IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.2.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.2190, 2191 and 2729 of 2010 M.Saravanan .. Petitioner in WP:2190/2010 S.Saleem .. Petitioner in WP:2191/2010 S.Madhu S.P.Manikandan S.Ganesan K.S.Gangadharan S.Jaisankar T.Sasikumar K.S.Senthilkumar Mohanasundaram .. Petitioners in WP:2729/2010 Vs. 1. The District Manager TASMAC, Suriyampalayam Vasavi College Post Erode District. 2. The Managing Director TASMAC, Chennai. .. Respondents in all WPs. PRAYER: Petitions under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus to call for the records of the first respondent relating to the tender notice in Na.Ka.No.090/R.2/2010, dated 20.1.2010, to quash the same and to consequently direct the 1st respondent to call for the re-tender. For Petitioners : Mr.D.Selvaraju For Respondents : Mr.J.Ravindran(TASMAC) ORDER In all these cases, the writ petitioners have challenged the tender notice issued by the first respondent dated 20.1.2010 calling for the participation in respect of sale of eatables and collection of empty bottles in 254 IMFL shops under the control of TASMAC in Erode District for the period from 1.3.2010 to 28.2.2011. The challenge is on the ground that they were not issued with the tender forms by the first respondent. https://hcservices.ecourts.gov.in/hcservices/ 2.1. The first respondent has invited sealed tenders in the notification dated 20.1.2010 published in Tamil Dailies "Pirpagal" on 23.1.2010 and "Madurai Mani" on 24.1.2010. As per the notification, the intending aspirants should purchase the tender forms at a cost of Rs.500/- from the first respondent before 10.00 am. on 3.2.2010 and filled up tender forms should be presented to the first respondent before 5.00 pm. on 3.2.2010. 2.2. It is the case of the petitioners that the said newspapers are not having wide circulation and therefore, there was no chance for more people to participate. It is stated that only on 1.2.2010 the petitioners came to know about the publication and immediately they visited the office of the first respondent and it is the case of the petitioners that they were not allowed to meet the first respondent by large number of people who indulged in violence. However, it is stated that when the first respondent was contacted, he has informed that forms are available. 2.3. It is stated that again the petitioners have visited the office of the first respondent on 2.2.2010 and there was again a crowd preventing the entry of the petitioners and thereafter, it is stated that the first respondent has given certain tokens with the seal of the first respondent requesting them to come on the next day and collect the tender forms. It is stated that on 3.2.2010 at 7.00 am. the petitioners were waiting to meet the first respondent and after 10.00 am. they were informed that the time for collecting the forms is over and it is stated that thereafter, they have made complaints to the Superintendent of Police, the District Collector, and so on. 2.4. It is stated that the tender forms were issued to selected persons and in these circumstances the notification itself is challenged on the ground that it is in violation of the provisions of the Tamil Nadu Transparency in Tenders Act, 1998 (for brevity, "the Act') and the Tamil Nadu Transparency in Tenders Rules, 2000 (for brevity, "the Rules") framed thereunder, which contemplate a minimum time of 15 days between the date of publication of the notice inviting tenders and the last date for submission of tenders. 2.5. It is stated that the tenders were opened on 5.2.2010 and by virtue of the order passed in these writ petitions, the confirmation of tender is stayed on 5.2.2010. 3.1. In the counter affidavit filed by the respondents, while it is stated that the tender was called for the sale of eatables and collection of empty bottles in respect of 254 IMFL shops in Erode District for the period from 1.3.2010 to 28.2.2011, it is stated that the publication was effected on 23.1.2010, the last date for receipt of filled in applications was 3.2.2010 and tender forms were to be opened on 5.2.2010. https://hcservices.ecourts.gov.in/hcservices/ 3.2. It is stated that pursuant to the notification issued in the newspapers, namely "Pirpagal" and "Madurai Mani", 488 applications were received in all, out of which 400 applications were received on 29.1.2010, 71 applications were received on 2.2.2010 and 17 applications were received on 3.2.2010 and therefore, it cannot be said that there was no wide publicity. It is stated that out of 488 persons, who have purchased the tender forms, 401 persons have submitted filled up forms within time. 3.3. It is stated that it is only to avoid law and order problem on 2.2.2010, after 6 pm. tokens were issued and it is also denied that the tender forms were issued to the persons who were having tokens. It is stated that tokens were issued only to facilitate that tender forms would be given to persons who appeared beyond 6.00 pm. It is stated that tender forms were opened on 5.2.2010 at 11.00 am. and because of the interim order passed by this Court, no licence could be issued. 