The Honourable Mr v. The State of Tamil Nadu

7. The main grounds urged by the petitioner is that the decision ofthe respondents in coming to the conclusion that the petitioner's annualcapacity is less than 600 MT, and therefore do not qualify for the re-tender issued in April 2007, is vitiated by non-application of mind andextraneous consideration. The first Tender Notification in December 2006has been scrapped on account of a mistake relating to BIS specification.The Re-Tender issued in April 2007 was again for the supply of 1100 MT ofwebbings, in which the annual capacity of the tenderers was to be 600 MT.When the petitioner is having a capacity of more than 1250 MT in the firsttender, it cannot be said to be not possessing the qualification specifiedin the second tender, but having inspected the factory of the petitioner,the Committee has not sent the details of the inspection or the report hadnot been furnished to the petitioner. Therefore, the decision of therespondents appears to have been taken on the basis of the report of thesaid Committee, a copy of which has not been furnished to the petitioner.The decision of the respondents cannot but be construed as arbitrary andirrational. 8. The Re-Tender Notification dated 21.8.2007 is again for the supplyof 1100 MT. The production capacity of the tenderers has been reduced to100 MT. On the facts stated by the petitioner, the fact pertaining to thepetitioner's capacity in the impugned Re-Tender Notification, by which theproduction capacity of the tenderers has been reduced to 100 MT, smacks ofirrationality and unreasonableness and there is no reason how with suchlow production capacity could cater to the annual need of 1100 MT webbingsto be supplied to the fishermen affected by the Tsunami. Therefore, theRe-Tender Notification is vitiated by non-application of mind andarbitrariness and violative of Article 14 of the Constitution of India. 9. The decision taken by the respondents on 10.8.2007 is inconsistentwith the earlier views of the respondents. Even though there was arepresentation by the petitioner requesting them for a personal hearing tosubmit the materials to show their production capacity is more than 1200MT, which was not taken into consideration and therefore, the inaction onthe part of the respondents to consider the same and the decision to issuethe Re-Tender Notification, is wholly arbitrary and unreasonable.10. The right to reject all tenders and call for a re-tender is notan absolute right and the respondents should have valid and justifyingreasons to do so. In the petitioner's case, the rejection of the secondTender floated in April 2007 seems to be a wrong premise, as thepetitioner was not qualified, which is non-est both on facts and in law.The true decision of the respondents to issue Re-tender Notificationdeserves to be set aside both for the reason that it is based on non-existent fact and also causing serious prejudice and stigma on thepetitioner. https://hcservices.ecourts.gov.in/hcservices/

11. For the above reasons, the petitioner has approached for therelief to call for the records in connection with the Re-TenderNotification dated 21.8.2007 and the earlier Tender Notification dated25.4.2007 and seeking to quash the Re-Tender Notification dated 21.8.2007and for a consequential direction to the respondents to pursue the TenderNotification dated 25.4.2007 in the matter of manufacture and supply ofwebbings to fishermen affected by Tsunami. 12. The first respondent has filed a counter affidavit for himself aswell as on behalf of the other respondents. On behalf of the firstrespondent, the Special Commissioner and Secretary to Government, AnimalHusbandry, Dairying and Fisheries Department has filed the counteraffidavit. The respondents question the maintainability of this WritPetition in law, as the issue under consideration falls in the realm ofcontract. According to the respondents, it is settled law that in mattersof awarding contract, which is essentially a commercial transaction, theState Government is entitled to choose its own method and arrive atappropriate decision. The Government has the freedom of contract by takingits own decision and the scope of judicial review of such decision-makingprocess is severely circumscribed and restricted, especially when theState has taken the decision to go in for a re-tender motivated byparamount public interest. According to the respondents, the Tsunamiwhich hit the Tamil Nadu coast on 26.12.2004, caused damages to the lifeand fishing implements of the fishermen in the entire coastal districts ofTamil Nadu. The Government sanctioned various relief schemes asrehabilitation measure to the fishermen community for repairing their netsand for replacing fully damaged/lost fishing implements. About 42,000fishermen were given relief assistance sanctioned under various Governmentorders. The Government in G.O.No.532, Revenue Department, dated 14.8.2006,and in Letter No.32132/Revenue, dated 22.11.2006, sanctioned a sum ofRs.110.36 crores for the purchase and supply of following assistance underthe Rajiv Gandhi Rehabilitation Package:(i) Nets (webbings) : 1100 MT(ii) Handy Rechargeable Lanterns(iii) Heavy duty bicycles(iv) Life jackets(v) Insulated Ice boxes. Further, the Government, among other things, has allocated a sum of Rs.44crores out of the total sanction of Rs.110.36 crores for the supply ofnets (webbings) to the already benefited Tsunami affected fishermen underthe above package. The total loss of nets, due to Tsunami, according tothe actual assessment, was 1,100 MTS and it was therefore proposed topurchase and supply 25 Kgs. of Gill Nets worth about Rs.10,000/- to eachbeneficiary.13. The Government also in G.O.Ms.No.193, Animal Husbandry, Dairyingand Fisheries Department, dated 22.11.2006, issued orders constitutingTechnical Committees, Scrutinizing Committees, Award Committee forprocessing the tenders for the above commodities. The Committees https://hcservices.ecourts.gov.in/hcservices/ constituted for purchase of nets are as follows:Sl.No.Name of the CommitteeMembers of the Committee1 Tender Technical Committee1. Spl. Commissioner of Fisheries-Chairman2. Director of his representative fromCIFNET - Member3. Zonal Director or hisrepresentative of FSI, Chennai -Member4. Joint Director of Fisheries(Marine) Member Secretary 2 Tender ScrutinizingCommittee1. Spl. Commissioner of Fisheries-Chairman2. Joint Director of Fisheries(Marine, Inland & Research) - Members3. Accounts Officer (Fisheries) –Member 4. Deputy Director of Fisheries(Marine) - Member Secretary3 Tender Award Committee1. Secretary to Government, AHD & FDept – Chairman2. Secretary to Government, FinanceDepartment or his/her nominee - Member3. The Director of Fisheries – MemberSecretaryThe Tender Technical Committee suggested the following specifications forthe knotted nylon webbings for the gill nets to be purchased with suitablemesh size:-Knotted Gill Nets (only webbings) approved by BIS with the followingspecifications:Sl.No.Type of materialTwine size Stretched Meshsize in mm1Nylon Multifilament210 d x 1 x 2302Nylon Monofilament0.16 mm dia273Nylon Monofilament0.16 mm dia364Nylon Multifilament210 d x 1 x 2365Nylon Monofilament0.23 mm dia566Nylon Multifilament210 d x 1 x 356 https://hcservices.ecourts.gov.in/hcservices/ The Committee also recommended that nets with BIS specifications may bepurchased. Based on the recommendations of the Committee, tenders for thepurchase of all five components mentioned above including the nets werecalled for. The Tender Notice was published in the leading dailies and thetenders were invited only from the manufacturers of nets (webbings) with aproduction capacity of not less than 1250 MT/p.a of the abovespecifications. The EMD for the tender was fixed as Rs.44 lakhs. Two coversystem was adopted and the tender document was based on the Act and theTamil Nadu Transparency in Tenders Rules, 2000 (in short "the Rules").14. The last date for receipt of tenders was upto 3.00 p.m. on4.12.2007. Eleven tenders were purchased and only four tenders werereceived and respondents have taken all possible steps to process thetender as per the procedure laid down in Tender Transparency Act, 1998 andas per the conditions mentioned in the tender document. The tenders wereopened at 4.00 p.m. on 5.1.2007. Only the first cover, viz., technical bidwas opened. The technical bids were evaluated by the Tender ScrutinizingCommittee on 22.1.2007 and only one tenderer viz. M/s.Garware Wall RopesLimited was found technically qualified. The other three tenders, namelyM/s.Kassim Nets, Nagercoil, M/s.Nirmala Monofil Pvt. Ltd., Coimbatore andM/s.Raj Nylon Exports, Chennai-28, were rejected on technical grounds.15. It is the further case of the respondents that net manufacturingplant of the petitioner-Company was inspected on 7.2.2007 and based on therecommendations of the Tender Scrutinizing Committee on the evaluation ofthe Inspection Report, samples of all the webbings of the specificationsmentioned in the tender document were obtained from the firm and sent toCIPET for testing on 20.2.2007. The test report on the samples wasreceived from CIPET on 9.3.2007 and the same was evaluated by the TenderScrutinizing Committee on 12.3.2007. The Committee recommended to conductbreaking load test of the samples as per the BIS specification by CIPET.Test report on breaking load was received from CIPET on 23.3.2007 and thesame was evaluated by the Scrutinizing Committee on 3.4.2007 and based onthe recommendations of the Committee, the price bid of the technicallyqualified tenderer was opened on 4.4.2007 and negotiation of rates wasdone with the tenderer on 10.4.2007.16. On the recommendations of the Tender Scrutinizing Committee,technical bids and price bids were placed before the Tender AwardCommittee meeting for taking a decision on 12.4.2007. The Tender AwardCommittee took note of the information given by the Scientists (Experts)from CIFT, Cochin, CIPET, Chennai, stating that there were no BISspecifications for webbings, unlike twines. However, BIS test proceduresare available for both webbings and twines. Since BIS specifications werenot prescribed for webbings, the technical requirements under this tendercannot be evaluated. In view of the above facts, the Award Committee askedto go for re-tender. The tender was therefore cancelled and the EMD wasreturned to the tenderers on 25.4.2007. Thereafter, the Tender AwardCommittee instructed a re-tender should be called for the purchase of 1100MT of nets and the same was done with the following modifications:- https://hcservices.ecourts.gov.in/hcservices/

1. Tenders were invited from the manufacturers ofnets (webbings) only with a production capacity of notless than 600 MT per annum of the specificationsmentioned above (The Twine size in Sl.No.5 NylonMonofilament was changed as 0.24 mm. dia instead of0.23 mm dia).2. BIS specifications were given in the tenderdocument as follows:. Nylon webbings should be made up of Nylontwines/monofilament yarn of BIS specifications (i.e)Nylon multifilament (Twine): IS 4401 : 2006Nylon monofilament : IS 7533 : 2003. The webbing should be made up of virginPolyamide (Nylon) twine/yarn.. Recycled raw material (Nylon) should not be usedfor making webbings.3. The Tender Scrutinizing Committee recommendedto fix the production capacity as 600 MTs/annum in viewof the fact that only one responsive bid was receivedfor the first tender in which the production capacitywas fixed as 1250 MTs/annum and also considering theuniqueness of the purchase in terms of volume whichneeds to be supplied within one year.Accordingly, the tender notice dated 25.4.2007 inviting tenders werepublished in leading dailies and the last date for receipt of tenders wasfixed as 3.00 p.m. on 28.5.2007. Totally, three tenders were received asfollows:(i) M/s.Garware Wall Ropes Pvt. Ltd., Pune.(ii) M/s.Kassim Nets, Nagercoil.(iii) M/s.Kumaran Fish Nets Private Ltd., Nagercoil.The technical bids were opened at 4.00 p.m. on 28.5.2007 and themanufacturing plants of M/s.Kassim Nets, Nagercoil and M/s.Kumaran Nets,Nagercoil were inspected on 2.6.2007 and 22.6.2007 and the inspectionnotes and the technical bids were evaluated on 30.5.2007, 11.6.2007 and22.6.2007. Samples received from the petitioner-Company were sent to CIFT,Cochin on 29.6.2007 for testing to confirm whether it meets BISspecifications. The test report received from CIFT, Cochin on 11.7.2007confirmed the same.17. While that being the position, a specific complaint against theproduction capacity of the petitioner-Company was received, and it wasdecided by the Tender Scrutinizing Committee on 24.7.2007 to depute a teamof officials to inspect as to whether the petitioner-Company has theproduction capacity of its own for the descriptions of the works asspecified in the tender. The petitioner-Company was re-inspected from25.7.2007 to 28.7.2007. The inspection team found that the petitioner- https://hcservices.ecourts.gov.in/hcservices/ Company did not possess the capacity claimed in the tender document.Thereafter, the Tender Scrutinizing Committee has evaluated the technicalbids, inspection reports of all the tenderers and test reports on thesamples of the petitioner-Company. Since no one was found qualified in theevaluation process by the Tender Scrutinizing Committee, the tenders ofall the three tenderers including the petitioner-Company's tender, wererejected. 18. The Tender Scrutinizing Committee in its meeting held on9.8.2007, has made the following recommendations: "1. By experience in the previous two tenders,there were no suitable suppliers even after the reducedproduction quality of 600 MTs/year as eligibilitycriteria. 2. 1100 MTs of Nylon webbings have to bedistributed to the fishermen within a timeframe of oneyear.3. To ensure better participation in tender andgoing by the previous experience, that there is nosuitable manufacturer with the production capacity of1250 MT/annum and 600 MT/annum, the production capacitymay be reduced to 100 MT/annum.4. The Government may be addressed to permit thethird respondent to go for re-tender under fixed ratecontract system and to reduce the production capacityto 100 MTs/annum (60% monofilament : 40% multifilament)of webbings of specified description in the tender andalso to reduce the time limit to 15 days for invitingtenders, since the tender call is for the third timeand all the manufacturers were aware of the supply ofwebbings to fishermen. Therefore, the Government was addressed on the above lines in the letterNo.38116/TPIU/07, dated 9.8.2007 by the third respondent and theGovernment in Letter No.16926/FSI/2007-1, dated 17.8.2007 permitted thethird respondent to go for re-tender under fixed rate contract system andto reduce the time limit to 15 days. Therefore, the tenders were cancelledon 17.8.2007. The petitioner's tender was also cancelled on 17.8.2007-videthird respondent's letter No.55055/P1/2007, dated 17.8.2007 and the EMD ofRs.44 lakhs was returned to the petitioner. As instructed by theGovernment in Letter No.16926/FSIII/2007-1, dated 17.8.2007 to the thirdrespondent, re-tender II was called for the purchase of 1100 MTs of netswith the following modifications:(i) Nylon webbings should be made up of Nylon twines/monofilamentyarn of BIS specifications (i.e).Nylon Multifilament (Twine) : IS 4401:2006Nylon Monofilament : IS 7533:2003(ii) The manufacturers shall have their production capacity ofwebbings in the ratio of 60:40 of monofilament : multifilamentrespectively. https://hcservices.ecourts.gov.in/hcservices/ (iii) The webbing should be made up of virgin Polyamide (Nylon)Twine/Yarn.(iv) Recycled raw material (Nylon) should not be used for makingwebbings.19. Tender notice inviting re-tenders dated 21.8.2007 was publishedin the leading dailies and corrigendum was also issued on 23.8.2007. Theeligibility criteria for bidders have been prescribed in the tender noticeas follows:(a) The bidder shall be a registered manufacturer having a minimumindividual annual production capacity of 100 MTs of nylon (Polyamide) nets(Double knotted Nylon webbings) in the ratio of 60% monofilament : 40%multifilament nylon nets (double knotted nylon webbings) of the specifieddescription in the tender schedule and having experience in the productionand marketing of the webbings of the specifications described in thetender document for a minimum period of three years.(b) Alliance or agreement of any type with anymanufacturer/dealer/distributor dealing with the said nylon webbings likeConsortium/lease rent/joint venture etc. shall be rejected.(c) The bidders should provide samples in a separate cover ofmultifilament twines and monofilament yarn for making knotted nylonwebbings and also samples of the webbings of the descriptions specified inthe tender document made out of the above indicated twines/yarns alongwith tender document.