1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.10.2011 CORAM THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN W.P.(MD)No.11049 of 2011 and M.P.(MD)Nos.1 and 2 of 2011 M/s. Ramesh Traders, No.5/2, Malaiveethi, Velayuthampalayam, Karur District, represented by its Prop. S.Ramesh. ... Petitioner Vs 1. The Managing Director, Tamilnadu Newsprint and Papers Ltd., Kagithapuram, Karur. 2. The Chief General Manager(Operation), Tamilnadu Newsprint and Papers Ltd., Kagithapuram, Karur District. 3. The Assistant General Manager(Disposal), Tamilnadu Newsprint and Papers Ltd., Kagithapuram, Karur District. 4. The Senior Manager(Stores), Tamilnadu Newsprint and Papers Ltd., Kagithapuram, Karur District. ... Respondents PRAYER : Writ petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records pursuant to the impugned Tender Notification of the fourth respondent dated 15.09.2011 bearing TENDER NO.MM/SS/TENDER/2011057 and quash the same and consequently direct the Respondents to issue sale order to the Petitioner as per the tender allotment pursuant to the tender notification dated 25.10.2010 for the remaining period starting from 01.10.2011 to 31.12.2011 on production of the renewal consent order from the Tamilnadu Pollution Control Board. For Petitioner : Mr.G.R.Swaminathan for Mr.S.Suresh For Respondent : Mr.K.Srinivasan, Senior Counsel for Mr.P.Senthil *** https://hcservices.ecourts.gov.in/hcservices/ 2 O R D E R The petitioner has come with the above writ petition challenging a tender notification issued by the fourth respondent on 15.09.2011 for the removal of Effluent Sludge (Lime Sludge). 2. Heard Mr.G.R.Swaminathan, learned Counsel for the petitioner and Mr.K.Srinivasan, learned Senior Counsel and Mr.P.Senthil, learned Counsel appearing for the respondents. 3. The first respondent floated a tender cum auction on 25.10.2010 for the disposal of Effluent Sludge Grade-III (Lime Sludge) on annual rate contract basis at the factory premises of the respondent Company. One of the conditions for the grant of a contract to an intended party was that the tenderer should have a valid consent order issued by the Tamilnadu Pollution Control Board. Annexure-I to the tender document indicated the general terms and conditions. Clause 3 of the terms and conditions contained in Annexure-I made it clear that the order issued to the successful tenderer will be valid for a period of one year from the date of the sale order/letter of the indent. 4. The petitioner participated in the tender and became the successful tenderer after satisfying all the requirements prescribed. Therefore the petitioner was issued with a sale order dated 27.10.2010. But despite the fact that the validity of the sale order is generally for one year, the respondents stipulated that the sale order in favour of the petitioner was restricted only upto 30.09.2011, in view of the fact that the consent that the petitioner had from the Pollution Control Board was to expire on 30.09.2011. But it was also stipulated that the sale order will be extended upto 31.12.2011, to be in tune with Clause 3 of Annexure-I of the terms and conditions, if the petitioner was able to obtain renewal of the consent order from the Pollution Control Board, ten days prior to the date of expiry of the sale order viz., 30.09.2011. 5. On 06.09.2011, the respondents issued a letter calling upon the petitioner to produce the order for renewal of consent from Tamilnadu Pollution Control Board. The said communication dated 06.09.2011 reads as follows: "This has reference to the above Sale Order for disposal of 75,000 MT of Effluent Sludge Gr.III(Lime Sludge) for the period from 01.01.2011 to 30.09.2011. You are requested to produce the TNPCB Consent to operate renewal for storing Lime Sludge. In your storage land immediately for balance period from 01.10.'11 to 31.12.2011. On receipt of your consent renewal order from TNPCB, the Sale order quantity and validity will be amended suitably." 6. Though the petitioner had applied in time to the Tamilnadu Pollution Control Board for the renewal of the consent order, it was delayed. Consequently the respondents issued a fresh tender on 15.09.2011. Aggrieved by the said tender, the petitioner is before this Court. https://hcservices.ecourts.gov.in/hcservices/ 3 7. It is admitted by the respondents that the petitioner was entitled to an extension of the sale order from 01.10.2011 upto 31.12.2011, if he had produced the renewal of consent order from the Pollution Control Board on or before 20.09.2011. It is also not denied that the petitioner has actually obtained renewal of consent on 26.09.2011. 8. In the light of the above two admitted facts, it is clear that the impugned tender notification issued on 15.09.2011 by the respondents, even before the expiry of the time for the petitioner to produce renewal of the consent order, was not proper. I can understand if the respondents had issued a tender notification on or after 20.09.2011 and thereafter come up with a contention that the parties are bound strictly by the terms of the contract. That is not their case. 9. Whatever it is, the ten days time prescribed for the petitioner or any other successful tenderer to obtain renewal of consent order, cannot be taken to be such a rigid prescription as an Euclid's theorem. If the petitioner could not obtain the renewal of consent on or before 30.09.2011, it is certainly something that should be put against the petitioner. But once he had obtained renewal of consent before the expiry of the validity of the sale order, the terms of the contract cannot be read as something which is very rigid and unalterable. 10. Moreover there is also one more consequence that had followed. For the past 18 days, the Effluent Sludge is accumulating in the factory premises of the respondents, causing pollution. Today after rejecting the case of the petitioner despite their holding a valid consent order, if the respondents are to be allowed to proceed with the finalisation of the tender floated on 15.09.2011, more of sludge will accumulate which is not in the interest of anyone. Therefore, I am of the view that the respondents ought to have accepted the request for extension of the sale order upto 31.12.2011 in the light of the renewal of consent produced by the petitioner on 26.09.2011. But I should also put the petitioner on terms, for the consequences that had flowed out of the delay in obtaining the consent order. The immediate consequence of the respondents floating a tender on 15.09.2011 was the expenses incurred in the paper publication. Therefore the same has to be reimbursed by the petitioner to the respondents. 11. In view of the above, the writ petition is allowed. The impugned order is set aside and the respondents are directed to extend the validity of the sale order to the petitioner upto 31.12.2011 subject to the condition that the petitioner reimburses the costs of the advertisement and paper publication issued by the respondent for floating the tender dated 15.09.2011. The amount shall be quantified by the respondents and within a week of such quantification, the petitioner shall pay such amount. No costs. Consequently the connected miscellaneous petitions are closed. Sd/- Assistant Registrar (C.O) /True Copy/ Sub Assistant Registrar (C.S) https://hcservices.ecourts.gov.in/hcservices/ 4 To 1. The Managing Director, Tamilnadu Newsprint and Papers Ltd., Kagithapuram, Karur. 2. The Chief General Manager(Operation), Tamilnadu Newsprint and Papers Ltd., Kagithapuram, Karur District. 3. The Assistant General Manager(Disposal), Tamilnadu Newsprint and Papers Ltd., Kagithapuram, Karur District. 4. The Senior Manager(Stores), Tamilnadu Newsprint and Papers Ltd., Kagithapuram, Karur District. + 1 cc to Mr.S.Suresh, Advocate, SR No.35884 W.P.(MD)No.11049 of 2011 and M.P.(MD)Nos.1 and 2 of 2011 18.10.2011 ssl RJ/28.10.11 (IT) 4p/6c https://hcservices.ecourts.gov.in/hcservices/