Andhra Pradesh High Court - Amravati
M/S. Asr Hospitals India Pvt. Ltd, vs The State Of Andhra Pradesh on 23 September, 2021
Bench: R Raghunandan Rao
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
***
W.P.No.17415 of 2021
Between:
# M/s. ASR Hospitals (India) Pvt. Ltd.,
1-81/1, Railway Station Road, Yerramukkapally,
YSR District, rep. by its Managing Director,
Dr. Ankireddypalli Sidda Reddy, S/o. A. Siddha Reddy,
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Medical and Health Department, Secretariat Buildings, Velagapudi,
Guntur District.
2. Andhra Pradesh Medical Services Infrastructure Development
Corporation, Plot No.09, Sy.No.49, IT Park, Mangalagiri, Guntur
District rep. by its Managing Director.
3. M/s. Shruthikesh Industries, 7-3-158, Ghasmandi Road,
Secunderabad, Telangana rep. by its Proprietor Prasad Kesetti.
4. M/s. Integrated Health Group Pvt. Ltd., D.No.59A-21/7-10, Ramdev
Building, 3rd Floor, RR Gardens, Patamata, Krishna District rep. by its
Managing Director, Dr. Pavan Kumar Donepudi.
... Respondents
Date of Judgment pronounced on : 22-09-2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether the Lordship wishes to see the fair copy : Yes/No
Of the Judgment?
2 RRR,J.
W.P.No.17415 of 2021
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
* HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
+ W.P.No.17415 of 2021
Date: 22-09-2021
Between:
# M/s. ASR Hospitals (India) Pvt. Ltd.,
1-81/1, Railway Station Road, Yerramukkapally,
YSR District, rep. by its Managing Director,
Dr. Ankireddypalli Sidda Reddy, S/o. A. Siddha Reddy,
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Medical and Health Department, Secretariat Buildings, Velagapudi,
Guntur District.
2. Andhra Pradesh Medical Services Infrastructure Development
Corporation, Plot No.09, Sy.No.49, IT Park, Mangalagiri, Guntur
District rep. by its Managing Director.
3. M/s. Shruthikesh Industries, 7-3-158, Ghasmandi Road,
Secunderabad, Telangana rep. by its Proprietor Prasad Kesetti.
4. M/s. Integrated Health Group Pvt. Ltd., D.No.59A-21/7-10, Ramdev
Building, 3rd Floor, RR Gardens, Patamata, Krishna District rep. by its
Managing Director, Dr. Pavan Kumar Donepudi.
... Respondents
! Counsel for petitioners : Sri V.R. Reddy Kovvuri
^Counsel for Respondent No.2 : Sri Venkat Reddy Chittem
^Counsel for Respondent No.3 : Sri K. Rathanga Pani Reddy
^Counsel for Respondent No.4 : Sri P. Gangaiah Naidu Sr. counsel
<GIST :
>HEAD NOTE:
? Cases referred:
1. (2012) 8 SCC 216
2. (1979) 3 SCC 489
3. 2017 SCC Online Del 8227
4. (1994) 6 SCC 651
5. (2015) 7 SCC 728 : 2015 SCC On Line SC 490
6. (2019) 14 SCC 81 : 2019 SCC On Line SC 494
3 RRR,J.
W.P.No.17415 of 2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.No.17415 of 2021
ORDER:
The 2nd respondent had issued a tender notice through Tender
Enquiry No.11.1B/APMSIDC/2021-22, dated 15.07.2021 requesting for
provision of Sick New Born Care Units (SNCUs) at CHCs, AH, MCHs and
DHs in Andhra Pradesh. The petitioner had submitted its tender document
on 31.07.2021 after complying with all the required formalities. The
tender evaluation process was to be done in two stages, i.e., technical bid
and financial bid. The procedure adopted by the 2nd respondent was that
after preliminary evaluation of the technical bid, the bidders would be
informed of their deficiencies which could be rectified by them. In the
case of the petitioner, the 2nd respondent had pointed out certain
deficiencies, which were rectified by the petitioner. However, one of the
deficiencies pointed out by the 2nd respondent was the non-submission of
GST registration certificate. The petitioner took the stand that it was an
entity involved in the business of Healthcare Services, which were
exempted from payment of Goods and Services Tax by notification
No.9/2017-Integrated Tax (Rate), dated 28.06.2017 and as such the
petitioner was exempted from registering it under the GST Act and the
requirement of producing GST registration certificate would not apply to
the petitioner.
