IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 20-02-2008 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION Nos.2774 AND 3508 OF 2008 M/s.Madras Security Printers, rep.by its Partner P.Sam Prasad, 72, T.H.Road, Chennai-600 081. ... Petitioner in W.P.No.2774 of 2008 M/s.Rosemerta Technologies Pvt.Ltd., rep.by its General Manager C.Nagesh Kumar, No.133, 47th Cross, 3rd Block, Rajaji Nagar, Bangalore-560 010. ... Petitioner in W.P.No.3508 of 2008 -vs- 1.State of Tamil Nadu, rep.by the Secretary to Government, Transport Department, Secretariat, Fort.St.George, Chennai – 600 009. 2.The State Transport Authority, rep.by the Transport Commissioner, Ezhilalagam, Chepauk, Chennai – 600 005. 3.The Deputy Transport Commissioner, Ezhilagam, I Floor, Chepauk, Chennai-600 005. ... Respondents in both petitions Petitions under Article 226 of the Constitution of India, praying for issuance of a writ of mandamus. For petitioner in W.P.No.2774/2008 : Mr.R.Krishanmurthy, Senior Counsel, for Mr.Sathish Parasaran. https://hcservices.ecourts.gov.in/hcservices/ For petitioner in W.P.No.3508/2008 : Mr.S.Parthasarathy, Senior Counsel, for M/s.V.C.Janardhanan. For respondents both W.Ps. :Mr.P.S.Raman, Additional Advocate General, assisted by Mr.V.Arun, Additional Government Pleader. COMMON ORDER These two Writ Petitions have been filed, one by M/s.Madras Security Printers and the other by M/s.Rosemerta Technologies Pvt.Ltd., praying for a mandamus, directing the respondents to accept the petitioners' bids for issuance of Smart Card based Driving Licence and Vehicle Registration at Regional Transport Offices of Chennai (South), Cuddalore and Sivagangai on 'Build, Own, Operate and Transfer (BOOT) basis and process and consider the petitioners' bids on merit and in accordance with the tender terms along with other bidders. 2. According to the petitioners, they are the leading concerns, engaged in the business of security printing and smart card manufacturing, e-governance, system integration and software solution and they have vast experience in smart card manufacturing and participated in several tenders, issued by the State and the Central Government and become successful bidders. 3. M/s.Madras Security Printers claim that they are pioneers in India and were key participants in the Multi Purpose National Identity Card (Pilot Project) of the Government of India. They are eligible bidders for issuance of smart card based driving licence and vehicle registration at Regional Transport Offices of Chennai (South), Cuddalore and Sivagangai on BOOT basis. The bidding was stated to be conducted through open tender system in two cover system and was expressly required to conform to the Tamil Nadu Transparency in Tenders Act,1998, (in short, 'the Act') and the Tamil Nadu Transparency in Tender Rules,2000, (in short, the Rules). It is their further case that they purchased the bid documents and considering the terms and instructions contained therein decided to submit the bids as a consortium, as permitted. 4. According to both the petitioners, as per the notice inviting tender, in Schedule-I, it is provided that the address for obtaining and submission of the bid documents would be that of the https://hcservices.ecourts.gov.in/hcservices/ Deputy Transport Commissioner-I, Ezhilagam, Chepauk, Chennai-600 005, who is the third respondent in these petitions, whose office is situated in first floor of Ezhilagam Building, where the office of second respondent is also situated. The last date and time for submission of the bids were set out in the tender documents as 30.01.2008. It is a two cover bid system and it is only a technical bid that was required to be opened first for evaluation and only such of those who are technically qualified after examination of the particulars provided in the bid could proceed to the next stage of the financial bid opening before award of the tender. 5. With regard to Madras Security Printers, it is their case that after duly completing the requirements of the bid documents, they deputed their representative Mr.Velu to the office of the third respondent to submit the bid. The said representative reached the premises of the third respondent well within time and at the time of signing of the Entry Register, it was 02.55 p.m. However, since the persons at the reception desk stated that the time was 03.00 p.m., the same was entered as 03.00 p.m. The said Entry Register would reveal that the representative of the petitioner had already gone to the third respondent premises within time. Thereafter, when he proceeded to the first floor to submit the bid to the Deputy Transport Commissioner-I, he was not present and finding that nobody was available there, the representative immediately came back to the reception in the ground floor and sought to find out where the bid could be submitted. It was only at that time the representative was informed that the venue for submission of the bids was shifted