Telangana High Court
Ch. Kishore Kumar vs The State Of Telangana on 30 July, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P.No.10697 OF 2024
Between:
Ch.Kishore Kumar
... Petitioner
And
The State of Telangana & others
... Respondents
JUDGMENT PRONOUNCED ON: 30.07.2024
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : Yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals?
3. Whether Their Lordships wish to : Yes
see the fair copy of the Judgment?
___________________________
MRS JUSTICE SUREPALLI NANDA
2
WP_10697 of 2024
SN,J
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P.No.10697 OF 2024
% 30.07.2024
Between:
# Ch.Kishore Kumar
... Petitioner
And
$ The State of Telangana & others
... Respondents
< Gist:
> Head Note:
! Counsel for the Petitioner : Sri B.Sudhakar Reddy
Smt. Neeraja Reddy
^ Counsel for Respondents : G.P. for Energy for R1,
Sri R.Pavan Reddy, for R2 to R4
? Cases Referred:
(1) 2007 (14) SCC Page 517
3
WP_10697 of 2024
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HON'BLE MRS. JUSTICE SUREPALLI NANDA
WRIT PETITION No.10697 OF 2024
ORDER:
Heard the learned counsels Sri B.Sudhakar Reddy and Neeraja Reddy, appearing on behalf of the petitioner, the learned Government Pleader for Energy, appearing on behalf of respondent No.1 and learned standing counsel Sri R.Pavan Reddy, appearing on behalf of Respondent Nos.2 to 4.
2. The petitioner approached the court seeking prayer as under:
"To issue a Writ, Order or Direction more particularly one in nature of Writ of CERTIORARI calling for records pertaining to Lr.No.CE(C&C)/SE(C&C)/DE(C)/A1/F.MNG (2023-24)/D.No.02/24, Dt:01.04.2024 and Quash the same as bad in law, illegal and against principles of natural justice and consequently direct the Respondents herein to allow the Writ Petitioner to participate in Tender process by taking into consideration the E-mail uploaded on 05.03.2024 and 01.04.2024 as well as hard copy sent by Register Post on 01.04.2024, to the Respondents herein pertaining to Price Bid details/format pertaining to "Transportation of 42.0 Lakh Metric Tonnes of Coal from Manuguru group of mines of M/s Singareni Collieries Company Ltd to BTPS Coal yard by Road for a period of 4 WP_10697 of 2024 SN,J one year" and consider the same during the Bid price opening along with other Tenderers/ Bidders in pursuance of tender Notification vide E-Tender Specification No. E-05/CE (C&C)/SE(C&C)/DE(C)/A1/05/2023-24, issued by the Respondents 2, 3 and 4 and in the Interest of Justice."
3. The case of the petitioner in brief as per the averments made by the petitioner in the affidavit filed by the petitioner in support of the present writ petition, is as under:
The Respondent Nos. 2 to 4 issued E-Tender Specification No. E-05/CE (C & C)/ SE (C & C)/ DE(C)/ A1/05/2023-24 for transportation of 42.0 Lakh Metric Tonnes of Coal from Manuguru group of mines of M/s Singareni Collieries Company Ltd (SCCL) to Bhadradri Thermal Power Station (BTPS), by road for a period of one year. In pursuance of the said notification, the petitioner paid Rs.29,500/- on 04.03.2024 with merchant transaction Reference No. 2208726, with Atom Transaction Reference No. 11000208420234 and submitted EMD with bank guarantee of Rs. 1,35,00,000/- dated 04.03.2024.
Subsequently, at the final stage of bid submission the petitioner encountered a technical glitch during online submission on 05.03.2024 at4:17 hrs and due to the said glitch, 5 WP_10697 of 2024 SN,J the petitioner was unable to submit the application and was directed to contact E-Procurement helpdesk from Vupadhi Techno Services of Telangana. However, the help desk was unable to resolve the issue and the petitioner sent an E-mail representation dated 05.03.2024 at 5:42 PM. Subsequently, the petitioner submitted another representation by E-Mail at 5:59 PM along with required documents and the bank guarantee after the E-Procurement help desk had directed the petitioner to contact tender inviting authority for tender date extension for one (1) day and the respondents failed to respond.
