G. Murugan and Others vs The Government of Tamil Nadu

M. Jaichandren, J.—Heard Mr. Isaac Mohanlal, the learned Counsel for Ms. S. Bharathy Kannan, the learned Counsel appearing for the

petitioner and Ms. V. Chellammal, the Additional Advocate General for Mr. S.C. Herold Singh, the learned Government Advocate, appearing on

behalf of the respondents 1 to 3. No appearance on behalf of the fourth respondent.

Since the issues arising in the writ petitions are common and the reliefs sought for therein are of a similar nature, a common order is passed in the

above writ petitions.

The petitioners in the writ petitions, in W.P.(MD) Nos. 11502 to 11508 of 2009, have also raised similar issue as in W.P.(MD) No. 10992 of

2009. They had also prayed for quashing of the pre-qualification introduced by the third respondent in the tender notification No. 13/2009-

2010/D1, dated 9.10.2009, published in the official website of the third respondent, on 25.10.2009, prescribing ''ownership'' of Central Hot

Mixing plant (CMP) and Paver Finisher, for a contractor to be eligible to participate in the tender for the contract works for improvement of the

specified roads.

The writ petition in W.P.(MD) No. 10992 of 2009, has been filed by the Kanyakumari District PWD and Highways Contractors Association,

which is said to be a registered society, with registration No. 3/1996. The petitioner Association had filed the present writ petition praying for a

writ of Certiorarified Mandamus calling for the records relating to the tender notification No. 13/2009- 2010/D1, dated 9.10.2009, published in

the official website of the third respondent, dated 25.10.2009, insofar as it prescribes ''ownership'' of Central Mixing Plant (CMP) and Paver

Finisher, as a pre-qualification for participation in the tender, quash the same and consequently, to direct the respondents 1 to 4 to permit the

members of the petitioner Association to participate in the tender scheduled, on 30.10.2009, at the office of the third respondent.

It has been stated that the writ petition has been filed on behalf of the members of the petitioner Association, whose names are found in the list

of the members filed in the typed set of papers, along with the writ petition. It has been stated that the members of the petitioner Association are

registered class I contractors of the Highways Department. As such, they are eligible to obtain work contracts, through tender, within the State of

Tamil Nadu, for the works having the value of over Rs. 75,00,000. The Superintending Engineer Highways, Tirunelveli, the third respondent in the

writ petitions, is the authority for the registration of class IV and class I contractors and the Divisional Engineer is the authority for the registration of

class V contractors. In the District of Kanyakumari, there are nearly 70 class I contractors and 27 of them are members of the petitioner

Association.

It has been further stated that all the members of the petitioner Association had been participating in the various tenders of the Highways

Department and had obtained many contract works throughout the State of Tamil Nadu and that they have been performing the works allotted to

them to the utmost satisfaction of the authorities concerned and the public at large. While so, the third respondent had issued a tender notification

No. 13/2009-2010/D1, on 9.10.2009, calling for the tender schedules for the work of improvement of roads, 17 in number. The tender value for

the improvement of Aralvoimozhi - Nedumangadu Road had been fixed at Rs. 1,56,00,000/-. The last date for the submission of the tender

schedules was fixed as 30.10.2009. The members of the petitioner Association are aggrieved by the fact that the third respondent had imposed a

new condition as a pre-qualification stating that the contractors should own Central Mixing Plant and Paver Finisher and that they would be

qualified to participate in the tender only on production of sufficient documentary evidence of such ownership of the machineries.

The petitioner had stated that the sudden inclusion of the said pre- qualification is without jurisdiction and it is motivated by malice, as it is aimed

at favouring a few and to avoid large number of qualified contractors from participating in the process. Therefore, the pre-qualification introduced

in the tender notification of the third respondent is without jurisdiction, malafide, arbitrary, and illegal. Therefore, the petitioner Association had

preferred the present writ petitions before this Court, under Article 226 of the Constitution of India.

