The other contention advanced by the learned counsel for the petitioner is that the applicant must show the proof / details of availability of Contractor’s equipments (such as copy of RC book, Lease agreement etc.) for carrying out the works. The third respondent should have enclosed RC Book or lease agreement. In this case, neither was produced. What was furnished was only the certificate issued by a Chartered Accountant. It will not meet the requirement set out in the tender notification. Though the learned counsel appearing for the petitioner raised a few other contentions impeaching the eligibility of the third respondent, they need not be gone into. 20. I therefore hold that the disqualification of the petitioner as well as the selection of the third respondent are arbitrary. The impugned proceedings are set aside. This writ petition stands allowed. No costs. Consequently, connected miscellaneous petitions are closed. 13.12.2023 NCC : Yes / No Index : Yes / No Internet : Yes/ No PMU To: 1. The Director of Municipal Administration, Urban Administrative Building, MRC Nagar, Chennai. 2. The Commissioner, Pudukottai Municipality, Pudukottai District.   G.R.SWAMINATHAN,J. PMU W.P.(MD)No.28481 of 2023 13.12.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.12.2023
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W. P.(MD)No.28481 of 2023 AND
W.M.P.(MD)Nos.24532 & 24533 of 2023
M/s. Sai Hridham Infraa Private Ltd.,
Through its Managing Director, V.Palanisamy,
having office at No.208/6, Muthudaiyanpatti, Kulathur Taluk,
Pudukkottai – 622 501. … Petitioner
Vs.
1. The Director of Municipal Administration, Urban Administrative Building, MRC Nagar, Chennai.
2. The Commissioner,
Pudukottai Municipality, Pudukottai District.
3. TPK Infra Projects,
2nd Floor, Flare No.A4,
Sri Poornavalli Flats,
Kamarajar Road, Ramapuram,
Chennai. … Respondents
Prayer: Writ petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, to call for the records of the impugned technical bid evaluation dated 28.11.2023 on the file of the second respondent in respect of the construction of new bus stand at Ward No.25, S.No.22, 23, 24, 25 and 26 Pudukottai in pursuant to the tender notification dated 06.10.2023 and quash the same.
For Petitioner : Mr.G.Prabhu Rajadurai
For Respondents: Mr.Veera Kathiravan, Additional Advocate General, assisted by,
Mr.K.Balasubramani, Special Government Pleader for R-1 &
Mr.S.Kameswaran,
Standing Counsel for R-2
Mr.B.Saravanan,
Senior Counsel for R-3
* * *
O R D E R
Heard the learned counsel appearing for the writ petitioner and the learned Additional Advocate General assisted by the learned Special Government Pleader appearing for the first respondent and the learned Standing counsel appearing for the second respondent and the learned Senior
counsel appearing for the third respondent.
2. The Director of Municipal Administration, Chennai issued notification inviting tenders for construction of new bus stand at Ward No.25, in Pudukkottai Municipality. The last date for submission of bids was on 31.10.2023. This was subsequently changed to 10.11.2023 and then to 24.11.2023. The petitioner was one of the participants in the tender process. There were totally three bidders, namely, Abirami Engineer Construction and Co., Namakkal, TPK Infra Projects,
Chennai and Sai Hridham Infraa Private Ltd., Pudukkottai (petitioner herein). All the three bids were evaluated by the tender scrutiny committee. The petitioner’s technical bid was found to be not responsive. Information to this effect was uploaded in the web portal also. Challenging the same, the
present writ petition came to be filed.
3. The learned counsel appearing for the petitioner reiterated all the contentions set out in the affidavit filed in support of the writ petition and called upon this Court to set
aside the impugned order and grant relief as prayed for.
4. The contention of the petitioner’s counsel was twofold; a) disqualification of the petitioner as ineligible is patently erroneous. b) selection of the third respondent as successful tenderer was incorrect as it is the third respondent who is not actually eligible.
5. The learned Additional Advocate General as well asthe learned Senior counsel appearing for the third respondent submitted that the writ petitioner was rightly excluded from the tender process. They pointed out that one of the conditions of the tender process was that the applicant must sign all the pages and upload the same. But in this case, admittedly the petitioner failed to affix his signature in a number of pages. They also added that once this Court comes to the conclusion that the petitioner was technically ineligible, then this Court should refrain from going into the merits of the matter. According to them, the petitioner would lack the locus standi to question the selection of the third respondent. In this regard, reliance was placed on the decisions of the Hon’ble
Supreme Court reported in 2022 SCC OnLine SC 1018
(Union of India V. Bharat Forge Ltd) and 2023 LiveLaw
(SC) 467 (Tata Motors Limited V. The Brihan Mumbai
Electric Supply & Transport Undertaking (Best) and Others. This submission was without prejudice to their
contention that the third respondent was very much eligible to
participate in the tender process.