It is the case of the petitioner that, on 06.03.2024, at 10:35 AM, the petitioner made a request for postponement of tender for one day to enable the petitioner to submit all the forms online along with the bank guarantee. Even on 14.03.2024, the petitioner requested Respondent no. 2 to 4 to give the petitioner a chance for contract as the petitioner had been a successful bidder for the past 3 years and in response the was asked to submit his contact details. Aggrieved by the inaction of the respondents the petitioner filed W.P No. 7179 of 2024 for considering the petitioner's representation and allowing the petitioner to participate in the opening of price bid on 18.03.2024. The said writ petition was allowed directing the 6 WP_10697 of 2024 SN,J Respondents to consider the representation of the petitioner for participating in the price bid.
In pursuance of the order dated 18.03.2024 passed in W.P No. 7179 of 2024, the Respondent No. 4 rejected the petitioner's claim for postponing the submission of the Pre-qualification bid and was silent about the opening of the price bid. On 01.04.2024, the petitioner sent all the technical documents including the price bid through a Registered post. However, the respondents failed to consider the same. Aggrieved by the said inaction of the respondents the present Writ Petition is filed. PERUSED THE RECORD :
4. This Court on 22.04.2024 passed interim orders observing as under :
"Taking into consideration the submissions of learned counsel appearing on behalf of both the parties, and duly considering the averments made by the petitioner in the affidavit filed in support of the present writ petition, there shall be stay of the opening of Price Bid in pursuance of E-Tender Specification No.E-05/CE (C&C)/SE(C&C)/DE(C)/ A1/05/2023-24, issued by the respondents 2, 3 and 4, till 24.04.2024."7
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5. Counter and Vacate Stay Petition had been filed on behalf of respondents 2, 3 and 4, the relevant paras 6 and 8 are extracted hereunder :
"6. I submit that in reply to the Para No.7 of the affidavit, the bidder shall upload the bid documents in two parts i.e Part - I & Part - II which shall be uploaded jointly through online only, on e-procurement platform before schedule closing time and date i.e., before 16:30 Hrs on 05.03.2024. Submission of documents in any other mode shall not be considered. Part - I called Pre-qualification bid and shall contain financial standing, record of previous experience. In Part - II (Price bid) the price bid document shall be uploaded in a commercial bid template only. The petitioner has not submitted their bid online as per the schedule closing date and time i.e before 16:30 Hrs on 05.03.2024. Whereas, the petitioner alleging that his uploading of price bid on 05.03.2024 at 05:42 p.m. is beyond the specified time and has no iota of evidence. Those tenders which contain the full information and which comply with the requirements regarding technical and financial qualifications, experience and equipment will be considered. The price-bids of such tenderers who are determined to have complied with the eligibility criteria will only be considered. As the petitioner has not uploaded the bid within schedule closing date and time i.e. 16:30 Hrs on 05.03.2024 acceptance of the bid documents sent by e-mail cannot be considered which is in deviation to the e-procurement tender conditions.8
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8. I submit that in reply to the Para No.8 of the Petition, the petitioner had no right to seek extension of time because of fault of the Petitioner. In the history of the Corporation, at any point of time not even a single tender was extended its time of submission of bids, based on the fault of the bidder. The Petitioner ought to have tried to submit his tender well prior to the end of date of submission of tenders, since he had the knowledge of the issuance of tender notification. For the fault of bidders if the tender timings are goes on extending, the process of tender shall not move further and will be in the bidding stage only which will lead the Respondent Corporation into irrevocable loss. As such the Writ Petition shall be dismissed imposing exemplary costs on to the Petitioner who not only wasted the valuable time of the Hon'ble Court but harassed the Respondents so far, in all aspects."
