Goli Sarath Babu Sarath Reddy vs The State Of Andhra Pradesh,
2021 Latest Caselaw 3011 AP

            THE HONOURABLE SRI JUSTICE D.RAMESH

                    WRIT PETITION No.3609 of 2021

ORDER:

The Writ Petition is filed under Article 226 of Constitution of India

seeking to declare the action of the respondents in executing the work

by the 2nd and 3rd respondent is against the G.O.Ms.No.171 M.A. dated

01.5.2004 and without opening the financial bid of petitioner towards

the tender notification in proceedings Rc.No.1469/2020/S4(II), dated

12.01.2021 for transportation of Teak timber (Final Harvesting) I 1967

TP Kovvada RF-II, Kotrupalli Beat of P.R.Gudem section of Kannapuram

Range, West Godavari District is illegal and arbitrary. order of the 3rd

respondent issued in Rc.No.60/2020/A1 dated 12.5.2020 as illegal,

arbitrary and consequently direct the 3rd respondent to permit the

petitioner to conduct the business.

2. As per the averments in the affidavit, the 2nd respondent i.e.

Divisional Forest Officer, Logging Division, Jangareddygudem, West

Godavari District has issued tender notification in

Rc.No.1469/2020/S4(II), dated 12.01.2021 for transportation of teak

timber (final harvesting) I 1967 TP Kovvada RF-II, Kotrupalli Beat of

P.R.Gudem section of Kannapuram Range and pursuant to the said

notification, the petitioner alone participated in the above tender for an

amount of Rs.8,88,323/-. 3rd respondent herein who is the District

Forest Officer, Eluru Division, West Godavari District without

considering the tender of the petitioner and without canceling and

without finalizing the same, he kept the tender notification pending. To

know the status of the tender, the petitioner approached the 2nd and

3rd respondents requesting to finalize the tender and award the

contract for commencing the work, as per the guidelines of e-

procurement tender. When the petitioner approached and requested

DR,J W.P.No.3609 of 2021

the 2nd and 3rd respondent to open the bid and award contract to the

petitioner, but surprisingly the 2nd and 3rd respondent executed above

tender work with third parties and kept the tender application of the

petitioner in hold without deciding the tender or without rejecting

application which is illegal and against G.O.Ms.No.20 dated 06.7.2004.

The 2nd and 3rd respondents are undertaking the work through their

benamis for getting profits and misusing the procedure of e-

procurement tenders. In view of the said circumstances, the petitioner

has made a representation to the 1st respondent on 05.02.2021

narrating the irregularities in tender procedure by the 2nd and 3rd

respondents. As there is no action from them, the present writ petition

is filed.

3. Considering the submissions made by the petitioner, this Court

has passed the following interim order:

.....Having considered the submissions of both the counsel in the opinion of this Court, this is a fit case to grant interim direction to the respondents.

Accordingly, there shall be an interim direction to the respondents not to execute the work with anybody for the works which were mentioned in the tender notification dated 12.01.2021, till finalization of the tender process".

4. After notice, the 3rd respondent has filed counter wherein it was

categorically stated that e-procurement notice was notified inviting e-

tenders in Eluru Division, Eluru for executing the DET works for

extraction and transportation of Teak timber in 1967 T.P.Kovvada RF-

II, Kotrupalli Beat of P.R.Gudem Section of Kannapuram Range during

the year 2020-21. According to the said notification, the tender has to

be opened on 28.01.2021. But, due to the implementation of model

code of conduct for panchayat elections i.e. on 23.01.2021, they could

not able to process the tender. And the above said works are to be

DR,J W.P.No.3609 of 2021

carried out in Rural Mandal, a report was submitted to the Chief

Conservator of Forests, Rajahmundry through their letter dated

26.01.2021 requesting to issue necessary permission to take up the

said work through department itself. In fact as per G.O.Ms.No.2 EFS&T

(For.III) department dated 07.01.2004, opening of tenders was

scheduled on 28.01.2021 and in view of model code of conduct, the

same could not be opened. Hence requested the 3rd respondent, who

is head of the Forest Department, to permit them to carry out the

works through department itself. Continuation to the same, a report

was also submitted to the Chief Conservator of Forest, Rajahmundry

vide letter dated 30.01.2021 stating that extraction and transportation

of teak timber will have to commence departmentally from 02.02.2021

to save delay, as the e-tenders floated could not be opened for

finalization due to prevailing model code of conduct of panchayat

elections and requested to make it convenient to attend for physical

inspection to verify the 100 tree existing at 1967 Kotrupally Teak

Plantation. In this connection, the Chief Conservator of Forest,

Rajahmundry inspected the teak plantation on 03.02.2021 and

instructed to go ahead with harvesting operations as reported

departmentally as the estimates are within the competency of 3rd

respondent. Accordingly, the works were commenced departmentally,

since 03.02.2021. Basing on the nature of urgency, by engaging local

labour from the remote villages of Gogumilli, Gedapalli, Chintapalli in

the Kotrupalli area. Because the works have to be completed before

the financial year 2020 itself. In view of the above, e-tenders floated

for the above said work was cancelled and the earnest money deposits

were remitted/refunded on 15.02.2021 through online. In fact, the

writ petition filed by the petitioner came up for admission on

15.02.2021 but before intimating about the interim orders, the tenders

DR,J W.P.No.3609 of 2021

were cancelled on 15.02.2021 at 11.35am and the EMD amounts were

also remitted back to the tenderers. As per condition no.21 of the

tender notification, the Department reserves right to accept or reject

any tender or all tenders without assigning any reasons thereof.