(d) EMD has been reduced and fixed as Rs.11 lakhs.(e) Two cover system will be followed.(f) Production of production plan has been made mandatory. Last date for receipt of tenders has been fixed on 6.9.2007 upto 3.00 p.m. 20. Hence, it is the case of the respondents that in view of thefacts stated by the respondents as above, it reveals that there is nomala-fide or wilful intention on the part of the respondents to cancel theearlier tender and invite fresh tender as notified on 21.8.2007. There isno iota of evidence to show that the tender process is arbitrary oractuated by malice. The tender was necessitated only due to theineligibility of the tenderers and therefore, the re-tender is the onlylogical conclusion in view of the circumstances stated above. 21. It is stated by the respondents that the petitioner-Company ishaving only 106 machines and not 110 machines as contended by thepetitioner for production of nets, and these nets are different from therequirement of the tender. The respondents have not issued any tendernotice on 21.12.2006 as contended by the petitioner and the tender dated4.12.2006 was for the supply of webbings of the specifications mentionedearlier. This was clearly mentioned that the production capacity specifiedshould be for the specifications mentioned in the tender document. Thecontention of the petitioner that the tenders were opened on 8.1.2007 isnot correct, but opened on 5.1.2007.22. Since the inspection of the manufacturing plant is one of the https://hcservices.ecourts.gov.in/hcservices/ established methods to evaluate the technical bid, the team of officialsas suggested by the Tender Scrutinizing Committee was deputed to inspectthe plant noted in the tender document, i.e. plant at Wai and verify withthe details furnished in the tender document to the field realities. Theinspection team has inspected the net manufacturing unit of the petitionerat Wai on 7.2.2007 and 8.2.2007. It is submitted that the writ petitionerhas shown in the tender document that the supply of nets as notified inthe tender, will be produced from the machines in the plant at Wai itself.In the tender document, the petitioner has mentioned that the plant at Waihas the production capacity of 5520 MTs/annum, but these nets aredifferent from the requirements of the tender. The inspection team wasprovided with false information with a view to mislead the team so thatthe team can give a report that the petitioner's plant at Wai has thecapacity to produce 5520 MTs/annum. But by its own admission by way of asigned production plan dated 10.8.2007, the petitioner-Company proveditself that it did not have the production capacity of 5520 MTs as shownin the tender document. It is proved from the production plan that thepetitioner has submitted that it has only the production capacity of277.602 MT/annum from its own machines. The petitioner has shown in itsfirst tender schedule the annual production capacity from its own machinesas 5520 MTs and in the first re-tender document as 5520 MTs and at thetime of inspection, 696 MTs by a production plan, which includes its 24own machines and 29 machines taken on lease. The above details clearlyestablish that the petitioner-Company has contradicted its own productioncapacity which it had furnished in the tender schedule of first tender andfirst re-tender and at the time of inspection from 25.7.2007 to 28.7.2007and the information furnished in the representation dated 10.8.2007. Thepetitioner-Company gave false information in the tender document to theinspection team and has now come before this Court with mala-fideintention of securing the contract with unclean hands. It is surprising tonote that the petitioner-Company which claims to be awarded with "One StarExport House" status, by the Ministry of Commerce, Government of India,and having an "ISO:9001-2000" accreditation, has suppressed the realfacts, but has come up with the reports of contradicting and falseproduction capacity. No doubt, the petitioner has obtained such starstatus for export. But at the same time, the petitioner does not havemanufacturing capacity to produce the webbings as specified and describedin the tender document.23. It is submitted by the respondents that the team consisting ofthree officials of (i) a District Revenue Officer (ii) a General Managerwith experience in fishery activities from the Tamil Nadu FisheriesDevelopment Corporation and head of the fish net manufacturing plant, aGovernment of Tamil Nadu undertaking and (iii) Technician (not AccountsOfficer, as contended by the petitioner) working in fish net manufacturingplant of Tamil Nadu Fisheries Development Corporation was deputed toinspect the plant. By its own admission, the petitioner-Company has provedthat from the rest of the machines in the factory at Wai, the webbings ofthe specifications in the tender cannot be produced. https://hcservices.ecourts.gov.in/hcservices/

24. The petitioner proved itself that the petitioner has productioncapacity around 148 MT/annum from the net (webbings) manufacturing plantat Wai including the machines of higher pitch which cannot produce thewebbings of the specifications given in tender. The petitioner-Companythus by furnishing false information and by suppressing the fact on realproduction capacity, tried to mislead the Court with a mala-fide intentionto gain out of the scheme meant for the social cause. It clearlyestablishes that the petitioner-Company does not possess the productioncapacity as mentioned in the tender document. Hence, there is no non-application of mind and there is no place for extraneous consideration ascontended by the petitioner. 25. It is the case of the respondents that Rule 27 of the Tamil NaduTransparency in Tenders Rules, 2000 clearly spells out that tenderevaluation process is a confidential one until the award of the contractis notified. In the production plan submitted to the third respondent on10.8.2007 and to the inspection team on 25.7.2007, the petitioner-Companyhas introduced two new elements i.e. "machines at new location" i.e.Silvassa and "the machines taken on lease" that had not been shown in thetender document for the production of webbings of the specificationsmentioned in the tender and re-tender document.26. In the counter affidavit, it is further stated that the writpetitioner-Company is shown as its first tender schedule, the annualproduction capacity from its own machines a 5520 MTs/annum and in thefirst re-tender document as 5520 MTs/annum and at the time of inspectionby way of production plan as 148 MTs/annum from its own machines at Waiand 129 MTs/annum from its own machines at Silvassa, putting together its15 own machines at Wai and 9 own machines at a different location, viz.Silvassa and 29 machines taken on lease. The production capacity as shownby it out of its own machines in the two locations (Wai and Silvassa) inthe signed production plan is 277.602 MT/annum (plants at Wai andSilvassa). The machines are running at an efficiency of 66% and if thisefficiency is taken into account, then the in-house production capacityper annum of the petitioner-Company is 143.626 MT/annum. The foregoingdetails clearly establish that the petitioner-Company has contradicted itsown production capacity which it had furnished in the tender schedule ofthe first tender and first re-tender and at the time of inspection from25.7.2007 to 28.7.2007 and the information furnished in the representationdated 10.8.2007. Therefore, it is evident that the petitioner-Companywants to gain out of the contract by producing false information in thetender document. The above details will clearly prove that there is noarbitrariness. Without having the prescribed production capacity for thewebbings of the prescribed specifications in the tender notice, thepetitioner-Company has submitted the tender, stating that it has 5520 MTper annum of nets (webbings) and then giving 696 MT/annum and then byproving by its own admission in the production plan as 277.602 MT/annumfrom its own machines. The petitioner has shown in the tender document, https://hcservices.ecourts.gov.in/hcservices/ only the net manufacturing plant at Wai and in the Writ Petition, it hasshown that 110 machines are there for the production of these webbings,whereas 106 machines are there in the said plant. But of these 106, by itsown admission in the production plan, the production of the webbings ofthe specifications in the tender can be done only from 15 machinesinclusive of four higher pitch machines. By the petitioner's ownadmission, it proved that the rest of the machineries in the said plantcannot produce the webbings of the said specifications in the tenderdocument. Therefore, the said action of the petitioner has caused muchdamage, delay and hardship to the respondents, besides, preventing themfrom implementing the welfare schemes meant for the welfare of thedowntrodden Tsunami affected fishermen. 27. Thus, from the foregoing facts stated by the respondents, it isevident that the petitioner-Company did not have the production capacityfor the webbings of the descriptions specified in the tender dated25.4.2007 and hence, the rejection of the tender of the petitioner-Companyis based on valid grounds. Had the contract been given to the petitioner-Company which did not have the production capacity, the end result wouldbe non-performance of the contract, which would ultimately affect thealready-affected Tsunami fishermen.28. It is the further case of the respondents that the law laid downby the Supreme Court in 2005 (4) SCC 435 (Global Energy Limited andanother vs. Adani Export Limited and others) that the terms of theinvitation to tender are not open to judicial scrutiny and the Courtscannot whittle down the terms of the tender as they are in the realm ofcontract, unless they are wholly arbitrary, discriminatory or actuated bymalice. Since the petitioner-Company has not made out any case, the saiddecision reported in 2005 (4) SCC 435 squarely applies and the WritPetition is liable to be dismissed. 29. A reply affidavit was filed by the petitioner-Companyreiterating its earlier stand taken in the affidavit filed in support ofthe writ petition. 30. Mr.R.Muthukumarasamy, learned Senior Counsel appearing for thepetitioner, in his submissions, has strenuously contended that thepetitioner-Company is one of the largest manufacturers of syntheticcordage in the world and one of the largest in India. It has been awardedthe Star Export House status by the Ministry of Commerce, Government ofIndia, besides ISO:9001:2000 accreditation. The learned Senior Counselfurther contended that the petitioner-Company is having a strong domesticperformance and are predominant in the field of export market. Thepetitioner-Company is specialised in providing application-based specialsfor fishing, shipping and oil exportation industries. The petitioner has avery big factory with more than 110 machines, which can be put to use forthe manufacture and supply of webbings for bulk quantities. The learnedSenior Counsel stressed on the fact that on 21.12.2006, the tenders werecalled for the supply of 1100 MT of webbings from the manufacturers having https://hcservices.ecourts.gov.in/hcservices/ annual capacity of not less than 1150 MT and the petitioner's capacity hasbeen ascertained and found to be of 1250 MT or more annually. While so,the decision of the respondents in coming to the conclusion that thepetitioner's annual capacity is less than 600 MT and does not qualify forRe-Tender issued in April 2007, is vitiated by non-application of mind andthe same is only based on extraneous consideration. Further, the firstTender Notification issued in December 2006 has been scrapped on accountof the mistake relating to the BIS specifications. The Re-Tender issuedwas again for supply of 1100 MT of webbings with annual capacity of thetenderer at 600 MT. Earlier, though the petitioner was stated to have acapacity of more than 1250 MT when the first Tender Notification wasissued in December 2006, and when the Committee of the respondentsinspected, the copy of the inspection report having not been furnished,the decision of the respondents based on the said Committee report, isnothing but arbitrary and irrational. 31. The learned Senior Counsel appearing for the petitioner furthercontended that the Re-Tender Notification issued on 21.8.2007 is again forthe supply of 1100 MT of webbings, with the production capacity of thetenders being reduced by 100 MT and such an act of the respondents smacksof irrationality and unreasonableness and it could not be understandableas to how such a low production capacity could cater to the annual need of1100 MT of webbings, to be supplied to the fishermen affected by Tsunami.Therefore, the impugned Re-Tender Notification is vitiated by non-application of mind and arbitrariness, besides being violative of Article14 of the Constitution of India. 32. It is zealously contended by the learned Senior Counsel appearingfor the petitioner-Company that even though there was a representationrequesting the respondents to give personal hearing to submit thematerials to show that their production capacity is more than 1200 MT, itwas not at all considered and the inaction on the part of the respondentsis arbitrary and unreasonable and therefore, the Re-Tender Notification isliable to be set aside. 33. It is lastly contended by the learned Senior Counsel appearingfor the petitioner that the respondents ought to have given valid andjustifying reasons for calling for a Re-Tender and the rejection of thesecond Tender in April 2007 seems to be on a wrong premise that thepetitioner is not qualified, which is non-est both in law and on facts.Hence, looked at from any angle, the decision of the respondents to issueRe-Tender Notification deserves to be set aside both for the reason thatit is based on non-existent fact and also causing serious prejudice andstigma on the petitioner. 34. The prayer in Writ Petition No.27258 of 2007 is for issuance of aWrit of Mandamus, directing the respondents to approve the technical bidof the petitioner in cover No.1 in T.D.No.2, dated 2.5.2007 and declarethe successful tenderer opening cover No.2. https://hcservices.ecourts.gov.in/hcservices/