Mr. Isaac Mohanlal, the learned Counsel for Ms. S. Bharathy Kannan, the learned Counsel appearing for the petitioners, had submitted that the

impugned pre-qualification, requiring the participants to own the Central Mixing Plant (CMP) and Paver Finisher, had been introduced in the

tender notification by the third respondent with ulterior motive and without having jurisdiction to do so. He had further submitted that the members

of the petitioner Association had been undertaking large works, as class 1 contractors and they have been completing the works to the highest

satisfaction of the authorities concerned and the public at large. They have been using the various machineries, including the Central Mixing Plant

and the Paver Finisher, by taking them on lease. The sudden introduction of the impugned pre-qualification requiring the contractors to ''own'' the

said machineries is arbitrary, illegal and unreasonable. He had also submitted that the impugned pre-qualification is aimed at favouring a few

people, who own the Central Mixing Plant and the Paver Finisher. Only 5 out of 70 contractors in the District of Kanyakumari are owning the said

machineries.

It had also been stated that the pre-qualification introduced by the third respondent that the contractors should ''own'' the machineries had not

been made a part of the terms and conditions in the earlier contracts. Since the machineries would cost about Rs. 1.5 crores, the prescription of

such a pre- qualification is highly arbitrary and unreasonable, as it would be contrary to Article 14 of the Constitution of India. The pre-qualification

prescribed by the third respondent had not been mentioned in the notification, dated 9.10.2009, inviting the tender, as published in the news paper.

The subsequent inclusion of the pre-qualification in the official website belatedly, on 25.10.2009, is malicious and illegal.

In such circumstances, the learned Counsel appearing on behalf of the petitioners had submitted that this Court may be pleased to quash the

pre- qualification introduced by the third respondent in the tender notification, dated 9.10.2009, and to permit the members of the petitioner

Association, who are class 1 contractors, to participate in the tender of the contract works. He had also submitted that they would execute the

works allotted to them by using the machineries by taking them on lease. The contract works would be executed to the complete satisfaction of all

the persons concerned.

The learned Counsel Mr. Issac Mohanlal, appearing on behalf of the petitioners, in the writ petitions had submitted that the condition of

ownership of the Central Mixing Plant and the Paver Finisher, as a pre-qualification for participating in the tender, cannot be held to be valid, as it

is arbitrary, unreasonable and illegal. The term ''ownership'' has not been explained anywhere in the tender schedule issued by the third respondent,

nor has it been defined by the respondent Department, while prescribing such a qualification as a pre- condition to participate in the tender. In fact,

in memo No. 22050/Salai.2/99, dated 20.5.1999, issued by the office of the Chief Engineer (General), Highways and Rural Works, Chennai,

certain guidelines have been issued. Clause (g) of the guidelines states that the works should be executed only with the Central Mixing Plant and

Paver Finisher and no other mode of execution shall be permitted. In Clause (k) of the guidelines, it has been stated that in the tender notice, it may

be specifically indicated that the tenders of the contractors, who own the Central Mixing Plant and the Paver Finisher, alone would be considered.

As such, a distinction had been made between the terms ''ownership'' and ''possession'' in respect of the machineries concerned.

The learned Counsel had further stated that in Memo No. 22050/Salai.2/99, dated 1.6.1999, issued by the office of the Chief Engineer

(General), Highways and Rural Works Department, Chennai, it has been stated that certain special conditions may be incorporated in the tender

documents. Clause 2 of the special condition states that the tender of the contractors, who own the Central Mixing Plant and Paver Finisher alone

would be considered. Clause 6 of the special conditions states that the tenders of such of those tenderers, who do not possess the Central Mixing

Plant and the Paver Finisher and who do not produce the necessary documents as evidence in support thereof, would not be considered and that

their tenders would be summarily rejected.