DISCUSSION AND CONCLUSION:
6. A bare perusal of the record and the averments made in the counter affidavit filed on behalf of respondents 2, 3 and 4 indicates that the petitioner had not submitted the petitioner's bid online as per the schedule closing date and time i.e., before 16:30 Hours on 05.03.2024 and they were received by the respondent office at 18:00 hours on 05.03.2024 and 10:33 A.M., on 06.03.2024, which are beyond the bid submission closing date and time i.e., 16:30 Hrs on 05.03.2024.9
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7. It is the specific case of the petitioner that the respondents ought to have accepted petitioners bid physically in a sealed cover or through Online since petitioner encountered a technical glitch on 05.03.2024 and respondents arbitrarily rejected petitioner's request for postponement of tender to one day for submission of petitioner's bid in the subject work.
It is further the specific plea of the petitioner that the third party rights had not been created so far as Tenders have not been opened till today.
8. A bare perusal of the averments in the counter affidavit filed on behalf of respondent Nos.2, 3 and 4 clearly indicates that the Price-bids of tenders who are determined to have complied with the eligibility criteria will only be considered and since the petitioner had not uploaded the bid within schedule closing date and time i.e., 16:30 Hours on 05.03.2024 acceptance of the bid documents sent by e-mail cannot be considered which is in deviation to the e-procurement tender conditions.
9. A bare perusal of the order impugned dated 01.04.2024 of the Chief Engineer/Coal and Commercial, Telangana State Power Generation Corporation Limited, Vidyut Soudha-Hyderabad indicates that the prequalification bids were already opened on 10 WP_10697 of 2024 SN,J 06.03.2024 as per the schedule date mentioned in the tender document hence the specific plea of the petitioner in the reply affidavit filed on behalf of the petitioner that no prejudice will be caused in accepting petitioner's price bid in a sealed cover physically now is not tenable and hence rejected.
10. This Court opines that Mandamus exists when petitioner has an existing legal right and the same is infringed arbitrarily by an Authority but in the present case it is borne on record that the petitioner is seeking acceptance of petitioner's bid by the respondents physically in a sealed cover or through online having failed to upload the bid within schedule closing date and time i.e., 16:30 hours on 05.03.2024 in deviation to the e-procurement tender conditions, and admittedly petitioner does not have any legal right that had been infringed by the respondents arbitrarily.
11. The Apex Court in the Judgment reported in 2007 (14) SCC Page 517 in "Jagdish Mandal v. State or Orissa and others", held that while invoking power of Judicial review in matters as to tenders or award of contracts, certain special features should be borne in mind that evaluation of tenders and awarding of contracts are 11 WP_10697 of 2024 SN,J essentially commercial functions and principles of equity and natural justice stay at a distance in such matters. If the decision relating to award of contract is bonafide and is in public interest Courts will not interfere by exercising powers of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer is made out. Power of Judicial review will not be invoked to protect private interest at the cost of public interest or decide contractual disputes.
12. This Court opines that the Judgments relied upon by the learned counsel appearing on behalf of the petitioner do not apply to the facts of the present case.
13. Taking into consideration:
(a) The aforesaid facts and circumstances,
(b) Duly considering the averments made in the counter affidavit filed on behalf of respondents 2, 3 and 4, referred to and extracted above,
(c) Duly considering the view and observations of the Apex Court in the Judgment reported in 2007 (14) SCC Page 517 in "Jagdish Mandal v. State or Orissa and others", 12 WP_10697 of 2024 SN,J The Writ Petition is dismissed since the same is devoid of merits and the Interim orders dated 22.04.2024 passed in the present W.P.No.10697 of 2024 stand vacated. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.
______________________________ MRS. JUSTICE SUREPALLI NANDA Date: 30.07.2024.
Note: L.R.Copy to be marked (B/o) Yvkr