6. I carefully considered the rival contentions and
went through the materials on record.
7. Clause 18.2 of the tender notification reads as
follows:-
“ The original and all copies of the bid shall be typed or written in indelible ink (in the case of copies, photocopies are also acceptable) and shall be signed by a person or persons duly authorized to sign on behalf of the bidder, as the case may be. All pages of the bid where entries
or amendments have been made shall be
initialed by the person or persons signing the
bid.”
It is only by invoking the above clause, the petitioner had been disqualified at the technical scrutiny stage. In paragraph No.6 of the affidavit filed in support of the writ petition, the petitioner had conceded that he had not signed all the pages of the tender document. But he clarified that what was not signed by him was only the invitation and description of the tender which was uploaded in the E-portal. He would point out that he had signed in each and every page of the document submitted by him. He added that in the physical copy deposited by him, in the box, he has signed all the pages.
8. The first question that calls for consideration is whether the petitioner could have been shown the door on this ground. Rule 28 of the Tamil Nadu Transparency in Tender
Rules 2000 reads as follows:-
“28.Initial examination to determine substantial responsiveness.- (1) The Tender Inviting Authority shall cause an initial examination of the tenders submitted to be carried out in order to determine their
substantial responsiveness.
(2) The initial examination shall consider
the following factors, namely:-
(a) Whether the tenderer meets the eligibility criteria laid down in the tender
documents;
(b)(i) Whether the crucial documents have been duly signed;
(ii) Whether the documents have been
authenticated by digital signature, in the case of tenders submitted through electronic mail in the designated website;
(c) Whether the requisite Earnest
Money Deposit (EMD) has been furnished;
(d) Whether the tender is substantially responsive to the technical specifications, commercial conditions set out in the bidding documents including the testing of samples
where required.
(3) Tenders which on initial examination are found not to be substantially responsive under any of the clauses under sub-rule (2) may be rejected by the Tender Accepting Authority.”
9. It can be seen from the above rule that the technical examination should focus on whether the crucial documents have been duly signed. In this case, it is obvious
that the material documents have been signed by the
petitioner and only thereafter uploaded in the web portal. A categorical assertion has been made by the petitioner that he
had signed all the pages in the physical copy.
10. The Hon’ble Bombay High Court (Nagpur Bench) in the decision reported in AIR 1984 Bom 351 (B.D. Yadav
and M.R. Meshram, Engineers and Contractors, a Partnership Firm, Nagpur V. Administrator of the City of Nagpur) had dealt with a similar issue. Paragraph No.18 of
the said judgment reads as follows:-
“18. A number of contentions were
raised in connection with the non-fulfilment of the other terms of the tender. It was submitted that the respondent not having signed page 3, which is really the tender or the offer, there was no offer at all. We think that is taking too technical a view of the matter. It is true that page 3 is net signed and contains the tender or
offer itself. But there are several other
indications and there are several other pages of the tender form which do bear the signatures of the respondent. Even the details of that offer or tender have been filled. What has remained is the signature below that offer or tender. In the circumstances that the respondent bad signed at other places, had filled the tender completely and fully, had even gone to the extent of pledging a deposit receipt for Rs. 42,500/-, taking away the tender form and submitting it and remaining present on 30-9-1981 when the tenders were opened, leads to the conclusion that the respondent did, intend to tender and bad in fact tendered. It could not have been said in the circumstances merely because page 3 was not signed that respondent 2 had no intention to tender. If the intention to tender is clear in the circumstances which are attendant, then the fact
of such an offer can be readily spelt out notwithstanding want of signature on the document. The accompanying circumstances can always be looked into. We have no hesitation in coming to the conclusion that respondent J.B. Constructions must be deemed to have and did intend to tender and did in fact tender pursuant to the invitation dated 1-9- 1981. Similar is the situation in regard to the non-payment of the earnest money in the manner in which it was required. The deficiency is undoubtedly there.
