IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19-3-2010 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.1301 of 2010 M.P.No.1 of 2010 G. Thiruvengadam ... Petitioner Vs 1. The District Collector, Krishnagiri District, Krishnagiri – 635 001. 2. The General Manager, Dharmapuri District Co-op Milk Producers Union Ltd., Salem Main Road, Krishnagiri – 635 001. 3. The Managing Director, Tamil Nadu Co-op. Milk Producers' Federation Ltd., Aavin Illam, Madhavaram Milk Colony, Chennai – 600 051. 4. The Commissioner for Milk Production and Diary Development, Government of Tamil Nadu, Madhavaram Milk Colony, Chennai – 600 051. 5. The Deputy Registrar (Dairying), Dharmapuri and Krishnagiri District. 6. The Assistant General Manager, Transport Tamil Nadu Co-op. Milk Producers' Federation Ltd., Transport Unit, Madhavaram Milk Colony, Chennai – 600 051. 7. South India Road Milk Transport, Plot No.20, V Cross Street, Rayala Nagar, Ramapuram, Chennai – 600 089. https://hcservices.ecourts.gov.in/hcservices/ 8. Sri Venkatesvara Transport, Pramathy Road, Namakkal. ... Respondents PRAYER : This writ petition is filed under Article 226 of the Constitution of India with a prayer to issue a writ of mandamus forbearing the respondents from finalising the tender and consequently to declare the amount quoted by the petitioner in his tender to be the lowest tender (prior to the alterations made by the Goonda elements). For Petitioner : Mr.T.Mohan for Mr.R.Tholkappian For 1st Respondent : Mr.R.Neelakandan, Government Advocate For 2nd Respondent : Ms.S.Anitha For Respondents 3 to 6 : No appearance For 7th Respondent : Mr.S.Muthukumar 8th Respondent : Unserved O R D E R This writ petition is filed for issuance of a writ of mandamus forbearing the respondents from finalising the tender and consequently to declare the amount quoted by the petitioner in his tender to be the lowest tender (prior to the alterations made by the Goonda elements). 2. The petitioner's case is that he is running Transport business under the name and style of M/s.Sri Lakshmi Roadlines for the past 13 years, i.e., running tanker lorries on contract basis for various Milk Producers' Co-operative Unions of different districts and transporting milk and milk products to various multi- national companies all over South India. For transportation of dairy products, tenders are called for once in every two years. In the month of September, 2009, tenders were called for by the second respondent for transporting milk through tanker lorry from the second respondent dairy farm at Chennai through ten big tankers having capacity of 14,000 litres and 16 numbers of tanker lorries with capacity of 9,000 litres, totalling 26 tanker lorries. The petitioner took part in the tender in respect of one big tanker lorry and one small tanker lorry and deposited a sum of Rs.20,000/- https://hcservices.ecourts.gov.in/hcservices/ for the big tanker lorry and Rs.10,000/- for the small tanker lorry towards earnest money deposit. The tenders were to be opened on 29.9.2009. According to the petitioner, the technical bid was opened, however the commercial bid was not opened. 3. Petitioner further states that he was surprised to see a fresh advertisement issued on 2.1.2010 calling for fresh tender in respect of the above job, stating that the earlier tender was cancelled by the first respondent and the last date to submit the tender documents was fixed as 21.1.2010 before 2.30 p.m. The petitioner was also called upon for making an application for the above said re-tender for the years 2009 to 2011. 4. According to the petitioner, he authorised his brother by name Kamalakannan to participate in the re-tender. According to the petitioner, his brother was present at 12.00 noon at the second respondent's office on 20.1.2010 and he searched for the tender box for dropping the tender application. As he could not locate the box, he approached the second respondent and enquired about the tender box for dropping the application, who in turn directed his Office Assistant to show the tender box to the petitioner's brother, which was kept in an isolated place. Petitioner's brother dropped the cover into the box containing the tender documents and it is alleged by the petitioner that while he was about to return, goonda elements numbering 40, entered into the second respondent's room and commanded him to open the box immediately. The second respondent also opened the box. Thereafter the