Prayer Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of mandamus to direct the respondents to immediately open the commercial bid covered by the notification issued by the 1st respondent in respect of Milk Supply through Tankers for the year 2009-2010 without further delay.
W.P.No.1846 of 2009:
South India Road Milk Transports rep. by its Proprietor N.Vaidyanathan, Plot NO.20, 5th Cross Street, Rayala Nagar, Ramapuram, Chennai-600 089. . . . Petitioner
-vs-
1.General Manager, Dindigul Co-operative Milk Producers Union Ltd., No.9, East Govindapuram, Dindigul 624 001.
2.The Special Officer/District Collector, Dindigul Co-operative Milk Producers Union Ltd., No.9, East Govindapuram, Dindigul 624 001.
3.The Asst. General Manager(TPT), Transport Unit, Office of the Joint Managing Director, TCMPF Limited, Ambattur, Chennai 600 098.
4.The Deputy Registrar (Dairy Wing), A1 Centre Campus, Aavin, Madurai 625 020.
5.The Commissioner for Milk Production and Dairy Development, Madhavaram Milk Colony, Madhavaram, Chennai-600 051. . . . Respondents Prayer Writ Petition is filed under
Article 226 of the Constitution of India praying to issue a Writ of Certiorarified mandamus by calling for records of the 2nd respondent relating to re-tender Notification in Na.Ka.No.3775/P- 1/2008 dated 04.02.2009 quash the same and to direct the 2nd respondent to open the commercial bid for the tender notification in Daily Thanthi dated 20.11.2008, published in Web Site Notification e-publish dgl.24193 dated 29.11.2008 and in Dindigul Tender Bulletin dated 20.11.2008.
!For Petitioner in W.P.No.103/2009 ...Mr.K.Srinivasan ^For Petitioner in W.P.No.1846/2009...Mr.P.Athi Moolapandiyan For respondent 1 in both W.Ps. ...Mr.R.Janakiramulu Special Govt. Pleader :COMMON ORDER W.P.No.103 of 2009 has been filed for writ of mandamus directing the respondent to open commercial bid in pursuance of the notification issued by the first respondent for the purpose of transportation of Milk for the year 2009- 2010.
W.P.No.1846 of 2009 has been filed praying for issuance of writ of certiorarified mandamus calling for the records of the 2nd respondent relating to re-tender notification in Na.Ka.No.3775/P-1/2008 dated 04.02.2009 and quash the same and further to direct the 2nd respondent to open the commercial bid for the tender notification in Daily Thanthi dated 20.11.2008, published in Web Site Notification e-publish dgl.24193 dated 29.11.2008 and in Dindigul Tender Bulletin dated 20.11.2008.
2.The petitioners are dealing with hiring of milk tanker for number of years with the respondents and the respondents hired the petitioner's tankers to procure and supply milk to the places mentioned by the respondents from time to time. The Petitioner Transports has been engaged in procuring and supplying the milk in Dindigul area. Whileso, the 2nd respondent invited tenders in Tamil Dailies for the hiring of milk tankers for the year 2009-2010 for the Dindigul Co-operative Milk Producers Union Ltd. As per the said notification, the last date for the submission of tender was 11.12.2008 upto 1.00 p.m. The time for opening of technical bid was fixed at 11.00 a.m on 12.12.2008 and the time for opening of commercial bid was fixed at 11.00 a.m on 15.12.2008. In response to the tender notification issued by the respondent, 6 agencies including the petitioner herein have submitted their tenders in the office of the first respondent before the stipulated time on 11.12.2008 as per the said tender notification. The respondent also after receiving applications from the petitioners opened only the technical bids on 12.12.2008. The tender committee, after scrutinizing the tenders submitted by the 6 agencies rejected 3 tenders and declared 3 tenders as qualified namely Deepika Transports, South India Road Milk Transports and Jareen Transport. This proceeding of rejecting of 3 tenders and selecting of 3 tenders were done in the presence of 6 agencies whose representatives also signed in the minutes of the proceedings. When the second part of opening the commercial bid came on 15.12.2008 at 11.00 a.m as per the said notification, it was submitted by the learned counsel appearing for the petitioner that the tender committee for the reasons best known to them did not open the commercial bid and selected the 3 qualified tenderers on 03.12.2008 at 11.00 a.m. Immediately, the petitioner Transports sent a detailed letter requesting the respondent to instruct the tender committee to strictly follow the tender terms and conditions by opening the commercial bid on 15.12.2008. But the first respondent sent a phonogram to the petitioners and others as follows:
"REFER TENDER DT.12.12.2008 (.)COMMERCIAL BID OPENING ON 15.12.2008 AT 11.00 A.M IS POSTPONED (.) DATE WILL BE INFORMED LATER(.)."
