 11.6.2003 was only due to administrative reasons.
\nThe contention of the petitioner that  he  has  made  a  detailed  telegraphic
\nrepresentation to   the   first   respondent   is   false.     The  telephonic
\nrepresentation was not received by the first respondent from the petitioner.\n<\/p>\n
        9.  In the meantime, one Ravichandran, was  impleaded  as  the  fourth
\nrespondent  in the writ petition, being the highest bidder in whose favour the
\ncontract was awarded by the Panchayat Union.  He has filed a counter affidavit
\nstating that he is a registered Contractor and was doing the contract work for
\nthe past five years.  He was the successful bidder  in  the  auction  held  on
\n11.6.2003.   The  contract  was  also handed over to him and as per the tender
\nconditions, he commenced the works of Item Nos.2 to 6 and had  completed  Item
\nNo.2.   So  far  as  Item Nos.3 to 6 were concerned, 50% of the works had been
\ncompleted.  But, by virtue of the interim<\/p>\n
order, the writ petitioner was preventing him from discharging the work.   The
\ninterim order was only in the event of the tender work not having been granted
\nand if  only  the  tender  work  had not been awarded to anyone.  But, in this
\ncase, the tender was already granted and 50% of the work had been carried  out
\nwith reference  to  Item Nos.3 to 6.  The further contentions in the affidavit
\nhave been denied and the fourth respondent would state that  he  has  invested
\nhuge  amounts  and  completed  the  contract work for Item No.2 and 50% of the
\nworks for Item Nos.3 to 6.  Therefore, he has sought for vacating the  interim
\norder in W.V.M.P.No.2049 of 2003.\n<\/p>\n
        10.   The  third  respondent had filed a counter affidavit denying the
\ncontention that he was interfering with the affairs of  the  Panchayat  Union.
\nBeing a Member of the Legislative Assembly, he has his own duties to discharge
\nin  his  constituency  and  he  was  not  interfering  with the affairs of the
\nPanchayat Union.  As his wife was the Chairman of  the  Panchayat  Union,  the
\npetitioner  was  wantonly  implicating  him in order to cause hardship to him.
\nRegarding the allegation of  the  nongrant  of  tender  schedules,  the  third
\nrespondent  states  that he has no affairs to discharge in the Panchayat Union
\noffice and he had never instructed any official to  issue  works  to  his  own
\npersons or to harass the petitioner.  The writ petition has been filed only to
\nharass him.    He  has  no  connection  with  the  panchayat  Union nor was he
\ninfluencing the panchayat union.  The contention  that  the  tender  schedules
\nwere not issued due to his influence and that about 300 members supporting him
\nmobbed the  Panchayat Union office was not correct.  He has no role to play in
\nthe Panchayat Union office or in the context of the tenders, as alleged by the
\npetitioner.  As the petitioner has failed to participate in the tender, he was
\nfalsely implicating the third respondent.  He has not colluded with anyone  or
\nabused his official position nor had prevented free and fair competition.  The
\norders  in  W.P.No.16274  of  2003  had  been obtained without making him as a
\nparty.  In fact, in the contempt petition filed by the  petitioner,  his  name
\nwas deleted.    Now,  the  petitioner  has  filed  the  present  writ petition
\nimplicating the third respondent only to harass  and  cause  hardship  to  the
\nthird respondent.\n<\/p>\n
        11.  An additional counter affidavit was filed by the first respondent
\non 19.7.2004.    In  the  additional  counter  affidavit,  after restating the
\ncontentions  already  raised  in  the  first  counter  affidavit,  the   first
\nrespondent further states that with reference to Item Nos.2 to 6, tenders were
\nopened  according to the regulations and the highest quotation was approved by
\nthe first respondent.  Subsequently, the  work  regarding  Item  No.1  of  the
\ntender  schedule  was cancelled by the District Collector, Ramanathapuram, and
\nhence, the first respondent has not notified the tender for Item No.1.  It has
\nnot been allotted to any nominee of the third respondent.\n<\/p>\n
