M/S. Garapati Constructions, vs The State Of Andhra Pradesh,
2021 Latest Caselaw 3599 AP

                                 1



     THE HONOURABLE SRI JUSTICE BATTU DEVANAND

                WRIT PETITION No.12429 of 2021

O R D E R:-

        This writ petition has been filed to declare the action of

the respondent Nos.5, 7 and 8 in calling for tenders vide

tender Notice, dated 26.12.2020 by way of offline sealed

tenders, instead of e-procurement tenders for the purpose of

construction of 2 lakhs capacity of water tank in Prabhunagar,

Poranki Gram Panchayat area, Poranki Village, Penamaluru

Mandal, Krishna District for Rs.58 lakh as illegal, arbitrary,

violation of principles of natural justice and violation of the

relevant Government Rules and violation of Articles 14,

19(1)(g) and21 of Constitution of India and consequently set

aside the tender notice, dated 26.12.2020 issued vide

R.O.C.No.649/2020 and direct the official respondents to call

for tenders by way of e-procurement platform as per the

relevant Rules and Government Orders.

2) Heard Sri P.S.P. Suresh Kumar, learned counsel for the

petitioner and the learned Government Pleader for Panchayat

Raj appearing for respondent Nos.1 to 4, Sri I. Koti Reddy,

learned Standing Counsel for Gram Panchayat appearing for

5th respondent, Sri M. Manohar Reddy, learned Standing

Counsel appearing for 6th respondent, learned Government

Pleader for PR & RD appearing for 7th respondent, Sri K.S.

Murthy, learned counsel representing Sri M. Siva Kumar,

learned counsel for the 9th respondent on record. Perused the

material available on record.

3) The facts of the case of the petitioner are;

(i) That the 5th respondent issued a Tender Notice vide

R.O.C.No.649/2020, dated 26.12.2020, by calling offline

sealed tenders for the purpose of construction of 2 lakh liters

water tank in Prabhu Nagar, Poranki Gram Panchayat area,

Krishna District, wherein it is stated that the tender schedule

will be in between 11.01.2021 from morning 10 a.m. to

evening 5 p.m. and the EMD was fixed as Rs.58,000/- and

Rs.2,000/- as the application fee. Though the date of the

tender notice was shown as 26.12.2020, the same has been

published in the "SAKSHI" newspaper on 08.01.2021 and the

tender schedule was fixed as 11.01.2021.

(ii) As per the procedure contemplated, there shall not

be any offline sealed tenders and all the Government works,

where the value of the work is over and above Rs.5 lakh shall

be by way of e-tenders. But, without calling e-tenders and

without placing the present tender in e-portal, the respondent

No.5 with the active support of respondent Nos.7 and 8, has

purposefully called the offline sealed tenders by violating the

settled Government norms and Rules with a view of benefit

the unofficial respondent.

(iii) Due to illegal and highhanded acts of the

respondents, the petitioner and other various intending

bidders could not participate in the tender process. The 9th

respondent has submitted his tender and he was the sole

person, who participated in the tender process and his tender

was accepted and entrusted the work as specified in the

tender notice, dated 26.12.2020.

(iv) Therefore, there is a clear collusion in between the

official respondents and unofficial respondent and out of their

collusion only the said tenders were called for and many other

intending parties including the petitioner were debarred from

participating in the tender process and the valuable public

money was spoiled only to benefit the unofficial respondent.

Hence, the action of the respondent Nos.5, 7 and 8 in calling

for offline tenders vide tender notice, dated 26.12.2020

instead of e-procurement tenders and accepting single bid and

conferring the work to the unofficial respondent is illegal,

arbitrary, violation of principles of natural justice and thereby

set aside the tender notice, dated 26.12.2020.

4) Counter-affidavits of Respondent Nos.4, 6, 7, and 9 have

been filed.

(a) In the counter-affidavit of 4th respondent, it is

averred that on the representation of residents of Prabhu

Nagar area in Poranki Gram Panchayat to the 5th respondent

for construction of PWS water tank in their area, the 5 th

respondent Gram Panchayat, vide resolution No.113, dated

02.11.2020 has resolved to construction 200KL capacity water

tank at Prabhu Nagar Area and the Assistant Engineer, RWS&S

Section, Penamaluru has prepared estimates for construction

of 200KL OHSR with estimated cost of Rs.58.00 lakh.