35. The prayer in Writ Petition No.28485 of 2007 is for issuance of aWrit of Certiorarified Mandamus, to call for the records pertaining to theadvertisement made by the third respondent in second Re-TenderRef.No.019/TIPU/2007, dated 17.8.2007 i.e. (DIPR/3473/Tender/2007, dated6.9.2007) for supply of 1100 MTs of Double Knotted Nylon Nets (Webbings)from the manufacturers under fixed rate contract system advertised in theNew Indian Express dated 21.8.2007 and corrigendum dated 23.8.2007 andquash the same and direct the respondents to finalise the first Re-TenderDIPR/1521/Tender/Document/2007, dated 28.5.2007. 36. The case of the petitioner in W.P.No.27258 of 2007 is as follows:The petitioner-Company is a reputed manufacturer of all kinds offishing nets, that the petitioner has been in the trade since 1986,that M/s.World Vision India and M/s.Salvation Arym placed orders tothe petitioner for supply of fish nets having appreciated the qualityproducts of the petitioner, that by tender document in T.D.No.02,dated 2.5.2007, the second respondent had invited sealed tenders fromthe manufacturers of nylon webbings with a production capacity of notless than 600 metric tonnes per annum for the description of worksspecified in the tender document and that the tender for the supply of1100 MT of knotted nylon webbings is as per the followingspecifications:Sl.No.Type of materialTwine size Stretched Meshsize in mm1Nylon Multifilament210 d x 1 x 2302Nylon Monofilament0.16 mm dia273Nylon Monofilament0.16 mm dia364Nylon Multifilament210 d x 1 x 2365Nylon Monofilament0.23 mm dia566Nylon Multifilament210 d x 1 x 35637. It is the further case of the petitioner in W.P.No.27258 of 2007that the petitioner-Company submitted its tender on 28.5.2007 to thesecond respondent, that the petitioner deposited a sum of Rs.44 lakhs byway of EMD besides producing a solvency certificate from the State Bank ofIndia, Nagercoil Branch for a sum of Rs.4,40,00,000/- as per the terms andconditions of the tender, that as per the tender condition, themanufacturers of nylon webbings should have production capacity of 600MT/p.a., that since the petitioner's unit manufacturing capacity is 282.5MT/p.a., the petitioner took lease of two other manufacturing units,namely (i) M/s.Netpark at Anandanadarkudi, Nagercoil-629 201, KanyakumariDistrict and (ii) M/s.Ajantha Fish Nets, No.14-C, Government IndustrialEstate, Konam, Nagercoil-629 004, having capacity of 752.5 MT and 197.5 MTrespectively in compliance of the terms and conditions of the tender, thatthe manufacturing capacity of the petitioner's unit is thus 1235.5 MT https://hcservices.ecourts.gov.in/hcservices/ which is obviously double the requisite manufacturing capacity of 600 MT,that the petitioner has submitted the tender along with the two leaseagreements entered into between the petitioner and the above lessees, thatthe second respondent, by letter dated 30.5.2007, informed the petitionerthat the Tender Scrutinizing Committee which evaluated the technical bidsof the tenderers, decided to depute a team of officials and required thepetitioner to keep the plant and machineries in operating conditions on2.7.2007, besides requiring the petitioner to make available all thedocuments for inspection and verification, that in pursuance of the saidletter, the officials visited the manufacturing units of the petitioner on2.7.2007, 5.7.2007 and 21.7.2007 respectively and that the TenderScrutinizing Committee was satisfied with the production capacity of thepetitioner-Company which is about 1235.5 MT.38. The petitioner-Company in W.P.No.27258 of 2007 further statesthat one of the tenderers, namely M/s. Garware Wall Ropes Limited wasconsidered for being given the tender work, that the second respondenttook sample nets from them indicating consideration of their tender, thatbesides the petitioner herein and M/s.Garware Wall Ropes Ltd., there isanother tenderer M/s.Kumaran Nets, that the said M/s.Garware Wall RopesLtd. does not possess the requisite technical bid qualification, namelythe production capacity of 600 MT of nylon webbings entitling the secondrespondent to take sample nets from them, that the petitioner made aletter to the second respondent on 18.7.2007, stating that the saidM/s.Garware Wall Ropes Ltd. lacks the above production capacity, that evenbefore inspecting the manufacturing unit of the said M/s.Garware WallRopes Ltd., the second respondent obtained the sample nets from them andthat the same is improper, that only after 18.7.2007 letter of thepetitioner, the second respondent caused inspection of the manufacturingunit of the said M/s.Garware Wall Ropes Ltd., that the action of therespondents is indicative of the pre-determined approach to helpM/s.Garware Wall Ropes Ltd., that the petitioner believes that theofficial team, having inspected the premises of M/s.Garware Wall RopesLtd., they lack the production capacity of 600 MT per year and submittedreport in that behalf to the second respondent, that the respondents areattempting to reject the tender of this petitioner under one pretext orthe other and that this petitioner cannot be disqualified since they havethe production capacity of about 1235.5 MT, which is double the requiredcapacity as per the Tender Notification.39. The further case of the petitioner in W.P.No.27258 of 2007 isthat the respondents are bound to call for the sample nets from thepetitioner for proceeding to open Cover No.2, namely the price bid, thatthe respondents are bound by the principle of promissory estoppel, thatthe petitioner was not heard till the date of filing of the writ petition,which is in violation of the principles of natural justice and that theconduct and action of the respondents is arbitrary, whimsical and illegalin not considering the tender of the petitioner-Company though theysatisfy the required production capacity, besides the action of therespondents is offending Articles 14 and 21 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/

40. The case of the petitioner in W.P.No.28485 of 2007 is as follows:(a) The Government of India, under Rajiv Gandhi RehabilitationPackage for Tsunami victims, has allocated Rs.110 crores under fivecategories, namely nets, handy rechargeable lanterns, heavy duty bicycles,life jackets and insulated ice boxes, etc., of which an amount of Rs.44crores has been allocated for nets (webbings), that the tenders forremaining 4 categories have already been finalised and awarded, that thecategory of 'nets (webbings)' is the only item remaining to be finalised,that the respondents have been dilly-dallying with the tenders withoutfinalising the tender for nets (webbings) resulting in inordinate delay inthe implementation of the programme for which the amount has beenearmarked.(b) The petitioner in W.P.No.28485 of 2007 is a reputed manufacturerof all kinds of fishing nets, that the petitioner has been in the tradesince 1986, that M/s.World Vision India and M/s.Salvation Arym placedorders to the petitioner for supply of fish nets having appreciated thequality products of the petitioner, that on 12.12.2006, the petitionerobtained tender documents for supply of 1100 MTs of knotted nylon gillnets (webbings) at a cost of Rs.15,000/- plus tax, pursuant to the tenderscalled for by the second respondent to the Tsunami affected fishermenunder the Rajiv Gandhi Rehabilitation Package, that on 4.1.2007, thepetitioner submitted the tender along with necessary documents and the EMDof Rs.44 lakhs, that in addition to the petitioner, M/s.Garware Wall RopesLtd. was the other tenderer which has submitted the tender, that theeligibility condition prescribed by the second respondent is that themanufacturer of nets (webbings) should have a production capacity of notless than 1250 MTs per annum for the description of work specified, thatthe other condition is that the webbing and twines used should conform toBIS standard and specification, that on 25.4.2007 the third respondentaddressed a letter to the petitioner stating that the Tender AwardCommittee constituted by the Government has decided to call for a Re-Tender for the nets (webbings), that the EMD deposited by the petitionerto the tune of Rs.44 lakhs was returned on 25.4.2007 along with a letterwithout assigning any reason after a lapse of nearly four months, that thethird respondent called for Re-Tender for supply of 1100 MTs of knottednylon webbings from the manufacturers of nylon webbings with a productioncapacity of not less than 600 MT per annum instead of 1250 MT productioncapacity fixed in the original tender, that the petitioner units have acapacity of more than 1250 MT per annum even though the prescribedproduction capacity pursuant to the Re-Tender has been fixed at 600 MT,that the petitioner has also submitted a Certificate from the CharteredAccountant, dated 23.5.2007, to the said effect, that on 2.5.2007, thepetitioner received the tender documents after payment of Rs.15,000/- plustaxes as documents charges and on 28.5.2007, the tender was submittedalong with all documents and EMD of Rs.44 lakhs.(c) M/s.Garware Wall Ropes Ltd. and Kumaran Nets were the other two https://hcservices.ecourts.gov.in/hcservices/ tenderers who have submitted their tenders in response to the Re-Tendercalled by the third respondent on 2.5.2007, that on 30.5.2007, the thirdrespondent addressed a letter to the petitioner stating that the TenderScrutinizing Committee decided to depute a team of officials to inspectthe unit on 2.6.2007, that the petitioner made arrangements for inspectionby the said Committee, that on 2.6.2007, the Inspection Team inspected thepetitioner unit, that on 5.6.2007, the petitioner made a representation tothe third respondent stating that the said Committee has not inspected theother two leased units of the petitioner, that on 8.6.2007 and 21.6.2007,based on the said representation, the Team inspected the other two units,that the said Committee was satisfied with the production capacity of notless than 600 MT/p.a. of the petitioner even though the petitioner'sinstalled production capacity is 1305 MT and average production capacityis 1044 MT/p.a, which is nearly double the required production capacity inthe Re-Tender called for by the third respondent, that on 13.8.2007, thepetitioner preferred W.P.No.27258 of 2007 before this Court for a mandamusto direct the third respondent to approve the technical bid of thepetitioner in Cover No.1 in T.D.No.02, dated 2.5.2007, and to declare thesuccessful tenderer by opening cover No.2 consisting the price bid, thatthe tender submitted by the petitioner consists of two parts, i.e. CoverNo.1 relating to technical bid and Cover No.2 relating to the price bid,that on 28.5.2007, the technical bid submitted by the petitioner wasopened by the third respondent to verify the genuineness and eligibilitycondition of the petitioner-Unit, that it is the bounden duty of the thirdrespondent to open the price bid, that no steps have been taken to callfor the samples and for opening the price bid, that on 16.8.2007, thisCourt issued notice to the respondents in W.P.No.27258 of 2007 and thesaid W.P. is pending.(d) On 18.7.2007, the petitioner in W.P.No.28485 of 2007 made arepresentation to the Chief Minister, Finance Secretary, Government ofTamil Nadu and the first respondent, pointing out the fact while the thirdrespondent has inspected the units of the petitioner, the same was notdone in respect of M/s.Garware Wall Ropes Ltd., the other bidder, that thepetitioner requested the first respondent to depute a technical team tovisit the factory premises of the said M/s.Garware Wall Ropes Ltd., forverification of their manufacturing capacity, that the reduction of theproduction capacity has been resorted to in order to accommodate the othertenderers, that in the meanwhile, the third respondent called for secondRe-Tender and if the third respondent is permitted to process the secondRe-Tender, the said W.P. in W.P.No.27258 of 2007 would become infructuousdepriving the opportunity of the petitioner to succeed in the bid, thatthe third respondent on 21.8.2007, again made an advertisement in "The NewIndian Express" calling for second Re-Tender for supply of 1100 MT ofdouble knotted nylon webbings with a minimum production capacity of 100MT/p.a. of their own individual capacity, that on 23.8.2007, the thirdrespondent issued a corrigendum stating that "Title in Para 1 of TenderNotice dated 21.8.2007 shall be read as "Re-Tender Notice" ", fixing6.9.2007 as last date for submission of tenders, that the reason forcalling for Re-Tender is in order to accommodate their own personnel for https://hcservices.ecourts.gov.in/hcservices/ supply of double knotted nylon webbings, that the respondents have beendecreasing the production capacity of the suppliers as under in order toaccommodate the tenderers of their choice: Tender Notice dated 4.1.2007 – 1250 MT/p.a (for 1100 MT of knotted nylon webbings)Tender Notice dated 28.5.2007 – 600 MT/p.a (for 1100 MT of knotted nylon webbings)Tender Notice dated 6.9.2007 – 100 MT/p.a (for 1100 MT of double knotted nylon webbings)(e) It is the case of the petitioner in W.P.No.28485 of 2007 that thesum of Rs.44 lakhs has been with-held for nearly four months in theoriginal tender and for nearly three months in the first Re-Tender, thatthe action of the respondents is with ulterior motive and with only a pre-determined mind in awarding the contract and that the public interestwould suffer and would defeat the social purpose for providing relief tothe Tsunami affected people.(f) The above stated facts show only vindictive action of therespondents and the same is without any rhyme or reason, besides beingarbitrary, illegal, capricious and contrary to all cannons of principlesof natural justice and violative of the mandate prescribed under Articles14 and 19 of the Constitution of India and the provisions of the Act andRules.41. A common counter affidavit has been filed by the respondentsin both the Writ Petitions (W.P.Nos.27258 and 28485 of 2007), stating asfollows:The Writ Petitions are not maintainable in law as the issue underconsideration falls in the realm of contract, that it is settled lawin matters of awarding of contract, which is essentially a commercialtransaction, the State Government is entitled to choose its own methodand arrive at an appropriate decision. The Government has the freedomto contract by taking its own decision and the scope of judicialreview of such decision-making process is severely circumscribed andrestricted, especially when the State has taken the decision to go infor Re-Tender motivated by paramount public interest. The Tsunami hitthe Tamil Nadu coast on 26.12.2004 and caused damages to the life andfishing implements of the fishermen in the entire coastal Districts ofTamil Nadu, that the Government sanctioned various relief schemes asrehabilitation measure to the fishermen community for repairing theirnets and for replacing fully damaged/lost fishing implements, about42,000 fishermen were given relief assistance sanctioned under variousGovernment orders. As a huge amount was available from the totalsanctioned relief assistance, the Government in Order No.532, RevenueDepartment, dated 14.8.2006, read with Government Letter of theRevenue Department, dated 22.11.2006, sanctioned a sum of Rs.110.36crores for the purchase and supply of nets of 1100 MTs, handy https://hcservices.ecourts.gov.in/hcservices/ rechargeable lanterns, heavy duty bicycles, life jackets and insulatedice boxes, with quality, for assistance under the Rajiv GandhiRehabilitation Package.42. It is further averred in the counter affidavit that theGovernment, among other things, allocated a sum of Rs.44 crores out of thetotal sanction of Rs.110.36 crores for supply of nets to the alreadybenefited Tsunami affected fishermen under the above Package, that thetotal loss of nets, due to Tsunami, according to actual assessment was1100 MTs, that it was therefore proposed to purchase and supply 25 Kgs. ofGill Nets to each beneficiary at a unit cost of Rs.400/- per Kg, subjectto a maximum of Rs.10,000/- per beneficiary, that the Government, inG.O.Ms.No.193, Animal Husbandry, Dairying and Fisheries Department, dated22.11.2006, issued orders constituting Technical Committee, ScrutinizingCommittee and Award Committee for processing the tenders and theCommittees for the purchase of nets are as follows:Sl.No.Name of the CommitteeMembers of the Committee1 Tender Technical Committee1. Spl. Commissioner of Fisheries-Chairman2. Director of his representative fromCIFNET - Member3. Zonal Director or hisrepresentative of FSI, Chennai -Member4. Joint Director of Fisheries(Marine) Member Secretary 2 Tender ScrutinizingCommittee1. Spl. Commissioner of Fisheries-Chairman2. Joint Director of Fisheries(Marine, Inland & Research) - Members3. Accounts Officer (Fisheries) –Member 4. Deputy Director of Fisheries(Marine) - Member Secretary3 Tender Award Committee1. Secretary to Government, AHD & FDept – Chairman2. Secretary to Government, FinanceDepartment or his/her nominee - Member3. The Director of Fisheries – MemberSecretaryThe Tender Technical Committee suggested the following specifications forthe knotted nylon webbings for the gill nets to be purchased with suitablemesh size:- https://hcservices.ecourts.gov.in/hcservices/ Knotted Gill Nets (only webbings) approved by BIS with the followingspecifications:Sl.No.Type of materialTwine size Stretched Meshsize in mm1Nylon Multifilament210 d x 1 x 2302Nylon Monofilament0.16 mm dia273Nylon Monofilament0.16 mm dia364Nylon Multifilament210 d x 1 x 2365Nylon Monofilament0.23 mm dia566Nylon Multifilament210 d x 1 x 356The Committee also recommended that nets with BIS specifications, may bepurchased. 