From the guidelines issued in the memo, dated 20.5.1999, and from the special conditions mentioned in the memo, dated 1.6.1999, it is clear

that it would be sufficient for the contractors to possess the Central Mixing Plant and Paver Finisher machineries to be eligible to participate in the

tender. In fact, it could be found, from the special conditions, that it would be sufficient for the contractors to show sufficient evidence of the

possession of the machineries to participate in the tender. There is no need for the contractors to show documentary evidence for their ownership

of the machineries concerned.

The learned Counsel appearing for the petitioners had stated that the National Highways Authority of India, while prescribing the qualifications

for the bidders, has clearly stated that it would be sufficient, if they show the evidence of ready availability of the machineries, either owned or

leased or rented by them.

The learned Counsel appearing for the petitioners had also pointed out that in the conditions of contract, it has been stated that the equipments,

which would be used by the contractors in executing the contract works, would be the machineries and the vehicles brought, temporarily, to the

site of the contract works. He had also pointed out that in the various Tamil Nadu Government Tenders relating to the Highways Department, no

such pre- qualification had been prescribed. Further, in many other States and union territories, when tenders are called for, it has been made clear

that it would be sufficient for the contractors to produce original documentary evidence for leasing, or hiring of the necessary machineries.

The learned Counsel appearing for the petitioners had further stated that when the National Highways Authority of India had not prescribed

ownership of the machineries as a pre-qualification for the contractors to participate in the tender for their contract works, in respect of the

National Highways, involving several crores of rupees, where the quality of the works could be of a much higher standard, there is no good reason

for the Tamil Nadu Highways Department to prescribe a more stringent pre-condition, as in the tender notification, dated 9.10.2009, issued by the

third respondent. In the tender notification issued by the Public Works Department in the Government of Puducherry and the Government of the

State of Kerala, the pre-qualification of ownership of the machineries had not been prescribed for the contract works. While so, it is highly

arbitrary on the part of the third respondent to prescribe such a condition as a pre-qualification to participate in the tenders.

The learned Counsel appearing for the petitioners had also contended that the public authorities, like, the respondent Department, cannot

function in an arbitrary manner, in respect of awarding of contract works. Since the pre- qualification issued by the tender notification, dated

9.10.2009, issued by the third respondent, is arbitrary and illegal and contrary to the Article 14 of the Constitution of India, it is liable to be set

aside.

The learned Counsel appearing for the petitioners had pointed out that the verb form of the word ''own'', as found in the Oxford Dictionary of

English, includes the possession of something as one''s own.

The learned Counsel appearing for the petitioners had relied on the decision of the Supreme Court, in Rajasthan State Road Transport

Corporation Vs. Kailash Nath Kothari and other etc., , wherein, it has been held that the definition of ''owner'', u/s 2(19) of the Motor Vehicles

Act, 1939, is not exhaustive. It has, therefore, to be construed in a wider sense, in the facts and circumstances of a given case. The expression

''owner'' must include, in a given case, the person, who has the actual possession and control of the vehicle and under whose directions and

commands, the driver is obliged to operate the bus. To confine the meaning of ''owner'' to the registered owner only, in a case where the vehicle is

in the actual possession and control of the hirer, would not be proper for the purpose of fastening of liability in case of an accident.

Per contra, Ms. V. Chellammal, the Additional Advocate General for Mr. S.C. Herold Singh, the learned Government Advocate, appearing

on behalf of the respondents 1 to 3, had submitted that the pre-condition, introduced by the third respondent in the tender notification, that a

contractor to be qualified to participate in the tender should ''own'' the Central Mixing Plant and the Paver Finisher has been in vogue, since 2002.

She had also submitted that there is no mala fide motive in prescribing such a condition, nor is it arbitrary or illegal. Even though the pre-

qualification had not been shown in the tender schedule issued by the third respondent, in the notification published in the news paper, the official

website of the Tamil Nadu Government had contained the pre-qualification of ''ownership'' of the machineries. Further, there is no vested right in

the petitioners to participate in the tenders. It is the prerogative of the respondents to prescribe the qualifications to participate in the tenders. The

terms and conditions of the tenders are in the nature of a contract and this Court, normally, does not interfere in the matters relating to such

contracts, unless it is found to be arbitrary, malafide or illegal.