(b) It is further averred in the counter-affidavit of 4th

respondent that vide resolution No.114, dated 13.11.2020,

the Gram Panchayat requested the Collector & District

Magistrate, to accord Administrative Sanction for construction

of 200KL capacity water tank at Prabhu Nagar area with an

estimated cost of Rs.58.00 lakh. Accordingly, the

Administrative Sanction was accorded by the Collector &

District Magistrate vide E Office File No.866098/2020 Pts.10,

dated 09.12.2020 of the Collector (P.W), Krishna,

Machilipatnam, as he is competent authority to accord

administrative sanction for the works whose estimated cost is

over and above Rs.10.00 lakh vide G.O.Ms.No.62, PR&RD

Dept., dated 31.05.2018.

(c) It is further stated in the counter-affidavit of 4th

respondent that according to Rule 3 of the Andhra Pradesh

Gram Panchayat (Invitation and Acceptance of Tenders for

Works and Purchases) Rules, 2000, the 5th respondent is

competent to issue offline tenders (i.e.) invitation of tenders

through sealed covers.

(d) It is further stated in the counter-affidavit of 4th

respondent that the Government of Andhra Pradesh has

constituted YSR Tadigadapa Municipality by merging

Tadigadapa, Kanuru, Yanamalakuduru and Poranki Gram

Panchayats vide Gazette No.17, dated 31.12.2020 and for

present, the 5th respondent Gram Panchayat is not in

existence. As such, the respondents have strictly followed the

Government Rules that were framed from time to time.

Therefore, the 4th respondent prays to dismiss the writ

petition.

5) In the counter-affidavit of 6th respondent, it is stated

that the present Municipality was formed on 31.12.2020 and

the alleged tender notice was issued on 26.12.2020 by the

erstwhile Gram Panchayat. In paragraphs 4 and 5 of the

affidavit of the petitioner, it is alleged that the 5 th respondent

has purposefully called for offline tenders by violating the

settled government norms and Rules, and that the Panchayat

Secretary has colluded with the unofficial respondents and

when the petitioner is attributing malafides against the then

Panchayat Secretary and challenging the conduct of such

individual, the truth will come into light only when the said

Panchayat Secretary is brought on record in this litigation. The

manner, in which the staff of the erstwhile panchayat

conducted this tender process, is not within the personal

knowledge of the 6th respondent, as he assumed charge only

on 17.04.2021.

6) In the counter-affidavit of 7th respondent, it is stated

that as per the District Collector administrative sanction

RWS&S Department is executing agency, the present

respondent is no way responsible either for inviting tenders or

concluding agreement. The execution of the work is primary

job chart of the Deputy Executive Engineer after entering into

the agreement with Gram Panchayat, Poranki. The Deputy

Executive Engineer has no right to question concerned Gram

Panchayat regarding accepting tenders or concluding

agreement. The Deputy Executive Engineer can only obey as

per agreement concluded and execute the said work.

7) In the counter-affidavit of 9th respondent, it is averred

that;

(a) The petitioner has no locus standi to file the present

writ petition and as such it is not maintainable as it is hit by

latches (after completion of 85% of works the case is filed)

and the case is filed to settle scores with some officers.

(b) As per the averments made by the petitioner himself,

he has not participated in the tender process by submitting

any bid and he was not prevented from submitting his bid by

any one, as the tenders were invited through news paper

publication. The work was awarded in January now after

nearly six months the case is filed and the works is at the

stage of completion. This shows that there is hidden agenda

to this case and the writ petitioner has not come to Court with

clean hands. He also filed photographs showing the present

stage of work which clearly demonstrates that almost the

construction of overhead tank was completed and the

remaining work will be completed within a few days.

(c) In fact, the official respondents have estimated the

contract value of Rs.58.00 lakh and he had submitted his bid

for a sum of Rs.50,95,857/- much below the estimated price.

As such, there is no loss that is caused to the state exchequer.

(d) Even according to the Rule 17(2), no specific time

framed between the publication of notice in the newspaper

and the date of submission of tenders were framed for the

amounts exceeding Rs.50,000/- and it prescribed about the

publication of notice in one newspaper having maximum

circulation that is satisfied.