goonda elements took the petitioner's cover and opened the same and forced the petitioner's brother to initial at the places altered by them in the amount column, i.e., from Rs.14.75 for the small tanker lorry with 9000 litre capacity to Rs.20; and from Rs.20 for the bigger tanker lorry with 14000 ltrs capacity to Rs.35. It is stated in the affidavit that the second respondent was a silent spectator for the above fraud, who was hand-in-glove with the goonda elements. It is further alleged that one of the petitioner's demand draft for Rs.10,000/- for smaller tanker lorry was removed and thrown out and the petitioner's brother was literally manhandled by the goonda elements and he ran away from the scene. 5. It is further stated in the affidavit that on intimation to the petitioner, he lodged a complaint on 20.1.2010 with the District Collector through fax as well as to the second respondent and other officials including the Chief Minister's Special Cell. However, the commercial bid was opened on 20.1.2010 itself and the Evaluation Committee, after evaluation, placed the same before the District Collector for approval. Alleging the illegality as stated supra, the petitioner has filed this writ petition with the above prayer. https://hcservices.ecourts.gov.in/hcservices/ 6. The second respondent has filed counter affidavit contending that the petitioner's brother was not given any authorisation letter to participate in the re-tender called for by the second respondent and the narration of facts by the petitioner in the affidavit are against the truth. The second respondent asked the Inspector of Police, Town Police Station, Krishnagiri to depute Police Constables to the Union on 20.1.2010 and the Police Constables have also discharged their duty from 9 a.m. To 6 p.m., in the Administrative block, where the tender box was kept under the surveillance of the Police Constables and security persons of the second respondent Union. No complaint was lodged before the Police authorities, who were on duty or before the second respondent with regard to the alleged incident. The Tender Scrutinising Committee members, having noticed the petitioner's commercial bid form at page Nos.14 and 15, where corrections were made with due attestation, took the correct rate as the rate quoted by the petitioner and proceeded further. 7. The learned counsel for the petitioner argued the points urged in the writ petition and contended that the second respondent has not prevented others from entering into his office and not prevented the illegality committed by the strangers by forcing the petitioner's brother to initial the corrections made in the tender forms and therefore the writ petition has to be allowed. 8. The learned counsels appearing for the respondents submitted that the petitioner's brother himself having corrected the amount in the tender document and initialled the corrections, it is not open to the petitioner to disown the corrections made by his brother in the tender documents. 9. I have considered the rival submissions made by the learned counsel appearing for the petitioner as well as respective respondents. 10. The petitioner has made personal allegations against the second respondent, however, the second respondent is not impleaded in this writ petition in his personal capacity. 11. Admittedly there is a correction in the tender documents and the same is initialled by the petitioner's brother. Whether the petitioner's brother was forced to correct the amounts and made to initial the corrections at the instance of certain other persons, are the disputed questions of fact as per the contentions of the petitioner, second respondent, and also that of the learned counsels appearing for the petitioner as well as respondents. To ascertain the correct fact and to know whether there was police protection during the relevant time, the learned Government Advocate was directed to get report from the police official. The https://hcservices.ecourts.gov.in/hcservices/ learned Government Advocate produced the report of the Sub- Inspector of Police, Town Police Station, Krishnagiri dated 5.3.2010, which is extracted hereunder: "Subsequent to the receipt of letter bearing No.4715/Tpt./2009 dated 18.01.2010 from the General Manager, Dharmapuri District Coop. Milk Producers Union Ltd., Krishnagiri, we have deputed 6 (six) constables for bandhobust to conduct milk tanker transport tender held on 20.01.2010. The constables deputed