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2011 Supreme(Mad) 1772
2011 (3) CTC 35, 2011 (2) LW 703
High Court of Judicature at Madras
V. DHANAPALAN
M/s. Green Earth, rep. by its Proprietor V. Ravi Purushothaman
Versus
The Director of Research and Chairman, Coimbatore & Another
W.P.No.967 of 2011
Decided on : 29-03-2011
For the Petitioner:R. Gandhi, Senior Counsel for GMS Law Associates. For the Respondents:N. Jothi, Advocate.
Headnote:A. TAMILNADU TRANSPARECY IN TENDERS ACT, 1988 - SECTIONS 10(1), 12 & 17 - Writ Petition for direction to place supply order as per tender Original demo Machine supplied by petitioner was purely a portable machine having SSI certification - Contract awarded having been satisfied with the same - Pursuant to contract petitioner invested huge amounts for processing engines etc. exporting supply order to be issued per contract - R1 unilaterally issued impugned order canceling tender on ground of not offering machines to specifications given in tender and issued re tender notification on same HELD, act of respondent was illegal or arbitrary (Para 17) - Impugned order set aside - It is a settled legal position that when contract is of 2 parts, technical bid and price bid, if technical bid is evaluated and accepted and after price negotiation in agreement entered into, it is not for Authority concerned to create some reason or other indicating about existence of problem of specification - HELD, perusal of tender documents and other materials would not give any documentary proof for such a specification, when petitioner tenderer is qualified for the machineries with accessories.
(Para 11)
B. REVIEW OF ADMINISTRATIVE DECISION IN W.P. - Courts powers - It is true that power of High Court is confirmed to question of legality or otherwise and court does not have expertise to correct administrative decision and if a review of administrative decision is permitted, it would be substituting its own decision without necessary expertise which itself may be fallible - Decision must not only be decided by application of Wednesbury’s principle of reason ableness but, must be free from arbitrariness and not affected by bias or actuated by mala-fide.
(Para 13)
Result: Writ Petition allowed with directions.
1. This Writ Petition has been filed praying for issuance of a writ of certiorarified mandamus, to call for the records relating to the proceedings of the first respondent in No.DR.VI/CSRC-RMD/NADP/Mini Portable Sprinkler/Cancellation of Tender/2010, dated 31.12.2010 and the consequential re-tender notification dated 31.12.2010 published in Thina Mani dated 02.01.2011 and consequently direct the respondents to place supply orders to the petitioner for the supply of 100 numbers of mini portable sprinkler irrigation system pursuant to the approval of contract by the second respondent in ASP&H/CSRC/KVK/RMD/NADP/Mini Portable Sprinkler/Performance Security-Contract Agreement/2010, dated 19.10.2010 and the contract agreement executed on 10.12.2010 between the petitioner and the second respondent.
2. According to the petitioner, the company was established in the year 1996 involved in manufacture and sale of manual operated traveling sprinkler otherwise known as Mini Mobiles Sprinkler which will be otherwise called Portable Traveling Sprinkler Irrigation System. The said product is the new innovation and has become popular among farmers particularly in Tamil Nadu Agricultural University, Coimbatore. The first respondent has called for sealed tenders for supply of 100 Mini Portable Sprinklers with accessories under two cover system (technical and price). Last date and time for receipt of bids was scheduled to be held on 16.08.2010 at 03.00 p.m. The date and time for opening of technical bid was scheduled to be held on 16.08.2010 at 03.30 p.m. at the office of the first respondent. The price bid was opened on 18.08.2010 and the first respondent by letter dated 02.09.2010 requested the petitioner to appear before the Technical Committee for price bid negotiation on 06.09.2010. Pursuant to the satisfaction of technical bid and price, the second respondent vide letter dated 19.10.2010 awarded the tender to the petitioner and a contract of agreement has been entered into between the petitioner and the second respondent to that effect on 10.11.2010. That being so, the first respondent has issued the impugned order 31.12.2010, canceling the tender awarded in favour of the petitioner and causing publication of the re-tender notification, dated 31.12.2010, which is not sustainable in law.
3. Respondents have filed a counter stating that the duty of the respondents is to supply standard equipments to meet the purpose for which the sprinkler is intended to be used by the farmers and hence the responsibility of the respondents is to identify the correct and quality product. Inasmuch as the petitioner was not ready to supply the machines as per the specifications, the respondents were forced to cancel the tender in public interest. Since the respondents have followed the procedure as per the norms prescribed in the tender conditions, there is no deviation on their part to issue fresh tender notification. The writ petitioner cannot fetter the respondents with his inferior quality of machines, which do not meet the specifications. Hence, the writ petition is liable to be dismissed.
4. Learned Senior Counsel for the petitioner would contend that in the absence of a specific supply order the petitioner is not able to effect supply; the petitioner has invested huge amount for purchasing the engines and for importing the accessories from Hong Kong based on the contract and therefore the action of the respondents in canceling the tender is highly arbitrary and totally unfair coupled with non-application of mind. In support of his contentions, the learned Senior Counel has relied upon the following decisions:
(i) LIC of India v. Consumer Education & Research Centre, (1995) 5 SCC 482:
"27. In the sphere of contractual relations the State, its instrumentality, public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objecti