43. It is further averred in the counter that based on therecommendations of the Committee, tenders for purchase of all the abovesaid five components including nets were called for, that the TenderNotice was published in the leading dailies, that the tenders were invitedonly from the manufacturers of nets (webbings) with a production capacityof not less than 1250 MT per annum of above specifications, that the EMDfor the tender was fixed at Rs.44 lakhs and that the cover system wasadopted and the tender document was based on the Act and Rules. The lastdate for receipt of tenders was upto 3.00 p.m. on 4.12.2007. Eleventenders were purchased and only four tenders were received and respondentshave taken all possible steps to process the tender as per the procedurelaid down in the Act and as per the conditions mentioned in the tenderdocument. The tenders were opened at 4.00 p.m. on 5.1.2007. Only the firstcover, viz., technical bid was opened. The technical bids were evaluatedby the Tender Scrutinizing Committee on 22.1.2007 and only one tendererviz. M/s.Garware Wall Ropes Limited was found technically qualified. Theother three tenders, namely M/s.Kassim Nets, M/s.Nirmala Monofil Pvt. Ltd.and M/s.Raj Nylon Exports, were rejected on technical grounds. The netmanufacturing plant of the qualified tenderer viz. M/s.Garware Wall RopesLtd., was inspected on 7.2.2007 and based on the recommendations of theTender Scrutinizing Committee on the evaluation of the Inspection Report,samples of all the webbings of the specifications mentioned in the tenderdocument were obtained from the firm and sent to CIPET for testing on20.2.2007. The test report on the samples was received from CIPET on9.3.2007 and the same was evaluated by the Tender Scrutinizing Committeeon 12.3.2007. The Committee recommended to conduct breaking load test ofthe samples as per the BIS specification by CIPET. Test report on breakingload was received from CIPET on 23.3.2007 and the same was evaluated bythe Scrutinizing Committee on 3.4.2007 and based on the recommendationsof the Committee, the price bid of the technically qualified tenderer wasopened on 4.4.2007 and negotiation of rates was done with the tenderer on10.4.2007. On the recommendations of the Tender Scrutinizing Committee, https://hcservices.ecourts.gov.in/hcservices/ technical bids and price bids were placed before the Tender AwardCommittee meeting for taking a decision on 12.4.2007. The Tender AwardCommittee took note of the information given by the Scientists (Experts)from CIFT, Cochin, CIPET, Chennai, stating that there were no BISspecifications for webbings, unlike twines. However, BIS standard testprocedures are available for both webbings and twines. Since BIS standardspecifications were not prescribed for webbings, the technicalrequirements under this tender cannot be evaluated. In view of the abovefacts, the Award Committee asked to go for re-tender. The tender wastherefore cancelled and the EMD was returned to the tenderers on25.4.2007. Thereafter, the Tender Award Committee instructed a re-tendershould be called for the purchase of 1100 MT of nets and the same was donewith the following modifications:-1. Tenders were invited from the manufacturers ofnets (webbings) only with a production capacity of notless than 600 MT per annum of the specificationsmentioned above (The Twine size in Sl.No.5 NylonMonofilament was changed as 0.24 mm. dia instead of0.23 mm dia).2. BIS specifications were given in the tenderdocument as follows:. Nylon webbings should be made up of Nylontwines/monofilament yarn of BIS specifications (i.e)Nylon multifilament (Twine): IS 4401 : 2006Nylon monofilament : IS 7533 : 2003. The webbing should be made up of virginPolyamide (Nylon) twine/yarn.. Recycled raw material (Nylon) should not be usedfor making webbings.3. The Tender Scrutinizing Committee recommendedto fix the production capacity as 600 MTs/annum in viewof the fact that only one responsive bid was receivedfor the first tender in which the production capacitywas fixed as 1250 MTs/annum and also considering theuniqueness of the purchase in terms of volume whichneeds to be supplied within one year.Accordingly, the tender notice dated 25.4.2007 inviting tenders waspublished in leading dailies and the last date for receipt of tenders wasfixed as 3.00 p.m. on 28.5.2007. Totally, three tenders were received asfollows:(i) M/s.Garware Wall Ropes Pvt. Ltd., Pune.(ii) M/s.Kassim Nets, Nagercoil.(iii) M/s.Kumaran Fish Nets Private Ltd., Nagercoil.44. The technical bids were opened at 4.00 p.m. on 28.5.2007 and themanufacturing plants of M/s.Kassim Nets, Nagercoil and M/s.Kumaran Nets,Nagercoil were inspected on 2.6.2007 and 22.6.2007 and the inspection https://hcservices.ecourts.gov.in/hcservices/ notes and the technical bids were evaluated on 30.5.2007, 11.6.2007 and22.6.2007. Samples received from M/s.Garware Wall Ropes Ltd. were sent toCIFT, Cochin on 29.6.2007 for testing to confirm whether it meets BISspecifications. The test report received from CIFT, Cochin on 11.7.2007confirmed the same.45. While that being the position, a specific complaint dated19.7.2007 against the production capacity of the said M/s.Garware WallRopes Ltd. was received and it was decided by the Tender ScrutinizingCommittee on 24.7.2007 to depute a team of officials to inspect as towhether the said Company has the production capacity of its own for thedescriptions of the works as specified in the tender. The said Company wasre-inspected from 25.7.2007 to 28.7.2007. The inspection team found thatthe Company did not possess the capacity claimed in the tender document.Thereafter, the Tender Scrutinizing Committee has evaluated the technicalbids, inspection reports of all the tenderers and test reports on thesamples of the said Company. Since no one was found qualified in theevaluation process by the Tender Scrutinizing Committee, the tenders ofall the three tenderers, namely M/s.Garware Wall Ropes Ltd., Pune,M/s.Kassim Nets, Nagercoil and M/s.Kumaran Nets, were rejected. The TenderScrutinizing Committee in its meeting held on 9.8.2007, has made thefollowing recommendations: "1. By experience in the previous two tenders,there were no suitable suppliers even after the reducedproduction quality of 600 MTs/year as eligibilitycriteria. 2. 1100 MTs of Nylon webbings have to bedistributed to the fishermen within a timeframe of oneyear.3. To ensure better participation in tender and goingby the previous experience, that there is no suitablemanufacturer with the production capacity of 1250MT/annum and 600 MT/annum, the production capacity maybe reduced to 100 MT/annum.4. The Government may be addressed to permit thethird respondent to go for re-tender under fixed ratecontract system and to reduce the production capacityto 100 MTs/annum (60% monofilament : 40% multifilament)of webbings of specified description in the tender andalso to reduce the time limit to 15 days for invitingtenders, since the tender call is for the third timeand all the manufacturers were aware of the supply ofwebbings to fishermen. Therefore, the Government was addressed on the above lines in the letterNo.38116/TPIU/07, dated 9.8.2007 by the third respondent-Director ofFisheries and the Government in Letter No.16926/FSI/2007-1, dated17.8.2007 permitted the third respondent (Director of Fisheries) to go forre-tender under fixed rate contract system and to reduce the time limit to https://hcservices.ecourts.gov.in/hcservices/ 15 days. Therefore, the tenders were cancelled on 17.8.2007. The saidM/s.Garware Wall Ropes Pvt. Ltd's tender was also cancelled on 17.8.2007-vide third respondent's letter No.55055/P1/2007, dated 17.8.2007 and theEMD of Rs.44 lakhs was returned to it. In view of this, the prayer inW.P.No.27258 of 2007 has become incapable of being granted and the samehas become infructuous and the said W.P.No.27258 of 2007 is liable to bedismissed in-limine. 46. It is the further case of the respondents in the counter that asinstructed by the Government in Letter No.16926/FSIII/2007-1, dated17.8.2007, re-tender II was called for the purchase of 1100 MTs of netswith the following modifications:(i) Nylon webbings should be made up of Nylon twines/monofilamentyarn of BIS specifications (i.e).Nylon Multifilament (Twine) : IS 4401:2006Nylon Monofilament : IS 7533:2003(ii) The manufacturers shall have their production capacity ofwebbings in the ratio of 60:40 of monofilament : multifilamentrespectively.(iii) The webbing should be made up of virgin Polyamide (Nylon)Twine/Yarn.(iv) Recycled raw material (Nylon) should not be used for makingwebbings.Tender notice inviting re-tenders dated 21.8.2007 was published inthe leading dailies and corrigendum was also issued on 23.8.2007. Theeligibility criteria for bidders have been prescribed in the tender noticeas follows:(a) The bidder shall be a registered manufacturer having a minimumindividual annual production capacity of 100 MTs of nylon (Polyamide) nets(Double knotted Nylon webbings) in the ratio of 60% monofilament : 40%multifilament nylon nets (double knotted nylon webbings) of the specifieddescription in the tender schedule and having experience in the productionand marketing of the webbings of the specifications described in thetender document for a minimum period of three years.(b) Alliance or agreement of any type with anymanufacturer/dealer/distributor dealing with the said nylon webbings likeConsortium/lease rent/joint venture etc. shall be rejected.(c) The bidders should provide samples in a separate cover ofmultifilament twines and monofilament yarn for making knotted nylonwebbings and also samples of the webbings of the descriptions specified inthe tender document made out of the above indicated twines/yarns alongwith tender document.(d) EMD has been reduced and fixed as Rs.11 lakhs.(e) Two cover system will be followed.(f) Production of production plan has been made mandatory. Last date for receipt of tenders has been fixed on 6.9.2007 upto 3.00 p.m. 47. Hence, it is the case of the respondents in the counter that inview of the facts stated by the respondents as above, it reveals thatthere is no mala-fide or wilful intention on the part of the respondents https://hcservices.ecourts.gov.in/hcservices/ to cancel the earlier tender and invite fresh tender as notified on21.8.2007. There is no iota of evidence to show that the tender processis arbitrary. It is contended by the respondents in the counter that asper the procedure laid down in the Act and as per the conditions mentionedin the tender document, the respondents have taken all steps to processthe tenders. There is no undue delay as contended by the petitioner inprocessing the tenders by the respondents, since as per the tenderconditions, the samples of the technically qualified tender have got to betested before opening the price bid. The basis for the decision of theTender Award Committee to go in for Re-Tender based on its meeting held on12.4.2007 is that in the absence of BIS specifications for webbings, thequality of the webbings to be supplied to the fishermen cannot beevaluated and hence, there is no mala-fide intention or delay inprocessing the tenders, as alleged by the petitioner. Regarding thecontention that the petitioner has entered into a lease agreement with twomanufacturing plants, namely M/s.Net Park and M/s.Ajanta Fish Nets, it isproved beyond doubt on investigation by the respondents that actually, thepetitioner has not entered into the lease agreement with these two plantsand the draft lease deed was produced for convenience to believe that ithas the required production capacity of 600 MT/per annum specified in theRe-Tender, dated 25.4.2007, but actually the production capacity of thepetitioner was less than 600 MT/p.a. 48. It is the further case of the respondents in the counter that theprovisions of Rule 18(2) of the Tamil Nadu Transparency in Tenders Ruleswere duly followed. Inasmuch the Re-Tender notified on 25.4.2007 has beencancelled and the EMD was returned, the question of opening the price biddoes not arise. The question of opening the price bid will arise onlyafter the tenderers have qualified themselves for the criteria prescribedfor technical bids. The contention of the petitioner that in order toaccommodate the other tenderer, the reduction in production capacity wasresorted to, is false, because the alleged other tenderer, namelyM/s.Garware Wall Ropes Ltd., was disqualified on the ground that it lackedthe required production capacity as notified in the tender. Theapportioning of the quantity for the supply of nylon webbings will bedecided based on the production capacity to ensure the Department tofulfil its requirement of 1100 MT of nets (webbings) and hence, thecontention of the petitioner that decrease in production capacity is toaccommodate the tenderers of choice, is baseless and unfounded. 49. It is further averred in the counter that the Re-Tender wasfloated based on the approval of the Government and the decision of therespondents was a collective one based on facts and figures and therefore,the question of favouring any one does not arise. In all fairness, it isstated by the respondents that the principles of natural justice wasapplied for participation of all eligible manufacturers and that theTechnical Tender Scrutinizing Committee evaluated all the bids and sinceit found that there was no qualified tender, the Re-Tender process wasproceeded, that too after scientific examination of the technical bids andthe facts brought out by the inspecting teams of officials. Thus, there is https://hcservices.ecourts.gov.in/hcservices/ no pre-determined mind of the respondents. The writ petitioner came toCourt with tainted mind and mala-fide intention to circumvent the tenderprocess, which is intended to benefit the downtrodden Tsunamiaffected/already benefited fishermen. At any rate, the Writ Petitions areliable to be dismissed as devoid of merits. 50. Mr.AL.Somayaji, learned Senior Counsel appearing for thepetitioner in W.P.Nos.27258 and 28485 of 2007, has vehemently contendedthe Government of India under Rajiv Gandhi Rehabilitation Package forTsunami victims, has allocated Rs.110 crores under five categories, namelynets, handy rechargeable lanterns, heavy duty bicycles, life jackets andinsulated ice boxes, etc., of which an amount of Rs.44 crores has beenallocated for nets (webbings), that the petitioner is a reputedmanufacturer of all kinds of fishing nets and has been in the trade since1986. It is the further contention of the learned Senior Counsel that thepetitioner-Company had orders with M/s.World Vision India andM/s.Salvation Arym for supply of fishing nets, having appreciated thequality of products of the petitioner-Company. Insofar as the eligibilitycondition, the learned Senior Counsel submitted that the manufacturer ofnets (webbings) should have a production capacity of not less than 1250MT per annum and the other condition is that the webbing and twines usedshould conform to BIS standard and specification. It is the furthercontention of the learned Senior Counsel that the Tender Award Committeeconstituted by the Government, has decided for Re-Tender of the nets(webbings), for supply of the same 1100 MT, even though the petitioner washaving a capacity of more than 1250 MT/p.a., when the prescribedproduction capacity pursuant to Re-Tender has been fixed at Rs.600 MT.The decision to further lower down the capacity as 100 MT from 600 MT forthe same supply of 1100 MT of total knotted webbings, cannot and could notbe achieved, as the requirement is 1100 MT. Therefore, the action of therespondents is against the object and reasons contemplated under the andTamil Nadu Transparency in Tenders Rules, 2000. 51. The learned Senior Counsel appearing for the petitioner submittedthat the decision-making process as contemplated by the respondents ingoing for Re-Tender, is an arbitrary exercise and illegal. At any rate,the second Re-Tender violates the principles of natural justice. Thelearned Senior Counsel submitted further that going for second Re-Tenderwithout even finalising the first Re-Tender in order to accommodate theirown persons for supply of double knotted nylon webbings, is violative ofArticle 14 of the Constitution of India. 52. A paramount point has been raised by the learned Senior Counselappearing for the petitioner-Company that calling for second Re-Tenderwithout finalising the previous one, after opening the technical bids,reflects the pre-determined mind on the part of the third respondent inawarding the contract to a tenderer of their choice. Further, the delay infinalising the first Re-Tender amounts to defeating the social purpose ofproviding the relief to the Tsunami affected fishermen, for whichallocation has been specifically made by the Government and the net result https://hcservices.ecourts.gov.in/hcservices/ is that public interest would suffer and that without assigning any reasonfor not opening the price bids after opening the technical bids and notfinalising the first Re-Tender is illegal, arbitrary and violative ofArticles 14 and 19 of the Constitution of India.53. The learned Senior Counsel has strenuously contended that uptothe second Re-Tender, the requirement of the respondents is that 1100 MTnets (webbings) and they have changed the eligibility criteria from theoriginal Tender/first and second Re-Tenders, which clearly shows thevindictive attitude on the part of the respondents in finalising thecontract and therefore, the second Re-Tender cannot be sustained and thesame is liable to be set aside. 