The learned Additional Advocate General, appearing for the respondents 1 to 3, had also submitted that the contractors, to be eligible to

participate in the tender relating to the notification, dated 9.10.2009, issued by the third respondent, should not only ''own'' the necessary

machineries, but they should also show sufficient evidence that they are in possession of the machineries. The pre-qualification of ''ownership'' had

been prescribed due to certain difficulties, which had arisen during the earlier occasions, relating to contract works. If the contractor concerned

does not own the machineries, it may be difficult for him to execute the contract works allotted to him, based on hired, rented or leased

machineries, especially, when disputes had arisen between the contractor concerned and the lessor, the hirer or the owner of the machineries.

During such occasions, the contract works had suffered leading to major losses being caused, not only to the contractor concerned, but to the

Government of Tamil Nadu, as well. Further, serious inconvenience could be caused to the public at large.

The learned Additional Advocate General appearing for the respondents 1 to 3, had also submitted that as many as 30 contractors in the

District of Kanyakumari are owning the machineries required for executing the contract works.

The learned Additional Advocate General appearing for the respondents 1 to 3 had further submitted that the writ petition in W.P.(MD) No.

10992 of 2009, wherein this Court had granted an interim order, on 29.10.2009, permitting the members of the petitioner Association to submit

their tenders, on 30.10.2009, is not maintainable, in view of the fact that the petitioner Association had become defunct, as per Section 44(4) of

the Tamil Nadu Societies Registration Act, 1975. The petitioner Association had suppressed the said fact, while filing the said writ petition before

this Court. Section 44(4) of the Tamil Nadu Societies Registration Act, 1975, reads as follows:

44(4). Removal of defunct registered societies.- (1) Where the Registrar has reasonable cause to believe that a registered society is not carrying on

business or in operation, he shall send to the registered society by registered post a letter enquiring whether the society is carrying on business or in

operation.

(2) If the Registrar either receives an answer from the registered society to the effect that it is not carrying on business or in operation, or does not

within such period as may be prescribed after sending the letter receive any answer, he may publish in the Tamil Nadu Government Gazette, and

send to the registered society by registered post, a notice that, at the expiration of such period as may be prescribed from the date of such

publication, the name of the registered society mentioned therein will, unless cause is shown to the contrary, be struck off the register and the

registered society will be dissolved.

(3) If, in any case where a registered society-

(a) is being wound up, the Registrar has reasonable cause to believe either that no liquidator is acting or that the affairs of the registered society

have been completely wound up; or

(b) has not, for three consecutive financial years, filed with the Registrar all or any of the documents referred to in Clause (b) of Sub-section (3) of

Section 16, the Registrar may publish in the Tamil Nadu Government Gazette, and send to the registered society by registered post, a like notice

as is provided in Sub-section (2) of this section.

(4) At the expiration of the time mentioned in the notice referred to in Sub-section (2), or Sub-section (3), the Registrar may, unless cause to the

contrary is previously shown by the registered society, strike its name off the register and shall publish notice thereof in the Tamil Nadu

Government Gazette, and, on the publication of such notice, the registered society shall be deemed to be dissolved:

Provided that the liability, if any, of every officer and member of the registered society shall continue and may be enforced as if the registered

society had not been dissolved.

(5) (a) If a registered society or any member or creditor thereof feels aggrieved by the name of the registered society having been struck off the

register, such registered society, member or creditor may, within such period as may be prescribed from the date of the publication in the Tamil

Nadu Government Gazette of the notice of striking off the name of the registered society, appeal-

(i) where the name of the registered society is struck off by the Inspector-General of Registration, to the Government;

(ii) in any other case, to the Inspector- General of Registration.