Again on 27th December 2008, the petitioner and two other qualified tenders namely M/s South India Road, Milk Transport and M/s Dhanalakshmi Enterprises received another phonogram from the first respondent as follows.
"THE PRESENT OPERATION OF THE TOAD MILK TANKERS MAY BE CONTINUED TILL THE FINALISATION OF TENDER(.)"
3.Though the tenders were opened at the stipulated time, the commercial bid was not opened in spite of fixing the date as 15.12.2008. Therefore, the writ petitioner complained of irregularities for not opening the technical bid, particularly when nobody objected or raised any clarification in respect of commercial bid or technical bid, without any procedural violation, the commercial bid as stipulated to be opened on 15.12.2008 has not been opened, hence, the writ petition has been filed seeking for a direction to the respondents to open the commercial bid as per the tender notification.
4.After filing of this writ petition on 06.1.2009, notices were issued to the respondents on 04.02.2009. The respondent went for re-tender calling applications for commercial tenders by altering the terms and conditions of the tender notification already issued. The terms and conditions of the earlier tender notification had been completely altered and amended in the re-tender notification, which is totally contrary to Rule 23 of the Tamil Nadu Transpearency in Tenders Act, 1998.
In the condition No.23 of the fresh tender, for 9,000 litre tankers, the security deposit for 1-3 tankers has been fixed at Rs.4 lakhs and for 15,000 litre tankers, it is fixed at Rs.6 lakhs. Whereas in the earlier tender, amounts were just Rs.1 lakh and Rs.1,50,000/- respectively. Likewise, earnest money deposit amounts have been increased from Rs.10,000 to Rs.35,000/- in the re-tender. According to the Tamil Nadu Transparency in Tenders Act, 1998, it must be 4 per cent security deposit and 1 per cent earnest money deposit amounts. For 9,000 litre tankers, earnest money deposit has been fixed at Rs.15,000/- and for 15,000 litre tankers, security deposit has been fixed at Rs.35,000/-. Therefore, it was contended that the subsequent alteration of tender conditions fixing the EMD and SD were highly irrational and arbitrary. Further when the respondent go for re-tender, he should refund the EMD and SD amounts deposited by the contractors. Without doing so, the 2nd respondent arbitrarily resorted to hold re-tender, that too, unilaterally by altering the tender conditions. Further the same has not been intimated even to the contractors. Since there was no intimation to anyone of the contractors before going for re-tender notification, the petitioners by stating all the above mentioned details filed an appeal before the 5th respondent by petition dated 23.01.2009. Though their said appeal is pending without any response, therefore, re-tender has been called for.
5.Section 11 of the Tamil Nadu Transparency in Tenders Act, 1998 reads as follows:
"11.Appeal:- (1) Any tenderer aggrieved by the order passed by the Tender Accepting Authority under Section 10 may appeal to the Government within 10 days from the date of receipt of order and the Government shall dispose the appeal within fifteen days from the date of receipt."
Though Section 11 of the Tamil Nadu Transparency in Tenders Act, 1998 contemplates that the appeals shall be disposed of within 15 days, sofar, the appeal has not been disposed of. Without disposing of the appeal dated 23.01.2009, the action of the respondent in calling for re-tender on 04.02.2009 is not only unreasonable but also arbitrary and violations of the principles of natural justice. Hence, it was prayed that the relief prayed by the petitioner in the writ petition was fit to be granted.
6.The learned Special Government Pleader appearing for the respondent submitted that in the best interest of the public, the re-tender was called for. Therefore there is nothing wrong in inviting re-tender in respect of opening the commercial bid.
7.Heard the learned counsel appearing for both sides.