(e) There is no element of public interest is involved in

the instant writ petition and in fact it is determental to the

interest of general public. The project of drinking water

supply is being considerably delayed by virtue of the present

writ petition and thus escalating the cost far more than any

saving besides causing much inconvenience due to non-

completion of the overhead tank within time. Due to stoppage

of work, the local people are unable to get drinking water

supply. As such, the petitioner has not made out any case

much less a prima facie case for interference of this Hon'ble

Court. Therefore, he prays to dismiss the writ petition.

8) The petitioner filed reply affidavit to the counter-affidavit

filed by the 9th respondent wherein it is stated that as per the

procedure contemplated in G.O.Ms.No.2, dated 03.02.2014,

issued by Finance (Works & Projects F-7) Department, all

works costing Rs.1.00 lakh and above, e-procurement

platform should be adopted for enhancing transparency and

also bring uniformity across all the departments. The said GO

is being followed by all departments including the Panchayat

Raj Department all these years.

9) It is also stated in the reply that the 9th respondent is the

relative of 7th respondent and only at her instance the 5th

respondent has chosen to deviate with the procedure. Only to

eliminate him from participating in the tender process, a false

FIR was registered and he was also placed in black list. He

filed W.P.No.5511 of 2021 and the same was disposed of by

this Court on 17.03.2021 observing that the procedure for

blacklisting was not followed and if the officials want to

blacklist him, they need to follow the procedure. But, till date

no action has been initiated against him since there is no truth

in the allegations leveled against him.

10) It is further stated in the reply affidavit that the Poranki

Gram Panchayat got merged in YSR Tadigadapa Municipality

by way of Ordinance No.17 of 2020, dated 31.12.2020.

Hence, there is no Gram Panchayat in existence with effect

from 31.12.2020. Admittedly the paper publication was

published by the 5th respondent on 08.01.2021 and finalized

the tender on 11.01.2021. As on the date of issuance of the

tender, the 5th respondent is not having any authority or

jurisdiction and the Commissioner of Municipality of YSR

Tadigadapa has to take up the construction works as per the

procedure and GOs issued under the Municipal Administration

Department. Even the respondent Nos.7 and 8 also are not

having jurisdiction to take up the works since they are entitled

to only rural works and not of Municipal area works. Thus, it is

clearly shows that the respondent Nos.5, 7 and 9 are hand-in-

glove with each other and only to benefit 9 th respondent, all

these things were done.

11) Learned counsel for the petitioner submits that 5th

respondent has issued a tender notice on 26.12.2020. The

said tender notice was published in "Sakshi" daily news paper

on 08.01.2021, in which it is stated that intending bidders can

obtain tender schedule from 10-00 a.m. to 5-00 p.m. on

11.01.2021 on payment of Rs.2,000/- from the Poranki Gram

Panchayat. It is further stated in the tender notification that

offline sealed tenders will be received up to 3-00 p.m. on

12.01.2021 in the Gram Panchayat and the same will be

opened in the presence of bidders at 4-00 p.m.

12) Learned counsel for the petitioner contends that though

the date of tender notice was shown as 26.12.2020, the same

was published only on 08.01.2021 and tender schedule was

made available till only 11.01.2021. As such, it is clear that

only with a view to confer the tender to the 9 th respondent,

illegal procedure was adopted by the 5th respondent with the

active support and direction of respondent Nos.7 and 8.

13) Learned counsel for the petitioner submits that as on the

date of the publication of the tender notification (i.e.) on

08.01.2021, the 5th respondent-Gram Panchayat is not in

existence and the Panchayat Secretary has no authority to

issue such notification due to the reason that the 5th

respondent-Gram Panchayat was merged into the 6th

respondent-Y.S.R. Tadigadapa Municipality, Krishna District,

which is newly constituted municipality as per the Andhra

Pradesh Ordinance No.17 of2020, dated 31.12.2020.

14) Leaned counsel for the petitioner further submits that as

per G.O.Ms.No.2 Finance (Works & Projects-F7) Department,

dated 03.02.2014, all works and material procurement costing

Rs.1.00 Lakh and above the e-procurement Platform should be

adopted so as to enhance transparency and bring uniformity

across all the departments. This procedure is not followed by

issuing tender notification for estimated cost of Rs.58.00 Lakh.

