Madras High Court
Dr.Ambedkar Tahdco Contractors ... vs The Principal Secretary To Govt on 10 February, 2015
Author: T.S. Sivagnanam
Bench: T.S. Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.02.2015
Date of Reserving the Order
Date of Pronouncing the Order
23.01.2015
10.02.2015
Coram
The Hon'ble Mr. Justice T.S. SIVAGNANAM
W.P. No. 33239 of 2014 &
M.P.No.1 of 2014 & M.P.No.1 of 2015
Dr.Ambedkar TAHDCO Contractors Association,
(Regn No.59/2014),
Rep., by its Secretary,
R.Parthiban,
S/o.Ramalingam
No.29/B, Tiruchy Main Road,
Villupuram 605 602 ... Petitioner
Vs
1.The Principal Secretary to Govt.,
Adi-Dravidar and Tribal Welfare Dept.,
Fort St., George, Chennai 9.
2.The Chairman,
Tamil Nadu Adi Dravidar Housing and
Development Corporation (TAHDCO)
No.31, Senatoff Road,
2nd Line, Tenampet, Chennai 18.
3.The Director,
Adi Dravidar Welfare,
Chepauk, Chennai 5.
4.The Director,
Tribal Welfare,
Chepauk, Chennai 5.
5.The Managing Director,
Tamil Nadu Adi Dravidar Housing and
Development Corporation (TAHDCO),
No.31, Senatoff Road,
2nd Line, Tenampet, Chennai -18.
6.The General Manager (Tech).
Tamil Nadu Adi Dravidar Housing and
Development Corporation (TAHDCO),
No.31, Senatoff Road,
2nd Line, Tenampet, Chennai -18. ... Respondents
Prayer :-Petition filed under Article 226 of the Constitution of India praying to issue Writ of Mandamus to forbear the respondents from executing the construction of any hostel and residential school works as mentioned in the representation of the petitioner dated 04.12.2014, without floating the tender as per the provisions of the Tamil Nadu Transparency in Tenders Act, 1998 and Rules.
For petitioner .. Mr.S.Doraisamy
For Respondent .. Mr.R.Vijayakumar AGP forf RR1,3&4
Mr.S.Selva Thirumurugan for
Mr.N.Syed Jamal for RR2,5&6
O R D E R
The petitioner claims itself to be an association registered under the provisions of the Tamil Nadu Societies Registration Act with Registration No.59 of 2014, dated 02.06.2014 said to consist of members who are registered contractors under the Tamil Nadu Adi-Dravidar Housing and Development Corporation (TAHDCO).
2. The petitioner would state that the Government of Tamil Nadu vide G.O.Ms.No.2116, dated 03.11.1989, provided funds for construction of houses for people belonging to Schedule Caste and Schedule Tribes. By a subsequent Government Order in G.O.Ms.No.132, dated 15.07.1997, the Government directed to entrust the construction work of TAHDCO to contractors belonging to Schedule Caste/Schedule Tribes communities. By the said Government Order, the award of contract was by open tender system. The said Government Order in G.O.Ms.No.132, was challenged in W.P.No.15483 of 1997, and an order of interim stay was granted. Subsequently, the interim stay was vacated on 23.02.1998. After the Tamil Nadu Transparency in Tenders Act, 1998, (Act) came into force with effect from 21.12.1998, once again there was a challenge to G.O.Ms.No.132, by way of a Writ Petition in W.P.No.4084 of 2001. The said Writ Petition was dismissed by order dated 15.09.2010. The petitioner would contend that all the construction works done by TAHDCO have to be executed by calling for open tender except in respect of emergency work. In this regard, reference has been made to Section 3 of the Act, which states that no procurement shall be made except by tender and procurement as defined under Section 2(d) includes construction. The cause of action for filing this Writ Petition is on account of a decision taken by TAHDCO to effect certain construction/repair works in four divisions which are all hostels meant for students. The petitioner Association would state that the works cannot be carried out by TAHDCO without inviting tenders is illegal.