2. The 2nd respondent rejected the technical bid of the
Petitioner and cleared the technical bids of the 3rd and 4th respondents.
Aggrieved by the said rejection of its bid and the acceptance of the
technical bid of the 3rd and 4th Respondents, the Petitioner has filed the
present writ petition.
4 RRR,J.
W.P.No.17415 of 2021
3. The contentions of the Petitioner , in this regard, are as
follows:
A. The bid of the petitioner could not have been rejected on the
ground of non-furnishing of GST registration certificate as
there was no requirement for the Petitioner to register itself
under the GST Act and consequently the 3nd respondent could
not have insisted for production of such a registration
certificate.
B. The 3rd respondent is part of a consortium, which had bid for
the tender. The lead partner of this consortium is Sri
Ramachandra Children and Dental Hospital. As per the tender
documents, wherever consortium is submitting a tender
document, the said tender document can be submitted only by
the lead bidder who should authenticate the bids with its
digital signature. However, it was the 3rd respondent, who
submitted the bid and not Sri Ramachandra Children and
Dental Hospital, which is the lead member of the consortium.
In such a situation the bid submitted by the 3rd respondent
could not have been taken into account at all.
C. The 4th respondent did not have minimum three years of
experience in carrying out of operation and maintenance of
operations of SNCU in private and public sectors and as such
was not eligible to be considered in the technical bid. Further,
the 4th respondent while giving its experience details had
uploaded the certificate given by NRI Academy of Sciences,
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W.P.No.17415 of 2021
which states that the 4th respondent had carried out operations
and maintenance of SNCUs through NRI Academy of Sciences
in execution of a contract entered by NRI Academy of Sciences
with the Government of A.P. The petitioner contends that such
an experience cannot be taken into account as the contract
between M/s. NRI Academy of Sciences and the Government
of A.P. does not provide for subcontracting or subletting of the
contract and as such any such sub-contract would be illegal
and cannot be taken into account.
4. Respondent Nos.2 and 4 have filed counter affidavits in the
matter disputing the contentions raised by the petitioners. Sri
Rathangapani Reddy, learned counsel appearing for the 3rd respondent
made his submissions on the basis of the documents before the Court.
5. The 2nd respondent took the stand that the production of
GST registration certificate is a mandatory requirement for being qualified
in the technical bid and in view of the non-furnishing of such GST
registration certificate, the petitioner had been disqualified. As far as the
submission of the bid document by the 3rd respondent is concerned, the
2nd respondent contended that there is no requirement in the tender
conditions that only the lead member of the consortium has to submit the
bid and as such the submission of the bid by the 3rd respondent is not
defective. The 2nd respondent submitted that the 4th respondent had
produced certificates issued by NRI Academy of Sciences for complying
with the minimum eligibility criteria of three years experience in
operations and maintenance of SNCUs and its bid was also qualified at the
technical bid stage. Finally, the 2nd respondent relied upon the judgment
of the Hon'ble Supreme Court in the case of Michigan Rubber (India)
6 RRR,J.
W.P.No.17415 of 2021
Ltd., v. State of Karnataka1 to contend that the writ petition itself is
not maintainable. It is also stated in the counter affidavit of the 2nd
respondent that the financial bids have also been processed and the
consortium of the 3rd Respondent has been declared as L1.
6. The 4th respondent in its counter affidavit had essentially
taken the same stand as that of the 2nd respondent to contend that the
certificate produced by the 4th respondent would be sufficient for the 4th
respondent to be qualified to participate in the tender process.
7. Sri V.R. Reddy Kovvuri, learned counsel for the petitioner,
would submit that once the primary activity of the petitioner had been
exempted from the purview of GST Act, the 2nd respondent ought not to
have insisted upon a GST registration certificate as the same is not
necessary as far as the petitioner is concerned. He further submits that
the 2nd respondent ought not to have qualified the 3rd and 4th respondents
as both of them would have to fail at the technical bid stage itself as the
lead manager of the consortium in which the 3rd respondent was a
member, had not submitted the bid, which is a mandatory requirement
under the bid document. He would also assail the action of the
respondents in qualifying the 4th respondent on the ground that the 4th
respondent does not have technical experience and the certificates
produced by the 4th respondent would not have been accepted as
appropriate certificates of experience.
