(R3 to R8 impleaded vide order dated 10.05.2017 in W.M.P.Nos.
13252 to 13257 of 2017 in W.P.No.9754 of 2017) W.P.No.9754 of 2017: Writ petition filed under
Article 226 of the Constitution of India, to issue a Writ of declaration declaring that the tender process followed by the respondents in the matter of Tender No.MAT/OT/013/2017 dated 27.02.2017 for hiring of water tanker lorries as contrary to law and illegal due to the large scale malpractices committed in the participation process.
2.The respondents have called for tenders for "Hiring of water tanker lorries of 16000 litres, 9000 litres and 6000 litres capacity on contract basis for three years". This was for providing water to the general public in the unserved areas, slums and tail end ares as well as the bulk consumers by way of mobile water supply. After following the procedure, the respondents received 87 Nos. for 16000 litres capacity tanker lorries, 750 Nos. for 9000 litres capacity tanker lorries and 310 Nos. for 6000 litres capacity tanker lorries. Clause 2 of the tender notice speaks about the award of the work order, which reads as under:
"The tender will be evaluated as per the Tamil Nadu Transparency in Tenders Act, 1998 and Rules thereunder Vehicles in the descending order of year of manufacture viz., from 2017, 2016, 2015 ... to 2010 will be considered. The lowest rate quoted by the tenderer will be considered for award of contract. Willingness will be asked for from the other participated tenderers for accepted rate. Those who have offered their willingness for the accepted rate will be selected in the above order."
3.Chapter 7 of the Tamil Nadu Transparency in Tenders Rules, 2000 deals with the offer and award of tenders in special cases in which we are concerned with Rules 31(1) and 31(2), which are provided hereunder:
"31.Procurement in Special Cases: In the case of purchase of goods where the quantity offered at the lowest price is less than the total quantity required, the Tender Accepting Authority may, after placing orders with the lowest evaluated tenderer for the entire quantity offered by such tenderer for the entire quantity offered by such tenderer subject to his ability to supply, adopt either or both of the following procedures to procure the balance quantity.
(1)Negotiate with the next lowest tenderers in strict ascending order of evaluated price and require them to match the price offered by the lowest evaluated tenderer and place orders until the entire quantity required is ordered; or (2)Require all the other eligible tenderers who participated in the tender and offered a price higher than that offered by the lowest evaluated tenderer, to submit sealed offers of the quantity they would be willing to supply at the price quoted by the lowest evaluated tenderer, and thereafter place orders for the remaining required quantity with all those who match the lowest evaluated price such that those who bid lower prices in the original tender get a higher priority for supply."
4.The petitioner in W.P.No.9754 of 2017 is L5 insofar as 6000 litres capacity lorry tanker is concerned. His two vehicles are of the manufacturing year 2017. The petitioners in W.P.Nos.13025 to 13030 of 2017 are having 15 tanker lorries for both 6000 litres and 9000 litres. We are not concerned with the tender notification with reference to 16000 litres tanker lorries.
5.Insofar as 6000 litres capacity tanker lorries are concerned, there was only one L1 for a sum of Rs.269/-. In that, the L2 tenderers alone were called for towards the price negotiation after accepting the lowest tender. The total requirement for the 6000 litres capacity is about 180 tanker lorries. 75 of the L2 tenderers have got the vehicles manufactured in the year 2017. However, except the L2 tenderers, other tenderers have not been called for.
6.Similarly, for the 9000 litres capacity, the requirement is about 323 vehicles. Here again, only L2 tenderers have been called for price negotiation. Of the successful tenderers in this category, 294 have got the vehicles registration of the year 2017. These 294 L2 tenderers for 9000 litres capacity tanker lorries and 74 tenderers for 6000 litres capacity tanker lorries have accepted the lowest offer made by L1 in the respective categories. These are all the basic facts governing the case.
7.Learned counsel appearing for the petitioners would submit that the tender notification does not satisfy either the rate fixed or the number of vehicles required. Secondly, it is submitted that as per Clause 2 of the tender Notification, what is important is the fixation of accepted rate and thereafter offering it to all the tenderers. When these offers are accepted, then the tenders will have to be granted based upon the year of manufacture of the vehicles and not otherwise. It is also submitted that Rule 31 of the Tamil Nadu Transparency in Tenders Rules, 2000 does not have a bearing as it deals with special cases, meaning thereby all the tenderers are placed on the same footing. The learned Additional Advocate General as well as the learned counsel for the impleaded respondents representing successful tenderers would submit that offer was made only to L2 tenderers as per Rule 31 of the Tamil Nadu Transparency in Tenders Rules, 2000 and therefore, there is no procedure violation involved.