for, were discharging their duties and the tender was conducted peacefully without any untoward incidents." From the perusal of the above report it is evident that six constables were deputed for giving bandhobust to conduct milk tanker transport tender held on 20.1.2010 and they were on duty and that the tender was conducted peacefully without any untoward incident. In the light of the said report given by the police authority and as there is no contra material available other than the version of the petitioner in the affidavit in support of the writ petition, I am not in a position to accept the contention of the learned counsel for the petitioner with regard to the alleged force employed on the petitioner's brother for making corrections in the tender documents and that he was forced to initial the said corrections. 12. The question as to whether the High Court is entitled to go into the disputed questions of fact in a writ petition filed under Article 226 of Constitution of India, is well settled in law. (a) In (1976) 1 SCC 292 (Arya Vyasa Sabha and Others v. The Commissioner of Hindu Charitable and Religious Institutions & Endowments, Hyderabad and Others) the view taken by the High Court that disputed questions of fact are to be left open to be decided before the Civil Court was upheld by the Supreme Court. (b) In the decision reported in (2003) 4 SCC 317 (Rourkela Shramik Sangh v. Steel Authority of India Ltd. and Another) it is held that the disputed questions of fact could not be entertained in the writ proceedings. In paragraph 19, the Supreme Court held as follows: "19. The question as to whether the workmen concerned had been continuously working for a period of ten years so as to enable them to derive benefit of the judgment of this Court in R.K.Panda case ((1994) 5 SCC 304) was essentially a question of fact. ......" In paragraph 22, the Honourable Supreme Court further held as follows: "22. ...... a disputed question of fact normally would not be entertained in a writ https://hcservices.ecourts.gov.in/hcservices/ proceeding. This aspect of the matter has also been considered by a Constitution Bench of this Court in Steel Authority of India Ltd. v. National Union Waterfront Workers ((2001) 7 SCC 1). ........." (c) In (2006) 9 SCC 256 (Himmat Singh v. State of Haryana and Others), the Honourable Supreme Court held that 'the statement of the appellant or the 5th respondent was correct or not could not ordinarily be tested in writ proceedings and it is well known that in writ petition ordinarily such a disputed question of fact could not be entertained'. (d) In yet another decision reported in (2007) 7 MLJ 687 (Food Corporation of India v. Harmesh Chand), the Supreme Court held as follows: "Since the facts were seriously disputed by the appellant and no factual finding could be recorded without consideration of evidence adduced by the parties, it was not an appropriate case in which the High Court ought to have exercised its writ jurisdiction. The parties could have approached a civil court of competent jurisdiction to adjudicate the matter." 13. In view of the above settled legal position and having regard to the facts in this case, which are in dispute, I am of the view that the writ petition filed by the petitioner is not maintainable and consequently the writ petition is liable to be dismissed. 14. In the result, the writ petition is dismissed. No costs. Connected miscellaneous petition is also dismissed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vr To 1. The District Collector, Krishnagiri District, Krishnagiri – 635 001. 2. The General Manager, Dharmapuri District Co-op Milk Producers Union Ltd., Salem Main Road, Krishnagiri – 635 001. https://hcservices.ecourts.gov.in/hcservices/ 3. The Managing Director, Tamil Nadu Co-op. Milk Producers' Federation Ltd., Aavin Illam, Madhavaram Milk Colony, Chennai – 600 051. 4. The Commissioner for Milk Production and Diary Development, Government of Tamil Nadu, Madhavaram Milk Colony, Chennai – 600 051. 5. The Deputy Registrar (Dairying), Dharmapuri and Krishnagiri District. 6. The Assistant General Manager, Transport Tamil Nadu Co-op. Milk Producers' Federation Ltd., Transport Unit, Madhavaram Milk Colony, Chennai – 600 051 1 cc to the Government Pleader, SR. 18619 1 cc to Mr.R. Tholkappian, Advocate, Sr.18382 1 cc to Ms.S. Anitha Advocate, Sr. 18603 W.P.No.1301 of 2010 NG (CO) kk 25/3 https://hcservices.ecourts.gov.in/hcservices/