to fifth floor of the same building and on reaching the fifth floor, it was evident that the officials of first and second respondent were present there and then, he submitted the bid to the first respondent. However, to his shock, the petitioner's bid was refused to be accepted on the frivolous ground that there was a few minutes delay in submission of the bid and the cut off time would be strictly construed as 03.00 p.m. The representative immediately brought to the attention of the respondents that it was only because of the shifting of the venue without any notification or intimation the delay had occurred and that no prejudice would be caused to anybody if the bid were accepted. Thereafter, the petitioner met the officials who also refused to accept the petitioner's bid. 6. In the case of M/s.Rosemetra Technologies, it is their case that after completing the bid documents as required, they deputed their Manager, Sales, Mr.S.Ganesh to the office of third https://hcservices.ecourts.gov.in/hcservices/ respondent. The said representative reached the premises of the third respondent in time. He proceeded to the first floor to submit the bid, but the Deputy Transport Commissioner-I, was not present there and finding that nobody was available, the representative came to the reception in the ground floor and sought to find out where the bid could be submitted. It was only at that time, the petitioner's representative came to know that the venue for submission of the bids has been shifted to fifth floor, which is the Conference Room of the Planning Commission in the same building. He immediately climbed up to the fifth floor and on reaching the said floor, it was evident that the third respondent and other officials of the second respondent were present. Thereafter, the representative submitted the bid to the first respondent. However, to his shock, the petitioner's bid was refused to be accepted, on the ground that there was a few minutes delay in the submission of bid and the cut off time would be strictly construed as 03.00 p.m. Then, the representative brought to the notice of the respondents that it was only because of the shifting of the venue without any notification or intimation, the delay had occurred and that no prejudice would be caused to anybody by acceptance of the bid, as the petitioner was duly and technically qualified. Subsequently, the petitioner met the officials, who also refused to accept the petitioner's bid. Hence, the petitioner was constrained to record its protest, by a letter dated 30.01.2008 through e-mail. 7. Therefore, both the petitioners have filed these Writ Petitions, having been aggrieved over the action of the second respondent in not accepting the submission of the bids, on the ground that the submission of the bids was delayed by a few minutes, which, according to the petitioners, has actually been caused by the action of the respondents, by changing the venue without intimation and contrary to the express provisions of the Act and the Rules. 8. Respondents have filed separate counters in both the petitions. In the case of Madras Security Printers, a counter has been filed by the second respondent, denying all the allegations made in the Writ Petition, except those which are specifically admitted. 9. According to the second respondent, the Notification, inviting tender for issuance of Smart Cart based Driving Licences and Registration Certificates of vehicles at Regional Transport Office, Chennai (South), Cuddalore and Sivagangai on BOOT basis, has been issued on 24.12.2007 in dailies as per the Government https://hcservices.ecourts.gov.in/hcservices/ orders in G.O.Ms.No.1419, Home (Tr.VII) Department, dated 10.12.2007, and it has also been hosted on the website http://www.tn.gov.in\sta. It is further stated in the affidavit that the dates for sale of documents were fixed as from 27.12.2007 to 29.01.2008. A Pre-bid meeting was held on 07.01.2008 at 11.00 a.m. in the Conference Hall, 5th Floor, Ezhilagam Building, Chennai- 5. The replies to all the queries raised by various participants by way of addendum was also prepared and sent to all the participants by post, e-mail and also hosted on the website. A press note about the availability of addendum and replies to the queries was also notified in the dailies. The last date for receipt of sealed tender documents was fixed up to 03.00 p.m. on 30.01.2008 and accordingly the tender documents were received up to 03.00 p.m. on the appointed day i.e., on 30.01.2008. The Tender Opening Committee appointed for this purpose opened the Tender Box on the same day at 03.30. p.m., as specified in the Tender Notification. Then, the respondents opened the Tender Box at 03.30 p.m., wherein there were six tender applications found, and took up the processing. 