8.The first contention raised by the learned counsel for the petitioners is liable to be rejected having participated in the tender process. Secondly, as submitted by the learned Additional Advocate General, the number of vehicles would depend upon the need of the situation prevailing. If there is copious rain enriching the catchment areas, there is no necessity for supplying the water through the tankers. This Court cannot conduct a roving enquiry and go into the issue about the terms of the tender conditions and the rationale behind it. The petitioners are also estopped from contending otherwise having participated in the tender process after accepting the re-notification. Power of judicial review is rather limited and the case on hand does not require any adjudication, more so, when no challenge is made to the notification.
9.Considering the other submissions made, this Court is of the view that Clause 2 of the tender notification has been accepted and complied with by the respondents in letter and spirit. In law, the respondents are not bound to accept the lowest tender. However, once they accept it, they have to offer the same to all the others notwithstanding the tenderers being L2 or above. The only other requirement to be followed by the respondents in such a case is to select the successful tenderers, who accepted the offer for the accepted rate, based upon the year of manufacture of the vehicles produced by them. This Court is of the view that Rule 31 of the Tamil Nadu Transparency in Tenders Rules, 2000, which deals with special cases, does not have an application to the present case which deals with special cases. It also deals with tenderers who are similarly placed, meaning thereby, there is no classification with respect to the year of manufacture. In the case on hand, for 6000 litres capacity tanker lorries, there was only one L1, though for 9000 litres capacity tanker lorries, there were many.
10.Hence this Court is of the view that the petitioner in W.P.No.9754 of 2017 is liable to to succeed on two counts. Firstly, he is ready and willing to offer his two vehicles for the accepted rate. Secondly, his vehicles are of the year 2017. The learned Additional Advocate General would fairly submit that these two vehicles of the petitioner would be considered based upon the year of manufacture of the vehicles. The other question for consideration is with respect to the vehicles owned by the petitioners in W.P.Nos.13025 to 13030 of 2017. Unfortunately, in these cases, none of the petitioners could be compared with the other successful tenderers, though offering the same amount, in view of the year of manufacture being not the same. In other words, the vehicles owned by them are older in nature. Therefore, there is no point in considering their vehicles. Admittedly, there are other tenderers, whose tenders were accepted, are having vehicles, which are new. For 9000 litres capacity tanker lorries, none of the petitioners would come in the zone of consideration. Therefore, these two petitioners will have to be considered and given the contract by the respondents. The others as in the case of 6000 litres capacity tanker lorries do not come in the zone of consideration as the selected tenderers got their vehicles registered much later. What is required is 323 vehicles having 9000 litres capacity and sufficient vehicles having 2017 registration are available. Therefore, the vehicles of the petitioners in these writ petitions except two, which are manufactured in the year 2017, according to the petitioners, cannot be considered.
11.Accordingly, the writ petitioner in W.P.No.9754 of 2017 stands allowed by directing the respondents to confirm the tenders of the petitioner for the accepted rate. Since none of the petitioners in W.P.Nos.13025 to 13030 of 2017 would come in the zone of consideration and not having the vehicles registered in the year 2017 and 2016, the writ petitions in W.P.Nos.13025 to 13030 of 2017 are dismissed.
12.At this stage, learned counsel appearing for the petitioner in W.P.No.9754 of 2017 would submit that one more writ petition has been filed by Mr.C.Mohanraj, which is likely to come before this Court. It is submitted that this petitioner has got two vehicles of the manufacturing year 2017 insofar as 9000 litres capacity tanker lorries are concerned and one vehicle of the manufacturing year 2016 insofar as 6000 litres capacity tanker lorries are concerned. This Court does not want to pass any order in the writ petition filed by Mr.C.Mohanraj, as appropriate orders would be passed in the other writ petition. However, the ratio laid down in W.P.No.9754 of 2017 would be applicable to the said case also. Therefore, the respondents shall consider the case of the said Mohanraj by verifying the year of manufacture and apply the ratio laid down in the present writ petition (W.P.No.9754 of 2017) to his case as well.
13.With the abovesaid observation, the writ petition in W.P.No.9754 of 2017 stands allowed and the writ petitions in W.P.Nos.13025 to 13030 of 2017 stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
07.06.2017 Index:Yes/No mmi Note: Issue copy of the order on 09.06.2017 M.M.SUNDRESH,J mmi W.P. Nos.9754 and 13025 to 13030 of 2017 07.06.2017 http://www.judis.nic.in