4.1. The learned counsel for the petitioner would vehemently contend that the entire process is against the provisions of the Rules which contemplates 15 days time between the date of publication of tender and the last date for submission of the tender. 4.2. It is his contention that the last of the paper publications was on 24.1.2010 in Tamil Daily "Pirpagal" and the issue was closed on 3.2.2010 and therefore, 15 days time as contemplated under the Rules has not been provided and therefore, the entire tender process should be set aside and the respondents should be directed to redo the process. 5.1. On the other hand, Mr.J.Ravindran, learned counsel for the respondents by producing the files would submit that the petitioners only intend to form a cartel system and it is not correct to state that the first respondent has not issued the tender forms. 5.2. It is his contention that in respect of 254 IMFL shops, 488 applications were received and in such circumstances, it cannot be said that there was no wide publicity. 5.3. It is his contention that the petitioners having known about the tender notification have filed the present writ petitions only with an ulterior motive and it is his submission that the existing period of lease of the shops in respect of the above said purpose comes to an end by 28.2.2010 and in the absence of any violation of the provisions of the Act, the petitioners are not entitled to any relief as prayed for. 6.1. Before adverting to the rival contentions made by the respective counsel, some of the facts which are not in dispute and as found in the files are as stated hereunder. https://hcservices.ecourts.gov.in/hcservices/ 6.2. The first respondent has issued a notification calling for applications for the above said purpose on 20.1.2010, published in the Tamil Daily "Madurai Mani" on 23.1.2010. Likewise, a similar advertisement was published in the Tamil Daily "Pirpagal", Coimbatore on the same day, viz., on 23.1.2010, which is to be circulated outside the District on the next day, viz., on 24.1.2010. 6.3. Therefore, on fact and as seen in the file, it is clear that the notification dated 20.1.2010 came to be published on the same day, viz., on 23.1.2010 in two Tamil Dailies, viz., "Madurai Mani" and "Pirpagal". 6.4. As per the contents of the notification, the period of contract is from 1.3.2010 to 28.2.2011 for sale of eatables and collection of empty bottles in 254 IMFL shops under the control of TASMAC in Erode District. The first respondent was to sell the tender forms to be purchased on or before 10.00 am. on 3.2.2010, at the cost of Rs.500/- and the filled in forms are to be submitted to the first respondent on 3.2.2010 before 5.00 pm. and the tenders are to be opened on 5.2.2010 at 11.00 am. 6.5. A reference to the file also shows that the said notification has been approved by the first respondent on 20.1.2010 and on the same day, the first respondent has directed the Godown Managers to paste the said notification in the notice board. The records also show that the persons incharge of the godown have informed the first respondent in their letter dated 21.1.2010 that the notification has been pasted on 21.1.2010 in the godowns. 6.6. It is also found that 488 applications were sold by the first respondent and as stated by the learned counsel for the respondents, out of them 401 persons have submitted their tender forms which are stated to have been opened on 5.2.2010, however by virtue of the interim order passed in these writ petitions, it was not given effect to. 7. Section 9 of the Act, while prescribing the functions of the Tender Inviting Authority, in the present case the first respondent, states as follows: "Section 9. Functions of the Tender Inviting Authority.- (1) The Tender Inviting Authority shall invite tenders in the form of a notice containing such particulars as may be prescribed. (2) The Tender Inviting Authority shall communicate the notice inviting tenders to the Bulletin Officers according to the value of the procurement and within such time as may be prescribed, so as to publish the same in the appropriate Tender Bulletin. https://hcservices.ecourts.gov.in/hcservices/ (3) The Tender Inviting Authority shall also publish the notice inviting tenders in Indian Trade Journal and in daily newspapers having wide circulation depending upon the value of the procurement prescribed. (4) The Tender Inviting Authority shall supply the schedule of rates and tender documents in such manner and in such places as may be prescribed to every intending tenderer who has applied for such document." 8. By virtue of the powers conferred under Section 22 of the Act, the Rules came to be framed by the Government. Rule 11 of the Rules, which is in accordance with the above said section, prescribes the publication of notice inviting tenders in newspapers. Rule 11 of the Rules is as follows: "Rule 11. Publication of notice inviting tenders in newspapers.