54. The following citations were relied on by the learned SeniorCounsel appearing for the petitioners:(i) AIR 2007 SC 119 (Noble Resources Ltd., vs. State of Orissa);(ii) 1994 (6) SCC 651 (Tata Cellular vs. Union of India) and(iii) 2001 (8) SCC 491 (Union of India vs. Dinesh Engineering Corpn.);55. On the other hand, the learned Advocate General appearing for therespondents, submitted that on 26.12.2004, the Tamil Nadu coast has beenhit by the Tsunami causing damage to the life and fishing implements ofthe fishermen in the entire coastal Districts of the Tamil Nadu State. TheGovernment sanctioned various relief schemes as rehabilitation measures.About 42,000 fishermen were affected and given the relief assistance underthe various Government Orders. One of the important measures taken bythe Government is that orders have been issued on 22.11.2006 sanctioninga sum of Rs.110.36 crores for purchase and supply of various items, whichqualify for assistance under Rajiv Gandhi Rehabilitation Package, out ofwhich, a sum of Rs.44 crores has been allotted for purchase and supply ofnets to the already benefited Tsunami affected fishermen under the abovePackage. The total loss of nets due to Tsunami, according to the actualassessment was 1100 MT. The learned Advocate General in his submissions,stated that the Government, after constituting the Technical Committee,Scrutinizing Committee and Award Committee for processing the tenders forthe purpose of purchase of nets and according to the Committees'recommendations and the entire process of inviting tenders takingdecision, and after the publication of the tender notices, the procedureas contemplated under the and the Tamil Nadu Transparency in TendersRules, 2000 have been scrupulously followed by the respondents. Thelearned Advocate General further submitted that since BIS standards andspecifications were not prescribed for webbings, the technicalrequirements under the tender cannot be evaluated. 56. The learned Advocate General, in his submissions, stated that theoriginal Tender and Re-Tenders are all within the powers of the Governmentand the procedures contemplated under the provisions of the and the TamilNadu Transparency in Tenders, Rules, 2000 have been followed, by takinginto consideration the decisions of this Court as well as the SupremeCourt and the Re-Tender process does not suffer from any legal infirmity. https://hcservices.ecourts.gov.in/hcservices/ The submissions of the learned Advocate General are four-fold; firstly,the scope of the judicial review in matters falling under the realm ofcontract is limited; secondly, the power of the respondents to relax thetender conditions and to call for Re-Tender cannot be interfered with byCourts of law unless it is patently arbitrary; thirdly, the decision ofthe authorities to call for Re-Tender has been taken based on paramountpublic interest ensuring wider participation, shorter time-frame andexpeditious implementation and therefore, the decision-making process bythe respondents is unimpeachable in law and lastly, the cancellation oftender and the decision to call for Re-Tender does not require anyopportunity to be given or reasons to be recorded, as no right accrues toany party at that stage. 57. The following are the decisions relied on by the learned AdvocateGeneral: (i) AIR 2006 Madras 45(M.Vasudevan vs. C.E.O., Chennai Metropolitan DevelopmentAuthority);(ii) 1993 (1) SCC 445 (Sterling Computers Ltd. vs. M & N Publications Ltd.);(iii) 2004 (2) CTC 221 (SC) (Directorate of Education vs. Educomp Datamatics Ltd.);(iv) 2005 (6) SCC 138 (Master Marine Services (P) Ltd. vs. Metcalfe & Hodgkinson (P) Ltd.);(v) 2005 (4) SCC 435 (Global Energy Ltd. vs. Adani Exports Ltd.) and (vi) 2006(11)SCC 548 (B.S.N.Joshi & Sons Ltd. vs. Nair Coal ServicesLtd). 58. The following are the relevant paragraphs deducible from theauthorities relied by either side:(i) 2005 (4) SCC 435 (Global Energy Ltd. v. Adani Exports Ltd.,):"9. In Tata Cellular v. Union of India (1994 (6)SCC 651 : AIR 1996 SC 11) a three-Judge Bench hasexplained what is a tender and what are the requisitesof a valid tender. It has been held that the tendermust be unconditional and must conform to the terms ofthe obligation and further the person by whom thetender is made must be able and willing to perform hisobligations. It has been further held that the terms ofthe invitation to tender cannot be open to judicialscrutiny because the invitation to tender is in therealm of contract. In Air India Ltd. v. CochinInternational Airport Ltd. (2000 (2) SCC 617), the sameview was reiterated that the State can fix its own https://hcservices.ecourts.gov.in/hcservices/ terms of invitation of tender and that it is not opento judicial scrutiny. Whether and in what conditionsthe terms of a notice inviting tenders can be asubject-matter of judicial scrutiny, has been examinedin considerable detail in Directorate of Education v.Educomp Datamatics Ltd. (2000 (4) SCC 19). .... Inappeal, this Court reversed the judgment of the HighCourt basically on the ground that the terms of theinvitation to tender are not open to judicial scrutiny,the same being in the realm of contract and theGovernment must have a free hand in settling the termsof the tender. The courts would not interfere with theterms of the tender notice unless it was shown to beeither arbitrary or discriminatory or actuated bymalice. It was further held that while exercising thepower of judicial review of the terms of the tendernotice, the court cannot order change in them. 10. The principle is, therefore, well settled thatthe terms of the invitation to tender are not open tojudicial scrutiny and the courts cannot whittle downthe terms of the tender as they are in the realm ofcontract unless they are wholly arbitrary,discriminatory or actuated by malice." (ii) 1993 (1) SCC 445 (Sterling Computers Ltd. vs. M & NPublications Ltd):"12. At times it is said that public authoritiesmust have the same liberty as they have in framing thepolicies, even while entering into contracts becausemany contracts amount to implementation or projectionof policies of the Government. But it cannot beoverlooked that unlike policies, contracts are legallybinding commitments and they commit the authoritywhich may be held to be a State within the meaning ofArticle 12 of the Constitution in many cases foryears. That is why the courts have impressed that evenin contractual matters the public authority should nothave unfettered discretion. In contracts havingcommercial element, some more discretion has to beconceded to the authorities so that they may enterinto contracts with persons, keeping an eye on theaugmentation of the revenue. But even in such mattersthey have to follow the norms recognised by courtswhile dealing with public property. It is not possiblefor courts to question and adjudicate every decisiontaken by an authority, because many of the GovernmentUndertakings which in due course have acquired themonopolist position in matters of sale and purchase of https://hcservices.ecourts.gov.in/hcservices/ products and with so many ventures in hand, they cancome out with a plea that it is not always possible toact like a quasi-judicial authority while awardingcontracts. Under some special circumstances adiscretion has to be conceded to the authorities whohave to enter into contract giving them liberty toassess the overall situation for purpose of taking adecision as to whom the contract be awarded and atwhat terms. If the decisions have been taken in bonafide manner although not strictly following the normslaid down by the courts, such decisions are upheld onthe principle laid down by Justice Holmes, that courtswhile judging the constitutional validity of executivedecisions must grant certain measure of freedom of“play in the joints” to the executive. 18. While exercising the power of judicialreview, in respect of contracts entered into on behalfof the State, the Court is concerned primarily as towhether there has been any infirmity in the “decisionmaking process”. In this connection reference may bemade to the case of Chief Constable of the North WalesPolice v. Evans (1982 (3) All.E.R. 141) where it wassaid that: (p. 144a) “The purpose of judicial review is to ensurethat the individual receives fair treatment, andnot to ensure that the authority, after accordingfair treatment, reaches on a matter which it isauthorised or enjoined by law to decide foritself a conclusion which is correct in the eyesof the court.”By way of judicial review the court cannot examine thedetails of the terms of the contract which have beenentered into by the public bodies or the State. Courtshave inherent limitations on the scope of any suchenquiry. But at the same time as was said by the Houseof Lords in the aforesaid case, Chief Constable of theNorth Wales Police v. Evans (1982 (3) All.E.R. 141)the courts can certainly examine whether “decision-making process” was reasonable, rational, notarbitrary and violative of Article 14 of theConstitution. 19. If the contract has been entered into withoutignoring the procedure which can be said to be basicin nature and after an objective consideration ofdifferent options available taking into account theinterest of the State and the public, then Courtcannot act as an appellate authority by substitutingits opinion in respect of selection made for entering https://hcservices.ecourts.gov.in/hcservices/ into such contract. But, once the procedure adopted byan authority for purpose of entering into a contractis held to be against the mandate of Article 14 of theConstitution, the courts cannot ignore such actionsaying that the authorities concerned must have somelatitude or liberty in contractual matters and anyinterference by court amounts to encroachment on theexclusive right of the executive to take suchdecision." (iii) 2005 (6) SCC 138 (Master Marine Services (P) Ltd. vs. Metcalfe& Hodgkinson (P) Ltd):"11. The principles which have to be applied injudicial review of administrative decisions, especiallythose relating to acceptance of tender and award ofcontract, have been considered in great detail by athree-Judge Bench in Tata Cellular v. Union of India(1994 (6) SCC 651 : AIR 1996 SC 11. It was observedthat the principles of judicial review would apply tothe exercise of contractual powers by government bodiesin order to prevent arbitrariness or favouritism.However, it must be clearly stated that there areinherent limitations in exercise of that power ofjudicial review. Government is the guardian of thefinances of the State. It is expected to protect thefinancial interest of the State. The right to refusethe lowest or any other tender is always available tothe Government. But, the principles laid down inArticle 14 of the Constitution have to be kept in viewwhile accepting or refusing a tender. There can be noquestion of infringement of Article 14 if theGovernment tries to get the best person or the bestquotation. The right to choose cannot be considered tobe an arbitrary power. Of course, if the said power isexercised for any collateral purpose the exercise ofthat power will be struck down. (See para 85 of theReport, SCC para 70.) 12. After an exhaustive consideration of a largenumber of decisions and standard books onadministrative law, the Court enunciated the principlethat the modern trend points to judicial restraint inadministrative action. The court does not sit as acourt of appeal but merely reviews the manner in whichthe decision was made. The court does not have theexpertise to correct the administrative decision. If areview of the administrative decision is permitted it https://hcservices.ecourts.gov.in/hcservices/ will be substituting its own decision, without thenecessary expertise, which itself may be fallible. TheGovernment must have freedom of contract. In otherwords, fair play in the joints is a necessaryconcomitant for an administrative body functioning inan administrative sphere or quasi-administrativesphere. However, the decision must not only be testedby the application of Wednesbury principles ofreasonableness but also must be free from arbitrarinessnot affected by bias or actuated by mala fides. It wasalso pointed out that quashing decisions may imposeheavy administrative burden on the administration andlead to increased and unbudgeted expenditure. (Seepara 113 of the Report, SCC para 94). 15. The law relating to award of contract by theState and public sector corporations was reviewed inAir India Ltd. v. Cochin International Airport Ltd.(2000 (2) SCC 617)and it was held that the award of acontract, whether by a private party or by a State, isessentially a commercial transaction. It can choose itsown method to arrive at a decision and it is free togrant any relaxation for bona fide reasons, if thetender conditions permit such a relaxation. It wasfurther held that the State, its corporations,instrumentalities and agencies have the public duty tobe fair to all concerned. Even when some defect isfound in the decision-making process, the court mustexercise its discretionary powers under Article 226with great caution and should exercise it only infurtherance of public interest and not merely on themaking out of a legal point. The court should alwayskeep the larger public interest in mind in order todecide whether its intervention is called for or not.Only when it comes to a conclusion that overwhelmingpublic interest requires interference, the court shouldinterfere."(iv) 1994 (6) SCC 651 (Tata Cellular v. Union of India): "89. In G.B.Mahajan v. Jalgaon Municipal Council(1991 (3) SCC 91) the concept of reasonableness inadministrative law came to be dealt with elaborately byone of us, Venkatachaliah, J. (as he then was). Inparagraphs 37 to 41 the Court observed thus :“It was urged that the basic concept ofthe manner of the development of the realestate and disposal of occupancy rights werevitiated by unreasonableness. It is a truism, https://hcservices.ecourts.gov.in/hcservices/ doctrinally, that powers must be exercisedreasonably. But as Prof. Wade points out :‘The doctrine that powers must beexercised reasonably has to be reconciledwith the no less important doctrine thatthe court must not usurp the discretionof the public authority which Parliamentappointed to take the decision. Withinthe bounds of legal reasonableness is thearea in which the deciding authority hasgenuinely free discretion. If it passesthose bounds, it acts ultra vires. Thecourt must therefore resist thetemptation to draw the bounds tootightly, merely according to its ownopinion. It must strive to apply anobjective standard which leaves to thedeciding authority the full range ofchoices which the legislature is presumedto have intended. Decisions which areextravagant or capricious cannot belegitimate. But if the decision is withinthe confines of reasonableness, it is nopart of the court’s function to lookfurther into its merits. “With thequestion whether a particular policy iswise or foolish the court is notconcerned; it can only interfere if topursue it is beyond the powers of theauthority”...’ In the arguments there is some generalmisapprehension of the scope of the ‘reasonableness’test in administrative law. By whose standards ofreasonableness that a matter is to be decided? Somephrases which pass from one branch of law to another —as did the expressions ‘void’ and ‘voidable’ fromprivate law areas to public law situations — carry overwith them meanings that may be inapposite in thechanged context. Some such thing has happened to thewords ‘reasonable’, ‘reasonableness’ etc. In Tiller v.Atlantic Coast Line Rail Road Co. (318 US 54 : 87 L Ed.610 (1942), Justice Frankfurter said : ‘A phrase begins life as a literaryexpression; its felicity leads to its lazyrepetition; and repetition soon establishesit as a legal formula, undiscriminatinglyused to express different and sometimescontradictory ideas.’ https://hcservices.ecourts.gov.in/hcservices/ Different contexts in which the operation of‘reasonableness’ as test of validity operates must bekept distinguished. For instance as the arguments inthe present case invoke, the administrative law test of‘reasonableness’ as the touchstone of validity of theimpugned resolutions is different from the test of the‘reasonable man’ familiar to the law of torts, whomEnglish law figuratively identifies as the ‘man on theClapham omnibus’. In the latter case the standards ofthe ‘reasonable man’, to the extent such a ‘reasonableman’ is court’s creation, is in a manner of saying, amere transferred epithet. Lord Radcliffe observed :(All ER p.160) ‘By this time, it might seem that theparties themselves have become so fardisembodied spirits that their actual personsshould be allowed to rest in peace. In theirplace there rises the figure of the fair andreasonable man. And the spokesman of the fairand reasonable man, who represents after all nomore than the anthropomorphic conception ofjustice, is, and must be, the court itself ....’ (emphasis supplied) SeeDavis Contractors Ltd. v. Fareham U.D.C. (1956(2) All.E.R. 145, 160 : 1956 AC 696 :(1956) 3 WLR 37).Yet another area of reasonableness which must bedistinguished is the constitutional standards of‘reasonableness’ of the restrictions on the fundamentalrights of which the court of judicial review is thearbiter. The administrative law test of reasonableness isnot by the standards of the ‘reasonable man’ of thetorts law. Prof. Wade says : ‘This is not therefore the standard of“the man on the Clapham omnibus ”. It is thestandard indicated by a true construction ofthe Act which distinguishes between what thestatutory authority may or may not beauthorised to do. It distinguishes betweenproper use and improper abuse of power. It isoften expressed by saying that the decisionis unlawful if it is one to which noreasonable authority could have come. This isthe essence of what is now commonly called“Wednesbury unreasonableness”, after the nowfamous case in which Lord Greene, M.R.expounded it.’ https://hcservices.ecourts.gov.in/hcservices/ (emphasis supplied)90. Referring to the doctrine of unreasonableness,Prof.Wade says in Administrative Law (supra) :“The point to note is that a thing is notunreasonable in the legal sense merely because thecourt thinks it is unwise.” 