3. Mr.S.Duraisamy, learned counsel appearing of the petitioner after referring to the above factual details submitted that Section 16 of the Act, deals with cases where the provisions of Sections 9 & 10 of the Act shall not apply to procurement and for which there should be a declaration made by the Government in that regard and it does not cover other cases falling under Section 3 of the Act. By placing reliance on the Government Order in G.O.Ms.No.222, Public Works Department, dated 08.04.1999, it is submitted that even in case of emergency work, the same has to be entrusted to the nominated contractors in the registered list with due regard to their background, experience, competence and reliability to execute the work satisfactorily in quick time and the financial limit upto which the Divisional Engineer/Superintending Engineer/Chief Engineer may sanction such emergent works may be strictly limited to one fourth of the respective normal financial limits. Further, the learned counsel referred to the decision of the Hon'ble First Bench of this Court in the case of Selvarani.S. vs. The Commissioner Karaikudi Municipality reported in 2005 (1) CTC 81 (DB), and submitted that the Hon'ble Division Bench held that the award of Government contract through public auction/public tender is the Rule and award of such contracts through private negotiation under certain contingencies mentioned, must be frowned upon, as it will give rise to speculation in the minds of the general public of corrupt practises in collusion with the authorities concerned. Therefore, it is submitted that the works proposed to be done by TAHDCO has to be necessarily executed only after calling for tenders.
4. Mr.S.Selvathirumurugan, learned counsel for Mr.N.Syed Jamal, learned counsel appearing for the sixth respondent, TAHDCO raised a preliminary objection with regard to the locus standi of the petitioner Association to file the Writ Petition by stating that the registration certificate filed in the typed set of papers along with the Writ Petition shows that the name of the association as Dr.Ambedkar TAHDCO Contractors Welfare Society and the petitioner is a bogus association and fraudulently the writ petition has been filed showing the registration number of the Welfare Society. Therefore, it is submitted that the petitioner is not entitled to any relief as sought for on the ground of fraud. Further, it is submitted that in order to verify the correctness of the list of members, the TAHDCO addressed the District Registrar, Villupuram and obtained a list of members of the welfare society, which revealed that several person names were not found and therefore, the list furnished along with the Writ Petition is a bogus list and fraudulent act of the petitioner. It is further submitted that after the validity of G.O.Ms.No.132, was upheld by this Court, another order in G.O.Ms.No.81, dated 10.09.2011, was passed wherein the first tender will be called only from the contractors belonging to SC/ST and if no tender is received, the second tender will be an open tender permitting all registered contractors to participate. The said Government Order was challenged by the Association by filing W.P.No.14544 of 2014, and the same was dismissed by order dated 04.06.2014. It is further submitted that all the four works mentioned by the petitioner have been undertaken by TAHDCO considering the urgency and the Engineering wing of TAHDCO has passed appropriate orders for effecting the works due to emergency. In paragraphs 21 to 24, the nature of the work done by TAHDCO has been stated and the reason why the works are to be completed urgently have also been set out. It is submitted that in respect of the work in Coimbatore Division when tenders were called for one R.Karthikeyan filed a Writ Petition before this Court in W.P.No.7658 of 2014, and obtained stay of the tender and after detailed counter affidavit was filed, the Writ Petition was withdrawn seeking liberty to file appeal to the Government. Once again two writ Petitions were filed in W.P.No.19804 of 2014 and 19805 of 2014 and the Writ Petitions were disposed of, directing the Government to consider the appeal and the Government rejected the appeal. Due to the frivolous litigation by Mr.R.Karthikeyan, the work could not be commenced for one year and the female students were put to great threat, as there was no adequate safety in the hostel complex, since there was no compound wall. Therefore, the work has to be completed urgently and TAHDCO has commenced the construction activities in all the four divisions by themselves and the work is proceeding in a war footing. Further, it is submitted that a complaint has been received against the deponent who has signed the writ affidavit stating that he and other contractors have formed a syndicate and are threatening the other contractors.