        12.  The first respondent further submits that the allegation that the
\ncontract was finalised at the instance of the third respondent  and  the  site
\nwas handed  over in anticipation of the contract was absolutely false.  In the
\ntender auction held on  11.6.2004,  only  two  members  participated  and  the
\nhighest quotation  was  approved  by  the  first  respondent.    There  was no
\nmalpractice.  The contention that the petitioner had made detailed telegraphic
\nrepresentation was false and no telephonic representation  was  also  received
\nfrom the petitioner.\n<\/p>\n
        13.   Mr.AR.L.Sundaresan, learned counsel for the petitioner, contends
\nthat it has become a regular practice in all the public  contracts  either  by
\nthe  Government  or  by  the local bodies to award the work only to a favoured
\ngroup and in the process, even tender documents are not supplied to the  other
\nregistered contractors.  In this case, the third respondent is a Member of the
\nLegislative  Assembly and is also the husband of the Chairman of the Panchayat
\nUnion.  He prevails upon the Panchayat Union to  award  the  contract  to  his
\nbenamis  and as a result of non-supply of the tender documents, the petitioner
\nhad to approach this Court even  earlier.    Even  after  getting  a  positive
\ndirection from this Court for the supply of tender documents, the petitioner’s
\nparticipation  has  been  prevented  by  the  high-handed  action of the third
\nrespondent.  The contention  that  the  petitioner  did  not  come  again  for
\ncollecting  the tender documents is totally inconceivable, unbelievable and it
\nwould amount to stating that the petitioner had filed one  writ  petition  and
\nsubsequently  had  paid the amount only with the object of filing another writ
\npetition.  The  petitioner  had  immediately  given  a  telegram  to  all  the
\nauthorities which would amply establish his bona fides.  But, even the fact of
\nthe  telegram  has  been  denied  falsely  in the counter affidavit, which was
\nsufficient to expose the ulterior motive of the respondents.\n<\/p>\n
        14.  Mr.R.S.Jayakumar, appearing for the  first  respondent,  contends
\nthat  the activities of the first respondent Panchayat Union were conducted in
\na proper manner.  The conduct of the petitioner  in  deliberately  failing  to
\nreceive  the  tender schedule from the office discloses his inimical attitude.
\nApparently, He was not prepared to execute the work but for reasons  known  to
\nhimself, the  petitioner  was  making  baseless allegations.  A perusal of the
\nIssue Register of the tender schedules would reveal that it has been  endorsed
\nthereon  that though the petitioner had paid the Earnest Money Deposit, he had
\nnot turned up till 5.45 p.m.  The petitioner cannot blame anyone for  his  own
\ndefault.   In  view of the interim order of this Court, it was not possible to
\nmake the payment for the works executed by the contractor.\n<\/p>\n
        15.  Learned counsel for the  fourth  respondent\/  successful  bidder,
\nafter  adopting  the  contentions  raised by the learned counsel for the first
\nrespondent, contends that the fourth respondent,  having  executed  the  work,
\ncannot be denied the payment due to him as a result of any controversy between
\nthe Panchayat  Union  and  the  petitioner.    The  facts  disclose  that  the
\npetitioner had not turned up for receiving the  tender  documents  and  having
\nfailed to do so, he cannot prevent the successful bidder who had complied with
\nall the tender requirements.\n<\/p>\n
        16.  I had considered the submissions of both sides.\n<\/p>\n
        17.  At an earlier stage of the hearing, on 2.8.2004, considering that
\nmuch  reliance  was  placed  on  the telegram alleged to have been sent by the
\npetitioner on 10\/11.6.2003 and that the said allegation had been denied in the
\ncounter affidavit, I directed the learned counsel for the first respondent  to
\nverify  positively  from the first respondent, who was stated to be present in
\nCourt, as to whether any such telegram had been received from the  petitioner.