5. In support of the above averments, the learned Counsel

appearing on behalf of the petitioner submits that the notification was

issued on 12.01.2021 and last day for submission of tenders was

28.01.2021 at 4pm and prize bids will be opened on 29.01.2021.

Pursuant to the notification, the petitioner alone has submitted a tender

with a fond hope that he will get the tender in his favour. But,

surprisingly without opening the tender bids, without finalizing the

tenders, the respondents have proceeded with work by engaging

private persons and to help their kith and kin, they have completed the

work which is contrary to the guidelines issued by the Government.

When the petitioner has submitted a tender, he has every right to get

the tender and the respondents cannot with hold the tender without

assigning any reasons.

6. Learned Government Pleader appearing on behalf of the

respondents has submitted that in fact the tender notification was

issued on 12.01.2021 and supposed to file tender bids up to

28.01.2021, even before the said date, the implementation of model

code of conduct for panchayat elections was commenced at

23.01.2021. By virtue of the same, they could not open the technical

bids. Hence in view of the urgency, they requested the Chief

Conservator of Forests, who is the head of the forest, explaining the

factual position. After inspecting the teak plantation by the Chief

Conservator of Forest on 03.02.2021, he has accorded permission as

per Rules. To support the said contention, learned Government Pleader

DR,J W.P.No.3609 of 2021

submits that the department can execute the works in the following

methods.

i. Departmental method.

ii. Piece work contract method.

iii. Lumpsum contract method.

iv. Scheduled contract method.

v. Nomination method vi. Tender system.

In view of the above, the department can execute various

departmental works in the above stated six methods. Infact the

department intends to undertake the work through tender process. But

by virtue of model code of conduct from 23.01.2021, the department

has executed the work as per departmental method. In fact as stated

by the petitioner, the petitioner is not the only tenderer, two others

have also filed tenders and the said tenders were cancelled and their

EMD's were remitted back on 15.02.2021 itself. As per clause-21 of

the said tender conditions categorically states that the tender inviting

authority has right to accept or reject any bid or cancel the bidding

process and reject all the bids at any time prior to awarding contract.

7. The Hon'ble Apex Court repeatedly held that the State or its

instrumentalities act reasonably, fairly and in public interest in

awarding contract, interference by the Courts is very restrictive since

no person can claim fundamental right to carry on business with

Government. However, if the process adopted or decision made by the

authorities is malafide or intended to favour someone or arbitrary and

irrational that the decision taken by it could not have been taken by a

reasonable authority acting reasonably and with relevant law, the

interference will be inevitable and the same was reported in Michigan

Rubber (India) Limited v. The State of Karnataka1. In Afcons

AIR 2012 SC 2915

DR,J W.P.No.3609 of 2021

Infrastructure Limited v. Nagpur Metro Rail Corporation Limited2 the

Hon'ble Apex Court has held that the decision making process in

accepting or rejecting the bid should not be interfered with.

Interference is permissible only if the decision making process is

arbitrary or irrational or perverse to an extent that no responsible

authority acting reasonably and in accordance with law could have

reached such a decision.

8. Considering the above two judgments, it is not in dispute in the

instant case that the tenders were floated by the authorities and

subsequently for reasons mentioned in the counter affidavit they could

not able to finalize the same and in view of the urgency and to

complete the work on or before the closure of the financial year of

2021 they have executed the work through department. Infact the

petitioner has not filed any substantial evidence along with the writ

petition showing that the work was executed through a third party,

except making a wild allegation in the affidavit. Even according to the

Rules relied on by the Department, it is clear that the department also

can undertake or execute the works apart from tender process. In

view of the same, the respondents have got concurrence from the Chief

Conservator of Forest and the same was executed through department.

9. Considering the above, this Court is of the opinion that the

petitioner has not made out any case for interference of this Court.

10. Accordingly, the writ petition is dismissed. No costs.

As a sequel thereto, the miscellaneous petitions, if any, pending

in this Writ Petition shall stand closed.

________________ JUSTICE D. RAMESH Date:12.8.2021 RD

(2016) 16 SCC 818

DR,J W.P.No.3609 of 2021

THE HONOURABLE SRI JUSTICE D.RAMESH

WRIT PETITION No.3609 of 2021

Dated 12.8.2021

RD