The question is whether that deficiency relates to a non-essential character of the tender or its non-essential part. If it related to the essential part of the tender work, then following the rule enunciated by the Supreme Court, it would not have been possible for the authority to accept the tender. It is an entirely different matter where the conditions which are not entirely fulfilled in accordance with the requirement related to an unessential part of the tender. We think, therefore, that in the present case, non
compliance related to only ancillary and
subsidiary matters of the tender, and did not refer and relate to the essential character of the
contract or work to be undertaken,
Consequently, they should be ignored and would net interfere with the consideration of such a tender. The tender, therefore, of respondent 2 was entitled to be taken into consideration and was rightly taken into consideration.”
11. The Hon’ble Division Bench of Kerala High Court
in the decision reported in 2000 SCC OnLine Ker 292 (Birla International Marketing Corpn. V. State of
Kerala) held as follows:-
“ 20. In this case, the matter is purely technical and, therefore, the authority should not have rejected the tender. We find great force in this submission made by Mr. P.R. Raman. We are clearly of the opinion that the mistake of non-signing of Form No. 14 is in relation to a non-essential matter, that is, in relation to peripheral or collateral matter. The entire tender documents filed, signed, stamped and attested will clearly reveal that there is every intention to comply with the tender conditions. For an accidental or inadvertent omission, the
petitioner cannot be punished. The
nonconsideration of the tender on this sole ground is therefore vitiated as nonconsideration of the tender submitted by the petitioner on hyper-technical ground, amounting to arbitrary exercise of power and is also against the principles of natural justice. The tender submitted by the petitioner is entitled to be considered on its merits and awarding of any contract without considering the tender
submitted by the petitioner and evaluating the same on various aspects without tender would amount to a gross violation of Art. 14 of the
Constitution.”
12. The Hon’ble Division Bench of Madras High Court in the decision reported in 2016 SCC OnLine Mad 20510 (Jharsanya Logistics Pvt. Ltd. V. TN State Marketing Corporation Limited) had held as follows:-
“10. As we have already noticed supra, the tender document contained the terms and conditions stipulating subject to which the tender process is to be undertaken. Though at the end of the tender document, a specific
column is provided for affixing the signature of the tenderer, but however, by prescribing that the tenderer must sign and affix his seal on every page of the tender document, the Corporation is only extra precautious with a view to prevent any tenderer form proceeding any further either in disputing or disowning the other conditions stipulated in the tender document at any later point of time. Affixing the signature of the tenderer on the tender document implies his acceptance of the terms and conditions
stipulated in the tender document. It is not really obligatory for a tenderer to expressly accept the
terms and conditions stipulated by the
Corporation, even if he does not accept the same
expressly, one is bound by the terms and
conditions stipulated by the Corporation, subject to which alone, the tender process is to be accomplished. Affixing signature at the end of the tender conditions, clearly implies the acceptance of all the conditions. What is
essential of every tenderer is to comply with the
requirements which render him eligible to
participate. The eligibility conditions have been brought out clearly in paragraph 2 of the tender document by requiring every tenderer to own a minimum of 8 Eicher Lorries/Mini Lorries and carry on transport business for a minimum of two
years and that he must be having the EPF
number. Once the eligibility criteria are met with every offer/bid made has to receive a fair and
proper consideration.
11. In the instant case, the Commercial Bid itself has been declared as nonresponsive on the ground that the signature of the tenderer is found missing on one of the pages of tender document and the seal is found missing at
another page of the tender document. Insofar as affixing of the seal on the tender document is concerned, we have noticed that even individuals are entitled to participate in the tendering process. Therefore, an individual may not have
any seal of his own for him to affix it. This apart,
only a Company can have a seal of its own and affixing any such seal would signify the
participation of the Company itself. Though a Company acts through it’s authorised agents, in the form of Managing Director or Director or any other functionary of the Company, affixing the seal of the Company signifies the participation and acceptance of the terms and conditions by the Company. The seal perhaps can also be affixed by participating firms. A firm is not required to have a seal of its own. But it can as well have one. Therefore, the stipulation relating to affixing the seal is purely a complementary act, to that of affixing the signature. The same cannot be construed as mandatory stipulation, but is only an optional one. In our opinion, the reasons assigned for rejection of the tender of the writ petitioner/appellant is far too technical
which have no bearing upon the essential requisites, subject to which, the tender
document is liable to be processed.”
