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2010 DIGILAW 5088 (MAD)

M. Kumar v. The State of Tamil Nadu

2010-11-19

M.JAICHANDREN

body2010
Judgment :- W.P(MD).No.13437 of 2010 & 13442 to 13445 of 2010: 1. Since, the issues arising for consideration, and the facts and circumstances of all the Writ Petitions are similar in nature, a common order is passed. 2. These Writ Petitions have been filed praying for the issuance of Writs of Certiorarified Mandamus to call for the records pertaining to the notice issued in reference number E1/8197/2010, dated 01.11.2010, extending the time for the submission of tenders upto 3.00 p.m. on 04.11.2010, published in the daily news paper Dinakaran on 02.11.2010, and to quash the same insofar as the petitioners are concerned and consequently, to direct the second respondent to open the tender box closed, at 3 p.m. on 01.11.2010, without considering any further tenders submitted on the basis of the extension of time. 3. It has been stated that the petitioners are First Class Contractors registered with the Superintending Engineer, National Highways, Tirunelveli. As per the relevant norms, the petitioners are eligible to participate in the State level tenders for contracts, the value of which is Rs.75,00,000/-and above. The petitioners have also stated that the first respondent, by a paper publication, dated 14.10.2010, had invited tenders for laying of cement roads and metal roads, using paver machines, under the "Special Road Scheme 2010 and 2011" for 139 Municipalities and 9 Corporations in the State of Tamil Nadu. As per the said tender notification, the time and the dates relating to the tenders are as follows:- "a)Pre-bid meet :22.10.2010,11.00 a.m b)Downloading of tender documents from the website :01.11.10, upto 3.00 p.m. c)Submission of tender :01.11.2010, upto 3.00 p.m. d)Opening of technical bid :01.11.10, 3.30 p.m." 4. It has been stated that, as per the tender notification, there were 14 special road packages announced for the Tirunelveli City Municipal Corporation. The petitioners had submitted electronic tenders for certain specific road packages, before 3 p.m., on 01.11.2010. As notified, the submission of tender applications had been closed, at 3 p.m., on 01.11.2010. The second respondent ought to have opened the technical bid by 3.30 p.m., on 01.11.2010. However, the second respondent had not opened the tenders due to certain ulterior motives and in gross violation of Rules 18 and 21 of the Tamil Nadu Transparency in Tenders Rules, 2000, without considering the representations made by the petitioners, for the opening of the tenders. However, the second respondent had not opened the tenders due to certain ulterior motives and in gross violation of Rules 18 and 21 of the Tamil Nadu Transparency in Tenders Rules, 2000, without considering the representations made by the petitioners, for the opening of the tenders. While so, the second respondent had issued a notice, dated 01.11.2010, extending the time of the submission of the tenders upto 3.00 p.m., on 04.11.2010. Aggrieved by the action of the second respondent, the petitioners have preferred the above Writ Petitions before this Court, under Article 226 of the Constitution of India. 5. The main contention of the learned counsel appearing on behalf of the petitioners is that the impugned notice of the second respondent, dated 01.11.2010, extending the time for the submission of the tenders is contrary to Rules 18 and 21 of the Tamil Nadu Transparency in Tenders Rules, 2000 and it is also in violation of Article 14 of the Constitution of India. It has been stated that the second respondent had extended the time for the submission of the tenders, without giving sufficient opportunity to the intending tenderers, contrary to the procedures established by law. 6. The learned counsel had also submitted that the impugned notice does not state the reason for the extension of the time for the submission of the tenders. According to the earlier notification, the tenders ought to have been opened, at 3.30 p.m., on 01.11.2010. The second respondent had issued the impugned notice, in a mala fide manner, in order to accommodate certain interested parties. According to Rule 21 of the Tamil Nadu Transparency in Tenders Rules, 2000, all the tenders received by the Tender Accepting Authority shall be opened at the time specified in the notice inviting tenders. The time specified for the opening of the tenders shall be immediately after the closing time specified for the receipt of tenders, allowing a reasonable period, not exceeding one hour, for the transportation of the tenders received to the place in which they are to be opened, in the presence of the tenderers. Thus, the impugned notice had been issued by the second respondent, arbitrarily and in a mala fide manner, without following the procedures prescribed under the Tamil Nadu Transparency in Tenders Rules, 2000. Therefore, the impugned notice is liable to be set aside. 7. Thus, the impugned notice had been issued by the second respondent, arbitrarily and in a mala fide manner, without following the procedures prescribed under the Tamil Nadu Transparency in Tenders Rules, 2000. Therefore, the impugned notice is liable to be set aside. 7. The learned counsel appearing on behalf of the petitioner had relied on the decision of this Court in Deepika Transports Vs. General Manager, Dindigul Co-operative Milk Producers Union Ltd & Others (Madurai Bench), reported in 2010 Writ L.R.585, in support of his contentions. 