15) Learned counsel for the petitioner brought to the notice

of this Court relevant provisions of the Panchayat Raj Act,

Municipal Administration Act and Andhra Pradesh

Municipalities Act with regard to constitution of Gram

Panchayat, construction of water tanks and merging of villages

into municipalities, etc.

16) Learned counsel for the petitioner relied on a decision in

Chimpula Sailaja and others vs. State of Telangana and

others 1 . Upon perusal of the same, in the opinion of the

Court, the said judgment is not applicable to the facts and

circumstances of the present case.

17) On the other hand, the learned Government Pleader for

Panchayat Raj, submits that as per the procedure provided

under Andhra Pradesh Gram Panchayat (Invitation and

Acceptance of Tenders for works and purchases) Rules, 2000.

Under Rules 3, 4 and 5 the procedure for invitation of tenders

is prescribed and as per Rule 17(b) when the anticipated cost

exceeds Rs.50,000/- by advertisement in atleast one

Newspaper with maximum circulation in the district. In the

present case the prescribed procedure is followed while issuing

the tender notification.

18) Learned Government Pleader further submits that this is

not bonafide litigation and the petitioner approached this

Court belatedly though he is aware of the issuance of the

2017(5) AD 131

tender notification and if he is having any grievance, he has to

approach this Court immediately.

19) Learned Government Pleader for Panchayat Raj relied on

a judgment of the Hon'ble Apex Court in R & M Trust vs.

Koramangala Residents Vigilance Group and others2.

20) Sri K.S. Murthy, learned counsel appearing on behalf of

9th respondent, submits that the Andhra Pradesh Gram

Panchayat (Invitation and Acceptance of Tenders for works

and purchases) Rules, 2000 governance the field as statutory

rules. E-tendering need not be undertaken due to the reason

that as per Rule 17(b) if the anticipated cost exceeds

Rs.50,000/-, tender notification can be issued by

advertisement in atleast one Newspaper with maximum

circulation in the district. He further submits that the tender

notification was issued on 26.12.2020 and therefore tender

process is commenced prior to Gram Panchayat merged into

Nagar Panchayat. As such, there is no irregularity in the

tender process.

21) Learned counsel for the 9th respondent further submits

that the petitioner has no locus-standi to file the writ petition

as it is not maintainable as it is hit by latches and the writ

petition is filed after completion of 85% works and to settle

(2005) 3 Supreme Court Cases 91

scores with some officers, the present writ petition is filed.

Learned counsel brought to the notice of the Court with regard

to registering the FIR against the petitioner. But, in our

opinion, it is not relevant to the present case.

22) Learned counsel for 9th respondent relied on a judgment

of the Hon'ble Apex Court in Bharat Coking Coal Limited

and others vs. AMR DEV Prabha and others 3 in which it

was held that the power of judicial review will not be

permitted to be invoked to protect private interest at the cost

of public interest, or to decide contractual disputes.

23) Learned counsel for 9th respondent also relied on a

judgment of the Hon'ble Apex Court in Master Marine

Services (P) Ltd., vs. Metcalfe & Hodgkinson (P) Ltd.,

and another4.

24) On careful consideration of the above said two

judgments relied by the learned counsel for 9th respondent

and judgment relied by the learned Government Pleader, in

our opinion, there is no dispute with regard to the principles

laid down in the said judgments, but, with great respect

stating that the facts and circumstances of the present case

are different.

(2020) 16 Supreme Court Cases 759

(2005) 6 Supreme Court Cases 138

25) The respective counsels appearing for other respondents

also made their submissions as per the averments in their

counter-affidavits.

26) Having heard the submissions of the respective learned

counsel and upon perusal of the material available on record,

it is clear that the tender notification was issued on

26.12.2020 and the same was published in "Sakshi" daily

Newspaper on 08.01.2021.

27) Rule 17 of Andhra Pradesh Gram Panchayat (Invitation

and Acceptance of Tenders for works and purchases) Rules,

2000 prescribed the procedure for invitation of the tenders by

the Executive Authority. Rule 17 is extracted hereunder for

proper adjudication of the present case.