(b) The Government or the Inspector- General of Registration on being satisfied that the registered society was, at the time its name was struck off,

carrying on business or in operation or otherwise that it is just and equitable that the name of the registered society be restored to the register, may

order such restoration.

(6) If a registered society or any member or creditor thereof feels aggrieved by the order of the Government or the Inspector-General of

Registration under Sub-section (5), the court may, on the application of such registered society, member or creditor, made within such period as

may be prescribed from the date of the receipt by such registered society, member or creditor, of such order, and on being satisfied that it is just

and equitable that the name of the registered society be restored to the registrar, order such restoration.

(7) The registered society whose name is restored to the register under Sub-section (5) or Sub-section (6) shall be deemed to have continued in

existence as if its name had not been struck off; and the Government or the Inspector- General of Registration or the court, as the case may be,

may, by order, give such directions and make such provisions as seem just for placing the registered society and all other persons in the same

position, as nearly as may be, as if the name of the registered society had not been struck off.

(8) If the name of the registered society having been struck off the register, has not been restored or if the period allowed for appeal has lapsed or

no appeal has been made or an appeal has been made but dismissed, under this Act, the registered society shall not function and the provisions of

Section 39 shall apply as if the registration of such society has been cancelled.

The learned Additional Advocate General appearing on behalf of the respondents 1 to 3, had relied on the following decisions in support her

contentions:

24.1. In Tata Cellular v. Union of India (1994) 6 SCC 651, the Supreme Court had held that the principles of judicial review would apply to the

exercise of contractual powers by the Government bodies in order to prevent arbitrariness or favourtism. However, there are inherent limitations in

exercise of that power of judicial review. The Government is the guardian of the finances of the State. It is expected to protect the financial interest

of the State. The right to refuse lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the

Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government

tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power

is exercised for any collateral purpose, the exercise of that power will be struck down. The judicial quest in administrative matters has been to find

the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy. Thus

they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review.

The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is

the ambit of judicial intervention; the other covers the scope of the court''s ability to quash an administrative decision on its merits. These restraints

bear the hallmarks of judicial control over administrative action. Judicial review is concerned with reviewing not the merits of the decision in

support of which the application for judicial review is made, but the decision-making process itself. It is thus different from an appeal. When

hearing an appeal, the Court is concerned with the merits of the decision under appeal. Since the power of judicial review is not an appeal from the

decision, the Court cannot substitute its own decision. Apart from the fact that the Court is hardly equipped to do so, it would not be desirable

either. Where the selection or rejection is arbitrary, certainly the Court would interfere. It is not the function of a judge to act as a superboard, or

with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator.

24.2. In Global Energy Ltd. and Another Vs. Adani Exports Ltd. and Others, , the Supreme Court had held that the principle is well settled that

the terms of the invitation to tender are not open to judicial scrutiny and the Courts cannot whittle down the terms of the tender, as they are in the

realm of contract, unless they are wholly arbitrary, discriminatory or actuated by malice.

24.3. In Swamidhas v. The Chief Engineer, National Highways 2001 (4) CTC 257, this Court had held that the authorities cannot and need not

wait for the contractors like appellants to acquire the machinery by way of lease from other owners. In fact, that is a contingent situation. Even after

the contract is struck, there is no guarantee that the machinery will be provided and if provided, as to the quality and working condition of the

machinery. The public work cannot wait, risking such contingencies. As such, the authorities have rightly felt that there should be an imposition of

ownership of the machinery, as if such machinery is at the ready disposal of such successful contractor/s they can readily start the work and

successfully complete the same within the time schedule. What is more, in view of numerous such contractors owning machinery, by no stretch of

imagination can it be said that the imposition of condition No. 5 is a tailor-made to suit one or a few individuals. In the circumstances, we find that

the imposition of condition No. 5 has got a nexus with the object to be achieved, and that it is neither arbitrary nor unreasonable and there is no

infringement of any Fundamental Right of the appellants.

