GIMPLEX LTD Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE petitioner submitted tender for setting up joint ventures with the 2nd respondent for- (a) manufacture and marketing of high quality Quarts Powder/Fused Quarts; (b) Garnet Mining and Beneficiation; by way of separate sealed covers on 24.8.1998 along with banker's cheque for Rs. 1,00,000 towards EMD for the 'Quarts project' bid. THE petitioner submitted the said bid pursuant to the Notification issued by the 2nd respondent in the newspaper dated 20.7.1998. According to the petitioner there were two participants for the 'Quarts project", namely the petitioner and the 3rd respondent. Even with respect to the Garnet Project, the petitioner and Transworld Garnet India Pvt. Ltd., were the participants. According to the tender conditions, the tender documents for both the project will be opened by the 2nd respondent on 24.8.1998 at 4.00 p.m. before the representatives of the tenderers who will be present at that time. It is the case of the petitioner that the representatives of the tenderers were informed that the date and time of opening of the commercial bid for both the projects would be informed at a later date. On 14.9.1998 when the petitioner had gone to the 2nd respondent office to attend the commercial bids opening of the 'grant Project Tender', pursuant to a telephonic intimation received from the 2nd respondent, the petitioner was informed by the Assistant General Manager (Project) of the 2nd respondent that by mistake the commercial bids of 'Quarts Project' had been opened without informing the petitioner and the 3rd respondent. THE petitioner and the 3rd respondent were asked to come to the 2nd respondent's office the next day, i.e. on 15.9.1998 when the price bids as quoted in pro-forma in of the tender document were read out to them and signatures were obtained. THEreafter on 26.3.1999 the petitioner was informed that the 2nd respondent proposed to refund the EMD paid towards Quartz Project, by the petitioner. A letter dated 29.3.1999 to the 2nd respondent asking about the fate of the tender filed by the petitioner was sent. Again on 2.4.1999 the 2nd respondent sent a cheque for a sum of Rs. 1,00,000 towards refund of EMD amount paid by the petitioner. On seeing the newspaper report on 21.4 1999, the petitioner approached this Court by filing the writ petition in W.P. No. 11170 of 1999, seeking to issue a writ of mandamus, forbearing the 2nd respondent from entering into any agreement or arrangement with the 3rd respondent pursuant to tender No.15836/PCC-4/96-1 dated 20.7.1998 for manufacture of high quality Quartz Power/fused Quartz or taking any further steps pursuant to any agreement between 2nd and 3rd respondents.

(2.) THE petitioner also filed another writ petition in W.P. No. 1 1171 of 1999 seeking to issue a writ of mandamus, directing the 2nd respondent to award to the petitioner the contract for Joint Venture for manufacture and marketing of high quality Quarts Powder/Fused Quarts pursuant to the tender dated 20.7.1998. While ordering notice of motion dated 30.6.1999, the learned Judge directed to maintain status-quo.

(3.) AS stated already, it is not in dispute that the financial bids with reference to Quarts Project were opened without any information to the petitioner and the 3rd respondent. It is not the case of the petitioner that the 2nd respondent informed about the same to the 3rd respondent. It is also not the case of the petitioner that by opening the financial bid without informing the petitioner, there was tampering or manipulating of the documents. The learned counsel for the petitioner has submitted that if such an attitude of the 2nd respondent is accepted, then there is a possibility of such manipulation or tampering of tender documents. Though I am able to accept such a submission, in these cases, no material is available before this Court or there is no suggestion by the petitioner that such act of the 2nd respondent in not informing the petitioner resulted in tampering or manipulation of records. The only submission of the learned counsel is that since it is an open bid, the bid has to be opened in the presence of the parties, which has not been done so, and therefore the entire proceedings endured with the acceptance of the bid of the 3rd respondent are vitiated. According to the learned counsel, the 2nd respondent being a corporation owned by the Government, it should follow openness transparency and fair dealing with the acceptance of tenders. According to him, in these case, there is no transparency by not opening the financial bids in the presence of the parties and so it is unfair on the part of the 2nd respondent, which vitiates entire action of the 2nd respondent. In support of his submission, the learned counsel has relied on the decision in Dutta ASsociates Pvt., Ltd., v. Indo Merchantiles Pvt. Ltd., 1997 (1) SCC 53, in which it is held as follows:- It is thus clear that the entire procedure followed by the Commissioner and the Government of ASsam in accepting the tender of Dutta ASsociates (appellant herein) is unfair and opposed to the norms which the Government should follow in such matters, viz., openness, transparency and fair dealing. The grounds 1 and 2, which we have indicated hereinabove, are more fundamental than the third ground upon which the High Court has allowed the writ appeal". Though in principle I accept the submission of the learned counsel, in these cases, in view of the facts established, such an act of the 2nd respondent in not informing the parties before opening the financial bid would not vitiate the proceedings, in accepting the tender in favour of the 3rd respondent. AS stated already, it is not the case of the petitioner that by opening the bids behind the back of the petitioner, the tender documents have been tampered or manipulated. It is also established that the 3rd respondent also was not given any notice. Merely on the basis of assumption that there is a possibility of tampering with the tender documents, this Court cannot decide the issue. Courts have recognised the administrator's right to trial and error, as long as the same are bona fide and within the limits of authority. In G.B. Mahajan v. Jalgaum Municipal Council, 1991 (3) SCC 91, the Apex Court has taken the said view, which is as follows:-