91. In Food Corpn. of India v. Kamdhenu CattleFeed Industries (1993 (1) SCC 71) it was observedthus : (SCC p.76, para 7) “In contractual sphere as in all otherState actions, the State and all itsinstrumentalities have to conform to Article 14of the Constitution of which non-arbitrarinessis a significant facet. There is no unfettereddiscretion in public law : A public authoritypossesses powers only to use them for publicgood. This imposes the duty to act fairly andto adopt a procedure which is ‘fairplay inaction’. ” 92. In Sterling Computers Limited v. M&NPublications Ltd. (1993 (1) SCC 445) this Courtobserved thus : (SCC p.455, para 12) “In contracts having commercial element,some more discretion has to be conceded to theauthorities so that they may enter intocontracts with persons, keeping an eye on theaugmentation of the revenue. But even in suchmatters they have to follow the normsrecognised by courts while dealing with publicproperty. It is not possible for courts toquestion and adjudicate every decision taken byan authority, because many of the GovernmentUndertakings which in due course have acquiredthe monopolist position in matters of sale andpurchase of products and with so many venturesin hand, they can come out with a plea that itis not always possible to act like a quasi-judicial authority while awarding contracts.Under some special circumstances a discretionhas to be conceded to the authorities who haveto enter into contract giving them liberty toassess the overall situation for purpose oftaking a decision as to whom the contract beawarded and at what terms. If the decisions https://hcservices.ecourts.gov.in/hcservices/ have been taken in bona fide manner althoughnot strictly following the norms laid down bythe courts, such decisions are upheld on theprinciple laid down by Justice Holmes, thatcourts while judging the constitutionalvalidity of executive decisions must grantcertain measure of freedom of ‘play in thejoints’ to the executive.” 93. In Union of India v. Hindustan DevelopmentCorpn. (1993 (3) SCC 499) this Court held thus : (SCCp.515, para 9)“... the Government had the right toeither accept or reject the lowest offer butthat of course, if done on a policy, should beon some rational and reasonable grounds. InErusian Equipment & Chemicals Ltd. v. Stateof W.B. (1975 (1) SCC 70 : 1975 (2) SCR 674)this Court observed as under : (SCC p.75, para17)‘When the Government is tradingwith the public, “the democratic formof Government demands equality andabsence of arbitrariness anddiscrimination in such transactions”.The activities of the Government have apublic element and, therefore, thereshould be fairness and equality. TheState need not enter into any contractwith anyone, but if it does so, it mustdo so fairly without discrimination andwithout unfair procedure.’ ” 94. The principles deducible from the above are : (1) The modern trend points to judicial restraintin administrative action. (2) The court does not sit as a court of appealbut merely reviews the manner in which the decision wasmade. (3) The court does not have the expertise tocorrect the administrative decision. If a review of theadministrative decision is permitted it will besubstituting its own decision, without the necessaryexpertise which itself may be fallible. (4) The terms of the invitation to tender cannotbe open to judicial scrutiny because the invitation totender is in the realm of contract. Normally speaking,the decision to accept the tender or award the contract https://hcservices.ecourts.gov.in/hcservices/ is reached by process of negotiations through severaltiers. More often than not, such decisions are madequalitatively by experts. (5) The Government must have freedom of contract.In other words, a fair play in the joints is anecessary concomitant for an administrative bodyfunctioning in an administrative sphere or quasi-administrative sphere. However, the decision must notonly be tested by the application of Wednesburyprinciple of reasonableness (including its other factspointed out above) but must be free from arbitrarinessnot affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavyadministrative burden on the administration and lead toincreased and unbudgeted expenditure. Based on these principles we will examine thefacts of this case since they commend to us as thecorrect principles. 151. In the above two cases, we are obliged tointerfere on the ground of arbitrariness and violationof the principle of natural justice confining ourselvesto the doctrine of judicial restraint, however, by theapplication of permissible parameters to set right thedecision-making process. (emphasis supplied). "(v) 2001 (8) SCC 491 (Union of India vs. Dinesh Engineering Corpn.):"15. Coming to the second question involved inthese appeals, namely, the rejection of the tender ofthe writ petitioner, it was argued on behalf of theappellants that the Railways under clause 16 of theGuidelines was entitled to reject any tender offerwithout assigning any reasons and it also has the powerto accept or not to accept the lowest offer. We do notdispute this power provided the same is exercisedwithin the realm of the object for which this clause isincorporated. This does not give an arbitrary power tothe Railways to reject the bid offered by a partymerely because it has that power. This is a power whichcan be exercised on the existence of certain conditionswhich in the opinion of the Railways are not in theinterest of the Railways to accept the offer. No suchground has been taken when the writ petitioner’s tenderwas rejected. Therefore, we agree with the High Courtthat it is not open to the Railways to rely upon this https://hcservices.ecourts.gov.in/hcservices/ clause in the Guidelines to reject any or every offerthat may be made by the writ petitioner whileresponding to a tender that may be called for supply ofspare parts by the Railways. Mr.Iyer, learned SeniorCounsel appearing for EDC drew our attention to ajudgment of this Court in Sterling Computers Ltd. v. M& N Publications Ltd. (1993 (1) SCC 445) which hasheld: (SCC p.455, para 12) “Under some special circumstances adiscretion has to be conceded to theauthorities who have to enter into contractgiving them liberty to assess the overallsituation for purpose of taking a decision asto whom the contract be awarded and at whatterms. If the decisions have been taken inbona fide manner although not strictlyfollowing the norms laid down by the courts,such decisions are upheld on the principlelaid down by Justice Holmes, that courtswhile judging the constitutional validity ofexecutive decisions must grant certainmeasure of freedom of ‘play in the joints’ tothe executive.”16. But then as has been held by this Court in thevery same judgment that a public authority even incontractual matters should not have unfettereddiscretion and in contracts having commercial elementeven though some extra discretion is to be conceded insuch authorities, they are bound to follow the normsrecognised by courts while dealing with publicproperty. This requirement is necessary to avoidunreasonable and arbitrary decisions being taken bypublic authorities whose actions are amenable tojudicial review. Therefore, merely because theauthority has certain elbow room available for use ofdiscretion in accepting offer in contracts, the samewill have to be done within the four corners of therequirements of law, especially Article 14 of theConstitution. In the instant case, we have noticed thatapart from rejecting the offer of the writ petitionerarbitrarily, the writ petitioner has now been virtuallydebarred from competing with EDC in the supply of spareparts to be used in the governors by the Railways, eversince the year 1992, and during all this while, we aretold the Railways are making purchases without anytender on a proprietary basis only from EDC which, in https://hcservices.ecourts.gov.in/hcservices/ our opinion, is in flagrant violation of theconstitutional mandate of Article 14. We are also ofthe opinion that the so-called policy of the Boardcreating monopoly of EDC suffers from the vice of non-application of mind, hence, it has to be quashed as hasbeen done by the High Court." (vi) 2006 (11) SCC 548 (B.S.N. Joshi & Sons Ltd. v. Nair CoalServices Ltd: 69. ..... Whether an employer has power ofrelaxation must be found out not only from the terms ofthe notice inviting tender but also the generalpractice prevailing in India. For the said purpose, thecourt may consider the practice prevailing in the past.Keeping in view a particular object, if in effect andsubstance it is found that the offer made by one of thebidders substantially satisfies the requirements of theconditions of notice inviting tender, the employer maybe said to have a general power of relaxation in thatbehalf. Once such a power is exercised, one of thequestions which would arise for consideration by thesuperior courts would be as to whether exercise of suchpower was fair, reasonable and bona fide. If the answerthereto is not in the negative, save and except forsufficient and cogent reasons, the writ courts would bewell advised to refrain themselves in exercise of theirdiscretionary jurisdiction." (vii) AIR 2006 Madras 45 (M.Vasudevan vs. C.E.O., ChennaiMetropolitan Devpt. Authority):"8. Learned counsel for the petitioner/appellantthen submitted that the eligibility requirement hasbeen relaxed by the first respondent just to suit thethird respondent. In this connection we asked thelearned senior counsel whether there were any rulesprescribing the eligibility qualification and heinformed us that there appeared to be none. In theabsence of any rules it is open to the authorities tochange the eligibility requirements and this Courtcannot interfere in this connection. In SterlingComputers Ltd. v. M & N Publications Ltd. [(1993) 1 SCC445 : AIR 1996 SC 51] it was held by the Supreme Courtvide paragraph 12 as follows:"Under some special circumstances adiscretion has to be conceded to theauthorities who have to enter into contract https://hcservices.ecourts.gov.in/hcservices/ giving them liberty to assess the overallsituation for purpose of taking a decision asto whom the contract be awarded and at whatterms. If the decisions have been taken inbona fide manner although not strictlyfollowing the norms laid down by the courts,such decisions are upheld on the principlelaid down by Justice Holmes, that courts whilejudging the constitutional validity ofexecutive decisions must grant certain measureof freedom of 'play in the joints' to theexecutive."9. In this case the first respondent on aconsideration of the overall situation decided to relaxthe eligibility requirements, and in our opinion itcannot be said that it did not act bona fide in thisconnection.10. It must be understood that the contract inquestion was not a contract for some highly specialisedwork such as setting up a highly technical factory orestablishment. It was only a contract for collection ofparking fee which cannot be said to be a very highlyspecialised work. Hence in this situation theeligibility requirement can certainly be relaxed as itwould not have much effect on the contract involved.11. At any event it is not for this Court tointerfere in such administrative decisions and theCourt must exercise judicial restraint as held in aDivision Bench decision of this Court in RamaMuthuramalingam v. The Deputy Superintendent of Police,Mannargudi (2004 (5) CTC 554 : AIR 2005 Madras 1). "(viii) AIR 2007 SC 119 (Noble Resources Ltd. vs. State of Orissa):"15. It is trite that if an action on the part ofthe State is violative the equality clause contained inArticle 14 of the Constitution of India, a writpetition would be maintainable even in the contractualfield. A distinction indisputably must be made betweena matter which is at the threshold of a contract and abreach of contract; whereas in the former the court'sscrutiny would be more intrusive, in the latter thecourt may not ordinarily exercise its discretionaryjurisdiction of judicial review, unless it is found tobe violative of Article 14 of the Constitution. Whileexercising contractual powers also, the governmentbodies may be subjected to judicial review in order toprevent arbitrariness or favouritism on its part. https://hcservices.ecourts.gov.in/hcservices/ Indisputably, inherent limitations exist, but it wouldnot be correct to opine that under no circumstances awrit will lie only because it involves a contractualmatter." 59. I have given my careful consideration to the submissions madeby the learned counsel on either side and also given due consideration tothe various rulings of the Supreme Court and this Court and the provisionsof the and the Tamil Nadu Transparency in Tenders Rules, 2000. I havealso perused the materials and the records placed before this Court.60. It is seen that the first Tender Document which contains the"description of works", dated 21.12.2006 (hereinafter referred to as 'thefirst tender') issued by the Government of Tamil Nadu, FisheriesDepartment, provided as follows:"For and on behalf of the Governor of Tamil Nadu,sealed tenders are invited by the Special Commissionerof Fisheries, Government of Tamil Nadu, AdministrativeOffice Buildings, Teynampet, Chennai 6 ONLY FROM THEMANUFACTURES OF NETS (WEBBINGS) WITH A PRODUCTIONCAPACITY OF NOT LESS THAN 1250 METRIC TONNES PER ANNUMfor the description of works specified hereunder and asper the specifications, terms and conditions mentionedin this tender document.Description of worksFOR THE SUPPLY OF 1100 METRIC TONNES OF KNOTTED GILLNETS (ONLY WEBBINGS) APPROVED BY BIS WITH THE FOLLOWINGSPECIFICATIONS:S.No.Type of MaterialTwine sizeStretchedMesh sizein mm1NylonMultifilament210/1/2302Nylon Monofilament0.16 mm dia273Nylon Monofilament0.16 mm dia364Nylon Multifilament210/1/2365Nylon Monofilament0.23 mm dia566Nylon Multifilament210/1/356Other conditions:-Webbings and Twines used should be of BIS Standards andspecifications." 61. Again, the Government of Tamil Nadu, Department of Fisheriesissued a Tender Document which contains the "description of works", dated25.4.2007 (hereinafter referred to as 'the first re-tender') provided as https://hcservices.ecourts.gov.in/hcservices/ follows:"For and on behalf of the Governor of Tamil Nadu,sealed tenders are invited by the Director ofFisheries, Government of Tamil Nadu, AdministrativeOffice Buildings, Teynampet, Chennai 6 ONLY FROM THEMANUFACTURES OF NYLON WEBBINGS WITH A PRODUCTIONCAPACITY OF NOT LESS THAN 600 METRIC TONNES PER ANNUMfor the description of works specified hereunder and asper the specifications, terms and conditions mentionedin this tender document.Description of worksFOR THE SUPPLY OF 1100 METRIC TONNES OF KNOTTED NYLONWEBBINGS AS PER THE FOLLOWING SPECIFICATIONS:S.No.Type of MaterialTwine sizeStretchedMesh sizein mm1NylonMultifilament210 d x 1 x 2302Nylon Monofilament0.16 mm dia273Nylon Monofilament0.16 mm dia364Nylon Multifilament210 d x 1 x 2365Nylon Monofilament0.23 mm dia566Nylon Multifilament210 d x 1 x 3561. Nylon webbings should be made up of Nylontwines/monofilament yarn of BIS specifications (i.e) Nylon Multifilament (Twine): IS 4401 : 2006 Nylon Monofilament : IS 7533 : 20032. The webbing should be made up of virgin Polyamide(Nylon) twine/yarn.3. Recycled raw material (Nylon) should not be used formaking webbings." 62. Once again, the Government of Tamil Nadu, Department of Fisheriesissued a Tender Notice which contains the "description of works", dated21.8.2007 (hereinafter referred to as 'the second re-tender') provided asfollows: "FOR AND ON BEHALF OF THE GOVERNOR OF TAMIL NADU,SEALED TENDERS ARE INVITED FOR THE SUPPLY OF 1100 MTSOF DOUBLE KNOTTED NYLON NETS (WEBBINGS) FROM THEMANUFACTURERS ONLY UNDER FIXED RATE CONTRACT SYSTEM BYTHE DIRECTOR OF FISHERIES, CHENNAI-6." 63. The above said tenders were meant for supply of 1100 MT doubleknotted nets (webbings) only to the already benefited Tsunami affectedfishermen of the Tamil Nadu showing the place of execution as 13 coastalDistricts of Tamil Nadu. All the above said three tender notificationscontained two parts, namely (i) the technical bids and (ii) price bid. https://hcservices.ecourts.gov.in/hcservices/

