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2019 DIGILAW 240 (MAD)

N. Yanose v. State of Tamil Nadu, Rep. by its Principal Secretary

2019-01-24

V.BHAVANI SUBBAROYAN

body2019
ORDER : 1. The present writ petition has been filed by the petitioner invoking Article 226 of the Constitution of India for issuance of a writ of Certiorarified Mandamus, to quash the impugned order in Na.Ka.No. 629/2018/A1, dated 03.10.2018, on the file of the fifth respondent and the impugned order in Na.Ka.No.500/2018 dated 03.10.2018, on the file of the sixth respondent and the impugned order in Na.Ka.No.729/2018/A1 dated 05.10.2018, on the file of the seventh respondent and the impugned Order in Na.Ka.No.532/2018 dated 05.10.2018, on the file of the eighth respondent and the impugned order in Na.Ka.No.586/2017/A1, dated 05.10.2018, on the file of the ninth respondent and the impugned order in Na.Ka.No.142/2017/A1, dated 05.10.2018, on the file of the tenth respondent and the impugned order in Na.Ka.No.630/2018/A1, dated 05.10.2018, on the file of the eleventh respondent and further consequently, to direct the respondents to conduct E-Tender by making wide publication in the Newspapers as enunciated in the Government Order in G.O.Ms.No.599, Finance Department, dated 28.12.2007 and Rule 11 of the Tamil Nadu Transparency in Tender Rules, 2000 within a time frame. 2. The case of the petitioner, as stated in the affidavit filed in support of the writ petition, is that the petitioner is a first class contractor, who had carried out several works on behalf of Public Works Department and other Government undertakings and had also carried out works of several Panchayats in Kanyakumari District. 3. The petitioner claims that the impugned orders challenged herein are per se illegal for the reason that the respondents 5 to 11 have violated Rule 11(2) of the Tamil Nadu Transparency in Tenders Rules, 2000, apart from questioning the jurisdiction to issue such tender by the respondents 5 to 11. The main criteria as raised by the petitioner, in his affidavit filed in support of the writ petition, is that the respondents 5 to 11 have not published the tender in any newspaper, which is in violation of the conditions prescribed under the Tamil Nadu Transparency in Tenders Rules, 2000. 4. The petitioner would further contend that as per the existing norms, the contractors, who are willing to participate in the tender, should have enlisted themselves in the Public Works Department and should have a life certificate issued by the competent authority. 4. The petitioner would further contend that as per the existing norms, the contractors, who are willing to participate in the tender, should have enlisted themselves in the Public Works Department and should have a life certificate issued by the competent authority. The petitioner, who is in possession of such certificate, is eligible to participate in the tender, but contrary to that, the Executive Officers of the Town Panchayats are issuing life certificate themselves without any jurisdiction for the purpose of granting tender in favour of persons of their own choice. Hence, the petitioner has challenged the tender notifications mentioned in the present writ petition by raising various allegations. 5. Per contra, the fourth respondent has filed a counter for himself and on behalf of the other respondents. The fourth respondent has stated in his counter that the tender notification inviting tenders towards improvement of BT roads in Manavalakurichi, Killiyoor, Mulagumoodu, Pudukadai and Karungal Town Panchayat and Modernization of bus-stand in Thingal Nagar and Kaliyakkavilai Town Panchayats of Kanyakumari District were published by the concerned Executive Officers in on-line by E-tender mode through their official website. Thereafter, the Director of Town Panchayats published a common tender notification in 'New Indian Express' and 'Daily Thanthi', dated 05.10.2018. Apart from publishing individual notifications in respective Town Panchayats by revealing all the relevant details of works and sent to all individual registered contractors of the Town Panchayats through post and the same was also published on the notice board of the respective Town Panchayats. All the relevant and required details were published along with the name of the scheme, number of works and other details pertaining to the work were also revealed and published as per the Rules including the date of tender documents being downloaded and upto what date and time it can be downloaded and all the relevant information such as date of pre-bid meeting, date of tender etc., have been published in accordance with the statute. He would further contend that the pre-bid meetings were convened on 25.10.2018 by the concerned Executive Officers of the respective Town Panchayats. 6. The respondents would further state that as per 11(2) of the Tamil Nadu Transparency in Tender Rules, 2000, which was followed scrupulously and complied with by giving wide publication in 'New Indian Express' and 'Daily Thanthi', dated 05.10.2018, both in English and Tamil editions. 