8. Sri Chittem Venkat Reddy, learned counsel for the 2nd
respondent, while reiterating the contention of the 2nd respondent that the
writ petition itself is not maintainable, would also draw the attention of
(2012) 8 SCC 216
7 RRR,J.
W.P.No.17415 of 2021
this Court to the scope of work set out in Section IV of the Tender
Documents and more specifically, the stipulation No.2 in the scope of
work which would require the service provider to provide all the drugs,
medicines, samples and other material required for the SNCUs. He would
submit that firstly, the exemption granted to the primary activity of the
petitioner under the GST Act does not ipso facto exempt the petitioner
from requiring registration under the GST Act. He would further submit
that even assuming that registration under GST Act is not required for the
primary activity of the petitioner, the requirement to supply medicines and
other samples while maintaining the SNCUs would require GST
registration on the part of the petitioner. He submits that in view of this
requirement, the petitioner cannot contend that non-production of GST
registration certificate by the petitioner cannot be treated as a breach of
the mandatory requirements under the tender document.
9. Sri P.Gangaiah Naidu, learned Senior Counsel appearing for
the 4th respondent would submit that the given qualification requires the
bidder to have an experience of three years in maintenance of SNCUs
either in the private sector or in the public sector. He submits that in view
of the certificates issued by the NRI Academy of Sciences declaring that
the 4th respondent had maintained necessary SNCUs for a period of three
years would suffice to meet the condition of minimum experience either
under the public sector or under the private sector.
10. Sri Rathangapani Reddy, learned counsel appearing for the
3rd respondent would submit that the requirement of production of GST
registration certificate is a mandatory requirement under the tender
document. The petitioner having chosen not to challenge the said
condition, cannot seek an exemption from production of such a GST
8 RRR,J.
W.P.No.17415 of 2021
registration nor claim that the aid condition can be weived in favour of the
petitioner. He would rely upon the judgments of the Hon'ble Supreme
Court in India Ramana Dayaram Shetty v. International Airport
Authority of India2 and a judgment of the Hon'ble High Court of Delhi in
Quippo Oil and Gas Infrastructure Ltd., v. Oil and Natural Gas
Corporation Limited and anr.,3 (paragraph 20).
11. Sri V.R. Reddy Kovvuri, replying to the above contentions
would submit that the Writ petitioner is not challenging the condition
requiring the bidders to submit GST registration certificates. On the
contrary, it is the case of the petitioner that the said stipulation should be
understood to mean that a certificate of registration would not be
necessary for bidders who are exempt from such registration.
Consideration of the Court:
12. Before going into the merits of the case, the two preliminary
issues of maintainability of the writ petition and the scope of judicial
review in contractual matters would have to be dealt with.
13. Sri Rathangapani Reddy, learned counsel appearing for the
3rd respondent, contends that the petitioner, by insisting that no GST
registration certificate has to be produced by him, is essentially
challenging the condition in the tender requiring production of such a
certificate. He further submits that once the petitioner knowing fully well
the requirements of the tender document, has submitted itself to the
tender process without any demour, the said petitioner cannot turn
around and challenge the said requirement. Further, in the absence of
(1979) 3 SCC 489
2017 SCC Online Del 8227
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W.P.No.17415 of 2021
such a challenge to such a stipulation, the pwtitioner would not be entitled
to dispute the said requirement. As the petitioner, in the present case, has
submitted itself to the tender process and has chosen to approach this
Court without challenging the said stipulation, the petitioner cannot
maintain the present writ petition.
14. Sri V.R. Reddy Kovvuri, learned counsel for the petitioner
submits that the petitioner is not challenging the stipulation that a GST
registration certificate should be filed as part of the tender document. It is
his contention that the said condition does not take into account the cases
of persons who are exempt from obtaining such registration and that the
2nd respondent should have taken that fact into account and permitted the
petitioner to participate in the financial bid also.