\nI  also informed the learned counsel for the petitioner that he has to produce
\nthe acknowledgment if he wants to rely on  the  Telegram.    In  view  of  the
\nurgency  expressed  by  the  learned  counsel  for  the  respondents for early
\ndisposal of the writ petition to facilitate the payment of the  bills,  I  had
\npassed the following order on 2.8.2004:\n<\/p>\n
”       The  learned  counsel  for  the  petitioner  states  that  there is no
\nreference to the two telegrams alleged to have  been  sent  by  him  on  10  &
\n11.6.2003.   The learned counsel for the respondent on instruction states that
\nno telegram has been received from the petitioner.   Petitioner’s  counsel  is
\ndirected  to  produce the materials regarding proof of service of the telegram
\non the respondents.  Call on 6.8.2004.  ”\n<\/p>\n
        18.  When the hearing was again taken up  on  12.8.2004,  the  learned
\ncounsel  for  the  petitioner  contended that the time was too short to obtain
\nofficial verification from the post office.  However, the learned counsel  for
\nthe  respondents  has  placed  before  this  Court  a  letter  from  the first
\nrespondent dated  3.8.2004  in  Roc.A2\/2513\/2004  addressed  to  the  counsel,
\nstating  that  the  telegram  sent  by  the  petitioner on 11 .6.2003 had been
\ndelivered at their office on 13.6.2003.  The xerox copy of  the  telegram  was
\nalso enclosed along with the said letter to the counsel.\n<\/p>\n
        19.   The  crux  of  the  dispute is whether really the petitioner was
\ndenied supply of  tender  documents  though  he  had  complied  with  all  the
\nrequirements for  receiving  the  same.    While the petitioner would say that
\nthough he had remitted the due amount well in time on 10.6.2003 itself, he was
\ninformed that the papers were not ready and that he was asked to  collect  the
\nsame at  4.00  p.m.    and that even at 4.00 p.m., the tender schedule was not
\nissued and a group of men had prevented the first respondent from issuing  the
\ntender  to  the petitioner, the first respondent would deny the same and state
\nthat after remitting the amount, the petitioner did not turn up for  receiving
\nthe tender documents.\n<\/p>\n
        20.   A close analysis of the overall facts and circumstances disclose
\nthat the respondents are not speaking the  truth.    The  episode  only  lends
\nstrength  to the frequent complaints which are made before the High Court that
\nin the award of contracts, the authorities concerned  indulge  in  high-handed
\nattitude  of  not  even  supplying  the  tender  documents to all the eligible
\ncontractors and the contracts are cornered by a  selected  and  favoured  few.
\nThe reasons for coming to that conclusion are as follows:\n<\/p>\n
(i)     The  petitioner  had  approached  the Court even earlier with the same
\ncomplaint and in W.P.No.16274 of 2003, he obtains a direction from this  Court
\non  4.6.2003 to the first respondent to issue challans for the payment of cost
\nand sales tax and also to issue tender schedule for the  works,  namely,  Item
\nNos.1 to 6 as referred in the tender notification dated 27.5.2003.  Though the
\nallegation  is denied by the respondents, the fact remains that the petitioner
\nhad to approach the Court by filing a writ petition.  Though the merits of the
\nallegations were not gone into, it can be safely presumed that  no  reasonable
\nman  in  the  position  of  the petitioner would have approached this Court on
\nfalse allegations.  He is also in the business and would  not  be  anxious  to
\nantagonise  the  authorities  and  he has approached the Court even before the
\ntender was finalised.  He cannot be accused of having approached the Court  in
\nthe  earlier  writ  petition as a disappointed rival after the tender had been
\nawarded to some other person.\n<\/p>\n
(ii)    The petitioner, then, approaches the first respondent on 5.6.200 3  on
\nthe strength of the orders of this Court dated 4.6.2003.  Apparently, irked by
\nthe directions  of  this  Court, the tender is postponed to 11.6.2003.  Though
\nthe reasons are stated to be administrative, the respondents do not choose  to
\nsay  as to what exactly was the administrative reason to postpone the auction,
\neven on the face of the allegation of the petitioner that the postponement was
\nmotivated.\n<\/p>\n
(iii)  On  10.6.2003,  though  a  challan  was  issued  first  for  a  sum  of
\nRs.4,104\/towards  all  the  six  items of work, a fresh challan was issued for
\nRs.1,944\/after suddenly deleting the first  of  the  six  items  of  work  and
\nconfining the  tender  only  to  the  remaining  five  items.  Judged from the
\npre-auction amount which the  petitioner  was  directed  to  deposit  for  the
\nremaining  five  works, the first item appears to be the substantial and major
\nitem of work and no proper reason is given to exclude the said item  of  work.
