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2004 Supreme(Mad) 1685
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE A. KULASEKARAN
Guru Dev Enterprises - Appellant
Versus
The Chairman, Tamil Nadu Electricity Board & Others - Respondents
W.P. No. 34312 of 2004 and W.M.P. No. 41444 of 2004
Decided On : 15 December 2004
Acquiescence disentitles a party from seeking relief if they participate in a process without objection and later challenge the jurisdiction.
Headnote:
Tender - Jurisdiction - Tamil Nadu Electricity Supply Act LIV of 1948 - The Tamil Nadu Electricity Board Tender Regulations, 1991 - B.P. (FB) 273 Technical Branch dated 22-11-1996 - Article 299 of the Constitution of India - Section 175 (3) of the Government of India Act, 1925 - Tender Transparancy Act - Section 79 (g) of the Electricity Supply Act 1998 - Article 14 of the Constitution of India
Fact of the Case:
The petitioner challenged the jurisdiction of the auction held by the second respondent for the sale of ferrous and non-ferrous materials, citing lack of authority and abuse of power.
Finding of the Court:
The Court found that the second respondent was authorized to handle the tender process and that the petitioner's participation in the tender process without objection amounted to acquiescence, disentitling him from relief.
Issues: Jurisdiction of the second respondent to conduct the auction, validity of the tender process, and the petitioner's right to challenge the jurisdiction after participating in the tender.
Ratio Decidendi: The Court held that the second respondent had the authority to handle the tender process, and the petitioner's participation without objection amounted to acquiescence, disentitling him from relief.
Final Decision: The writ petition was dismissed as devoid of merits, and no costs were awarded.
The petitioner has come forward with this writ petition praying for a Writ of Declaration to declare that the auction held on 05-11-2004 by the second respondent, in respect to the sale of ferrous and non-ferrous materials, is without jurisdiction and null and void.
2. The second respondent herein invited tenders from eligible persons for purchase of ferrous and non-ferrous scrap and other materials; that the petitioner herein has submitted his tender by quoting a sum of Rs.35,84,000/- and the tenders were opened on 05-11-2004 at 2.00 p.m. by the second respondent. According to the petitioner, subsequent to the opening of the tender and awarding of the contract, he came to know that the second respondent herein is not competent to call for the tenders as the first respondent herein has authorised only the Chief Engineers of the respective division under B.P. (FB) 273 Technical Branch dated 22-11-1996 and that the second respondent is not empowered to invite tenders in respect of scrap items and prayed to declare that the auction conducted on 05-11-2004 by the second respondent is without jurisdiction and null and void.
3. Mr. Subbiah, learned counsel for the petitioner submits that the powers to deal with the sale of the damaged articles under the provisions of the Tamil Nadu Electricity Supply Act LIV of 1948 are available to the Board, under the various Regulations called The Tamil Nadu Electricity Board Tender Regulations, 1991, but when under the said power, the powers delegated to the Superintending Engineer had been discontinued and entrusted with the Chief Engineers, the second respondent has no power or jurisdiction to call for any tenders or to deal with any articles; that the first respondent by proceedings dated 22-11-1998 had conferred the powers only upon the Chief Engineers and that the second respondent ought not to have been allowed by the first respondent to deal with those specified and notified articles; that the second respondent had abused his powers as Superintending Engineer and he has no power to bring in the sale of the notified items and prayed to declare that the auction conducted by the second respondent on 05-11-2004 in respect of ferrous and non-ferrous materials as void.
4. Per contra, Mr. Vasudevan, learned counsel appearing for the respondents 1 and 2 submits that auction notification was issued only by the Chief Engineer and that he had authorised the second respondent to receive and open the tenders, however, he alone is empowered to finalise the tenders and he has done so; that under the permanent B.P. (FB) 273 Technical Branch dated 22-11-1996 the Chief Engineer is delegated with the powers in respect of 12 items including copper; that the Chief Engineer only had directed the Superintending Engineer to open the tender and accordingly it was opened and a report was forwarded to the Chief Engineer; that the petitioner has participated in the tender and that his offer was not accepted, hence he has filed this vexatious writ petition; that the petitioner is not entitled to any remedy to stall the tender process as per the provisions of Tender Transparancy Act; that the Electricity Board exercised its powers conferred under Section 79 (g) of the Electricity Supply Act 1998 in inviting tenders and prayed for dismissal of the writ petition.
5. The word 'tender' imports not merely the readiness and the ability to pay or perform, at the time and place mentioned in the contract, but also the actual production of thing to be paid or delivered over. A mere offer to pay does not constitute a valid tender. The Law requires that the tenderer has the money present and ready to produce the actual offer to the other party. Tenderer means one who tenders his offer.
6. In this case, tender notice was invited by effecting publication in newspaper. The tender notice means only calling for quotations and for other details from the tenderers to help in the selection of tenderer or tenderers to do the work.