5. Along with the petition to vacate the interim order, the General Manager TAHDCO has filed an affidavit justifying the action of the TAHDCO in commencing the work by themselves. Further, it is submitted that there has been inordinate delay in completion of the works by the contractors and the names of those contractors and period of delay has been set out in paragraphs 31 to 40 of the affidavit stating that the deponent to writ affidavit himself is a contractor who has delayed the completion of works in seven out of the nine contracts awarded to him. Further, it is submitted that the provisions of the Tender Transparency Act would stand attracted only in circumstances when the TAHDCO decides to invite tenders and not otherwise. In support of his contentions, the learned counsel relied upon the decision of the Hon'ble Supreme Court in Jai Narain vs. Union of India, reported in (1996) 1 SCC 9 and the decision in the case of Sterling Computer Limited vs. M&N Publications Ltd., reported in (1993) 1 SCC 445.
6. The learned counsel appearing for the petitioner by referring to the reply affidavit filed by the Writ Petitioner submitted that the omission of the word 'welfare' in the cause title is a typographical error and the petitioner is the registered association and earlier in W.P.No.14544 of 2014, the cause title was similar to that of this Writ Petition and the respondent did not raise any objection. Further,it is submitted that non-renewal of the registration with the respondent Corporation cannot take away of the right of individual person to be a member in the association. It is further submitted that G.O.Ms.No.81, does not authorize TAHDCO to execute works without inviting tenders. It is further submitted that some contractors might have delayed a few works due to technical reasons or economic issues. However by and large all works executed by contractors belonging to SC/ST community were done within time and the defaulting contractors are the persons belonging to a different community. Further, it is submitted that there is no urgency as projected by the respondent and in respect of the hostel in Coimbatore, though the construction has been completed about one year back, the new building for boys hostel has not been opened till date.
7. Heard the learned counsels appearing for the parties and perused the materials placed on record.
8. The Government vide G.O.Ms.No.81, dated 10.09.2011, evolved a scheme to be followed by TAHDCO, while inviting tenders, which provides for a two tender process, the first tender being open only to contractors belonging to SC/ST community and if there are no tenderers then the second tender is called for which is open for all registered contractors. The validity of G.O.Ms.No.81, is said to have been upheld by this Court. The grievance of the petitioner is that the respondent, TAHDCO has commenced four works in four regions in the State without inviting tenders.
9. The question that arises for consideration is whether the respondent Corporation are entitled to execute works by themselves or under a compulsory obligation to call for tenders.
10. The reason pleaded by the respondent is that the works now commenced by them are urgent and have to be completed in a war footting. The four works are a Girls Hostel in Chennai Division; Model Residential School in Salem Division; Hostel in Coimbatore Division; and Hostel in Thaiyur village which also falls in the Chennai Division. The respondent corporation has stated that they have an Engineering wing in the Corporation and the works are being executed to the Engineering wing due to emergency and the work is being done employing the TAHDCO employees.
11. As noticed above in the counter affidavit as well as the affidavit filed in support of the vacate stay petition, the respondent has elaborately set out the reasons as to why the works are to be completed in a war footing and sought to justify their action. As pointed out by the Hon'ble Supreme Court in the Case of Jai Narain vs. UOI, (supra) existent of urgency is a matter which is entirely based on subjective satisfaction of the Government. It is equally a settled legal principle that the Government is at liberty to enter into contract and the Court do not interfere unless and until the action of the Government is wholly arbitrary or palpably illegal. Further, the Courts will not examine the decision taken, but would be concerned about the decision making process to examine as to whether it was free from arbitrariness, capriciousness, illwill or malafides. If these elements are absent, then the Courts under normal circumstances do not interfere with the decision taken by the Government to award a contract.