8. The learned counsel appearing on behalf of the respondents had submitted that, as per Rule 18 (2) of the Tamil Nadu Transparency in Tenders Rules,2000, the Tender Inviting Authority shall take all measures to ensure that no intending tenderer is hindered, in submitting his tender. It is mandatory of a nature. Further, Rule 18(5) states that the Tender Inviting Authority may extend the last date and time for receiving the tenders, after giving adequate notice to all the intending tenderers, for the reasons stated in the said provision. It also entitles the Tender Inviting Authority to extend the last date and time for the receipt of tenders, if any other reasonable grounds exists for such extension. However, the said authority shall record the reasons in writing. The second respondent had issued the impugned notice extending the time and date for the submission of the tenders based on the complaints that some intending tenderers could not participate in the tender. Proper reasons had been recorded in writing before the impugned notice had been issued. It had also been stated that all intending tenderers had been given sufficient notice. The notice had been published in the daily newspapers, in the official bulletin and also in the website concerned. 9. It had also been submitted that the second respondent had followed the provisions prescribed in the Invitation For Bid. In the instructions to the bidders, it has been clearly stated, in Clause 9 of the instructions, that at any time, after the issuing of the tender documents and before the opening of the tender, the Tender Inviting Authority may make any changes, modifications or amendments to the tender documents. In Clause 21 of the said instructions, it has been stated that the bidders may modify or withdraw the bids, by giving notice in writing, before the deadline for the submission of the bids. 10. In Clause 21 of the said instructions, it has been stated that the bidders may modify or withdraw the bids, by giving notice in writing, before the deadline for the submission of the bids. 10. It has also been stated that the bidders may offer a discount to or modify the prices of the bids by submitting the bid modifications, if any. It has also been stated that the bidders had signed the agreement containing the terms and conditions of the tender process. Further, as per Rule 24 of the Tamil Nadu Transparency in Tenders Rules, 2000, a Tender Scrutiny Committee shall be constituted for the purpose of carrying out the preliminary examination and the detailed evaluation of the tenders received and also for the preparation of an evaluation report for the consideration of the Tender Accepting Authority. While so, it would not be open to the petitioners to raise frivolous objections stating that the impugned notice issued by the second respondent, dated 01.11.2010, is arbitrary and invalid. 11. In view of the averments made in the affidavits filed in support of the Writ Petitions and in view of the submissions made on behalf of the petitioners, as well as the respondents, this Court is of the considered view that the petitioners have not shown sufficient cause or reason to grant the reliefs, as prayed for by them, in the present Writ Petitions. It has not been shown as to how the impugned notice of the second respondent, extending the time and the date for the submission of the tenders, is arbitrary and contrary to the procedures prescribed in the Tamil Nadu Transparency in Tenders Act, 1998, and the Rules, framed thereunder. Further, the petitioners have not been in a position to show that they would be prejudiced by the act of the second respondent in issuing the impugned notice, dated 01.11.2010, extending the time and the date for the submission of the tenders. Further, the petitioners have not been in a position to prove, by sufficient evidence, that the second respondent had issued the impugned notice, based on mala fide reasons. 12. The decision of this Court in Deepika Transports Vs. Further, the petitioners have not been in a position to prove, by sufficient evidence, that the second respondent had issued the impugned notice, based on mala fide reasons. 12. The decision of this Court in Deepika Transports Vs. General Manager, Dindigul Co-operative Milk Producers Union Ltd & Others (Madurai Bench), referred to above, by the learned counsel appearing for the petitioners, would not be applicable to the facts and circumstances of the present case, since, the main issue raised before the Court, in the said case, relates to Rule 23 of the Tamil Nadu Transparency in Tenders Rules, 2000, which would have relevance after the opening of the tenders. Whereas, the issues arising for the decision of this Court, in the present case, relates to the impugned notice issued by the second respondent, prior to the opening of the tenders. Further, it is not in dispute that it would be open to the petitioners to modify their bids, if necessary, as per Clause 9 of the Instructions to Bidders. 13. On a careful perusal of the original records placed before this Court, by the learned counsel appearing on behalf of the respondents, it is clear that there were sufficient grounds for the second respondent to issue the impugned notice, dated 01.11.2010. The reasons have also been recorded in writing, before the said notice had been issued. As such, the Writ Petitions filed by the petitioners are devoid of merits and therefore, they are liable to be dismissed. Hence, they are dismissed. Consequently, the connected miscellaneous petitions are also closed. No costs.