\nThough  the allegation that the first item was intended to be awarded and was,
\nin fact, awarded to someone closer to the third respondent  had  neither  been
\nproved  nor  substantiated, equally, no proper reason is forthcoming as to why
\nthe first item was excluded at that time and had not been  awarded  to  anyone
\ntill date.    As  the first counter affidavit did not contain proper denial of
\nthe petitioner’s allegations regarding the cancellation of the first  item  of
\nwork, I gave an opportunity to the learned counsel for the respondents to file
\nan additional  affidavit.    The  additional  counter  affidavit  was filed on
\n19.7.2004, and in that counter affidavit also, no  proper  reasons  have  been
\nstated  for  cancellation  of  the  first  item,  beyond  stating  that it was
\ncancelled due to administrative reasons under the power vested  on  the  first
\nrespondent in terms of Condition No.10 of the tender schedule.  It was further
\nrepresented  by  the  counsel for the respondents to the effect that Item No.1
\nwas cancelled by order of the Collector dated 6.10.2003  in  ROC  R3\/1261\/2003
\ndated  6.10.2003,  on  the  ground  that  in  view of the pendency of the writ
\npetition, the grant\/sanction made by the  Government  with  reference  to  the
\nfirst item  may lapse and hence, had to be cancelled.  It is pertinent to note
\nthat the cancellation by the Collector is  much  later,  namely,  four  months
\nafter cancellation   by  the  first  respondent.    No  reason  is  given  for
\ncancellation of the first item by  the  first  respondent  even  after  giving
\nopportunity to  file  an additional counter affidavit.  Power or discretion to
\ncancel  under  Condition  No.10  of  the  tender  cannot  be  capriciously  or
\narbitrarily exercised.  When certain allegations are made before the Court, it
\nis  the  duty  of the first respondent to have placed all the facts before the
\nCourt.  The silence on the part of the first respondent can only lead  to  the
\ninference  that  the  power had been exercised arbitrarily as a retaliation to
\nthe action of  the  petitioner  in  having  obtained  orders  from  the  Court
\ndirecting issuance of the tender.\n<\/p>\n
(iv)    In  the  context  of the cancellation of the first item, it is further
\npertinent to note that N.V.Balasubramanian,J., by his order dated 4.6.2004  in
\nW.P.M.P.No.20354  of  2003,  had  positively  directed the first respondent to
\nissue challans and also to issue tender schedule ” with respect to work  Nos.1
\nto  6  in  Tender  Notification in Na.Ka.A-2\/12 90\/2003 dated 27.5.2003 if the
\npetitioner is otherwise eligible.”  Notice  had  been  taken  by  the  Special
\nGovernment  Pleader for the first respondent and even otherwise admittedly the
\norder had been served on the first respondent.  Even so, the first  respondent
\nchooses  to  cancel  the  first  item  of the work by using his administrative
\ndiscretion, without getting any clearance from the High Court.  Order  of  the
\nHigh Court  cannot  be  superseded administratively by first respondent.  This
\nconduct exposes to what extent the respondents are  prepared  to  go  even  by
\ndisregarding the  directions of the Court.  The respondents cannot rely on the
\norders of the Collector which came only four months  later  and  there  is  no
\nexplanation as to why and how the first item was cancelled by the Commissioner
\neven in  the  face  of  the specific directions of the High Court.  This would
\nclearly establish the lack of bona fides on the part of the respondents.\n<\/p>\n
(v)     The most crucial feature of the sequence of events is what happened on
\n10.6.2003.  While it is admitted that the petitioner had remitted  the  amount
\nat  12.30  p.m.,  the  first  respondent  contends that the petitioner did not
\napproach the first respondent till 5.45 p.m., though the tender documents were
\nkept ready.  The truth or otherwise of the mutual contentions  can  be  tested
\nfrom the  counter  affidavit filed by the first respondent.  The contention of
\nthe petitioner that he had met the first respondent and that he had asked  him
\nto come at  4.00  p.m.  is denied.  There is, of course, no positive proof for
\nthe statement of the petitioner that he had approached  the  first  respondent
\nimmediately after the payment of the amount and that he was asked to come back
\nat 4.00  p.m.    Some  of  the  other  circumstances  indicate  that the first
\nrespondent had not been acting bona  fide.    The  petitioner  has  positively
\nstated  in Paragraph 11 of the affidavit that about 300 persons along with the
\nson of the third respondent  had  come  in  a  car  and  prevented  the  first
\nrespondent  from issuing the tender and the second respondent, who was working