- (1) The Tender Inviting Authority shall have the notice inviting tenders published in the Indian Trade Journal in all cases where the value of procurement exceeds rupees ten crores. (2) The number, editions and language of the newspapers in which the notices inviting tenders shall be published will be based on the value of procurement. (3) In cases where publication of Tender Notices is to be done only in Newspapers with circulation within the District, the Information and Public Relations Officer attached to the District Collectorate shall be the competent authority to release the advertisement and in all other cases the competent authority to release the advertisement shall be the Director of Information and Public Relations, Chennai. (4) The notice inviting tender shall be given due publicity in Newspapers and also on notice boards in the District Offices. For tenders above rupees fifty lakhs, Director of Information and Public Relations will publish the Notice Inviting Tenders as per instructions of the tendering department. For other tenders, Director of Information and Public Relations will publish keeping in mind the request of the department. There should not be any additional insertion and no publication of Notice Inviting Tenders in newspapers not requested by the tendering department for tenders above rupees fifty lakhs." 9. Rule 20 of the Rules prescribes minimum time for submission of tenders and contemplates that in cases where tenders are up to Rs.2 Crores in value, a minimum period of 15 https://hcservices.ecourts.gov.in/hcservices/ days has to be allowed for submission of tenders between the date of publication of the notice inviting tenders either in the bulletin or in the newspaper, whichever is later, and the last date for submission of tenders. Rule 20 of the Rules is as follows: "Rule 20.- Minimum time for submission of tenders.- (1) The Tender Inviting Authority shall ensure that adequate time is provided for the submission of tenders and a minimum time is allowed between date of publication of the Notice Inviting Tenders in the relevant Tender Bulletin or in the newspapers whichever is later and the last date for submission of tenders. This minimum period shall be as follows. (a) for tenders upto rupees two crores in value, fifteen days; and (b) for tenders in excess of rupees two crores in value, thirty days. (2) Any reduction in the time stipulated as per sub- rule(1) has to be specifically authorised by an authority superior to the Tender Inviting Authority for reasons to be recorded in writing." 10. By considering the large number of tender forms purchased by various persons, it cannot be said that there is no wide publicity, as correctly submitted by the learned counsel for the respondents. While it is not disputed even by the respondents that the contents of Rule 20 are binding on them, it is the case of the respondents that the same has been scrupulously followed, but the facts elicited above show otherwise. 11. The date of publication of notification in the newspapers is on 23.1.2010. Even if such publication was made in the office of the respondents on 21.1.2010, as per Rule 20 of the Rules, the last of the publications has to be taken into consideration, viz., the publication made in the newspapers on 23.1.2010. As it is seen in the notification, the last date for submission of filled up tenders is 3.2.2010. By any calculation, the interregnum period would not go beyond twelve days. It is true that under Rule 20(2) of the Rules any reduction in the time can be authorised by a superior officer than the Tender Inviting Authority. In the present case, the first respondent is the Tender Inviting Authority and there is nothing on record to show that the second respondent, who is the superior authority, has reduced the time contemplated under Rule 20(1) of the Rules and that is also not the case of the respondents in the counter affidavit. https://hcservices.ecourts.gov.in/hcservices/ 12. In such circumstances, there is certainly a violation of the provisions of the Rules. So long as the said Rules framed by the Government are not against the provisions of the Act, the Rules are binding on the respondents. In such view of the matter, I have no hesitation to hold that the process of tender, which is questioned in these writ petitions, is not in accordance with the provisions of the Act read with the Rules, especially Rule 20 of the Rules. For the foregoing reasons, these writ petitions are allowed and the process of tender as per the notification of the first respondent dated 20.1.2010 stands set aside, however with liberty to the first respondent to reissue the tender notice in accordance with the provisions of the Act as well as the Rules stated above and proceed accordingly. No costs. Consequently, M.P.Nos.1 and 2 in W.P.No.2190 of 2010, M.P.Nos.1 and 2 in W.P.No.2191 of 2010 and M.P.Nos.1 and 2 in W.P.No.2729 of 2010 are closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar sasi To: 1. The District Manager TASMAC, Suriyampalayam Vasavi College Post Erode District.2 2. The Managing Director TASMAC, Chennai. + 1 cc to M/s.D.Selvaraju,Advocate,SR.13686 + 1 cc to Mr.J.Ravindran,Advocate,SR.13351 W.P.Nos.2190, 2191 and 2729 of 2010 RV(CO) EM/5.3.10 https://hcservices.ecourts.gov.in/hcservices/