15. In view of the above submission of Sri V.R. Reddy Kovvuri,
learned counsel for the petitioner, that the question that would arise is
whether the petitioner is exempt from registration under the GST Act
itself, the contention raised by Sri Rathangapani Reddy would not arise at
all. If it is found that the petitioner is not required to register itself under
the GST Act, the contention of Sri V.R.Reddy Kovvuri would have to be
accepted. In the event it is found that the petitioner cannot claim such an
exemption, it would have to be held that the decision of the 2nd
respondent in rejecting the technical bid of the petitioner is correct.
16. The scope of judicial review of contractual matters or
disputes has been a matter of evolving jurisprudence. However, the law in
this regard is fairly settled. A few of the leading judgements, which have
set the guidelines on such review are:
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17. In Tata Cellular v. Union of India4, the Hon'ble Supreme
Court, at page 687, held as under:
"94. The principles deducible from the above are:
(1) The modern trend points to judicial restraint in administrative
action.
(2) The court does not sit as a court of appeal but merely reviews
the manner in which the decision was made.
(3) The court does not have the expertise to correct the
administrative decision. If a review of the administrative
decision is permitted it will be substituting its own decision,
without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to
judicial scrutiny because the invitation to tender is in the realm
of contract. Normally speaking, the decision to accept the
tender or award the contract is reached by process of
negotiations through several tiers. More often than not, such
decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other
words, a fair play in the joints is a necessary concomitant for
an administrative body functioning in an administrative sphere
or quasi-administrative sphere. However, the decision must
not only be tested by the application of Wednesbury principle
of reasonableness (including its other facts pointed out above)
but must be free from arbitrariness not affected by bias or
actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden
on the administration and lead to increased and unbudgeted
expenditure."
18. In Michigan Rubber (India) Ltd. v. State of Karnataka
(1 supra), the Hon'ble Supreme Court at paragraph No.23 held as under:
"23. From the above decisions, the following principles
emerge:
(a) The basic requirement of Article 14 is fairness in action
by the State, and non-arbitrariness in essence and substance
is the heartbeat of fair play. These actions are amenable to
the judicial review only to the extent that the State must act
validly for a discernible reason and not whimsically for any
ulterior purpose. If the State acts within the bounds of
reasonableness, it would be legitimate to take into
consideration the national priorities;
(b) Fixation of a value of the tender is entirely within the
purview of the executive and the courts hardly have any role
to play in this process except for striking down such action of
the executive as is proved to be arbitrary or unreasonable. If
the Government acts in conformity with certain healthy
standards and norms such as awarding of contracts by inviting
(1994) 6 SCC 651
11 RRR,J.
W.P.No.17415 of 2021
tenders, in those circumstances, the interference by courts is
very limited;
(c) In the matter of formulating conditions of a tender
document and awarding a contract, greater latitude is required
to be conceded to the State authorities unless the action of
the tendering authority is found to be malicious and a misuse
of its statutory powers, interference by courts is not
warranted;
(d) Certain preconditions or qualifications for tenders have
to be laid down to ensure that the contractor has the capacity
and the resources to successfully execute the work; and
(e) If the State or its instrumentalities act reasonably,
fairly and in public interest in awarding contract, here again,
interference by court is very restrictive since no person can
claim a fundamental right to carry on business with the
Government."
19. The Hon'ble Supreme Court in Joshi Technologies
International Inc. v. Union of India5, at paragraphs 69 & 70, held as
under:
"69. The position thus summarised in the aforesaid principles
has to be understood in the context of discussion that preceded
which we have pointed out above. As per this, no doubt, there is
no absolute bar to the maintainability of the writ petition even in
contractual matters or where there are disputed questions of fact
or even when monetary claim is raised. At the same time,
discretion lies with the High Court which under certain
circumstances, it can refuse to exercise. It also follows that under
the following circumstances, "normally", the Court would not
exercise such a discretion:
69.1. The Court may not examine the issue unless the action
has some public law character attached to it.
69.2. Whenever a particular mode of settlement of dispute is
provided in the contract, the High Court would refuse to exercise
its discretion under Article 226 of the Constitution and relegate
the party to the said mode of settlement, particularly when
settlement of disputes is to be resorted to through the means of
arbitration.
69.3. If there are very serious disputed questions of fact which
are of complex nature and require oral evidence for their
determination.
