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2009 Supreme(Mad) 4851
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. JAICHANDREN
G. Murugan & Others
Versus
The Government of Tamil Nadu rep. by its Secretary Highways Department, Chennai & Others
W.P.(MD) No.11502 of 2009 ,W.P.(MD) Nos. 11503, 11504, 11505, 11506, 11507 and 11508 of 2009 & W.P.(MD) No.10992 of 2009
Decided On : 13-11-2009
For the Petitioners:Isaac Mohanlal, for S. Bharathy Kannan, Advocates.
For the Respondents:R1 to R3, V. Chellammal, the Additional Advocate General, for S.C. Herold Singh the learned Government Advocate.
The court emphasized the principle that courts should not interfere with tender terms unless there is clear evidence of arbitrariness, discrimination, or mala fides. It also highlighted the need for sufficient cause to grant reliefs sought in writ petitions.
Headnote:
Ownership - Tender Qualification - Memo No.22050/Salai.2/99, dated 20.5.1999, and Memo No.22050/Salai.2/99, dated 6. 1999 - The court discussed the legality of the pre-qualification of ownership of the Central Mixing Plant and Paver Finisher as a condition for participating in the tender. It highlighted the distinction between ownership and possession of the machineries and cited relevant guidelines and conditions from previous memos. The court also considered the National Highways Authority of India's qualification requirements and the principles of judicial review in contractual matters.
Fact of the Case:
The petitioners challenged the pre-qualification introduced by the third respondent in the tender notification, requiring contractors to own the Central Mixing Plant and Paver Finisher. They argued that the condition was arbitrary, illegal, and aimed at favoring a few individuals. The respondents defended the pre-qualification, citing difficulties in previous contract works and the need to ensure prompt execution of the work.
Finding of the Court:
The court found that the petitioners failed to show sufficient cause to grant the reliefs sought in the writ petitions. It held that the pre-qualification was not arbitrary, illegal, or impossible to perform. The court dismissed the writ petitions, stating that it is not appropriate to interfere with the terms and conditions of the tender schedules unless there is clear evidence of arbitrariness, illegality, or mala fide intent.
Issues: The main issue was the validity of the pre-qualification of ownership of the Central Mixing Plant and Paver Finisher as a condition for participating in the tender. Another issue was the maintainability of the writ petition filed by the petitioner Association.
Ratio Decidendi: The court's decision was based on the lack of evidence to support the petitioners' claims of arbitrariness, illegality, or mala fide intent in the pre-qualification. It also emphasized the settled law that courts should not interfere with tender terms unless there is clear evidence of arbitrariness, discrimination, or mala fides.
Final Decision: The court dismissed the writ petitions, stating that the petitioners failed to show sufficient cause to grant the reliefs sought. It also held that the petitioners had no vested right to claim participation in the tender if they did not meet the pre-qualification requirements. The court found the pre-qualification to be valid and not arbitrary, illegal, or impossible to perform.
Heard Mr.Isaac Mohanlal, the learned counsel for Ms.S.Bharathy Kannan, the learned counsel appearing for the petitioner and Ms.V.Chellammal, the Additional Advocate General for Mr.S.C.Herold Singh, the learned Government Advocate, appearing on behalf of the respondents 1 to 3. No appearance on behalf of the fourth respondent.
2. Since the issues arising in the writ petitions are common and the reliefs sought for therein are of a similar nature, a common order is passed in the above writ petitions.
.3. The petitioners in the writ petitions, in W.P.(MD) Nos.11502 to 11508 of 2009, have also raised similar issue as in W.P.(MD) No.10992 of 2009. They had also prayed for quashing of the pre-qualification introduced by the third respondent in the tender notification No.13/2009-2010/D1, dated 10. 2009, published in the official website of the third respondent, on 210. 2009, prescribing ownership of Central Hot Mixing plant (CMP) and Paver Finisher, for a contractor to be eligible to participate in the tender for the contract works for improvement of the specified roads.
4. The writ petition in W.P.(MD) No.10992 of 2009, has been filed by the Kanyakumari District PWD and Highways Contractors Association, which is said to be a registered society, with registration No.3/1996. The petitioner Association had filed the present writ petition praying for a writ of Certiorarified Mandamus calling for the records relating to the tender notification No.13/2009-2010/D1, dated 10. 2009, published in the official website of the third respondent, dated 210. 2009, insofar as it prescribes ownership of Central Mixing Plant (CMP) and Paver Finisher, as a pre-qualification for participation in the tender, quash the same and consequently, to direct the respondents 1 to 4 to permit the members of the petitioner Association to participate in the tender scheduled, on 30.10.2009, at the office of the third respondent.
5. It has been stated that the writ petition has been filed on behalf of the members of the petitioner Association, whose names are found in the list of the members filed in the typed set of papers, along with the writ petition. It has been stated that the members of the petitioner Association are registered class I contractors of the Highways Department. As such, they are eligible to obtain work contracts, through tender, within the State of Tamil Nadu, for the works having the value of over Rs.75,00,000. The Superintending Engineer Highways, Tirunelveli, the third respondent in the writ petitions, is the authority for the registration of class IV and class I contractors and the Divisional Engineer is the authority for the registration of class Versus contractors. In the District of Kanyakumari, there are nearly 70 class I contractors and 27 of them are members of the petitioner Association.
.6. It has been further stated that all the members of the petitioner Association had been participating in the various tenders of the Highways Department and had obtained many contract works throughout the State of Tamil Nadu and that they have been performing the works allotted to them to the utmost satisfaction of the authorities concerned and the public at large. While so, the third respondent had issued a tender notification No.13/2009-2010/D1, on 10. 2009, calling for the tender schedules for the work of improvement of roads, 17 in number. The tender value for the improvement of Aralvoimozhi - Nedumangadu Road had been fixed at Rs.1,56,00,000/-. The last date for the submission of the tender schedules was fixed as 30.10.2009. The members of the petitioner Association are aggrieved by the fact that the third respondent had imposed a new condition as a pre-qualification stating that the contractors should own Central Mixing Plant and Paver Finisher and that they would be qualified to participate in the tender only on production of sufficient documentary evidence of such ownership of the machineries.
7. The petitioner had stated that