8.When the respondents have invited tenders from the public for transportation of milk in the year 2009-2010 in terms of the tender notification dated 12.11.2008, after the submission of tenders by the parties, the respondent concerned as stipulated in their tender notification, both technical bids as well as commercial bids were to be opened in the presence of tenderers at the stipulated time and date in the tender notification. Whileso, though the respondents opened the technical bid at 11 a.m on 12.12.2008 as per the date and time mentioned in the tender notification in respect of commercial bid alone, the respondent after accepting and selecting 3 of the persons as successful tenderers in respect of technical bid, ought not to have gone for re-tender by altering and amending terms and conditions of the very tender in respect of commercial bid alone, that too, without cancelling the commercial bid. Once the process of finalisation of tender was initiated and some of the people have been declared successful tenderers in respect of technical bid, without showing any reason for cancelling the commercial bid and particularly when there is no fault occurred till the opening of technical bid, the respondent have wrongly invited the re-tender in respect of commercial bid.
"In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to
Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is 'fairplay in action'."
9.Whileso, as submitted by the learned counsel for the petitioner, when there is no fault occurred till the opening of technical bid and when nobody objected and raised any clarification in respect of other technical bid or commercial bid, after selection of tenderers in technical bid, the respondent should not have called for re-tender in respect of commercial bid. Further when the petitioners presented an appeal under Section 11 of the Act complaining the arbitrary exercise of powers in calling for re-tender without cancelling the earlier tender notification on the ground that several persons have been declared as highest bidders for technical bid and without disposing of the appeal pending even now, the respondent ought to have avoided for going for re- tender in respect of commercial bid. The respondents also have not furnished any good reason to go for re-tender in respect of commercial bid. As mentioned above, when the respondents have selected some of the people in respect of technical bid without assigning any good and convincing and cogent reason for cancelling the tender in respect of commercial bid, re-tender in respect of commercial bid is not only unreasonable but also arbitrary as per Rule 23 of the Tamil Nadu Transparency in Tenders Act, 1998. Rule 23 of Act reads as follows:
"23.Changes and alterations not to be permitted after tender opening:-No changes, amendments which materially alter the tendered prices shall be permitted after the opening of the tender, except as per the procedure prescribed in sub-section (3) of section 10 of the Act."
10.Though the respondent has filed a brief counter, the said counter does not reveal any fact as to whether they have followed the procedure in terms of sub-Section (3) of Section 10 of the Act while issuing re-tender. since there is a bar imposed by Rule 23 not to alter or make amendments in the terms and conditions, after opening of the tender, it is not open to the respondent to call for fresh commercial tender by making any changes or amendments materially affecting or altering the terms and conditions of the tender notification and such actions are clear violation of Rule 23 of the Tamil Nadu Transparency in Tenders Rules, 2000 and in view of the same, the re-tender notification issued in Na.Ka.No.3775/P-1/2008 on 04.02.2009 is not only unreasonable but violation of Rule 23 of Tender Rules 2000. Once the authority opens the part of the tender, namely technical bid, cannot, without cancelling the commercial bid, go for re-auctioning the commercial bid. Such changes or alterations are not permitted by Rule 23 of the Tamil Nadu Transparency in Tenders Rules, 2000 and therefore, the same is hereby quashed and consequently, the 2nd respondent is directed to open the commercial bid as per the original tender notification as published in Web Site Notification e-publish dgl.24193 dated 29.11.2008 and in Dindigul Tender Bulletin dated 20.11.2008 since the technical bid has already been opened on 12.12.2008 on the basis of the terms and conditions mentioned in the earlier notification dated 20.11.2008.
11.In view of the reasons mentioned above, both the writ petitions are allowed and the respondents are directed to proceed on the basis of the terms and conditions mentioned in the original tender notification dated 20.11.2008. There shall be no order as to costs.
vs To
1.General Manager, Dindigul Co-operative Milk Producers Union Ltd., No.9, East Govindapuram, Dindigul 624 001.
2.The Special Officer/District Collector, Dindigul Co-operative Milk Producers Union Ltd., No.9, East Govindapuram, Dindigul 624 001.
3.The Asst. General Manager(TPT), Transport Unit, Office of the Joint Managing Director, TCMPF Limited, Ambattur, Chennai 600 098.
4.The Deputy Registrar (Dairy Wing), A1 Centre Campus, Aavin, Madurai 625 020.
5.The Commissioner for Milk Production and Dairy Development, Madhavaram Milk Colony, Madhavaram, Chennai-600 051.