\nas the Commissioner, colluded with the third respondent and did not issue  the
\ntender.   This allegation is very casually dealt with in the counter affidavit
\nas follows:\n<\/p>\n
”       It  is  submitted  that  other  than  contractors  registered  in  the
\npanchayat union  nobody was allowed to enter this office on that day.  In this
\nposition it is true that the petitioner has failed to get his tender schedules
\nin this office on that day.  ”\n<\/p>\n
        There is no attempt to deal specifically the positive allegation  that
\nthe third respondent’s son, with his men, had come to the office and prevented
\nhim from issuing the tender.\n<\/p>\n
(vi)    The  conflicting  and incorrect stand taken by the first respondent as
\nregards the telegram alleged to have been issued by the petitioner immediately
\nafter the incident would  amply  expose  that  the  first  respondent  is  not
\nspeaking the  truth.    In  paragraph  16 of the affidavit, the petitioner has
\nstated as follows:\n<\/p>\n
”       I submit that immediately on refusal  of  the  respondents  herein  to
\nissue tender schedules to me, I caused a telephonic notice to be issued to the
\nrespondents  herein  on  10.06.2003  itself  and  followed  up the same with a
\ndetailed telephonic representation to the respondents herein and also  to  the
\nDistrict  Colletor, Ramnad and other high dignitaries in the State complaining
\nof the arbitrary action of the respondents.  However, the same has not yielded
\nany result whatsoever and the third respondent is merrily carrying on with his
\nillegal activities in the matters of tenders in the District.  ”\n<\/p>\n
        It is true  that  by  mistake,  the  petitioner  had  used  the  wrong
\nexpression “telephonic” instead of “telegraphic”.  But, it has been understood
\nproperly by the first respondent and in his counter affidavit dated 18.7.2003,
\nhe has stated as follows:\n<\/p>\n
”       It   is   submitted  that  the  petitioner  has  represented  detailed
\nTelegraphic representation to the Ist  respondent  which  is  false.    It  is
\nsubmitted  that  no  such  telephonic  representation  was  received  from the
\npetitioner by the Ist respondent.  ”\n<\/p>\n
In the additional counter affidavit dated 19.7.2004 which was filed after  the
\nwrit petition was taken up for hearing also, the same statement is reproduced.
\nDuring  the  hearing,  I  had  specifically  asked the learned counsel for the
\nrespondents to ascertain from the first respondent as to whether any  telegram
\nhas  been received or not, and on instructions, the counsel informed the Court
\nthat no telegram had been received.  I had informed the  learned  counsel  for
\nthe  petitioner  that if he is not able to produce any acknowledgment, it will
\nnot be possible to accept his  contention.    On  2.8.2004,  the  hearing  was
\nadjourned to  6.8.2004.    On the next hearing date, surprisingly, the learned
\ncounsel for the respondents had produced the following  letter  of  the  first
\nrespondent\/Commissioner  dated  3.8.2004  addressed  to  him,  which  reads as
\nfollows:\n<\/p>\n
\"       Sub:  Tender Case R.S.  Mangalam\n        Panchayat Union W.P.17227\/03 Filed\n        by Thiru M.Saravana selvan details\n                submitted Regarding.\n        Ref:  1) W.P.  17227\/03 Filed by\n                M.Saravanaselvan.\n\n\n                With Regard to  the  above  case,  It  is  informed  that  the\n<\/pre>\n
Telegram was sent by Thiru.M.Saravana Selvan on 11.06.2003 as it was delivered
\nto our office on 13.06.2003 (Copy of the Telegram is enclosed).\n<\/p>\n
        It  is  further  informed that Thiru M.Saravana Selvan has represented
\ndetailed Telegraphic representation to the 1st respondent which is false.\n<\/p>\n
                It is also informed that item No.1 out of six works  was  post
\nponed  later due to Administrative reason under the power of 1st respondent in
\ncondition No.10 of Tender Schedule.  Hence Tender Schedule was  not  given  to
\nany of  the  contractors.   Subsequently the District Collector Ramanathapuram
\nhas cancelled the work Vide his Proceedings Roc.R3\/1 261\/2003 Dated 6.10.2003.
\nFurther the same work has not been taken up in any other Scheme.  The work  is
\nphysically pending now.\n<\/p>\n
                This is for your kind information and further action.\n<\/p>\n
Sd\/- xxxx
\nCommissioner
\nPanchayat Union
\nR.S.mangalam.  ”\n<\/p>\n
The  xerox  copy  of  the telegram is also enclosed therewith, which discloses
\nthat the telegram had been received at the telegraphic office at Devakottai on
\n11.6.2003.  It also bears the seal of the post office at Rajasingamangalam  on
\n13.6.2003  and  served  at the first respondent’s office also on the same day.
