w w w . L a w y e r S e r v i c e s . i n

R. Maheswaran v/s The Managing Director Papsco (Puducherry Agro Products Food & Civil Supplies Corporation Ltd.) & Others

    Writ Petition No.31912 of 2012 & M.P.Nos.1 & 2 of 2012

    Decided On, 03 January 2013

    At, High Court of Judicature at Madras


    For the Petitioner: Prakash Adiapadam, Advocate. For the Respondents: R1 to 4 - T.P. Manoharan, Advocate, R5 & 6 - No Appearance.

Judgment Text

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for records relating to impugned Tender Allotment Order (Minutes of Meeting) dated 28.9.2012 issued by the respondents 2 to 4 and consequential Work Order vide No. 1-17/CS/SM/MM/PAPSCO/2012-13,dated 6.10.2012 issued by the 1st respondent in favour of 6th respondent and quash the same as highly illegal, arbitrary and violative the principle of Natural Justice and consequentially direct the respondents 1 to 4 to allot the tender and Work Order in petitioner's favour.)


1. The prayer in the writ petition is to quash the Tender Allotment Order (Minutes of Meeting), dated 28.9.2012 issued by the respondents 2 to 4 and consequential Work Order, dated 6.10.2012 issued by the first respondent in favour of sixth respondent and direct the respondents 1 to 4 to allot the tender and Work Order in the petitioner's favour.

2. The case of the petitioner is that the petitioner is doing the business of lending machines like JCP, Crane, lorry and Poclain in the name and style as "SRP Earthmovers and Lorry Service" and having the registered office at Sorriyankuppam, Puducherry. On 21.9.2012, the first respondent published Tender Notice in Tamil newspaper, namely, "Dina Malar" inviting sealed quotation rates for excavation of sand mining operation for a period of one year at South Pennaiyar River Bed, Manamedu Revenue Village, Bahour Commune, Puducherry. The condition imposed is that the tenderers should have Poclain Machine model (HITACHI EX-200) and through the said machine only, sand should be excavated. According to the petitioner, the said model machine is not at all available in India and is available only in foreign countries, but in India only equivalent model of EX 200 is available.

3. According to the petitioner, in the Notification, the cost of application was mentioned as Rs.1000/- and the last date for obtaining the application was mentioned as 28.9.2012 and last date for receipt of filled up application was mentioned as on or before 28.9.2012 at 3.00 p.m. The sealed tender quotation would be opened on the same day and result would be announced in the presence of tender participants. Pursuant to the said advertisement, the petitioner obtained tender application form and submitted the same on 28.9.2012 along with Demand Draft before the first respondent's office. The petitioner quoted the lowest tender price of Rs.15/- per 3 unit (Lorry/Tipper) and Rs.5/- per unit (Tractor). The first respondent had sold 12 Tender Application Forms, out of which, the first respondent received only 10 filled and sealed tender applications including the petitioner's application. On 28.9.2012 at about 4.00 p.m., the Tender Committee consisting of the respondents 2 to 4, opened the tender. At the time of opening the tender, only nine tenderers were present including the petitioner. One tenderer, namely, P.Elumalai was not present. At the time of opening of the tender applications, it was found that the the petitioner quoted lowest price rate of Rs.15/- per 3 unit (Lorry/Tipper) and Rs.5/- per unit (Tractor).

4. According to the petitioner, respondents 1 to 4 orally declared that he is the successful tenderer. On 6.10.2012, the Tender Committee rejected the petitioner's tender on the ground that he had quoted in respect of Excavator Machine JCP Ex 200 and not Hitachi Ex 200 and issued work order in favour of the sixth respondent on 6.10.2012, who quoted the price rate of Rs.24/- for 3 unit (Lorry/Tipper) and Rs.8/- per unit (Tractor). Having aggrieved, the petitioner has filed this writ petition with the above said prayer, stating that the rejection of tender submitted by the petitioner that he is not having the prescribed Hitachi Ex 200 is equally applicable to the case of the sixth respondent, as he is also not having Hitachi Ex 200. Therefore, the confirmation of tender in favour of the sixth respondent and consequently work order issued to him, is illegal. The petitioner has further prayed for allotting the work to him.

5. Respondents 1 to 4 have filed a counter affidavit stating that the TATA Industries in collaboration with Hitachi Industries, is manufacturing "Hitachi Ex 200" machines and selling the same in the name of "TATA Hitachi Ex 200" in India. Hence, the said Poklain machine is available in India.

6. Even though sixth respondent was served on 4.12.2012 and proof of service had been filed, none appeared for the sixth respondent.

7. Heard the learned counsel for the petitioner as well as the learned counsel for respondents 1 to 4.

8. The point that arises for consideration in this writ petition is as to whether the clause contained in the Tender Notification can be altered by respondents 1 to 4 for accepting the tender of the sixth respondent, who was also not having Hitachi Ex 200. As per the Notification, the petitioner was not having Hitachi Ex 200, pursuant to which, the petitioner's tender, even though was lowest, was rejected, and the same reason should be applied to reject the tender submitted by the sixth respondent, as he was also not having Hitachi Ex 200. Though in the pleadings made in the counter affidavit, it is stated that TATA Industries are manufacturing the machine in collaboration with Hitachi Industries, the Notification issued by respondents 1 to 4, nowhere such clarification is stated and therefore, the said reason stated in the counter affidavit cannot be accepted. Respondents 1 to 4 having issued the Tender Notification in the newspaper dated 21.9.2012, every clause contained in the Notification should be scrupulously followed. The public notice issued is not only binding on the petitioner but also to respondents and the said legal position cannot be disputed. The rules of selection cannot be changed in the middle of the selection is well settled. If no candidate is available with Hitachi Ex 200, then the option available to respondents 1 to 4 is to call for fresh tenders. The said p

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rocedure having not been followed and admittedly, the sixth respondent was not having Hitachi Ex 200 as per the Tender Notification, the confirmation of the tender issued in favour of the sixth respondent cannot be sustained. The petitioner is also not having the Hitachi Ex 200 and therefore, even though he has quoted the lowest amount, he is also not entitled to get his tender confirmed. 9. The writ petition is disposed of, by setting aside the confirmation order issued in favour of the sixth respondent, with a further direction to respondents 1 to 4 to call for fresh tenders and proceed in accordance with law. No costs. Connected miscellaneous petitions are closed.