M/S.Sankaranand Infra v. The Regional Officer

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.11.2023

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN and W.M.P.(MD)Nos.24179 and 24180 of 2023 M/s.Sankaranand Infra, Rep. by its Managing Partner, S.Sankaranand.

... Petitioner Vs.

1.The Regional Officer, Ministry of Road Transport and Highways, Regional Office, C-1-A, Rajaji Bhavan, Besant Nagar, Chennai - 600 090.

2.The Chief Engineer, National Highways, No.25, Sarthar Patel Road, Guindy, Chennai - 600 025.

3.The Superintending Engineer, National Highways, No.5 Besant Road, Chinna Chokkikulam, Madurai - 625 002.

4.The Divisional Engineer, National Highways, Dindigul.

... Respondents 1/8

Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorari, calling for the records relating to the impugned tender notification in TN.No.04/HDO / NH/2023/ dated 19.07.2023 of the 3rd respondent and quash the same as illegal.

For Petitioner : Mr.Vallinayagam, Senior Counsel, For Mr.A.Arun Prasad.

For Respondents : Mr.K.Govindarajan, Deputy Solicitor General of India for R1.

Mr.Veerakathiravan, Addl. Advocate General, Assisted by Mr.M.Prakash, Addl. Government Pleader for R2 to R4.

ORDER

Heard the learned counsel for the writ petitioner, the learned Deputy Solicitor General of India for the first respondent and the learned Additional Advocate General assisted by the learned Additional Government Pleader for the respondents 2 to 4. 2.The third respondent issued tender notification dated 19.07.2023 inviting tenders on two cover system through online from eligible 2/8

contractors for the petition mentioned road widening works. The petitioner was one of the participants. The petitioner had earlier laid 9.400 Kms which overlaps with the subject matter of the present tender process. The case of the petitioner is that in the very nature of things, widening works will involve causing some damage to the existing road. It is not in dispute that the petitioner is under a contractual obligation to maintain the road laid by him and the contractor liability period is to expire. The petitioner wanted to know from the authorities if the resulting liability will fall on him. The third respondent vide reply dated 06.11.2023 made it clear that the contractor who will bag the tender for widening works will be liable to set right the resulting damage and the petitioner will not be made liable.

3.In this writ petition, the tender notification itself has been challenged on the ground that the clarification now provided by the third respondent was not incorporated in the original tender notification. 4.The learned senior counsel for the writ petitioner reiterated all the contentions set out in the affidavit filed in support of the writ petition and called upon this Court to grant relief as prayed for. 3/8

5.The learned Additional Advocate General on the other hand submitted that having participated in the tender process, the petitioner cannot be allowed to question the tender notification at this point of time. He pressed for dismissal of the writ petition. 6.I carefully considered the rival contentions and went through the materials on record. Let me first note down the sequence of events. The tender notification was issued on 19.07.2023. It mentions that the last date for submission of tenders is 25.08.2023. The bids received through online were to be opened on 28.08.2023. It is stated by the officials though disputed by the petitioner that the technical bids were opened on 28.08.2023 and that evaluation is presently going on. Final report is likely to be submitted shortly. Only thereafter, financial bids will be opened. The petitioner sought clarification as regards his liability in respect of the road laid by him only on 30.10.2023. The third respondent vide communication bearing f.vz;.2250/EPC/PR/2021-22/ NH67 /c.ngh I, dated 06.11.2023 replied as follows:- 4/8

5/8

7.I sustain the stand of the learned Additional Advocate General that having submitted his tender, it is not open to the petitioner to question tender notification when the evaluation process is presently on. 8.There is some force in the contention of the learned senior counsel for the petitioner that the clarification now furnished by the third respondent should have been mentioned in the original tender notification as that would have definitely had bearing on the financial quote made by the tenderers.

9.The petitioner had ample time between 19.07.2023 and 25.08.2023 to raise the issue. Having submitted his tender, it is not open to the petitioner to question the tender notification at this point of time. The petitioner's rights have been sufficiently safeguarded. The reply given by the third respondent is more than clear. In the light of the clarification now provided, if the petitioner happens to be the lowest tenderer, it is for him to take the call. If any other person is the successful bider, the responsibility is his and the petitioner will be absolved from responsibility road in respect of the resulting damage. 6/8

The petitioner asked a straight question and he got a straight answer from the third respondent. On this ground, I am not inclined to interfere with the tender notification. The reason is that the petitioner having participated is estopped from challenging at this point of time. The writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.

28.11.2023 NCC : Yes/No Index : Yes / No Internet : Yes/ No ias To:- 1.The Chief Engineer, National Highways, No.25, Sarthar Patel Road, Guindy, Chennai - 600 025.

2.The Superintending Engineer, National Highways, No.5 Besant Road, Chinna Chokkikulam, Madurai - 625 002.

3.The Divisional Engineer, National Highways, Dindigul.

7/8

G.R.SWAMINATHAN, J.

ias 28.11.2023 8/8