10. According to the respondents, the petitioners have stated that they reached the office at 02.55 p.m. and entered at 03.00 p.m. in the common reception register maintained at the main entrance of the building at Ground Floor. There are so many head offices functioning in the said building, where a common reception register is maintained for the movement of the public/visitors. The petitioner himself has admitted that he was present at the entrance of the building at 03.00 p.m. and by that time the submission of sealed tenders which was fixed at the V Floor had already ended. The department had displayed a board at the reception hall at the main entrance nearer to the reception counter, clearly indicating the place and the floor as "Transport Department, Submission of Tender Document for issuance of Smart Card Based D.L. and R.C. at Conference Hall, V Floor", where the tender documents could be submitted. This was displayed at the Reception Hall by 10.00 a.m. itself. The petitioner did not mention about any time of arrival at the V Floor. 11. It is also stated in the counter that exactly at 03.00 p.m., it was informed loudly to all the participants who have submitted the bid documents in front of the members of Tender Opening Committee that the tender submission time was over and the tenders acceptance had to be closed. Hence, immediately after the expiry of the appointed time, in the presence of all members of Tender Opening Committee and all other bidders, the Tender Box was closed. It was only after closing the tender box, the petitioner https://hcservices.ecourts.gov.in/hcservices/ entered the hall for submission of their tenders. Hence, their submission was refused. Since the petitioners came to the hall after the time stipulated in the tender document, their tender submission could not be accepted. At 03.30 p.m., as already notified, the tender box was opened and totally six applicants had submitted the documents. The Tender Opening Committee constituted in Transport Commissioner's proceedings No.11989/S4/2007 consisted of the Deputy Transport Commissioner-I, Assistant Director of Statistics and Assistant Secretary-II. The applicants who have submitted their applications before 03.00 p.m. have not complained about the place of receipt of tender applications and no one else found any difficulty to submit their tender applications within time at the place of venue and also there was no controversy about the place of submitting and time in between the tender applicants and authorities. Since the question raised by the petitioners is purely factual in nature, they cannot invoke the writ jurisdiction to go into the factual aspects. 12. While denying the averments in para 9 of the affidavit, the respondent has stated that as per Rule 17 of the Rules, the tender inviting authority may make changes, modifications or amendments to the tender documents. Indeed, the other tenderers raised an objection when the petitioner, namely, Madras Security Printers sought to submit the tender. Therefore, the respondent was under a legal objection to stick to the tender conditions and reject the tender. Any modification or amendment to tender conditions cannot be made by the respondent without following the due procedure of intimation to all parties. 13. Further denying para 10 of the affidavit, the respondent has stated that the tender inviting authority had properly ensured and fixed the place well in advance, however, the said six applicants, who submitted their tender application properly approached and submitted their applications in time without any ambiguity. There was a proper display board by the tender inviting authority to inform the tender applicants that those who want to submit their applications may approach the V Floor in the same premises. The belated reaching of the petitioner in submitting the tender application was the only reason for not accepting the application and not for any fault on the respondent's side. The petitioner is solely responsible for belated submission of the application on or before 03.00 p.m. at the specified place and time. The tender inviting authority had properly ensured all the measures under Section 18 (2) of the Act. https://hcservices.ecourts.gov.in/hcservices/ 14. It is also stated while denying para 11 of the affidavit that Rule 18 (5) of the Act also cannot be invoked by the authority because there was no necessity for extending or changing time of submission, as the other applicants submitted their applications in time. The respondents properly applied the rules and provisions of the said Act and followed the procedure and, accordingly, they opened the tender documents and proceeded further and also there was no written representation by the petitioner on the date of submission of documents. 