1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/7/2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR W.P.(MD)Nos.8456 and 8458 to 8463 of 2011 W.P.(MD) No.8456 of 2011 S.Baskaran ...Petitioner Vs Tahsildar/Assistant Manager (CV)-cum- The District Manager (incharge) Tamil Nadu State Marketing Corporation Limited Thondi Road Palamalai Nagar Pyur Sivagangai Sivagangai District. ...Respondents W.P.(MD) Nos.8458 to 8463 of 2011 : M.Senthilvel ...Petitioner in WP.8458/2011 P.Nagappan ...Petitioner in WP.8459/2011 K.Sundaramoorthy ...Petitioner in WP.8460/2011 P.Buvaneshwari ...Petitioner in WP.8461/2011 A.Sengaisamy ...Petitioner in WP.8462/2011 S.Pandiselvam ...Petitioner in WP.8463/2011 Vs 1. The Senior Regional Manager Madurai. 2. The District Manager TASMAC, Sivagangai. ...Respondents in all the Petitions W.P.(MD).No.8456 of 2011 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus to forbear the respondents from awarding the license to any participant pursuant to the tender notice issued by the respondent in his proceedings in Na.Ka.No.CV.P/900/2011 dated 8/7/2011 in respect of TASMAC shop No.7510 and consequently directing the respondent to issue re-tender Notification and to conduct re-tender in respect of TASMAC shop No.7510. W.P.(MD) No.8458 of 2011 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of declaration to declare the entire tender process by the second respondent as null and void in tender Notification No.Na.Ka.No.CV.B/900/2011 dated 8/7/2011 in respect of Shop No.7503 at Devakottai, Sivagangai District and https://hcservices.ecourts.gov.in/hcservices/ 2 consequently direct the respondents to conduct fresh tender in respect of TASMAC shop No.7503 in Sivagangai District. PRAYER IN WP.No.8459 of 2011 : Petition filed under Article 226 of Constitution of India, praying for the issuance of a writ of declaration, declaring the entire tender process by the 2nd respondent as null and void in tender notification NO.Na.Ka.NO CV.B/900/2011 dated 8.7.2011 in respect of Shop No.7663 at 3/775 Madurai Mandapam Nedun Salai, Tattankulam, Sivagangai District and consequently direct the respondents to conduct fresh Tender in respect of Tasmac Shop No.7663 in Sivagangai District. PRAYER IN WP.No.8460 of 2011 : Petition filed under Article 226 of Constitution of India, praying for the issuance of a writ of declaration, declaring the entire tender process by the 2nd respondent as null and void in tender notification NO.Na.Ka. NO CV.B/900/2011 dated 8.7.2011 in respect of Shop No.7547 at 18/44 H27, 18/44, H 28 Madurai Mandapam Main Road, Nelmudi Karai, Thiruppuvanam, Sivagangai District and consequently direct the respondents to conduct fresh Tender in respect of Tasmac Shop No.7547 in Sivagangai District. PRAYER IN WP.No.8461 of 2011 : Petition filed under Article 226 of Constitution of India, praying for the issuance of a writ of declaration, declaring the entire tender process by the 2nd respondent as null and void in tender notification NO.Na.Ka. NO CV.B/900/2011 dated 8.7.2011 in respect of Shop No.7506 at 36.A.2 Vattanam Road, Devakottai, Sivagangai District and consequently direct the respondents to conduct fresh Tender in respect of Tasmac Shop No.7506 in Sivagangai District. PRAYER IN WP.No.8462 of 2011 : Petition filed under Article 226 of Constitution of India, praying for the issuance of a writ of declaration, declaring the entire tender process by the 2nd respondent as null and void in tender notification NO.Na.Ka. NO CV.B/900/2011 dated 8.7.2011 in respect of Shop No.7549 at 1/490 Madurai Mandapam Nedun Salai, Thiruppuvanam, Mana Madurai, Sivagangai District and consequently direct the respondents to conduct fresh Tender in respect of Tasmac Shop No.7549 in Sivagangai District. PRAYER IN WP.No.8463 of 2011 : Petition filed under Article 226 of Constitution of India, praying for the issuance of a writ of declaration, declaring the entire tender process by the 2nd respondent as null and void in tender notification NO.Na.Ka. NO CV.B/900/2011 dated 8.7.2011 in respect of Shop No.7505 at 2-B/1 Corporation Road E.B.Stree Devakottai, Sivagangai District and consequently direct the respondents to conduct fresh Tender in respect of Tasmac Shop No.7505 in Sivagangai District. For petitioners ... Mr.B.Saravanan in W.P.(MD)No.8456 of 2011 Mr.J.Anandkumar in W.P.(MD) Nos.8458 to 8463 of 2011 For respondents ... Mr.K.Mahendran, Spl.G.P. https://hcservices.ecourts.gov.in/hcservices/ 3 C O M M O N O R D E R The petitioner in W.P.