13. I am therefore of the view that the scrutiny committee had adopted a needlessly strict approach to
disqualify the petitioner. The very object of inviting tenders is to encourage competition. The participants in the tender process might commit a lapse or two. The petitioner is no doubt a seasoned player. There is a maxim in Tamil “Aanaikum adi sarukkum (Even an Elephant may slip)”. Therefore, such minor lapses deserve to be condoned in larger public interest. Rule 28 had been engrafted with precisely such an objective. Respectfully following the decisions mentioned above, I hold that the impugned decision taken by the technical scrutiny committee is arbitrary and is liable to be set aside. It is
accordingly set aside.
14. The question that next arises for consideration is
whether the third respondent was rightly chosen. The
petitioner’s counsel would point out that the third respondent does not meet the essential eligibility criteria. The tender document stipulates that the applicant should have completed a civil work of similar nature (Building works) in his own name in a single agreement for a value of not less than Rs.945.00 Lakhs (50% of the Value of work put to tender) in the last five years from 2018-19 to 2022-23 for Government Department / Board / Government Undertaking. The third respondent has carried out such a high value tender work for Palladam HiTech Weaving Park. It is beyond dispute that Palladam
HiTech Weaving Park is not a Government or Board or
Government undertaking. In the counter affidavit filed by the Commissioner of Pudukkottai Municipality, the only
justification set out is that the work for Palladam HiTech Weaving Park was carried out under a Central Government scheme pertaining to Ministry of Textiles, Government of India. The third respondent does appear to be a contractor of good standing. They have done work for Kendriya Vidyalaya and some Central Government Undertakings and even a well known private educational institution. But when the tender document stipulates that a high value tender work must have been done for Government department or Undertaking or Board, it could not have been dispensed with. The tender inviting authority can probably consider deleting such a condition for awarding future contract works. But the award of the impugned tender work will have to be necessarily justified only with reference to the existing terms and
conditions.
15. I am more than satisfied that the third respondentdoes not fulfil the said condition. In fact, probably that was why the emphasis of the respondents was more on
demonstrating that the petitioner was rightly disqualified. If the respondents had succeeded in the said attempt, then this Court could not have undertaken the exercise of examining
the eligibility of the successful tenderer.
16. One other condition set out in the tender
document is as follows:-
“The applicant should have working
capital sufficient to finance at least 15% of value of tender (Rs.283.50 Lakhs). (working capital will be calculated by adding the amount available in the bank account of the applicant on the date of submission of application and the unutilized amount of overdraft / credit facility extended to the applicant by the Naitonalized / scheduled
banks.)”

17. The document submitted by the third respondent in this regard was the certificate dated
23.11.2023 issued by the Axis Bank. The said certificate
read as follows:-

18. I repeatedly queried the learned Additional
Advocate General, if the terms of the certificate issued by the Bank can be said to meet the requirements set out in the tender document. At the cost of repetition, I must remind the respondents 1 and 2 that the document submitted by the tenderer must have shown that he was having working capital to the extent of 15% of the tender value i.e. 283.50 Lakhs. The mode of computing the working capital had also been set out in the tender notification itself. The certificate filed by the
third respondent only contained an assurance from their
banker that they will provide OD / credit facilities to the extent of Rs.2 ½ Crores. It is too obvious that the said document ought to have been rejected by the tender scrutiny committee. Even though I repeatedly queried the learned Additional Advocate General, he declined to concede this position. The legendary Law Officer and Constitutional jurist Late Shri.H.M.Seervai once gave a lecture on the role and position of law officers. According to him, a law officer neither wins nor loses. His only duty is to assist the Court to arrive at the truth. A law officer will go up in the esteem of the Court if he or she concedes what cannot be justified.
19. The other contention advanced by the learned counsel for the petitioner is that the applicant must show the proof / details of availability of Contractor’s equipments (such as copy of RC book, Lease agreement etc.) for carrying out the works. The third respondent should have enclosed RC Book or lease agreement. In this case, neither was produced. What was furnished was only the certificate issued by a Chartered Accountant. It will not meet the requirement set out in the tender notification. Though the learned counsel appearing for the petitioner raised a few other contentions impeaching the
eligibility of the third respondent, they need not be gone into.
20. I therefore hold that the disqualification of the petitioner as well as the selection of the third respondent are arbitrary. The impugned proceedings are set aside. This writ petition stands allowed. No costs. Consequently, connected
miscellaneous petitions are closed.
13.12.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
PMU
To:
1. The Director of Municipal Administration, Urban Administrative Building, MRC Nagar, Chennai.
2. The Commissioner,
Pudukottai Municipality, Pudukottai District.  
G.R.SWAMINATHAN,J.
PMU
W.P.(MD)No.28481 of 2023
13.12.2023