(2015) 7 SCC 728 : 2015 SCC OnLine SC 490
12 RRR,J.
W.P.No.17415 of 2021
69.4. Money claims per se particularly arising out of
contractual obligations are normally not to be entertained except
in exceptional circumstances.
70. Further, the legal position which emerges from various
judgments of this Court dealing with different situations/aspects
relating to contracts entered into by the State/public authority
with private parties, can be summarised as under:
70.1. At the stage of entering into a contract, the State acts
purely in its executive capacity and is bound by the obligations of
fairness.
70.2. State in its executive capacity, even in the contractual
field, is under obligation to act fairly and cannot practise some
discriminations.
70.3. Even in cases where question is of choice or
consideration of competing claims before entering into the field of
contract, facts have to be investigated and found before the
question of a violation of Article 14 of the Constitution could arise.
If those facts are disputed and require assessment of evidence
the correctness of which can only be tested satisfactorily by taking
detailed evidence, involving examination and cross-examination of
witnesses, the case could not be conveniently or satisfactorily
decided in proceedings under Article 226 of the Constitution. In
such cases the Court can direct the aggrieved party to resort to
alternate remedy of civil suit, etc.
70.4. Writ jurisdiction of the High Court under Article 226 of
the Constitution was not intended to facilitate avoidance of
obligation voluntarily incurred.
70.5. Writ petition was not maintainable to avoid contractual
obligation. Occurrence of commercial difficulty, inconvenience or
hardship in performance of the conditions agreed to in the
contract can provide no justification in not complying with the
terms of contract which the parties had accepted with open eyes.
It cannot ever be that a licensee can work out the licence if he
finds it profitable to do so: and he can challenge the conditions
under which he agreed to take the licence, if he finds it
commercially inexpedient to conduct his business.
70.6. Ordinarily, where a breach of contract is complained of,
the party complaining of such breach may sue for specific
performance of the contract, if contract is capable of being
specifically performed. Otherwise, the party may sue for damages.
70.7. Writ can be issued where there is executive action
unsupported by law or even in respect of a corporation there is
denial of equality before law or equal protection of law or if it can
13 RRR,J.
W.P.No.17415 of 2021
be shown that action of the public authorities was without giving
any hearing and violation of principles of natural justice after
holding that action could not have been taken without observing
principles of natural justice.
70.8. If the contract between private party and the
State/instrumentality and/or agency of the State is under the
realm of a private law and there is no element of public law, the
normal course for the aggrieved party, is to invoke the remedies
provided under ordinary civil law rather than approaching the High
Court under Article 226 of the Constitution of India and invoking
its extraordinary jurisdiction.
70.9. The distinction between public law and private law
element in the contract with the State is getting blurred. However,
it has not been totally obliterated and where the matter falls
purely in private field of contract, this Court has maintained the
position that writ petition is not maintainable. The dichotomy
between public law and private law rights and remedies would
depend on the factual matrix of each case and the distinction
between the public law remedies and private law field, cannot be
demarcated with precision. In fact, each case has to be examined,
on its facts whether the contractual relations between the parties
bear insignia of public element. Once on the facts of a particular
case it is found that nature of the activity or controversy involves
public law element, then the matter can be examined by the High
Court in writ petitions under Article 226 of the Constitution of
India to see whether action of the State and/or instrumentality or
agency of the State is fair, just and equitable or that relevant
factors are taken into consideration and irrelevant factors have
not gone into the decision-making process or that the decision is
not arbitrary.
70.10. Mere reasonable or legitimate expectation of a citizen,
in such a situation, may not by itself be a distinct enforceable
right, but failure to consider and give due weight to it may render
the decision arbitrary, and this is how the requirements of due
consideration of a legitimate expectation forms part of the
principle of non-arbitrariness.
70.11. The scope of judicial review in respect of disputes
falling within the domain of contractual obligations may be more
limited and in doubtful cases the parties may be relegated to
adjudication of their rights by resort to remedies provided for
adjudication of purely contractual disputes."
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20. The Supreme Court in Caretel Infotech Ltd. v.
Hindustan Petroleum Corpn. Ltd.,6 at paragraphs 37 and 38 held as
under:
"Epilogue
37. We consider it appropriate to make certain
observations in the context of the nature of dispute which is
before us. Normally parties would be governed by their
contracts and the tender terms, and really no writ would be
maintainable under Article 226 of the Constitution of India.