\nIn the background of the abovereferred material, it is  rather  shocking  that
\nthe  first  respondent  should  have taken the stand both in the first counter
\naffidavit and the additional counter affidavit that no telegraphic message had
\nbeen received and also orally instructed his counsel that no telegram had been
\nreceived.  But later, when I had directed the counsel for  the  petitioner  to
\nobtain the acknowledgment from the Postal Department, the truth comes out, the
\nrespondent condescending  to admit the receipt of the telegram.  The action of
\nthe first respondent thus misleading this Court by filing  a  false  affidavit
\ndoes  not only amounts to contempt of Court, but also throws light on the lack
\nof bona fides in the impugned grant of tender.\n<\/p>\n
(vii)   The subsequent conduct of the respondents also  expose  the  disregard
\nfor the  rule of law by the respondents.  When once the interim order had been
\nissued by this Court on 24.6.2003 and received by the respondents  immediately
\nthereafter,  the  respondents  ought  not  to  have  proceeded  with  the work
\nthereafter and the Commissioner should have approached this  Court  to  obtain
\nfurther directions.    But, it is only after one month, the Commissioner files
\nthe petition on 24.7.2003 to vacate the stay.    In  the  affidavit  filed  in
\nsupport  of  the  petition,  nothing  is  stated regarding the actual stage of
\nexecution of the work.    The  successful  bidder\/fourth  respondent  files  a
\npetition  to  vacate  the interim order after a further period of one month on
\n29.8.2003, stating that he has completed the work relating to  Item  No.1  and
\n50% of  the  work in Item Nos.3 to 6.  But the respondents do not bother about
\nthe pendency of the writ petition or the interim order, but proceed further to
\ncomplete the  work.    The  fact  that  all  the  works  had  been   completed
\nsubsequently is  admitted.    It  is  true  that  the tenor of the order dated
\n24.6.2003 is restricted, namely,  “interim  injunction  if  the  work  is  not
\nallotted to  third parties consequent to the opening of the tender”.  But, the
\nfirst respondent, being a public official, owes a duty to the Court and  ought
\nto have directed stoppage of work forthwith and to move the Court and to await
\nfor further orders.  The conduct of the respondents may not strictly amount to
\ncontempt of  Court  or  violation of the orders.  But the series of happenings
\ndisclose that the respondents are bent upon proceeding further  in  their  own
\ninterest  without any anxiety to obtain clearance from the Court or by placing
\nall the facts before the Court at the earliest point of time.   In  fact,  the
\nattitude  of the respondents was found to be reprehensible by E.Padmanabhan,J.
\nwhile dealing with the petition to vacate  the  stay.    By  his  order  dated
\n12.8.2003,  the  learned  Judge recorded a finding that the stand taken by the
\nrespondents as regards not furnishing tender schedule was rather  unbelievable
\nand  the  Commissioner  was directed not to make any payment to the Contractor
\nwho had been awarded, and that any violation of  the  order  would  be  viewed
\nseriously.  Subsequently, D.Murugesan,J.  dismissed the petition to vacate the
\ninterim stay  holding  that  he did not find any merit to vacate the stay.  In
\nspite of the aforesaid orders, the respondents have chosen to proceed  further
\nand  complete the work, even after they had themselves approached the Court to
\nvacate the interim stay  and  their  petition  was  ultimately  dismissed  and
\ninterim order was made absolute.\n<\/p>\n
        21.  It is true that Contempt Petition No.622 of 2003, which was filed
\nby    the   writ   petitioner,   was   dismissed   on   28.11.2003   by   N.V.
\nBalasubramanian,J., but not without recording his displeasure at  the  conduct
\nof the respondents, which is as follows:\n<\/p>\n
”       I  therefore  close the contempt petition, but with reluctance as I am
\nnot able to appreciate the act of the respondents.\n<\/p>\n
        When the petitioner remitted the  money  by  chalan,  the  respondents
\nshould have taken steps to issue tender schedules as soon as they received the
\nmoney.   The plea taken by them that the petitioner was asked to come again to
\ncollect tender schedules by 4.00  p.m.    is  not  a  practice  which  can  be
\nappreciated by the Court.  The respondents should have acted in a professional
\nmanner  and  when  the  money  was paid for the issue of tender schedules, the
\nrespondents should have issued tender schedules then and  there,  particularly
\nwhen the  tender was postponed from one date to another.  Though the action of
\nthe respondents is not commendable, I do not  find  that  they  committed  any
\ncontempt of Court.    Accordingly, the contempt petition is closed.  No costs.