17. Invitation of tenders by the Executive Authority: (1) Tenders which shall be in sealed covers, shall be invited by the Executive authority in the most open and public manner possible.

(a) In all cases by a notice in the Chief language or languages of the district posted at the office of the Gram Panchayat and at such other places as the Executive Authority may deem fit.

(b) When the anticipated cost exceeds Rs.50000 by advertisement in at least one Newspaper with maximum circulation in the district.

(2) Every notice or advertisement published under sub-rules(1) shall state interilia

(a) the conditions under which, the officer from whom, and the price, if any, for which a copy of the schedule of quantities of

the various kinds of articles can be obtained; If these cannot be mentioned in detail in the notice of advertisement itself;

(b) the precise form in which the tenders shall be made, that is whether prices for the various articles are to be quoted and whether the comparative value of the tender will be examined with reference to each article mentioned in the schedule Of quantities or for all such articles conjointly or, for groups of such articles;

(c) the time when and the place where the tenders are to be submitted allowing a period fatalist ten days from the date or publication of the notice at the office of the Gram Panchayat.

(d) The time when and the place where the tenders are to be opened.

(e) The amount of earnest money which should accompany the tender and the amount and nature of the security which will be required in case the tender is accepted.

(f) The authority competent to accept the tender.

(g) That the authority competent to accept the tender, reserves the right to reject any or all of the tenders received, without assigning reasons and

(h) That a tenderer who withdraws his tender, without valid reasons, which shall be decided by the authority competent to accept the tender shall be liable to have Ills subsequent tenders summarily rejected.

28) As per Rule 17(1)(b) when the anticipated cost exceeds

Rs.50,000/- the tenders shall be invited by the Executive

Authority in sealed covers by advertisement in at least one

Newspaper with maximum circulation in the district. In the

light of the Rule 17(1)(b), it is clear that if the cost of the

work exceeds Rs.50,000/-, tender shall be invited by

advertisement in atleast one newspaper.

29) The 6th respondent (i.e.,) the Commissioner, Y.S.R.

Tadigadapa Municipality filed his counter-affidavit in which it is

stated that Y.S.R. Tadigadapa Municipality is a newly

constituted municipality as per the Andhra Pradesh Ordinance

No.17 of 2020, dated 31.12.2020. The Commissioner and

Director of Municipal Administration, Guntur has appointed the

Commissioner/FAC Y.S.R. Tadigadapa Municipality vide order

in Roc.No.20024/26/2021/A1, dated 07.01.2021, appointed

one Smt. D. Venkata Lakshmi, Municipal Commissioner Grade-

I (now working as Deputy Commissioner, Vijayawada

Municipal Corporation) as Full Additional Charge of the post of

Municipal Commissioner until further orders.

30) In the said order the Municipal Commissioner is

instructed to take important actions mentioned in the said

order apart from other activities to be performed as per the

provisions of the Andhra Pradesh Municipalities Act, 1965 and

directions of the C&DMA and the Government. In the said

order the new Commissioner has to take charge of all

immovable properties and to take over the assets and

liabilities registers and get the particulars of all immovable

properties (i.e.) building, parks and playgrounds, reserved

open sites, etc., and the Commissioner has to get the

particulars of ongoing schemes in Gram Panchayat in the

prescribed proforma as Annexure-IX of G.O.Ms.No.18, MA&UD

Department, dated 07.01.2019. The Commissioner has to get

the particulars of works/material bills and other dues payable.

31) But, in the counter filed by the 6th respondent, it is

averred that the Panchayat Secretary did not submit entire

records to the Commissioner till the date of filing of the

counter-affidavit. Only upon repeated requests, file was

submitted finally on 12.07.2021 at 7-00 p.m., even though

the files contain the official communication of the said tender

process. It is stated that the 6th respondent do not have any

personal knowledge about as to why Panchayat Secretary

purposefully called for offline tender as alleged by the

petitioner.

32) Upon perusal of the Andhra Pradesh Ordinance No.17 of

2020, it appears that it was promulgated by the Governor on

31.12.2020 and it shall come into force at once.