64. It is to be noted that the eligibility criteria for the biddersproviding a condition in the second re-tender dated 21.8.2007 provides thefollowing conditions: "a) The bidder shall be a registered manufacturerhaving a minimum individual annual production capacityof 100 MTs of nylon (Polyamide) nets (Double knottedNylon webbings) in the ratio of 60% monofilament : 40%multifilament nylon nets (Double knotted Nylonwebbings) of the specified description in the tenderschedule and having experience in the production andmarketing of the webbings of the specificationsdescribed in the tender document for a minimum periodof 3 years.b) Alliance of agreement of any type with anymanufacturer / dealer / distributor dealing with thesaid nylon webbings like Consortium / lease / rent /joint venture etc. shall be rejected.c) The bidders should provide samples in aseparate cover of multifilament twines and monfilamentyarn for making knotted nylon webbings and also samplesof the webbings of the descriptions specified in thetender document made out of the above indicatedtwines / yarns along with tender document."65. Admittedly, the coastal Tamil Nadu was hit by Tsunami on26.12.2004, which caused havoc to the life and fishing implements of thefishermen in the entire coastal Districts. As the damage caused is heavy,the Government has taken various rehabilitation measures to the fishermenfor repairing their nets for rejuvenating their lost fishing implements.It is also to be seen that about 42,000 fishermen were given the reliefassistance sanctioned under various Government Orders. The Government ofTamil Nadu, in G.O.Ms.No.193, Animal Husbandry, Dairying and FisheriesDepartment, dated 22.11.2006, has sanctioned a sum of Rs.110.36 crores forpurchase and supply of the following, to the already benefited Tsunamiaffected fishermen, which qualify for assistance under "Rajiv GandhiRehabilitation Package": (i) Nets (webbings) – 1100 MTs(ii) Handy rechargeable lantern.(ii) Heavy duty bicycles.(iii) Life jackets.(iv) Insulated ice boxes. A sum of Rs.44 crores out of the total sanction of Rs.110.36 corres, hasbeen allocated for the supply of nets (webbings) to the already benefitedTsunami affected fishermen under the above said Rajiv GandhiRehabilitation Package. The total loss of nets, due to Tsunami, wasactually assessed as 1100 MTs. Therefore, the Government has proposed topurchase and supply 25 Kgs. of Gill Nets worth about Rs.10,000/- to eachbeneficiary. Accordingly, the Government in G.O.Ms.No.193, AnimalHusbandry, Dairying and Fisheries Department, dated 22.11.2006, issued https://hcservices.ecourts.gov.in/hcservices/ orders constituting three Committees, namely (i) Technical Committee, (ii)Scrutinizing Committee and (iii) Award Committee, which comprised of thefollowing officials, as seen from Annexure-II to the G.O:1. TECHNICAL COMMITTEE: (a) Net1. The Special Commissioner, Chairman of the Committee.2. Director or his representative from CIFNET3. Zonal Director or his representative of FSI, Chennai.4. Joint Director (Marine)-Member Secretary.(b) Ice Box 1. The Special Commissioner, Chairman of the Committee. 2. Director or his representative from MPEDA.3. Director or his representative from CIFT,Cochin.4. Director, South Indian Fisheries Federation Society, Trivandrum.5. Joint Director (Marine)-Member Secretary. (c) Rechargeable Lantern1. The Special Commissioner, Chairman of theCommittee.2. Director or his representative of TNMB3. Representative from ELCOT4. Director or his representative of Mercantile Marine Department5. Joint Director (Marine)-Member Secretary. (d) Heavy Duty Bicycles 1. The Special Commissioner, Chairman of the Committee.2. Director or his representative from the Department of Adi Dravida Welfare.3. Director or his representative from Department of Industries and Commerce.4. Joint Director (Marine)-Member Secretary. (e) Life Jacket:1. The Special Commissioner, Chairman of the Committee. https://hcservices.ecourts.gov.in/hcservices/

2. Director or his representative from CIFNET.3. Director or his representative of Mercantile Marine Department.4. Joint Director (Marine)-Member Secretary. 2. SCRUTINIZING COMMITTEE:1. The Special Commissioner, Chairman of theCommittee.2. Joint Directors (Marine, Inland andResearch).3. A.O. of Fisheries Department.4. Deputy Director (Marine)-Member Secretary. 3. AWARD COMMITTEE:1. Special Commissioner of Fisheries, Chairman2. Secretary to Government, Animal Husbandry, Dairying and Fisheries Department.3. Secretary to Government or his/her nominee,Finance Department.66. There is no dispute about the procedure in the publication of thetender documents/notifications as contemplated under the and the TamilNadu Transparency in Tenders Rules, 2000. It is also not in dispute thatthere were three tender notifications, initially, inviting tender dated21.12.2006 from the manufacturers of webbings with a production capacityof 1250 MTs per annum, thereafter, with 600 MT per annum as per the firstre-tender dated 25.4.2007, and thereafter by second re-tender dated21.8.2007 having a minimum individual annual production capacity of 100MTs. The assessment and the testings were as per the Committees'recommendations, which are stated to have been done scrupulously and thesamples were received from the CIPET and the tenders were evaluated by theScrutinizing Committee. The manufacturing plant of the petitioner-GarwareWall Ropes Ltd., was inspected on 7.2.2007. The Committee recommended toconduct the "breaking load test" of the samples as per the specificationby the CIPET and the test report on breaking load was received from CIPETin respect of the petitioner-Garware Wall Ropes Ltd. on 23.3.2007 and thesame was evaluated by the Tender Scrutinizing Committee on 3.4.2007. Itis also seen that based on the recommendations of the Committee, the pricebid of the technically qualified tenderer was opened on 4.4.2007 andnegotiation of rates was done with the tenderer on 10.4.2007. As per therecommendations of the Tender Scrutinizing Committee, technical bids andprice bids were placed before the Tender Award Committee in its meetingheld on 12.4.2007 and the Tender Award Committee took note of theinformation given by the scientists (experts) from CIFT, Cochin and CIPET,Chennai, stating that there were no BIS specification for webbings, unliketwines. However, the BIS test procedure is available for both webbings and https://hcservices.ecourts.gov.in/hcservices/ twines and since the BIS specifications were not prescribed for webbings,the technical requirements under this tender cannot be evaluated.Therefore, the Award Committee recommended to go in for re-tender and thetender dated 21.12.2006 was cancelled. 67. The first re-tender was called on 25.4.2007. In the first re-tender, the supply was restricted to 1100 MT of knotted nylon webbings,from the manufacturers of nets (webbings) with a production capacity ofnot less than 600 MT per annum and the nylon webbings should be made up ofNylon twines/monofilament yarn of BIS specification, namely NylonMultifilament (Twine) : IS 4401 : 2006 and Nylon Monofilament : IS7533:2003. In this first re-tender, the Tender Scrutinizing Committeerecommended to fix the production capacity as 600 MTs/annum in view ofthe fact that only one responsive bid was received for the first tender inwhich the production capacity was fixed as 1250 MTs/annum, considering theuniqueness of the purchase in terms of volume which needs to be suppliedwithin one year. Accordingly, the re-tenders were published in the leadingdailies on 25.4.2007.68. It is to be stated that in the above said first re-tender dated25.4.2007 the procedural aspects are not all disputed by the parties, asthe same were contemplated by the provisions of the Tamil NaduTransparency in Tenders Act, 1998 and the Tamil Nadu Transparency inTenders Rules, 2000. 69. Totally, three tenders were received from the petitioners herein,namely M/s.Garware Wall Ropes Pvt. Ltd., Pune (petitioner in W.P.No.28827of 2007) and M/s.Kassim Nets, Nagercoil (petitioner in W.P.Nos.27258 and28485 of 2007), apart from one M/s.Kumaran Fish Nets Private Ltd.,Nagercoil, which has not come before this Court. The manufacturing plantsof M/s.Kassim Nets, Nagercoil and M/s.Kumaran Nets, Nagercoil wereinspected on 2.6.2007 and 22.6.2007 respectively. The samples which weresent to CIFT, Cochin were confirmed on 11.7.2007 for the BISspecifications. 70. In the meanwhile, a complaint was received questioning theproduction capacity of the writ petitioner-M/s.Garware Wall Ropes Pvt.Ltd. A team of officials were deputed by the Tender ScrutinizingCommittee to assess the veracity of the complaint and the plant ofM/s.Garware Wall Ropes Pvt. Ltd. was re-inspected, and the said team foundthat the petitioner-M/s.Garware Wall Ropes Pvt. Ltd. did not possess thecapacity stated in the first re-tender document dated 25.4.2007, namelythe production capacity of not less than 600 MT/p.a. Thereafter, it isseen that the Scrutinizing Committee has evaluated the technical bids,inspection reports of all the tenderers and the test reports on thesamples and since no one was found qualified in evaluation process by theTender Scrutinizing Committee, the tenders of all the three tenderersincluding the petitioner-M/s.Garware Wall Ropes Pvt. Ltd. were rejected. https://hcservices.ecourts.gov.in/hcservices/

71. It is further seen that on that background, the TenderScrutinizing Committee, in its meeting held on 9.8.2007, has made certainrecommendations, namely that, by experience in the previous two tenders,there were no suitable suppliers even after the reduced productionquantity of 600 Mts/year as eligibility criteria; 1100 MTs. of nylonwebbings have to be distributed to the fishermen within a timeframe of oneyear; to ensure better participation in tender and going by the previousexperience, that there is no suitable manufacturer with the productioncapacity of 1250 MT/annum and 600 MT/annum, the production capacity may bereduced to 100 MT/annum and that the Government may be addressed to permitthe third respondent-Director of Fisheries to go for re-tender under FixedRate Contract System and to reduce the production capacity to 100MTs/annum (60% monofilament : 40% multifilament) of webbings of specifieddescription in the tender and also to reduce the time limit to 15 days forinviting tenders, since the tender call is for the third time and all themanufacturers were aware of the supply of webbings to the "alreadybenefited Tsunami affected fishermen". Hence, the second re-tender stoodcancelled on 17.8.2007 and the EMDs were returned. 72. The various conditions as seen from the earlier tenders (tenderdated 21.12.2006 and the first re-tender dated 25.4.2007) and theexperience as well as the requirement and the time period, have all beentaken into account. Therefore, the respondents have proceeded to call forthe second re-tender dated 21.8.2007 with due publication in the dailiesand hereagain, the procedural aspects are not in dispute.73. The second re-tender dated 21.8.2007 prescribed certainspecific eligibility criteria, taking note of the earlier experience withthe technical bids, inspection report as well as the test reports and theyprescribed certain conditions, namely that (i) the bidder shall be aregistered manufacturer having a minimum individual annual productioncapacity of 100 MTs of nylon (Polyamide) nets (Double knotted Nylonwebbings) of the specified description in the tender schedule and havingexperience in the production and marketing of the webbings of thespecifications described in the tender document for a minimum period ofthree years; (ii) alliance of agreement of any type with anymanufacturer/dealer/distributor dealing with the said nylon webbings likeconsortium/lease/rent/joint venture etc. shall be rejected and (iii) thebidders should provide samples in a separate cover of multifilament twinesand monofilament yarn for making knotted nylon webbings and also samplesof the webbings of the descriptions specified in the tender document madeout of the above indicated twines/yarn along with tender document. 74. The above reasonings were based on the previous bitter experiencewith the tenderers/manufacturers, the required annual production capacity,which emanated the respondents to go in for re-tenders or not. Logicalconclusions have been arrived at by the respondents and this Court has toiron out the creases in the said conclusion as to whether there is anyarbitrariness or mala-fide exercise or the tender process is actuated byany malice and this Court has to further delve upon as to whether the re- https://hcservices.ecourts.gov.in/hcservices/ tender was necessitated only due to the ineligibility of the tenderers, itis only inevitable to achieve the Government's object to give benefit tothe mass-affected fishermen of the coastal Districts of the Tamil Naduunder the national calamity/havoc Tsunami. The capacity of thepetitioner-M/s.Garware Wall Ropes Ltd., is not as per the requirement ofthe tender document. It is still worse the case of the petitioner-KassimNets that they did even come nearer to the requirement of the tenderdocument. The respondents have taken an inexorable decision to go in forsecond re-tender, taking into consideration the information placed beforethe Committees. 75. Since there was a complaint against the petitioner-M/s.GarwareWall Ropes Ltd., a team of three officials, namely DRO, GM from TNFDC, ahead of the fish net manufacturing plant and Technician working in thefish net manufacturing plant of TNFDC, inspected the plant of thepetitioner-M/s.Garware Wall Ropes Ltd. Though the petitioner-M/s.GarwareWall Ropes Ltd. claimed that it had 110 machines in the big factory atWai, it had only shown 15 machines from which the webbings for thespecified descriptions in the tender can be produced. 76.In the case of Kassim Nets, it is seen that the productioncapacity as submitted in its tender document is only 420 MT per annum. Tomeet the tender requirement of 1250 MT production capacity of webbings,the petitioner has entered into a consortium type of agreement with 15other manufacturers from Tamil Nadu Nadu and Karnataka and showed that asconsortium as the combined production capacity as 4,524 MT per annumwhich is against the tender conditions. Since there are no BISspecifications for webbings, the Tender Award Committee has decided to goin for retenders in its meeting held on 12.04.2007. Further, it is seenthat the petitioner's averment in the affidavit that it is having therequired production capacity of 1250 MT per annum on its own, is wrong andthe petitioner has given a statement contrary to the consortium type ofagreement with 15 other manufacturers and therefore, the productioncapacity has been shown wrongly only for the purpose of this writpetition. Therefore, in the absence of such production capacity of itsown as per the requirement of the tender notification, it has no validground to contest the matter. Further, in the re-tender notification dated25.04.2007 the production capacity has been reduced to 600 MT per annumwas arrived based on the previous experience and only one responsive bidwas received in the first tender call and after detailed discussions toensure quick and quality procurement of nets (webbings) and moreresponsive participation and competitive rates, the respondent has decidedto go for re-tender. Also, as per the evaluation of technical bid and toconfirm the veracity of the details furnished in the document, physicalinspection of the plants of the tenderers was made. It was from thedocumentary evidence the petitioner has produced in support of his claimthat it has taken two net manufacturing plants, viz., Net Park and AjantaFish Nets on lease. Also, according to the respondent, certaindiscrepancies were found in the documentary evidence which led toinspection of the plant to ascertain whether lease has been effectively https://hcservices.ecourts.gov.in/hcservices/ entered into. During inspection of the plant on 02.06.2007, thepetitioner did not produce any documentary evidence before the inspectionteam to show that it has really entered into lease agreement which will beeffective from 1st April 2007 onwards with other two companies. One moreimportant aspect of the matter is that one of the lessees i.e. Ajanta FishNets is functioning in the SIDCO Industrial Estate at Nagercoil and hence,a report from the General Manager, SIDCO, Nagercoil was obtained toascertain whether the above firm has really been taken on lease by thepetitioner. The General Manager, SIDCO informed that the firm is stillrun as a proprietary unit by one Thangaraj, the real owner. Therefore,the respondent has come to the conclusion that the petitioner has notentered into lease agreement with the above firm but