6. The respondents would further state that as per 11(2) of the Tamil Nadu Transparency in Tender Rules, 2000, which was followed scrupulously and complied with by giving wide publication in 'New Indian Express' and 'Daily Thanthi', dated 05.10.2018, both in English and Tamil editions. Apart from that, the respondents have also stated in the counter that there is no sealing limit that the Municipal authority shall have no power to invite tenders above Rs.8 lakhs, as stated by the petitioner. As such, the Executive Authority has the power to call for contracts by issuing tenders, which has been done as per the existing Rules. The respondents further contended that in addition to the publication of tender notification in Tamil and English Dailies, all the contractors subscribed to the State Tender Bulletin as well as District Tender Bulletin issued at the District Level and State Level, tender documents were despatched by post to all the subscribed contractors. To counter-act the statement made by the petitioner to the affidavit filed in support of the writ petition, the fourth respondent also stated that the Executive Authority of the Town Panchayat has the power to register and classify the contractors as Class I, Class II, Class III, Class IV and Class V as per the provisions made in the Engineering Manual for Urban Local Bodies and hence, the classification made by the Executive Authority is also as per law. Under these circumstances, the respondents prayed that the writ petitioner has no locus standi to question the tender process without even participating in such tender and it is pre-mature for him to question all these procedural aspects. 7. To the counter filed by the respondents, the petitioner has filed the rejoinder affidavit before this Court. 8. Heard the learned counsel appearing on either side and perused the materials available on record. 9. The main contention of the petitioner as stated in the affidavit filed in support of the writ petition and the arguments putforth by the learned counsel appearing for the petitioner is that if the tender process was published in the wide circulating newspapers, it will increase the competitiveness in the tender process and the same would fetch high revenue or more revenue to the State Government, wherein, the respondents 5 to 11 have failed to publish the tender in the newspapers as mandated in the Tamil Nadu Transparency in Tenders Rules, 2000. Though the writ petition is filed as a public interest, the petitioner being a first class contractor, has approached this Court seeking to quash the tender proceedings published by the respondents. 10. At the outset, it could be seen from the records available, especially, the documents filed by Mr.A.Chellapandian, the learned Additional Advocate General, who appeared on behalf of the respondents, would show that administrative sanction for the tender was issued by the office of the second respondent as early as on 28.09.2018 with certain conditions and instructions to the respondents 5 to 11. Thereafter, for each and every work, the individual tender notice seems to have been enlisted as early as on 03.10.2018, a separate tender notification was issued for each and every work and separate tenders have been published by the respondents 5 to 11, who are the concerned Executive Officers for the tender towards improvement of BT roads in Manavalakurichi, Killiyoor, Mulagumoodu, Pudukadai and Karungal Town Panchayats and Modernization of bus-stands in Thingal Nagar and Kaliyakkavilai Town Panchayats of Kanyakumari District. 11. It is also clear from the records that the above tenders were published by the concerned Executive Officers through on-line in the official website of the Government under “Capital Grant Fund/O & M Gap filling Fund 2018-19”. The documents filed by the respondents, especially the stamp account of the respective Panchayat reflects the same which had been communicated to all the registered class-I contractors, who have registered their names in the respective Panchayats. It could also further seen from the records and contrary to the arguments putforth by the learned counsel appearing for the petitioner, the above said tender has been published in the 'New Indian Express' on 05.10.2018 and 'Daily Thanthi' on the very same day. In fact, the 'New Indian Express' the Tamil version of the tender notice was also published. 12. The grievance of the petitioner is that the tender notification was not published in papers having wide circulation and the respondents has contravened the Rules especially the contention that the Tamil Nadu Transparency in Tenders Rules, 2000, has been violated, is contrary to the records filed by the respondents which would show that the tender notification has been published on 05.10.2018 in both vernacular and in one English Newspaper, which had wide circulation in India. It is also further seen from the records as substantiated by the learned Additional Advocate General that apart from publishing the tender notification in the newspaper in addition as prescribed by the original administration sanction Chapter III Rule 5 of the Tamil Nadu Transparency in Tender Rules, 2000, has also published the same in State Tender Bulletin on 11.10.2018, which had circulation on the on-line tender website of the State Government. Apart from individual notification being sent with all relevant tenders of work to all the individual registered contractors of the respective Panchayats through post, for which the acknowledgments have also been filed in the set of documents filed by the learned Additional Advocate General, who appeared on behalf of the respondents. 