In view of Government and public sector enterprises
venturing into economic activities, this Court found it
appropriate to build in certain checks and balances of
fairness in procedure. It is this approach which has given
rise to scrutiny of tenders in writ proceedings under Article
226 of the Constitution of India. It, however, appears that
the window has been opened too wide as almost every small
or big tender is now sought to be challenged in writ
proceedings almost as a matter of routine. This in turn,
affects the efficacy of commercial activities of the public
sectors, which may be in competition with the private sector.
This could hardly have been the objective in mind. An
unnecessary, close scrutiny of minute details, contrary to the
view of the tendering authority, makes awarding of contracts
by government and public sectors a cumbersome exercise,
with long drawn out litigation at the threshold. The private
sector is competing often in the same field. Promptness and
efficiency levels in private contracts, thus, often tend to
make the tenders of the public sector a non-competitive
exercise. This works to a great disadvantage to the
Government and the public sector.
38. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail
Corpn. Ltd. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail
Corpn. Ltd., (2016) 16 SCC 818] , this Court has expounded
further on this aspect, while observing 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 to an extent
that no responsible authority, acting reasonably and in
accordance with law, could have reached such a decision. It
(2019) 14 SCC 81 : 2019 SCC OnLine SC 494
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W.P.No.17415 of 2021
has been cautioned that constitutional courts are expected
to exercise restraint in interfering with the administrative
decision and ought not to substitute their view for that of
the administrative authority. Mere disagreement with the
decision-making process would not suffice."
21. It is true that the writ petitions filed against the State or its
instrumentalities in relation to contractual matters are maintainable.
However, that general proposition has certain limitations. The Court
exercising jurisdiction under Article 226 would have to consider the
factors, enumerated above, among others, on a case to case basis, before
exercising its discretion to hear a writ Petition, relating to contractual
disputes, under Article 226 of the Constitution of India.
22. Applying the above principles to the present case, the
Petitioner has not been able to make out any case of discrimination or
bias against the Respondents. The only ground that could be raised by the
petitioner is that of an arbitrary action of the 2nd Respondent, in rejecting
the bid of the Petitioner and allowing the Respondents to participate in
the financial bids. It would now be necessary to see whether the said
allegations hold.
23. The first allegation of arbitrariness is the disqualification of
the Petitioner. Instruction No.4 of "Instructions to bidder" in the tender
document required the bidders to submit copy of the certificate of
registration of GST, EPF, ESI with the appropriate authority valid as on the
date of submission of tender documents. It is the admitted case of all
sides that the petitioner did not submit certificate of registration under the
GST Act. The defence of the petitioner is that the Central Government had
issued a notification exempting various services, including the primary
activity of the petitioner from payment of tax under the GST Act. The
16 RRR,J.
W.P.No.17415 of 2021
petitioner's case is that in view of such an exemption from payment of
tax, the petitioner need not register under the GST Act and as such does
not have to possess a registration certificate under the GST Act to
participate in the tenders called by the 2nd respondent.
24. Section 23 of the Andhra Pradesh GST ACT enumerates the
persons who are not liable to register themselves under the said Act.
Section 23 (1) (a) reads as follows:
23. Appeal to Special Appellate Tribunal. - (1) Any
dealer objecting to an order relating to assessment passed
by the (Commissioner of Commercial Taxes suo motu
under sub-section (1) of Section 20 Joint Commissioner
suo motu under sub-section (4-C) of section 14 or under
sub-section (2) of section 20 may appeal to the Special
Appellate Tribunal within sixty days from the date on
which the order was communicated to him.
Provided that the Special Appellate Tribunal may
admit an appeal preferred after the period of sixty days
aforesaid if it is satisfied that the dealer had sufficient
cause for not preferring the appeal within that period.
(2) The appeal shall be in the prescribed form, shall be
verified in the prescribed manner and shall be
accompanied by a (fee which shall not be less than five
hundred rupees but which shall not exceed two thousand
rupees as may be prescribed.
(3) The Special Appellate Tribunal shall, after giving both
parties to the appeal, a reasonable opportunity of being
heard, pass such order thereon as it thinks fit.
