O R D E R

Heard Mr. P.Vijendran, Learned Counsel for the Petitioner,

Mr. K.Karthikeyan, Learned Government Advocate appearing for the First and Second Respondents and Mr. R.Bharanidharan, Learned Counsel for the Third Respondent and perused the materials placed on record, apart from the pleadings of the parties.

2. The Third Respondent had published e-tender notice No. 1 of 2023 dated 16.09.2023 inviting e-tender from eligible registered contractors in Tamil Nadu Government Departments and Undertakings for construction of mini marriage hall in Arulmighu Mullachi Mariyamman Temple in Thiruthuraipoondi Taluk of Tiruvarur District, which contain the terms and conditions including the form of agreement to be executed by the successful bidder. Subsequently, a special condition was added by the Third Respondent to the terms and conditions of the tender, which reads as follows:-

The Tenderer before offering their rates, should visit the site of work before Tendering. The Tenderer should also obtain and produce a certificate from the concerned that the Tenderer has visited the site personally and upload the same along with the Tender Document.

The Petitioner had participated in the said e-tender, but it was rejected for his failure to produce the requisite site visit certificate. In that backdrop, the present Writ Petition has been filed for declaring that the aforesaid special condition incorporated in the e-tender is void and illegal.

3. The pivotal attack on the impugned condition is that its inclusion would breed corruption by enabling the authorities to extract illegal gratification from prospective participants in the process of obtaining the requisite site visit certificate. It is alleged that such requirement, which has been brought in for the first time after publication of the notification for e-tender and does not exist in the tenders of other departments of the State Government, is impermissible in law. That apart, it is pleaded that the failure to publish the terms and conditions of the tender including the aforesaid special condition in the Tamil Nadu Government Gazette is vitiated as it does not satisfy the mandate in Section

22(2)(a) of the Tamil Nadu Tender Transparency Act, 1998.

4. At this juncture, it would be useful to extract the principles laid down in the following decisions of the Hon'ble Supreme Court of India relating to the scope and extent of judicial interference by the Constitutional Courts in contractual matters of the State:-

(i) Jagdish Mandal -vs- State of Orissa [(2007) 14 SCC 517]:-

22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works fo