24.4. In J.V. Gokal and Co. Vs. The State of Tamilnadu and Chennai Metropolitan Water Supply and Sewage Board, , this Court had held that

the court must exercise judicial restraint in the matter of tenders, as they are basically administrative in nature.

24.5. In Sri Amman Associates Vs. State of Tamil Nadu, , this Court had held that the requirement of 40% previous experience and the

requirement of ownership of the machineries are insisted upon to ensure quick and efficient execution of the work. These are matters which are

within the exclusive discretion of the authorities and as long as there is no discriminatory or arbitrary exercise of the power, this Court cannot

interfere. The object of requiring the contractor to own machineries by themselves is accentuated by the necessity to ensure prompt execution of

the work.

24.6. This Court, in its order, dated 14.9.2009, made in W.P. No. 22828 of 2008 (E. Gunasekaran v. The Managing Director, Pondicherry Co-

Operative Milk Producers'' Union Ltd., Kurumampettai, Puduchery 605 009), had reiterated the settled position of law that this Court should not

interfere with the terms of the tender notice, unless it is shown as arbitrary, discriminatory or tainted with mala fides.

24.7. In R. Kumar and R.K. Construction Vs. The Chief Engineer, , this Court had held that the terms of the invitation to tender are not open to

judicial scrutiny, the same being in the realm of contract. In the matter of policy decisions or exercise of proper discretion by the Government so

long as the infringement of the fundamental right is not shown, the Courts will have no occasion to interfere and the Court should not substitute its

own judgment for the Judgment of the executive.

24.8. In Directorate of Education and Others Vs. Educomp Datamatics Ltd. and Others, , the Supreme Court had held that it was for the authority

to set the terms of the tender. The courts would not interfere with the terms of the tender notice unless it was shown to be either arbitrary or

discriminatory or actuated by malice. While exercising the power of judicial review of the terms of the tender notice, the Court cannot say that the

terms of the earlier tender notice would serve the purpose sought to be achieved better than the terms of the tender notice under consideration and

order change in them, unless it is of the opinion that the terms were either arbitrary or discriminatory or actuated by malice. The terms of the

invitation to tender are not open to the judicial scrutiny, the same being in the realm of contract. The Government must have a free hand in setting

the terms of the tender. The courts can scrutinise the award of the contracts by the Government or its agencies in exercise of their powers of

judicial review to prevent arbitrariness or favouritism.

The learned Counsel appearing on behalf of the petitioners, while replying to the contentions made by the learned Additional Advocate

General, appearing on behalf of the respondents 1 to 3, had submitted that the writ petition filed by the petitioner Association in W.P.(MD) No.

10992 of 2009, is maintainable, since the said Association has become defunct only temporarily. The fact that the petitioner Association had

become defunct was not known to the petitioner at the time of the filing of the writ petition. Further, the introduction of the pre-qualification of the

ownership has been wrongly interpreted by the third respondent, while issuing the tender notification, dated 9.10.2009. Such a pre-qualification

has not been contemplated by the respondent Department. Further, the petitioners in W.P.(MD) Nos. 11502 to 11508 of 2009, are fully qualified

to participate in the tender and they should not be disqualified, at the threshold, to participate in the tender. They shall undertake to show sufficient

proof of ''possession'' of the Mixing plant (CMP) and the Paver Finisher, which are necessary for executing the contract works. The respondents

have not shown that the other persons, who have been permitted to participate in the tender, are ''owning'' and ''possessing'' the machineries

concerned.

In view of the submissions made by Mr. Isaac Mohanlal, the learned Counsel appearing on behalf of the petitioners and Ms. V. Chellammal,

the Additional Advocate General appearing on behalf of the respondents 1 to 3 and in view of the decisions cited supra, this Court is of the

considered view that the petitioners have not shown sufficient cause or reason to grant the reliefs, as prayed for in the writ petitions.