\nConnected sub Application is also closed.  ”\n<\/p>\n
        22.  It is true that the third respondent,  a  Member  of  Legislative
\nAssembly,  had  filed  a separate counter affidavit denying the allegations of
\nthe petitioner and also contending that though his wife is  the  President  of
\nthe  Panchayat  Union,  he  has  not  been interfering with the affairs of the
\nPanchayat Union in any manner.  There is no substantial material to  implicate
\nthe third  respondent  directly  and  he  is  therefore  exonerated.    But as
\ncommented by the counsel for petitioner, it is seen that the counter affidavit
\nby the third respondent has been filed without filing any vakalat but  through
\nthe  counsel  representing  the first respondent, against whom, allegations of
\ncollusion have been made.  Such indiscreet action should have been avoided.\n<\/p>\n
        23.  The facts of this case, disclose  a  dismal  pattern  of  conduct
\nwhich  is  being  brought to the notice of this Court frequently, namely, that
\nnot even tender documents are issued to all eligible contractors and that  the
\nsupply  of  the  documents  is  restricted  only  to  a  favoured syndicate or
\nindividuals.  Some of the officials and non-officials who wield the  power  at
\nvarious  levels  and  involved  in the process of tender, appear to think that
\nthey are above the law and even after the matters are brought to the notice of
\nthe High Court, appear to  adopt  tactics  even  to  render  orders  of  Court
\nineffective by  total  disregard even to the process of Court.  Even after the
\npassing of the legislation under the Tamil Nadu Transparency of  Tenders  Act,
\n1998,  the  grant  of many of the tenders, small or big, do not conform to the
\nprovisions of the said Act and Regulations.  A citizen has to come before this
\nCourt even to obtain tender  documents  and  even  after  orders  are  issued,
\nauction is deliberately postponed and different methodology is adopted to deny
\nthe benefits  of  the order.  Not only the contention that the petitioner went
\naway after paying the initial amount and that he did not return till 5.45 p.m.
\nsounds very artificial and improbable, but is also belied  by  the  subsequent
\nconduct  of the respondents, as dealt with above, inclusive of filing of false
\naffidavits regarding the telegram sent by the petitioner.\n<\/p>\n
        24.  In fact, this Court, on earlier occasions in  similar  cases  had
\ndirected the Government to ensure that the officials in the lower level do not
\nindulge  in  such  high-handed  practice  of  even refusing to give the tender
\ndocuments to the eligible  contractors.    Even  though  there  is  a  general
\ninstruction  to  the  effect that any contractor, if he chooses to receive the
\ntender document by post or courier, that also should be complied with  subject
\nto  the  contractor making the additional payment, as required, the same state
\nof affairs continue.\n<\/p>\n
        25.  I am, therefore, fully convinced that the overall facts stated in
\nthe affidavit resulting in unfair denial of tender documents to the petitioner
\nis amply established.  The first respondent, whether by himself, for  his  own
\nreasons  or  at  the  behest  of someone, had acted in a clandestine manner in
\ndisregard to his duties and also with an intention to deny the petitioner  not
\nonly  his  lawful  rights  but  also  to  circumvent the orders of this Court.
\nCancellation of the first item of work is contrary to the specific  orders  of
\nthis Court.    The  conduct  of  the  Commissioner,  namely,  whoever  was the
\nindividual discharging his duties at the relevant period, is highly  improper.
\nThe  first counter affidavit had been filed by one Dorairaj and the additional
\ncounter affidavit had been filed by P.V.Muthuramalingam.   Dorairaj  has  been
\nimpleaded by name in the writ petition.  It is made clear that whoever was the
\nofficial  functioning  as  the  Commissioner at the relevant point of time, is
\nanswerable and if he is not willing to  speak  the  truth,  namely,  at  whose
\nbehest he was acting, he has to reap the consequences.  Any directions against
\nhim should have deterring effect and a warning to such officials who feel that
\nextraneous factors are more important than rule of law.\n<\/p>\n
        26.  It is now represented that the entire work has been completed and
\nonly the  payment  to  the  contractor  remains to be complied with.  The writ
\npetition cannot be rendered infructuous  or  ineffective  by  act  of  parties
\ndeliberately and high-handedly aimed at nullifying or rendering the process of
\nCourt ineffective.   The petitioner has approached the Court twice but without
\nany avail though the action of the respondents is found to be illegal.  A writ
\nCourt  exercising  its  extraordinary  jurisdiction,  as  provided  under  the
\nConstitution,  cannot  be a mute spectator to such deliberate and illegal acts
\nand is not powerless to mould the relief  accordingly.    The  entire  illegal
\nexercise  was obviously for the benefit of the fourth respondent and he cannot
\nalso wriggle out of the consequences which are bound to follow.    Even  after
\nfiling a petition to vacate the stay belatedly, the fourth respondent, without
\nwaiting  for  further orders had proceeded further to complete the works which
\nattitude discloses utter  disregard  to  the  process  of  Court  and  on  the
\nassumption that once he completes the work nothing could be done against him.\n<\/p>\n
        27.   However,  since  the  entire  works  are  stated  to  have  been
\ncompleted, innocent third parties, the workers under  the  contractor,  should
\nnot  be  denied  payment of their dues\/wages and at the same time, it would be
\njust and proper to impose heavy and exemplary costs on both  the  Commissioner
\nand the fourth respondent for their illegal conduct.\n<\/p>\n
        28.  It is desirable that the Government formulates a proper procedure
\nto  avoid  such illegal grant of tenders at the lower level in total disregard
\nto the basic obligations of the Government.  Refusal to grant even the  tender
\nschedules  is  bound  to  reflect  very  badly  on the administration and such
\nincidents have to be curbed by stern measures, if one believes in the rule  of
\nlaw.  Contractors also would be well advised to apply through post or courier,
\nwhich  will  avoid  such  denial  of tender schedules and the Government\/local
\nbodies should provide for such facility if it is not already  made  available.