(4) The provisions of sub sections (6), (7) and (8) of
section 22, shall apply in relation to appeals preferred
under sub section (1) as they apply in relation to petitions
preferred under sub section (1) of section 22.
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W.P.No.17415 of 2021
25. This would mean that a person is exempted from the
requirement of registration if he is engaged in supplying only those goods
and services which are exempt from registration and does not supply any
other goods or services. If such a person deals in any other goods or
services, he will not be eligible for such exemption.
26. Sri Chittem Venkata Reddy, the learned counsel appearing
for the 2nd respondent submits that the successful tenderer would be
required, as per Section IV of the Tender Documents, to supply medicines
and other goods, which are not exempted under the GST Act, in the
process of maintaining SNCUs, and for that reason the 2nd Respondent
had required all bidders to submit GST registration certificates. It is clear
that in such a situation, the Petitioner would have to supply drugs and
goods which are not exempt from levy of GST and the petitioner would
require to be registered, under the GST Act. In the absence of such a
registration certificate, the action of the 2nd Respondent in rejecting the
technical bid of the Petitioner cannot be termed to be arbitrary.
27. The second allegation of arbitrariness against the 2nd
respondent is the refusal to reject the technical bid of the 3rd Respondent.
The contention of the petitioner is that the 3rd respondent was one of the
members of a consortium, which was participating in the tender and could
not have submitted the bid as it was not the lead member in the said
consortium. This contention is disputed by both respondent Nos.2 and 3.
It is the specific stand of both these respondents that there is no
stipulation in the tender document that only the lead member of the
consortium who filed the bid documents, and that the other members of
the consortium cannot file the bid documents.
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W.P.No.17415 of 2021
28. Sri V.R. Reddy Kovvuri, learned counsel for the petitioner
would seek to point out certain provisions where details of the lead
member are required and where the lead member has to give certain
assurances etc. However, this requirement cannot be taken to mean that
the bid document has to be filed only by the lead member. All such
information and assurances can always be obtained by any other member
and file before the tender authority. As such it cannot be said that the 3rd
respondent is disqualified on that count and the action of the 2nd
Respondent in allowing the 3rd respondent in participating in the financial
bid cannot be termed arbitrary.
29. The 3rd Allegation of arbitrariness against the 2nd
Respondent is that the 2nd respondent allowed the 4th Respondent to
participate in the financial bid even though the 4tgh Respondent did not
have the necessary experience to qualify in the technical bid. Criteria No.2
in the eligibility criteria set out under Section-V of the tender document
requires the bidder to have a minimum of three years experience in
carrying out operation and maintenance of SNCUs in private or public
sector. The said experience being demonstrated by users certificate
regarding satisfactory completion of assignments. The 4th respondent had
submitted a certificate from the NRI Academy of Sciences stating that NRI
Academy of Sciences through the 4th respondent had provided such
services to CHC Seethampeta in ITDA area of Seethampeta, A.P, from
March, 2018 to 13.08.2020 and the certificate from the medical officer of
the area hospital Seethampeta that such services were being given at CHC
Seethampeta in ITDA area of Seethampeta from 14.08.2020 till
29.07.2021. This would show that the 4th respondent has been giving
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W.P.No.17415 of 2021
services for more than three years required under the said eligibility
criteria.
30. The contention of the petitioner that such services were not
in accordance with the contract between M/s. NRI Academy of Sciences
and the State of A.P., has not been demonstrated by the petitioner.
Except a statement that it is not in accordance with the contract between
the parties, the petitioner has not placed any material before this Court to
take such a view. Further, the requirement under the eligibility criteria is
to ascertain whether such a bidder would have the experience and
capacity to execute the contract if it is awarded to such a bidder. The
certificates produced by the 4th Respondent do attest to the experience
claimed by the 4th respondent. In the circumstances, the contention of the
petitioner that the action of the 2nd respondent in this regard is arbitrary
must fail.
31. The Writ is dismissed. There shall be no order as to costs. As
a sequel, pending miscellaneous petitions, if any, shall stand closed.
________________________
R. RAGHUNANDAN RAO, J
22nd September, 2021
Js
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W.P.No.17415 of 2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.No.17415 of 2021
22nd September, 2021
Js