33) In the present case the tender notification though it was

dated as 26.12.2020, it was published in "Sakshi" newspaper

only on 08.01.2021. Admittedly, as on the date of 08.01.2021

the 5th respondent is not in existence and the Poranki Gram

Panchayat merged into Y.S.R. Tadigadapa Municipality by

Ordinance No.17 of 2020, dated 31.12.2020 and as such in

our view, the 5th respondent has no authority or jurisdiction to

call for the tenders and to finalise the tenders on 12.01.2021.

The 6th respondent-Y.S.R. Tadigadapa Municipality is the

competent authority to issue tender notification for the works

to be undertaken in their jurisdiction by calling for tender

notification and to finalize the tender process.

34) It appears from the material filed by the 6th respondent

along with his counter, the concerned Panchayat Secretary of

the 5th respondent-Gram Panchayat did not handover the

records itself to the 6th respondent even after issuance of

specific instructions vide Memos, dated 19.04.2021,

08.02.2021 and 15.05.2021. The said memos establishes that

even after merger of Gram Panchayat with the 6th respondent-

Municipality, the concerned Panchayat Secretary did not hand

over the records to the Commissioner of 6th respondent-

Municipality. It appears the concerned Panchayat Secretary

has no respect towards the law and rules. Once the Gram

Panchayat was merged into Municipality and a Commissioner

was appointed to carryout the functions of the said

Municipality, it is very strange to note that how the Panchayat

Secretary kept the records with him.

35) It is to be noted that as and when the Gram Panchayat

lost its identity by merging into the 6th respondent-

Municipality finalizing the tender process in the name of Gram

Panchayat and declaring the 9th respondent as successful

bidder and entrusting the said works for execution to the 9 th

respondent, appears to be illegal, arbitrary and unjust.

36) After careful consideration of the factual position in the

present case, the Court opines that the entire tender process

from publication of tender notification in the newspaper to

execution of work is taken up with malafide intention by the

Panchayat Secretary of the 5th respondent-Gram Panchayat to

do undue favour to the 9th respondent. As and when State

Government is taking steps to merge the 5th respondent-Gram

Panchayat into the Y.S.R. Tadigadapa Municipality, it is not

understandable, what is the hurry to the 5th respondent to

issue such tender notification at the fag end of its merger, if

there is no intention to do undue favour to the 9 th respondent.

In the considered opinion of the Court even though 5th

respondent issued tender notification as per Andhra Pradesh

Gram Panchayat (Invitation and Acceptance of Tenders for

works and purchases) Rules, 2000, the procedure provided

under Rule 17 is not followed. On that ground also this tender

process has to be set aside.

37) As per the contentions of the learned counsel appearing

for the respondents and the material available on record, 9 th

respondent executed some work after declaring him as

successful bidder and stalling the construction at this stage is

against to the public interest. We are unable to accept the

said contention. As and when tender process was initiated

and finalized in contrary to the procedure, with malafide

intention, arbitrarily and there is loss to the public exchequer

due to the procedure adopted by the 5th respondent,

continuing the construction work with 9th respondent is not

warranted.

38) For the reasons stated above, this Court is holding that

the tender notice issued in Roc.No.649/2020, dated

26.12.2020 by the 5th respondent till declaring the 9th

respondent as successful bidder, the entire process is vitiated

under law.

39) To protect the interest of public, the unfinished water

tank shall take over by the 6th respondent-Municipality and to

take steps to complete the work by departmentally or by

calling for the tenders for unfinished work by following due

process of law. If the 9th respondent feels that he sustained

any loss, it is open for him to initiate appropriate proceedings

as per law.

40) For the reasons stated above, the writ petition is allowed

and the tender notification vide Roc.No.649/2020, dated

26.12.2020 issued by the 5th respondent is set aside. The 6th

respondent-Municipality is directed to take over unfinished

water tank and to take steps to complete the unfinished work

to make the water tank fit for use in the interest of public.

41) There shall be no order as to costs.

Miscellaneous petitions pending, if any, in this case shall

stand closed.

______________________________ JUSTICE BATTU DEVANAND Date : 17.09.2021 PGR

THE HONOURABLE SRI JUSTICE BATTU DEVANAND

W.P.No.12429 of 2021

Date : 17.09.2021

PGR