12. After going through the counter affidavit, this Court is of the view that the respondent Corporation has not committed any illegality in doing the works by themselves through their Engineering wing. There is no allegation that the works are not done properly by the Corporation rather the petitioners case is that in terms of G.O.Ms.No.132, dated 15.07.1997, the works have to be entrusted only to contractors that too belonging to SC/ST community. However, the petitioner did not place for consideration of this Court, the subsequent Government Order in G.O.Ms.No.81, which holds the field as on date. The purpose and intent behind issuing these Government Orders is to ensure that the funds allocated for developmental works to be done to benefit people belonging to SC/ST community could be utilised by awarding contracts to the same community people, which also would help them in their betterment. However, there is no prohibition in G.O.Ms.No.132 or in G.O.Ms.No.81, for the respondent Corporation to carry on the works by themselves. In fact the Government permits it to be done in case of urgency. The bonafides of the reasons assigned to do the work by the corporation themselves owing to the urgency pleaded cannot be doubted. Merely because one of the building though made ready is yet to be opened cannot be a reason to doubt the bonafides of the action of the respondent Corporation in deciding to the works themselves. Furthermore, all the works have commenced and the need to do the work urgently is eminent for the safety and security of the children especially the girl students.
13. Though the respondent has raised a serious objection as regards the locus standi of the petitioner alleging that fraud, it may not be necessary for this Court to dwell into that aspect, since this Court is convinced that the action of the respondent Corporation in commencing the work by themselves cannot be stated to be illegal or lacking in bonafide. Nevertheless it has to be pointed out that the name of the Writ Petitioner Association does not tally with the name given in the registration certificate and furthermore, there is discrepancy in the list of members. However, the earlier Writ Petition in W.P.No.14544 of 2014, was also filed in the same name and the respondent Corporation chose not to object at that juncture. In the light of the conclusion arrived by this Court as stated supra, this Court does not wish to further adjudicate the question as to the correctness of the name of the petitioner association and it is left open to the parties to agitate the same before the appropriate forum.
14. The learned counsel for the petitioner placed reliance on the Government Order in G.O.Ms.No.222, Public Works Department, dated 08.04.1999 and by the said Order, the Government has accepted certain recommendations made by a High Level Committee. In any event, these Government Orders being executive instructions does not in any manner operate as a total embargo on the respondent Corporation to carry on their work effectively and efficiently in a time bound manner so as to subserve public interest. It has to be pointed out that the intention of the Government in passing G.O.Ms.No.132, and G.O.Ms.No.81 is to ensure that the benefit reaches the beneficiary at the earliest point of time. The petitioner appears to be in a misconception that without them nothing can happen with the respondent Corporation. Rather but for the respondent Corporation, the petitioners cannot claim any right muchless preferential right and therefore, the relief sought for by the petitioners is misconceived.
15. In the light of the above discussion, the Petitioner has not made out any case for interference and the Writ Petition fails and the same is dismissed. The interim order of status-quo already granted on 16.12.2014 shall stand vacated. Consequently, M.P.No.1 of 2015 is allowed and M.P.No.1 of 2014 is dismissed. No costs.
10.02.2015
pbn
Index :Yes/No
Internet:Yes/No
To
1.The Principal Secretary to Govt.,
Adi-Dravidar and Tribal Welfare Dept.,
Fort St., George, Chennai 9.
2.The Chairman,
Tamil Nadu Adi Dravidar Housing and
Development Corporation (TAHDCO)
No.31, Senatoff Road,
2nd Line, Tenampet, Chennai 18.
3.The Director,
Adi Dravidar Welfare,
Chepauk, Chennai 5.
4.The Director,
Tribal Welfare,
Chepauk, Chennai 5.
5.The Managing Director,
Tamil Nadu Adi Dravidar Housing and
Development Corporation (TAHDCO),
No.31, Senatoff Road,
2nd Line, Tenampet, Chennai -18.
6.The General Manager (Tech).
Tamil Nadu Adi Dravidar Housing and
Development Corporation (TAHDCO),
No.31, Senatoff Road,
2nd Line, Tenampet, Chennai -18.
T.S. SIVAGNANAM, J.
pbn
O r d e r in
W.P. No. 33239 of 2014
10.02.2015