(MD) No.8456 of 2011, who has taken part in the tender for licence to TASMAC shop No.7510, Devakottai Taluk, Sivagangai District, has now come forward, seeking for a writ of mandamus to forbear the respondents from awarding licence to any other participants, pursuant to the tender notice, dated 08.07.2011, issued by the Tahsildar/Assistant Manager (CV)-cum-The District Manager (in- charge), Tamil Nadu State Marketing Corporation Limited, Sivagangai District. Consequently, he has prayed for a direction to the respondent to issue a re-tender Notification and to conduct re-tender in respect of TASMAC shop No.7510. 2. The petitioners in W.P.(MD) Nos.8458 to 8462 of 2011, have sought for a writ of declaration, declaring the entire tender process by the second respondent therein as null and void pursuant to the Notification dated 8/7/2011 in respect of bars attached to various TASMAC shops at Sivagangai District and consequently direct the respondents to issue fresh tender in respect of TASMAC shops. 3. As common contentions have been raised in all the writ petitions, Mr.K.Mahendran, Special Government Pleader was put on notice and heard. Mr.B.Saravanan and Mr.J.Anandkumar advanced arguments on behalf of the writ petitioners. 4. At the threshold, inviting the attention of this Court to clause (1) of the tender schedule, dated 8/7/2011, issued by the respondent in W.P.(MD) No.8456 of 2011 and the submission of the learned counsel for TASMAC, at the time of disposal of writ petitions in W.P.(MD) Nos.8242 to 8250 of 2011, Mr.Saravanan, learned counsel appearing for the petitioner in 8456 of 2011 submitted that, though Clause 1 of the tender notice stipulates that, minimum upset price would be known, in the office of the respondent, the same was not displayed and therefore, the tender schedule, dated 8/7/2011, itself is contrary to the above said clause. 5. Learned counsel for the petitioner further submitted that another vital condition in the tender schedule clause (2) states that the participants should obtain a consent letter from the owner of the building in which TASMAC bar is located. According to him, petitioner is the only person, who satisfied the above said requirement. 6. Learned counsel appearing for the petitioner further submitted that though the petitioner has submitted the tender form before the respondent on 27/7/2011 and waiting in the office of the respondent to see the opening of the tenders at the scheduled time, 4.00 p.m., the tenders were not opened at 4.00 p.m., by the respondent, but a large number of Police Personnel were deployed in the office of the respondent, the petitioners and other tenderers were not allowed to go inside the office of the respondent till 4.00 p.m.It is his further contention that the tenders were not opened as per the schedule. 7. Mr.B.Saravanan, learned counsel for the petitioner in W.P.(MD) No.8456 of 2011, further submitted that right from the beginning, the petitioner was not even issued with a tender schedule and that therefore, https://hcservices.ecourts.gov.in/hcservices/ 4 he was constrained to approach this Court by filing a writ petition. Though tender schedule was submitted with full compliance of all the conditions, he was prevented from entering into the office of the respondent. According to him, the whole process and the attempt to finalise the tender, is only to favour certain hand picked persons and therefore, a mandamus has to be issued, forbearing the respondent from awarding any license pursuant to the Notification dated 8/7/2011. 8. In support of the relief, a writ of declaration, declaring the entire tender process by the District Manager (TASMAC), Sivagangai District vide Notification dated 8/7/2011 as illegal and for a re-tender, placing reliance on Rule 21 of the Tamil Nadu Transparency in Tenders Rules, 2000, Mr.J.Anandkumar, learned counsel appearing for the petitioners in W.P.(MD) Nos.8458 to 8463 of 2011, submitted that as per the abovesaid rule, all the tenders received by the Tender Accepting Authority shall be opened at the time specified in the Notice Inviting Tenders and in cases, where an extension of time for submission of tenders has been given, subsequent to the original Notice Inviting Tenders, the time should be notified subsequently. 9. He further submitted that the tender ought to have been opened within one hour after the closing time. According to him, the tenders were opened only at 10.00 p.m., and that therefore, there is a contravention of Rule 21 of the Tamil Nadu Transparency in Tenders Rules, 2000. 