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IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 02.12.2022 Pronounced on : 13.12.2022 CORAM:
THE HON'BLE MR. JUSTICE R.SURESH KUMAR W.P.Nos.5965 of 2020, 5970 of 2020, 31065 of 2019 and 31068 of 2019 and W.M.P.Nos.7001, 7004, 7010 and 7011 of 2020 and W.M.P.Nos.31179 and 31186 of 2019 W.P.No.5965 of 2020 RT ETI Environtech Private Limited Represented by its Authorised Signatory, Block C-118, Swagat Rain Forest 2, Opp. Swaminarayan Dham, Koba-Gandhinagar Highway, Kudasan, Gandhinagar, Gujarat. ... Petitioner Vs.
1. The Government of Tamil Nadu Highways and Minor Ports Department, Secretariat, Chennai - 600 009 Rep. by its Principal Secretary
2. The Superintending Engineer (H)
C&M, Coimbatore, Door No.1653, Highways Compound, Trichy Road, Coimbatore - 641 018.
3. The Divisional Engineer (H)
C&M, Udhagai, Udhagai.
4. Hariway Lines Pvt., Ltd., No.14/09, Flat No.102, Bahkthavatchalam Nagar, 4th Street, Adyar, Chennai - 600 020. ... Respondents Prayer : Writ Petition filed under Article 226 of Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to TRP No.59/2019/DO-1/Dt. 29.01.2020 for award of tender by the second respondent to the fourth respondent, for providing Safety Roller Barrier with Ethylene Vinyl Acetate (EVA) Rollers at Km 6/6, 7/10, 8/6, 8/10 of Thalaikundha Kallatty Theppakkadu Road (MDR 700) in pursuant to the Tender Notice No.11/2019-20/HDO/Dated 04.10.2019 for a value of Rs.87,16,788/- ("Tender-I") and quash the same and direct the Respondent No.2 to re-tender the contract for Providing Safety Roller Barrier with Ethylene Vinyl Acetate (EVA) Rollers at Km 6/6, 7/10, 8/6, 8/10 of Thalaikundha Kallatty Theppakkadu Road (MDR 700) in accordance with the Tamil Nadu Tender Transparency Act, 1998 and the Rules made thereunder in a fair and transparent manner after prescribing neutral technical specifications.
W.P.No.5970 of 2020 RT ETI Environtech Private Limited Represented by its Authorised Signatory, Block C-118, Swagat Rain Forest 2, Opp. Swaminarayan Dham, Koba-Gandhinagar Highway, Kudasan, Gandhinagar, Gujarat. ... Petitioner Vs.
1. The Government of Tamil Nadu Highways and Minor Ports Department, Secretariat, Chennai - 600 009 Rep. by its Principal Secretary
2. The Superintending Engineer (H)
C&M, Coimbatore, Door No.1653, Highways Compound, Trichy Road, Coimbatore - 641 018.
3. The Divisional Engineer (H)
C&M, Udhagai, Udhagai.
4. Hariway Lines Pvt., Ltd., No.14/09, Flat No.102, Bahkthavatchalam Nagar, 4th Street, Adyar, Chennai - 600 020. ... Respondents Prayer : Writ Petition filed under Article 226 of Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to TRP No.60/2019/DO-1/Dt. 29.01.2020 for award of tender by the second respondent to the fourth respondent, for providing Safety Roller Barrier with Ethylene Vinyl Acetate (EVA) Rollers at Km 9/10, 10/2, 10/10(i), (ii) of Thalaikundha Kallatty Theppakkadu Road (MDR 700) in pursuant to the Tender Notice No.12/2019-20/HDO/Dated 09.10.2019 for a value of Rs.87,16,788/- ("Tender-II") and quash the same and direct the Respondent No.2 to re-tender the contract for Providing Safety Roller Barrier with Ethylene Vinyl Acetate (EVA) Rollers at Km 9/10, 10/2, 10/10(i), (ii) of Thalaikundha Kallatty Theppakkadu Road (MDR 700) in accordance with the Tamil Nadu Tender Transparency Act, 1998 and the Rules made thereunder in a fair and transparent manner after prescribing neutral technical specifications.
W.P.No.31065 of 2019 RT ETI Environtech Private Limited Represented by its Authorised Signatory, Block C-118, Swagat Rain Forest 2, Opp. Swaminarayan Dham, Koba-Gandhinagar Highway, Kudasan, Gandhinagar, Gujarat. ... Petitioner Vs.
1. The Government of Tamil Nadu Highways and Minor Ports Department, Secretariat, Chennai - 600 009 Rep. by its Principal Secretary
2. The Superintending Engineer (H)
C&M, Coimbatore, Door No.1653, Highways Compound, Trichy Road, Coimbatore - 641 018.
3. The Divisional Engineer (H)
C&M, Udhagai, Udhagai. ... Respondents Prayer : Writ Petition filed under Article 226 of Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to Tender Notice No.11/2019-20/HDO/Dated 04.10.2019 issued by the second respondent and quash the same and direct the second respondent to re-tender the contract for providing Safety Rolling Barrier at Km 6/6, 7/10, 8/6, 8/10 of Thalaikundha Kallatty Theppakkadu Road (MDR 700) in accordance with the Tamil Nadu Tender Transparency Act, 1998 and the Rules made thereunder after prescribing neutral technical specifications or in the alternative only MASH TL-4 certification and Indian Road Congress accreditation based technical specifications.
