IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.02.2011 CORAM THE HONOURABLE MR. JUSTICE VINOD K.SHARMA W.P.No.24540 of 2010 and M.P.No.2 of 2010 K.Vajaravel ... Petitioner Vs. 1. Ansul Mishra, I.A.S., The Tender Inviting Authority, Coimbatore City Municipal Corporation, Coimbatore 641 001. 2. The Commissioner, Coimbatore City Municipal Corporation, Coimbatore 641 001. 3. State of Tamil Nadu Rep. by Principal Secretary to Government, Municipal Administration and Water supply department, Fort. St. George, Chennai 600 009. ... Respondents Writ petition has been filed under Article 226 of the Constitution of India for issuance of a writ in the nature of Certiorarified mandamus calling for the records relating to the impugned order of the first respondent issued in his letter dated 12.10.2010 and the consequential notification No.e-b1/2010 dt.14.10.2010 issued by the first respondent and quash the same and to direct the first respondent to finalise the tender by considering the bids of the two eligible bidders, based on the rate quoted by them, to the lowest quoted price bidder. For petitioner : Mr.Vijaynarayanan, S.C. for Mr.R.Parthiban For respondents : Mr.R.Yashodvardan, S.C. for Mr.R.Sivakumar **** https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner is a partner of a registered firm under the name and style of "Surabhi Nursery" dealing with the Lanscape, designing, Maintenance of Parks and Gardens, Hybird Horticultural Plants and Seeds. The firm has its agricultural farm at Palliyuthu near Erode and branch at No.596, Avinashi Road, Coimbatore 14. 2. The petitioner is aggrieved by the order dated 12.10.2010, vide which the bid of the petitioner for Annual Maintenance of Parks ROC No.6120/2010/MD was rejected during technical evaluation, by the duly constituted committee, by holding that the petitioner was not technically qualified as per the qualification criteria. However, no decision was conveyed regarding the bid of the petitioner relating to the item No.3 of e- 52/2010 and the works relating to other three zones. 3. The reason for the rejection of the petitioner was that the firm was not registered under the Companies Act. The petitioner therefore challenged the impugned order by referring to the eligibility criteria given in the bid document which reads as under: "(7.0) Elgibility Criteria: 7.01 This invitation for submission of Tender Document is an open bid/tender and any business entity dealing with landscaping that fulfills the following Eligibility Criteria can alone participate in this bid. 7.2 The bidder who are either registered contractors in the CCMC or reputed landscaping firm can alone participate in the bid. 7.3 The bidders participating as a landscaping firm or joint venture with landscaping firm should have registered their firm under the companies act. In proof thereof, the notarized copy of the Registration Certificate / Certificate of incorporation issued by the competent authority should be furnished along with their bid. If the bidder participates in the capacity of a Horticulturist/Plant Nursery, they should furnish the notarized copy of the income tax returns of the properties of the firm concerned along with the copy of the PAN Card. https://hcservices.ecourts.gov.in/hcservices/ 7.4. The bidder should have recorded a minimum turnover of rs.1q Crore in each of the last 3 years. In proof thereof, notarized copies of the Audited balance sheets and associated documents including PAN card should be furnished along with their bids. 7.5 The bidder should have under taken atleast two works involving park maintenance / landscaping works or civil works including park maintenance / Garden Maintenance works of value not less than Rs.25.00 lakhs in any one of the last three years. 7.6 The firm/individual should furnish the list of clients it has served in the last 3 years with the value of work done for each client. 7.7 The bidder should have not been Black listed or debarred by the CCMC or ULB or any District Administration or other Government Agency in the past years for any reasons whatsoever. A self declaration in this regard in the form of an affidavit duly notarized (prepared in an Rs.20/- India Non-judicial stamp paper) should be enclosed with their bid proposals. Note: The required certificate to be submitted along with the tenders should be notarized." 4. The reason as mentioned above for rejection of the bid was, that the petitioner firm was not registered under the Companies Act as per Clause 7.3. of the Eligibility Criteria reproduced above. It is not disputed that the Clause 7.3. was subsequently amended to reads as under: "The bidders participating as a landscaping firm should have registered their firm under the companies act. In proof thereof, the notarized copy of the Registration Certificate / Certificate of incorporation issued by the competent authority should be furnished along with their bid. The bidder should have been in the landscaping / garden maintenance / plan nursery business for not less than 5 years preceding the date of the bid." https://hcservices.ecourts.gov.in/hcservices/ 5. The contention of the learned Senior counsel for the petitioner was that the stipulation that the landscaping firm should have registered their firm under the Companies act, itself is arbitrary as the firm and a company cannot co-exist. On formation of company, the firm would lose its identity. Therefore, the stipulation on the face of it was arbitrary and not achievable. Therefore, bid document of petitioner cannot be rejected by treating the petitioner to be ineligible. 6. The other contention of the learned Senior counsel for the petitioner was that Clause 7.3 was substituted, merely to make the petitioner ineligible and to favour other bidders, who were the companies registered under the companies act, for the reason that unamended Clause 7.3. allowed the bidders to participate in their capacity as Horticulturist / Plant Nurseries who were to furnish, the notarized copy of the income tax return of the proprietors of firm concerned along with the copy of the PAN card. The unamended clause therefore allowed the firm or individuals to participate in the bid. The amendment was made after the bid documents were invited, which on the face of it was arbitrary and suffered from legal malice. 7. There is force in this contention of the learned Senior counsel for the petitioner. The unamended Clause 7.3. permitted the firms and individuals to participate in the bid. The Clause 7.3. was unilaterally amended to make eligible as ineligible cannot be sustained in law. 8. Even otherwise, the amended Clause 7.3. as stated above, shows non application of mind, as there cannot be a firm which is registered under the Companies Act as the firm has to be registered with the Registrar of firms, and the company under the Companies Act. 9. Though the impugned order on the face of it is arbitrary and hit under Article 14 of the Constitution of India, but the petitioner is not entitled to any relief. Admittedly, the bid itself was cancelled and the cancellation of bid cannot be questioned as under the bid document, the right vested with the Commissioner, Coimbatore City Municipal Corporation, Coimbatore to accept or reject any proposal, call for negotiation/rejoinder without assigning any reason whatsoever. 10. This power also vested with the authority under Sec.12 of The Tamil Nadu Transparency in Tenders Act, 1998. 11. It is also not disputed that fresh tenders are invited vide reference No.8414/2010/MD3 dated 14.10.2010 wherein the eligibility criteria was modified. https://hcservices.ecourts.gov.in/hcservices/ 12. The petitioner being a registered firm satisfied the eligibility criteria under the notice inviting tender dated 14.10.2010, but the petitioner for the reason best known, chose not to bid in response to subsequent notice. The petitioner therefore, does not have any locus standi to challenge the proceedings in respect of the bid dated 14.10.2010. 13. Consequently, the writ petition is dismissed as having rendered infructuous. No costs. Connected miscellaneous petition is also dismissed. vaan Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Commissioner, Coimbatore City Municipal Corporation, Coimbatore 641 001. 2. The Principal Secretary to Government, State of Tamil Nadu, Municipal Administration and Water supply department, Fort. St. George, Chennai 600 009. + 1 cc to Mr. R. Sivakumar, Advocate SR No.12141 + 1 cc to Mr. R. Parthiban, Advocate SR No.12062 Order in W.P.No.24540 of 2010 and M.P.No.2 of 2010 SGL(CO) SR/25.2.2011 https://hcservices.ecourts.gov.in/hcservices/