15. In the counter filed by the respondents in respect of M/s.Rosemerta Technologies Pvt.Ltd., almost similar averments made in the case of M/s.Madras Security Printers have been adopted. In addition, it is stated that the petitioner reached the office at about 03.20 p.m., when the tender box was about to be opened in next ten minutes. Further, the applicants, who were present at the place of the tender submission strongly opposed the authorities for receiving any belated submission i.e., after 03.00 p.m. and hence the petitioner's bid was refused to be accepted. Since neither time nor venue was not changed by the tender inviting authority, the belated submission of application was not accepted. Further, the tender inviting authority for the convenience of the applicants who wanted to submit the tender applications, displayed a notice board informing the venue of receiving place of tender application and therefore the allegations of the petitioner are totally false and to protect the delay caused by himself, the petitioner has raised that the place of venue was changed. In fact, there was no change in the place of receipt of tender applications. Therefore, the belated submission of tender application cannot be accepted, which is against the provisions of the Act and the Rules. 16. It is also submitted that the tender inviting authority had properly ensured and fixed the place well in advance for receipt of tender applications, however, the six applicants, who submitted their tender applications, properly approached and submitted their applications in time without any ambiguity. Further, the tender inviting authority properly displayed the board to inform the applicants that those who wanted to submit their tender applications might approach the 5th Floor in the same premises. The belated reaching of the petitioner for submitting the tender application was the only reason for not accepting the tender application and not for any fault on the respondents' side. Therefore, the tender inviting authority has properly ensured all the measures under Rule 18 (2) of the Rules and Rule 18 (5) also could not be invoked by the authorities, as there was no necessity for extending or changing the time of submission. https://hcservices.ecourts.gov.in/hcservices/ 17. Heard Mr.R.Krishnamurthy, learned Senior Counsel for Mr.Sathish Parasaran and Mr.S.Parthasarathy, learned Senior Counsel for Mr.V.C.Janardhanan, appearing for the petitioners and Mr.P.S.Raman, learned Additional Advocate General, assisted by Mr.V.Arun, Additional Government Pleader. 18. Mr.R.Krishnamurthy, learned Senior Counsel for the petitioner, has strenuously contended that the petitioner is a leading concern, having vast experience in the Smart Card manufacturing and has participated in several tenders issued by the State and the Central Government and become the successful bidder and that the petitioner is the pioneer in the said field in India. 19. Secondly, the learned Senior Counsel has argued that main object of the Act is to eliminate the irregularities, interference and corrupt practices by providing transparency in the processing of tenders by ensuring transparency in the procurement procedure and that under Section 8 of the Act, it is provided 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 and that as per the terms and conditions of the tender document, the time and place prescribed therein have to be strictly adhered to. 20. Relying upon Rule 17 of the Rules, the learned Senior Counsel would contend that at any time after the issue of the tender documents and before the opening of the tender, the Tender Inviting Authority may make any changes, modifications or amendments to the tender documents, but such change should be intimated to all those who have purchased the original tender documents. 21. On the other hand, Mr.S.Parthasarathy, learned Senior Counsel appearing for the other petitioner, while reiterating the above provision of law an the object of the enactment, has contended that the petitioner has reached the place of venue in time, but as the venue prescribed in Schedule-I of the tender document is Deputy Transport Commissioner-I, Chepauk, Chennai-5, for obtaining and submitting the bid documents, it cannot be changed and by changing the venue without any intimation, the respondents have closed the receipt of tenders and also refused to accept the bid submitted by the petitioner, which is a violation of the provisions under Section 8 of the Act. 22. Per contra, Mr.P.S.Raman, learned Additional Advocate General appearing for the respondents, has submitted that there are https://hcservices.ecourts.gov.in/hcservices/ no lapses on the part of the respondents in making the tender process more transparent and there is also no violation of the provisions of the Act or the Rules. In fact, the respondents have strictly adhered to the provisions of the Act and the Rules and they made all arrangements by displaying a notice board in the ground floor of the building for submission of the bid documents, not to cause any ambiguity with regard to reaching of the place and submitting the documents in time. 23. The learned Additional Advocate General further contended that the six other applicants reached the place of venue in time without any difficulty and