W.P.No.31068 of 2019 RT ETI Environtech Private Limited Represented by its Authorised Signatory, Block C-118, Swagat Rain Forest 2, Opp. Swaminarayan Dham, Koba-Gandhinagar Highway, Kudasan, Gandhinagar, Gujarat. ... Petitioner Vs.
1. The Government of Tamil Nadu Highways and Minor Ports Department, Secretariat, Chennai - 600 009 Rep. by its Principal Secretary
2. The Superintending Engineer (H)
C&M, Coimbatore, Door No.1653, Highways Compound, Trichy Road, Coimbatore - 641 018.
3. The Divisional Engineer (H)
C&M, Udhagai, Udhagai. ... Respondents Prayer : Writ Petition filed under Article 226 of Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to Tender Notice No.12/2019-20/HDO/Dated 09.10.2019 issued by the second respondent and quash the same and direct the second respondent to re-tender the contract for providing Safety Rolling Barrier with Ethylene Vinyl Acetate (EVA) Rollers at Km 9/10, 10/2, 10/10 (i), (ii) of Thalaikundha Kallatty Theppakkadu Road (MDR 700) in accordance with the Tamil Nadu Transparency Act, 1998 and the Rules made thereunder after prescribing neutral technical specifications or in the alternative only MASH TL-4 certification and Indian Road Congress accreditation based technical specifications.
For Petitioners : Mr.Sathish Parasaran, Senior counsel for Mr.Karthik Sundaram in all the writ petitions For Respondents : Mr.J.Ravindran Additional Advocate General assisted by Mr.B.Vijay, AGP for R1 to R3 in all the writ petitions Mr.A.L.Somayaji, Senior counsel for Mr.V.Perumal for R4 in W.P.Nos.5965 and 5970 of 2020
COMMON ORDER
Since the issue raised in all these writ petitions is one and the same or inter related, with the consent of the learned counsel appearing for the parties, these writ petitions were heard together and were disposed of by this common order.
2. The petitioner company according to them is engaged inter alia in the business of manufacturing and supplying of several state of the art road safety equipments, such as vehicle protection fence and the Roller Barrier System, which is otherwise called as Safety Roller Barrier in short “SRB”.
3. These devices are patented by ETI Ltd., Korea and the petitioner claims that, he has got exclusive right to sell at market the same in India. The petitioner's SRB is internationally certified and accredited with the international standards.
4. The SRB has been recently introduced in India in order to increase the road safety of Highways. The petitioner is one of the very few companies in India that has the requisite intellectual property to manufacture these SRBs based on International technical know how. The petitioner also has obtained MASH TL-4 certification, i.e., internationally recognised certification with regard to the standard of SRBs that has been granted after testing of the SRBs of the petitioner.
5. While that being so, in the year 2019, by tender notification, dated
04.10.2019, the second respondent, i.e., the Superintending Engineer C&M, Coimbatore had invited tenders from the eligible persons for providing SRBs at km 6/6, 7/10, 8/6, 8/10 of Thalaikundha Kallatty Theppakkadu Road (MDR 700).
6. Like that on 09.10.2019, another tender notification was issued by the said second respondent inviting tenders for the very same SRBs at km 9/10, 10/2, 10/10 (i), (ii) of Thalaikundha Kallatty Theppakkadu Road (MDR 700).
7. In fact these two tender notifications were under challenge in W.P.Nos.31065 and 31068 of 2019.
8. When those writ petitions were pending before this Court, according to the petitioner, the second respondent permitted the fourth respondent in W.P.Nos.5965 and 5970 of 2020 to install the SRBs at the contract site without even awarding the contract and therefore, which was complained by the petitioner before this Court at the said pending writ petitions, only thereafter the second respondent had come forward to award the contract to the fourth respondent in respect of the two said tenders. 9. In respect of the first tender, the contract was awarded in TRP No.59/2001/DO-1/ dated 21.09.2020 for supply of SRBs at km 6/6, 7/10, 8/6, 8/10 at Thalaikundha Kallatty Theppakkadu Road (MRD 700). In respect of the second tender, contract was awarded to the fourth respondent in TRP No.60/2019/DO-1/dated 29.01.2020 for supply of SRBs at km 9/10, 10/2, 10/10 (i), (ii) of Thalaikundha Kallatty Theppakkadu Road (MRD 700). These two award of contracts are under challenge respectively in W.P.Nos.5965 and 5970 of 2020. That is how these four writ petitions were filed before this Court at different point of time and all these writ petitions were taken up for hearing and being decided by this Court in this order.
10. It is the case of the petitioner that, the impugned tenders in question relate to Safety Roller Barriers, i.e., SRB. The Safety Roller Barriers as well as its function is germane to the present writ petitions. The SRBs are longitudinal barriers designed to contain, redirect and yield vehicles from road side barriers. When during the course of movement, the vehicle hits the roller barrier, the roller barrier absorb the shock of the impact and by the rolling movement of the rollers, the vehicle is redirected towards the driving lane. The vehicle when makes impact to the rollers, the rollers convert the impact energy to rotational energy simultaneously and hence prevents heavy loss to the vehicle and ultimately prevents fatality in the accidents, thereby saving the lives.
11. It is the further case of the petitioner that, the SRBs are important safety features in highways as it can mi
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