\nThere  should  be  sufficient  time  gap  between  the  calling for tender and
\nsubmission of the tender.  In the interest of the Government  and  the  public
\nbodies, this would also eliminate frivolous complaints.\n<\/p>\n
        29.   In  the above circumstances, I am inclined to pass the following
\norder:\n<\/p>\n
(i)     The writ petition is allowed declaring all the proceedings pursuant to
\nthe impugned tender notification as arbitrary and illegal;\n<\/p>\n
(ii)    However, as the works are stated to have been completed, payments  due
\nto the fourth respondent shall be made subject to the following conditions.\n<\/p>\n
(iii)   The  second  respondent-Commissioner who was actually in charge of the
\nPanchayat at the  time  of  the  auction,  shall  pay  an  exemplary  cost  of
\nRs.15,000\/-, out of which, Rs.5,000\/- shall be paid to the writ petitioner and
\nRs.10,000\/-  to the Tamil Nadu State Legal Services Authority, Chennai, within
\na period of four weeks from the date of receipt of a copy of this order.   The
\namount shall be paid by him personally and not from the funds of the Panchayat
\nUnion.   This  direction  against  the  respondent-Commissioner  shall also be
\nrecorded in his service register.  A copy of this order shall be forwarded  to
\nthe District Collector for such action.\n<\/p>\n
(iv)    The  fourth  respondent,  beneficiary  under the illegal tender, shall
\nalso pay exemplary cost of Rs.15,000\/-, out of which, Rs.5,000\/- shall be paid
\nto the writ petitioner and Rs.10,000\/- to the Tamil Nadu State Legal  Services
\nAuthority,  Chennai,  within  four weeks from the date of receipt of a copy of
\nthis order.\n<\/p>\n
(v)     The  District  Collector,  Ramanathapuram  District,  shall   file   a
\ncompliance  report  of the directions contained in paragraph 29(iii) above, on
\nor before 22.11.2004.\n<\/p>\n
Index:  Yes<\/p>\n
Internet:  Yes<\/p>\n
ksv<\/p>\n
To:\n<\/p>\n
1.  The Commissioner
\nR.S.Mangalam Panchayat Union
\nR.S.Mangalam
\nRamnad District.\n<\/p>\n
2.  Mr.Dorairaj
\nCommissioner
\nR.S.Mangalam Panchayat Union
\nR.S.Mangalam
\nRamnad District.\n<\/p>\n
3.  The District Collector
\nRamanathapuram District.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M.Saravanachelvam vs The Commissioner on 15 October, 2004 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:15\/10\/2004 CORAM THE HONOURABLE MR.JUSTICE K.P.SIVASUBRAMANIAM W.P.No.17227 of 2003 M.Saravanachelvam .. Petitioner -Vs- 1. The Commissioner R.S.Mangalam Panchayat Union R.S.Mangalam Ramnad District. 2. Mr.Dorairaj Commissioner R.S.Mangalam Panchayat Union R.S.Mangalam Ramnad District. 3. V.T.Natarajan 4. Ravichandran .. […]<\/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-35003","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM.Saravanachelvam vs The Commissioner on 15 October, 2004 - 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\/m-saravanachelvam-vs-the-commissioner-on-15-october-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.Saravanachelvam vs The Commissioner on 15 October, 2004 - 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