therefore the contention of the petitioners that because of the change of venue, the petitioners failed to reach the venue in time is not tenable. He also submitted that the Office of the Deputy Transport Commissioner-I, Chepauk, Chennai-5, which is in the first floor, was the place for obtaining and submission of the bid documents, but the venue for submission of the bid documents has been shifted to V Floor, after displaying a board at the reception hall, at the entrance nearer to the reception counter, clearly indicating the place and the floor as "TRANSPORT DEPARTMENT, SUBMISSION OF TENER DOCUMENT FOR ISSUANCE OF SMART CARD BASED D.L. AND R.C. AT CONFERENCE HALL, V FLOOR", where the tender documents could be submitted and the said display board was kept at the reception hall at 10.00 a.m. itself and hence there was no failure on the part of the respondents in intimating the change of venue. 24. I have perused the material documents and given a careful attention to the submissions made by the learned Senior Counsel on either side and also the relevant provisions of the Act and the Rules. 25. Admittedly, there was a Notification, inviting tenders, for issuance of Smart Card based Driving Licences and Registration Certificates of vehicles at Regional Transport Office, Chennai (South), Cuddalore and Sivagangai on BOOT basis. In Schedule-I of the Notice Inviting Tender, it is clearly mentioned that Sealed bids are invited from the eligible bidders for issuance of Smart Card based Driving Licences and Registration Certificates of vehicles at Regional Transport Office, Chennai (South), Cuddalore and Sivagangai on BOOT basis and that the bidding will be conducted through Open Tender System under two cover system conforming to the Tamil Nadu Transparency in Tenders Act,1998 and Rules,2000. It is also mentioned therein that the name of the bidding department is State Transport Authority, Chepauk, Chennai- 5, and the name of the work as, Issuance of Smart Card based Driving Licences and Registration Certificates of vehicles on BOOT https://hcservices.ecourts.gov.in/hcservices/ basis and the address for obtaining and submission of bid document as "Deputy Transport Commissioner-I, Chepauk, Chennai-5- (Tamil Nadu) Tele.-28520682, Telefax – 28412244, E-Mail : sta@tn.nic.in,; Website : www.tn.gov.in/sta". Security amount is shown as Rs.10.5 lakhs; Cost of bid document as Rs.5,200/-; Sale of bid document from 27.12.2007 to 29.01.2008 on all working days from 10.00 hours to 17.45 hours; Date and Time of Pre-bid meeting as 07.01.2008 at 11.00 A.M. at the second floor of Ezhilagam building at the Chamber of Transport Commissioner, Chennai-5. Further, it is specifically mentioned that the last date and time of submission of bids as 30.01.2008 up to 3.00 P.M. and Opening of Technical Bid as 30.01.2008 at 3.30 P.M and the Validity of the Bid as 120 days with a further note that the bid documents can also be downloaded from the website and that the respondent reserves the right to reject any or all bids without assigning any reasons therefor. 26. It is seen that the petitioners have obtained the tender documents from the respondent and on specifying the requirements as per the terms and conditions prescribed they had to submit the document on or before 30.01.2008 at 03.00 P.M., which was the last date for submission of the bids. A perusal of the counter affidavit would reveal that the acceptance of tender was done at 5th Floor on the date and time specified. But, in this case, the address for opening and submission of bid document has been specifically provided as Deputy Transport Commissioner-I, Chepauk, Chennai-5, which is located in the first floor of the building. 27. As per Section 8 of the Act, the Tender Accepting Authority or any such 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. It is seen that the place of submission of tender is Deputy Transport Commissioner's Building, which is located in the first floor and it is stated that it has been shifted to 5th Floor and a display board was kept at the reception hall at the main entrance nearer to the reception centre, indicating the place and the floor as "TRANSPORT DEPARTMENT, SUBMISSION OF TENDER DOCUMENT FOR ISSUANCE OF SMART CARD BASED D.L.AND R.C.AT CONFERENCE HALL,V FLOOR", where the tender documents could be submitted. It is also seen that display was made at the reception hall by 10.00 a.m.itself. 28. As per Rule 17, at any time after the issue of the tender documents and before the opening of the tender, the Tender Inviting Authority may make any changes, modifications or amendments to the tender documents and shall send intimation of https://hcservices.ecourts.gov.in/hcservices/ such change to all those who have purchased the original tender documents. 29. It transpires that due to the change of venue from the office of Deputy Transport Commissioner-I, Chepauk, Chennai-5, which is located in the first floor of the building to the office of