13. Thus the contention of the learned counsel appearing for the petitioner that tender notification was not published in the manner prescribed under the Rule does not attract the arguments of the petitioner. The learned counsel for the petitioner would vehemently contend that Rule 11(2) of the Tamil Nadu Transparency in Tenders Rules, 2000, was not followed and since it was not followed, there is a loss to the State exchequer cannot be accepted. As per Rule 11(2) number, editions and language of the Newspapers in which the Notice Inviting Tenders shall be published will be based on the value of procurement as specified in the annexure. It is the further argument of the petitioner that since the work involves crores of rupees, the respondents ought to have published the same in the State edition of the Newspapers having wide circulation. 14. This Court is unable to accept the contention raised by the learned counsel appearing for the petitioner when the respondents have proved that they have published the same in 'New Indian Express' and 'Daily Thanthi' which given effect to the tender in the State edition. The petitioner cannot have any grievance since they followed the said Rules. I am afraid that the petitioner being a first class contractor, ought to have verified all these details before approaching this Court. 15. The next leg of argument putforth by the learned counsel appearing for the petitioner is that since the value of the tender is more than five crores, the tender notification ought to have been published in English Newspaper through out South Indian Edition and Tamil Newspaper throughout the State. 15. The next leg of argument putforth by the learned counsel appearing for the petitioner is that since the value of the tender is more than five crores, the tender notification ought to have been published in English Newspaper through out South Indian Edition and Tamil Newspaper throughout the State. Contrary to the arguments putforth by the learned counsel appearing for the petitioner, the learned Additional Advocate General drew this Court's attention and produced the original copy of the newspaper publication effected in both the Dailies. The main contention raised by the petitioner is contrary to the documents filed by the learned Additional Advocate General, who appeared on behalf of the respondents. 16. The learned counsel appearing for the petitioner has contended that the respondents have got no jurisdiction to issue or invite tenders, wherein the value of contract is more than Rs.8 lakhs. I am unable to accept the contention raised by the learned counsel appearing for the petitioner as neither the Municipal Manual nor the Engineering Manual has fixed any limit for issuing or inviting tenders above 8 lakhs of rupees. As per the Municipal Manual (Volume – I) (Part I & II) Chapter VIII, which reads as follows:- “The Executive Authority of a municipal Council shall invite tenders for every contract for the execution of a work, the estimated cost of which exceeds one thousand five hundred rupees, provided that the invitation of tenders may be dispensed with in the case of contracts for the execution of work relating to war A.R.P and Civil Defence.” 17. As per the above extraction from the Municipal Manual, the Manual does not prescribe any jurisdictional limit for the Executive Authority to invite tenders. As per the said Manual, all the Executive Authorities of the Municipal Council were instructed to invite tender for every contract for the execution of works if the tender estimated cost exceeds Rs.1,500/-. There is no such restriction embedded in the Municipal Manual as stated by the learned counsel appearing for the petitioner. 18. Under these circumstances, this Court is of the view that the petitioner has got no legs to stand before this Court challenging the tender notifications issued by the respondents 5 to 11. The order dated 09.11.2018, wherein this Court restrained the respondents herein not to finalise the tender shall be vacated and the respondents may proceed further in confirming the tender. The order dated 09.11.2018, wherein this Court restrained the respondents herein not to finalise the tender shall be vacated and the respondents may proceed further in confirming the tender. The petitioner if aggrieved by any such orders, can very well approach the Appellate Authority under Section 11 of the Tamil Nadu Transparency in Tender Rules, 2000, if he is aggrieved by order passed by the tender accepting authority. The Writ Petition is dismissed with cost of Rs.10,000/- (Rupees Ten Thousand Only) on the petitioner for filing such frivolous Writ Petition thereby stalling the tender procedures/welfare measures of the respondents/State Government and the petitioner is directed to pay the said amount to the Chief Justice Relief Fund within a period of four weeks from the date of receipt of copy of this order. Consequently, connected Miscellaneous Petitions are closed.