10. Learned counsel for the petitioners, further submitted that though the petitioners, have submitted the tender forms, they were prevented from participating in the tender as they were not even allowed to enter into the office of the District Manager, TASMAC, Sivagangai and thus, there is a violation of Section 8 of the Act and Rule 22 of the rules stated supra. 11. Mr.K.Mahendran, learned Special Government Pleader for TASMAC, was put on notice and he made a preliminary objection to the maintainability of the writ petitions contending inter alia that tenders were opened, as scheduled and that licences have also been granted and he therefore, submitted that the only course open to the petitioners is to challenge the individual licences granted to the licencees and that there cannot be any writ of declaration or mandamus even assuming without admitting for argument sake, that there was any irregularity. 12. Learned counsel for TASMAC further submitted that there is no irregularity in the tender Notification. According to him, the upset price was known to the petitioners and that they have also submitted their applications. It is his further contention that the bar license would be given to the highest bidder in the tender and that has been done in the instant case. 13. He also submitted that in the absence of any specific details alleging bias or favouritism, there cannot be any blanket order of mandamus. According to him, the writ petitions are misconceived. For the abovesaid reasons, he prayed for dismissal. https://hcservices.ecourts.gov.in/hcservices/ 5 14. Heard the learned counsel for the parties and perused the materials available on record. 15. As few provisions have been relied on, by the learned counsel for the parties, this Court deems fit to extract the same. Section 8 of the Tamil Nadu Transparency in Tenders Act, 1998 states that "The tender accepting authority or any other officer authorised by it, shall open the tenders in the presence of tenderers present and who have submitted tenders in such time and in such place as may be specified in the tender document." 16. Rule 22 of the Tamil Nadu Transparency in Tenders Rules, 2000 states as follows:- "The following procedure shall be followed at tender opening. (a). All the envelopes received containing tenders shall be counted; (b). All the tenders received in time shall be opened; (c). Any tender received subsequently shall not be opened and shall be returned unopened to the tenderer; (d). On opening the tender, the members of the Tender Scrutiny Committee shall initial the main bid including the prices and any corrections; (e). A record of the corrections noticed at the time of the bid opening shall be maintained; (f). The name of the tenderers and the quoted prices should be read out aloud; (g). the fact whether earnest money deposit has been submitted and other documents required produced may be indicated, but this shall be merely an examination of the documents and not an evaluation; (h). Minutes of the tender opening shall be recorded. The signatures of the tenderers present shall be obtained unless any of the tenderers or his representative refuses to sign the minutes. 17.A perusal of the tender Notification, shows that, the last date for submission of the tender application was 27/7/2011 at 3.00 p.m. The opening of the tender has been fixed at 4.00 p.m., as per Rule 21 (2) of the Tamil Nadu Transparency in Tenders Rules, 2000. Therefore, fixing of time is in accordance with Statutory Rules. The contention, that upset price was not notified in the office as per Clause 1 of the tender https://hcservices.ecourts.gov.in/hcservices/ 6 schedule and that, the petitioners also could not enter the office of the respondent, at the time of opening and that therefore, the whole process has to be declared as illegal, cannot be countenanced, for the reason that, only after knowing the upset price, all the petitioners herein could have submitted their tender applications. 18. A perusal of the representations enclosed in the typed set of papers, makes it clear that there was absolutely no complaint regarding the fixing of upset price. In order to consider as to whether the District Manager (TASMAC) had acted contrary to the submissions of the learned counsel for TASMAC, this Court deems it fit to extract the submissions recorded in W.P.