the draft lease deedproduced by it is only for convenience sake and to make the respondentbelieve that he has the required production capacity of 600 Mts per annumspecified in the tender document of the re-tender call dated 25.04.2007.77.It is further seen that during the first inspection of thepetitioner plant, it did not produce the documents for taking lease of theplants. But, during second inspection on 08.06.2007 which was based onits request, it has produced some documents to show that it has paid thelease rent, etc. to the lessee. But, on verification of the documents, itwas found that they have been fabricated to mislead the respondent.Refundable deposit and monthly lease rent have not been paid in order tohave the lease come into effect as per the terms of reference in the leasedeed. Since the lease of two other net manufacturing firms has not comeinto force during the time of submission of re-tender, it is clear thatthe petitioner's claim for average production capacity of 1044 MT perannum is not at all based on any valid document Therefore, therespondent has concluded that the petitioner is not having the requiredproduction capacity as per the tender notification. The reported leaseagreement was done only for the sake of convenience and self-serving forarriving at the required production capacity of 600 MT per annum and thisconclusion of the respondent appears to be reasonable particularly in theabsence of required production capacity and the petitioner has, in no way,convinced on the aspect of specification of the required tenderconditions. Therefore, looked at from any angle, I am of the consideredview that the petitioner's claim and the challenge made therein are not atall based on the proper claim made by the petitioner. Accordingly, in theabsence of required production capacity with proper quality and standardand on evaluation of the technical bid as per the criteria, the respondenthas come to the conclusion that the petitioner has not fulfilled thetender specification and this stand taken by the respondent for re-tenderbased on recommendations of the Committee, keeping in mind the need forquick and immediate supply of fishing nets, is in no way infirmed.78. Thus, it can be seen that neither the petitioner-M/s.Garware WallRopes Ltd. nor the petitioner-Kassim Nets was proved eligible tendererswith the required annual capacity. It is evident that a decision has beenarrived at as per the expert Committee's opinion exclusively constitutedfor the purpose of exploring the possibility of getting an 'outstanding https://hcservices.ecourts.gov.in/hcservices/ tenderer' for the 'already benefited Tsunami affected' fishermen.79. The decision of the authorities to call for the re-tender(s) isbased on the paramount public interest which prevails among other thingsbeing equal, and to ensure wider participation by the tenderers. Theobject sought to be achieved for supply of the fishing implements,particularly the webbings to the Tsunami affected fishermen, theexpeditious implementation of the rehabilitation measures, besides theproduction capacity with proper mesh size being indicated, etc., have allbeen re-silted by the experts in their sample analysis. As there is nomaterial reasons actuated by malice or any mala-fide intention to gain outof the rehabilitation measure(s) for the social cause and when thepetitioners do not possess the required capacity of production, thereasons for taking such a re-course of re-tender, cannot be found faultwith, as there is 'great and greater public interest' involved in thetender process for the Tsunami affected fishermen. The democraticGovernment being a public-oriented agency, in all fairness, took intoconsideration the various aspects in a transparent manner, to achieve itsavowed object of implementation of supply of fishing nets to the Tsunamiaffected fishermen and this is the omnipotent reason for the Government togo in for a better participation of the tenderers with BIS specifications,by calling for re-tender(s). Thus, it is evident from the foregoing thatthere is no arbitrariness in the re-tender(s) process.80. I have given my anxious and careful consideration to thevarious decisions relied on by either side and the principles enunciatedtherein.81. It is relevant to note that the respondents have scrupulouslyfollowed the provisions of the with the Tamil Nadu Transparency inTenders Rules, 2000, in particular, Rule 27 relating to the process oftender evaluation to be confidential until the award of the contract isnotified.JUDICIAL REVIEW/RESTRAINT:82.To examine the principle laid down by the Supreme Court in TataCellular case and the scope of judicial review/restraint, the underlyingprinciples are:(i) The administrative action of the respondents in this casecannot be interfered with by this Court in view of the modern trendpoints to judicial restraint, as this Court is not sitting as a Courtof appeal but merely, reviews the manner in which the decision wasmade. (ii) The Court does not have the expertise to correct theadministrative decision and if a review of the administrative decisionis permitted, it will be substituting its own decision, without thenecessary expertise which itself may be fallible.(iii) The terms of the invitation to tender cannot be open to https://hcservices.ecourts.gov.in/hcservices/ judicial scrutiny because the invitation to tender is in the realm ofcontract.(iv) The Government must have freedom of contract. In otherwords, a fair play in the joints is a necessary concomitant for anadministrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be testedby the application of Wednesbury principle of reasonableness, but mustbe free from arbitrariness not affected by bias or actuated by mala-fides. (v) By way of judicial review, the Courts cannot examine thedetails of the terms of the contract which have been entered into bythe public bodies or the State. Courts have inherent limitations onthe scope of any such enquiry.83.While applying the above principles, it is seen that in theabsence of any arbitrariness not affected by bias or actuated by mala-fides, and when there is no material placed before this Court to establishthat there is arbitrariness, the decision-making process appears to beproper, besides the same being in conformity with the law laid down bythis Court and the Apex Court. Taking note of the fact that if anydecision at this stage will cause heavy administrative burden on theGovernment exchequer and leads to increased and unbudgeted expenditure,the tender notifications cannot be quashed at this re-tender stage. In thecircumstances, taking note of the rehabilitation from Tsunami affected inthe coastal areas of the State of Tamil Nadu and the object sought to beachieved at the earliest, which cannot be stalled by any mala-fideapproach of the petitioners and if any such action is permitted, it willdefinitely impose heavy administrative burden not only on the Government,but also deprive the very benefit of the scheme to reach the Tsunamiaffected fishermen, which is a natural calamity in the world, which has tobe rehabilitated as fast as the thunder-lights reach the earth soon, whichin this case, admittedly, has been belated for one reason or the other atthe instance of one party or the other. 84. Therefore, I do not find any arbitrariness or unreasonableness orany material actuated by malice. I have also perused the various decisionsof the Supreme Court and considering the judicial restraint in the matter,I have no reason to interfere with the public contract, that too which isat the nascent stage. The scope of judicial review being very limitedunder Article 226 of the Constitution of India. 85. Power of relaxation:(i) The Supreme Court has cautioned that only in rarest of rarecases, that too when there is mala-fide on the face of it, then andthen only the exercise of power under Article 226 can be made. In theabsence of any mala-fide being complained of by the petitioners, I donot propose to relax the tender conditions, as the invitation to https://hcservices.ecourts.gov.in/hcservices/ tender is in the realm of contract, especially when the provisions ofthe Tamil Nadu Transparency in Tenders Act, 1998 and the Tamil NaduTransparency in Tenders Rules, 2000 have been followed with properperspective and the respondents have acted as "beacon light" to wipeout the obstacles of the fishermen in getting their nets twined, whosuffer even for a one-square meal a day for eking out theirlivelihood.(ii) As stated by the Supreme Court in its judgment reported in2006 (11) SCC 548 (B.S.N.Joshi & Sons Ltd. vs. Nair Coal ServicesLtd.), whether an employer has power of relaxation must be found outnot only from the terms of the notice inviting tenders, but also thegeneral practice prevailing in India. For the said purpose, the Courtmay consider the practice prevailing in the past and keeping in view aparticular object, if in effect and substance, it is found that theoffer made by one of the bidders substantially satisfies therequirements of the conditions of notice inviting the tender, theemployer may be said to have a general power of relaxation in thatbehalf and when once such power was fair, reasonable and bona-fide,and if the answer thereto is not in the negative, save and except forsufficient and cogent reasons, the Writ Courts would be well advisedto refrain themselves in exercise of their discretionary jurisdiction.It is seen that the offer made by one of the better specialisedconditions of notice inviting tenders and keeping in view the objectsought to be achieved effectively and in substance, it is found thatthe offer made by the parties is based upon the requirement of theproduction capacity per annum, as stated in the impugned tendernotifications, the power of relaxation is available with theGovernment, which is at liberty to issue re-tender according to thewhims and fancies of the needs of the 'already benefited Tsunamiaffected fishermen' who expect the implementation of the G.O.Furthermore, there is no arbitrary exercise of power by therespondents, in relaxing the production capacity from 1250 to 100 MTper annum. 86. Articles 14/19 of the Constitution: (i) It is not the case of the petitioners that they have beendiscriminated against or there is any violation of principles ofnatural justice enshrined under Articles 14 and 19 of the Constitutionof India. From the inception of original tender dated 22.11.2006 tillthe stage of second re-tender dated 21.8.2007, it appears that therewas initially one person, with the subsequent tenderers followingsuit, and all of them were taken into consideration. There has alsobeen a wider participation and the respondents have acted in animpartial and unbiased manner.(ii) There is no power of this Court to act as an appellateauthority by substituting its opinion in respect of selection made forentering into such contract. But, once the procedure adopted by an https://hcservices.ecourts.gov.in/hcservices/ authority for purpose of entering into a contract is held to beagainst the mandate of Article 14 of the Constitution, the Courtscannot ignore such action saying that the authorities concerned musthave some latitude or liberty in contractual matters and anyinterference by Court amounts to encroachment on the exclusive rightof the executive to take such decision.87. Decision-making process:The decision to accept the tender or award the contract isreached by process of negotiations through several tiers. More oftenthan not, such decisions are made qualitatively by experts. Normally,while exercising the power of judicial review, in respect of theGovernment contracts entered into for and on behalf of the State,primarily, it has to be seen as to whether there has been anyinfirmity in "the decision-making process". The Courts can certainlyexamine whether "decision-making process" is reasonable, rational,arbitrary and violative of the principles of law. In this case, inmy view, the "decision-making process" has been properly exercisedafter taking note of the recommendations of several committees, withgreat caution, keeping in mind the fulfilment of the rehabilitationmeasures of the Government both at the Centre and the State.88. Public interest: Taking note of the public interest as well as the Government'srehabilitation scheme which aims to implement the same faster forgetting proper purchase of the materials and supply to the needyfishermen and considering the object of the Government, therespondents have given due consideration for wider participation ofthe tenderes and are ensuring to get the things done at the earliestby getting quality fishing nets with BIS specifications mentioned inthe tender schedules and hence, they reduced the production capacityby three tender processes within a period of three years and if themanufacturers are in a position to supply quality nets, the same shallreach the "already benefited Tsunami affected fishermen"expeditiously. 89.The principles laid down by the Supreme Court in SterlingComputers case, Tata Cellular case, Global Energy case and B.S.N. Joshi &Sons case are all guiding factors while deciding a contract of this natureand in the matter of judicial scrutiny, the power of relaxation and thescope of interference in the Government contract has been carefullyanalysed in these judgments and I have given due consideration to the same.90.In view of what has been stated above, keeping in mind, theparamount public interest and taking note of the natural calamity whichdevastated the coastal district of Tamil Nadu hit by Tsunami and thousandsof fishermen have been affected. Therefore, the State of Tamil Nadu hastaken as a rehabilitation measure to provide benefits to the Tsunami-affected fishermen by providing fishing nets and other implements for https://hcservices.ecourts.gov.in/hcservices/ which they have now invited and processed tender documents. Two of itsearlier tender processes have given some experience and they have analysedthe quality and standard of fishing nets (webbings) and the requiredproduction capacity within the time limit stipulated in order to givespeedy relief measures and therefore, they have taken a decision based onthe Committee's recommendations and analysed the pros and cons of theimportance of the measures to the Tsunami affected fishermen andaccordingly, a decision has been arrived at and concluded to go for a re-tender process with a required production capacity, specification andquality. In the absence of any arbitrariness or mala fides and when thedecision especially in the matter of the power of the respondent to relaxwhich is not actuated with malice and when there is no discrimination andthe terms of invitation to tender cannot be open to judicial scrutinysince the invitation to tender is in the realm of contract and theGovernment must have freedom in matters such as this and the decision ofthe Government must be tested not only by the Wednesbury principle ofreasonableness but also should be free from arbitrariness not affected bybias or actuated by mala fides, this Court is not all inclined tointerfere in the tender process when the decision-making process was inaccordance with the various analysis and recommendations by the twoCommittees constituted by the Government. Therefore, I have no reason tointerfere with their decision especially under Article 226 of theConstitution of India and there is no merit consideration to quash theimpugned tender notification which may impose heavy burden on theadministration and may lead to increased and un-budgeted expenditure tothe Government besides making the Tsunami affected fishermen languish foryet another indefinite period to get their due relief and therehabilitation measures may be defeated in case if this Court is inclinedto interfere with the impugned tender notification.In fine, there being no merit, the Writ Petitions which deserve noconsideration are dismissed. No costs. Consequently, connectedMiscellaneous Petitions are closed.After the judgment was pronounced, the learned counsel for thepetitioners submitted that in view of the decision of this Court, thepetitioners may not be in a position to participate in the re-tender. Inview of this submission, the petitioners are permitted to apply for re-tender and the respondents are directed to issue tender schedules to thepetitioners.sd/-Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government of Tamil Nadu Department of Animal Husbandry, Dairying and Fisheries, Fort St.George, Chennai-600 009.2. The Special Commissioner of Fisheries, Teynampet, Chennai-600 006.3. The Director of Fisheries, Administrative Office Building, Teynampet, Chennai-600 006.+ 1 cc to Mr.R.Suresh Kumar Advocate SR.NO.63392+ 1 cc to Mr.V.Pernmal Advocate SR.NO.63198PV(CO)RD 22.10.07W.P.Nos.27258, 28827 and 28485 of 2007