It is settled law that it is not appropriate for the Court to interfere with the terms and conditions of the tender schedules and the notification,

invoking Article 226 of the Constitution of India, unless it is clearly shown that the Government authorities and others, who are exercising statutory

or public functions, are acting in a mala fide manner by imposing such conditions, which are arbitrary, illegal or impossible of performance. In the

present writ petitions such an occasion does not arise and therefore, it is not open to this Court to modify or to delete the condition of the tender,

as prescribed by the third respondent, in his impugned notification, dated 9.10.2009.

Further, it is seen from the records placed before this Court that the pre-qualification of ownership of the Central Hot Mixing plant (CMP) and

the Paver Finisher, had been in vogue for many years in the past. In fact, in the decision of this Court, in Swamidhas v. The Chief Engineer,

National Highways 2001 (4) CTC 257 and in a recent decision of a Division Bench of this Court, dated 21.8.2009, in W.A. No. 1105 of 2009

(Sri Anjaneya Blue Metal Industries rep. by its Managing Partner M. Karthikeyan v. Superintending Engineer Tan Sidco Corporation Ltd. and

Anr.), this Court had an occasion to deal with the issue relating to the imposition of the pre-condition of ownership for a person to be qualified to

participate in the tender. It can be seen from the said decision and the various other decisions of this Court as well as of the Supreme Court, that

there is no legal bar prohibiting the public authorities from imposing such a condition as a pre-qualification.

The contention of the learned Counsel appearing for the petitioner that the National Highways Authorities of India and certain States and union

territories do not have ''ownership'' as a condition for contractors to participate in the tenders and therefore, the Highways Department of the

Government of Tamil Nadu should not impose such a condition at the threshold cannot be countenanced, as it is open to the authorities concerned

to prescribe such legally valid qualification.

The allegation of mala fide motive against the fourth respondent has not been sufficiently substantiated by the petitioners so as to set aside the

pre-qualification of ownership of the machineries introduced by the third respondent in the impugned notification, dated 9.10.2009. In fact, the

learned Additional Advocate General, appearing for the respondents 1 to 3, had stated that a large number of contractors in the District of

Kanyakumari are owning the machineries required for the execution of the contract works.

With regard to the issue of maintainability of the writ petition (MD) No. 10992 of 2009, the contentions raised on behalf of the respondents

are valid and acceptable. Once it is seen that the petitioner Association, which had been registered under the societies registration, has become

defunct and when it has not been shown by the petitioner therein that it had been revived in accordance with the relevant provisions of the Tamil

Nadu Societies Registration Act, 1975, the writ petition could not have been filed in the name of the Association.

It is also clear that the petitioners cannot be permitted to claim that they have a right to participate in the tender, even though they are not

qualified to do so, according to the tender condition. The contentions of the petitioners that they would be able to show ''possession'' of the

necessary machineries, at the time of the confirmation of the tender, cannot be countenanced, in view of the fact that the ''ownership'' of the

machineries has been prescribed as a pre-qualification for participation in the tender. If the petitioners are not in a position to show sufficient

evidence that they do not ''own'' the required machineries, they cannot be permitted to participate in the tender, along with the others, who are

qualified to do so. The petitioners have no vested right to claim that they should be permitted to participate in the tender. Further, this Court is not

convinced with the contentions raised on behalf of the petitioners alleging that the pre-qualification of ''ownership'' of the necessary machineries,

prescribed in the tender notification, dated 9.10.2009, issued by the third respondent, is mala fide, arbitrary and illegal. In such circumstances, the

writ petitions are liable to be dismissed, as devoid of merits. Hence, they are dismissed. No costs. Consequently, connected M.P.(MD) Nos. 1 of

2009 M.P.(MD) Nos. 2 of 2009 M.P.(MD) No. 3 of 2009 and M.P.(MD) No. 4 of 2009 are closed.