(MD) Nos.8248 to 8250 of 2011. "The contention of the learned Special Government Pleader that there is no question of fixation of upset price, in the matter of grant of license to a bar attached to TASMAC shop, is placed on record. In such view of the matter, the contention of the petitioners is rejected." 19. What is meant by the learned counsel for TASMAC is that in the matter of granting bar licences to TASMAC shops, the highest bidder would be granted licences, subject to the conditions in the Rules and the notification. Even assuming that an upset price has been fixed, contrary to the statement of the learned counsel for TASMAC, in the absence of any averments to substantiate, as to how the price fixation done by the District Manager (TASMAC) was erroneous or contrary to, clause 1 of the tender schedule, it cannot be said that, there is any manifest illegality. 20. Yet another aspect to be considered is that all the petitioners with open eyes, have submitted their tender applications, to the second respondent quoting the price to obtain licences. Having participated in the tender and acquisced to the jurisdiction, it is not open to the petitioners to contend that the upset price was not notified in the office of the second respondent and on that count, seek for a writ. 21. The further contention of the petitioners is that, the whole tender process is illegal, as the District Manager, had refused to issue even the tender schedules and that, the process is only to give the licences to those already chosen, cannot be countenanced, for the reason that, when the tender forms were not issued, and when the petitioners approached this Hon'ble Court, on the submission of the learned counsel for TASMAC, tender forms have been issued and that all the petitioners have submitted the forms. The contention, that they were not allowed to participate in the tender and that there is a violation of Section 8 r/w. Rules 21 and 22 has been disputed by the learned counsel for TASMAC. It is well settled that disputed questions of fact, cannot be adjudicated in writ jurisdiction. In a place where there are too many participants, that too for a bar licence, one can visualise the situation. 22. Yet another contention, made by the learned counsel for the petitioners is that, since all of them have produced 'No Objection Certificate' from the respective owners, their applications ought to have been considered and that they should have been granted licences, cannot https://hcservices.ecourts.gov.in/hcservices/ 7 be adjudicated at this juncture in the present writ petitions, for the reason that, the licences for the bars in the TASMAC shops for which the petitioners have submitted their applications, have already been granted and in such circumstances, as rightly contended by the learned counsel for TASMAC, the only course open to the writ petitioners, is to challenge, the individual licences. It is also to be noted that the tender Notification was issued on 8/7/2011 and that, the petitioners have submitted their applications before the time stipulated. If for any reason, they were prevented from participating in the tender, that would not give rise to a cause of action to seek for a declaration or mandamus. The action of the respondent does not reflect any manifest illegality. 23. As rightly contended by the learned counsel for TASMAC, there cannot be any blanket order of mandamus. So also, the declaration prayed by the writ petitioners in W.P.(MD) Nos.8458 to 8463 of 2011 is wholly misconceived and as on today, when licences have been granted, there cannot be any declaration for the Notification as illegal. 24. For the reasons stated supra, this Court is not inclined to subscribe to the contentions of the petitioners and all the writ petitions are liable to be dismissed and accordingly, dismissed. No costs. Consequently, the connected Miscellaneous Petitions are also dismissed. Sd/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar To 1. Tahsildar/Assistant Manager (CV)-cum- The District Manager (incharge) Tamil Nadu State Marketing Corporation Limited Thondi Road, Palamalai Nagar, Pyur Sivagangai, Sivagangai District. 2. The Senior Regional Manager, Madurai. 3. The District Manager TASMAC, Sivagangai. +1CC TO MR.B.SARAVANAN, ADVOCATE, SR.NO.25500 +5CCS TO MR.K.MAHEDRAN, ADVOCATE, SR.Nos.25267 TO 25271 +5CCS TO MR.J.ANADHAKUMAR, ADVOCATE, SR.NOs.4316, 4319, 4320, 4321 & 4322 mvs : : GH : 02.08.2011 : 7p/15c W.P.(MD) Nos.8456 and 8458 to 8463 of 2011 29/7/2011 https://hcservices.ecourts.gov.in/hcservices/