Telangana High Court

M/S. Saroja Transport vs The State Of Telangana And 2 Others on 21 November, 2022

Bench: A.Abhishek Reddy

    THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

        WRIT PETITION Nos.8805 and 32996 of 2022

COMMON ORDER:

      Since the issue involved in both the Writ Petitions is

intrinsically connected with each other, they are taken up

together and being disposed of by this common order.

      The case of the petitioner, in brief, is that pursuant to the

e-tender notification issued by respondent No.2-Corporation for

transportation of food grains, pulses and other commodities, the

petitioner and two others have submitted their respective

tenders along with all necessary documents. Respondent No.3

was declared as lowest tenderer (L-1). On 11.02.2022, when the

technical bid was opened, the tender of the petitioner was kept

aside and its financial bid was not opened, allegedly on the

ground that Annexure-VIII filed along with tender documents

does not contain the numbers of the lorries. The case of the

petitioner is that the said annexure is not applicable to the

petitioner and is applicable only in case the tender is submitted

by Lorry Owners' Association. It is further stated that the

petitioner had quoted 7% less than respondent No.3, which

would work out to around Rs.1.2 lakhs every month for the

Corporation. Ignoring all the above facts, the respondent 2 AAR, J W.P. Nos.8805 & 32996 of 2022

Corporation has not considered the tender of the petitioner with

a malafide intention. Aggrieved by the same, W.P. No.8805 of

2022 has been filed.

On 18.02.2022, this Court while issuing Notice Before

Admission, has issued interim directions to the authorities not

to issue work order to respondent No.3 and the said interim

order was extended from time to time till 23.03.2022.

However, alleging that in spite of the specific directions of

this Court, the 2nd respondent had issued the proceedings

No.PDS2/Movt./FG5(1)/Stage-I Tenders/2021-23/TS-KTGM,

dated 10.08.2022 appointing respondent No.3 as Stage-I

Transport Contractor, pending disposal of W.P. No.8805 of 2022.

W.P. No.32996 of 2022 has been filed questioning the said

proceedings dated 10.08.2022.

On 22.08.2022, this Court while issuing notice to

respondent No.3 has passed interim orders directing the parties

to maintain status quo obtaining as on that date. The said

interim order was in force till 06.08.2022.

In W.P. No.8805 of 2022, the respondent-Corporation has

filed a counter affidavit mainly stating that the petitioner has

submitted the affidavit under Annexure-VIII without signature of

the deponent therein though the said affidavit was notarized.

Therefore,    the   tender   submitted    by   the    petitioner    was
                                      3                               AAR, J
                                              W.P. Nos.8805 & 32996 of 2022

disqualified technically and the financial bid of the petitioner

was not opened. It is further stated that respondent No.3 had

submitted all the necessary documents as per the tender

conditions and being the lowest tenderer, he was awarded the

contract.

In W.P. No.32996 of 2002, respondent No.3 has filed a

vacate stay petition along with a counter affidavit mainly stating

that the tender document submitted by the writ petitioner is not

in accordance with the terms and conditions prescribed in the

tender notification. The tender bid of the petitioner was

disqualified in technical round itself and therefore the financial

bid cannot be opened. It is further averred that as the tenders

were invited through online process, there is no manual

interference by anyone. Further the respondent-Corporation

after elaborate procedure has awarded contract dated

10.08.2022 to the respondent No.3, but due to the order of

status quo granted by this Court, the respondent No.3 is unable

to execute the work order. Hence, it is prayed to dismiss the

writ petition itself.

A reply affidavit has been filed by the writ petitioner

mainly stating that Annexure-VIII itself is not applicable to the

writ petitioner herein. Therefore, the authorities cannot insist all

the tenderers to file Annexure-VIII.

                                  4                                 AAR, J
                                            W.P. Nos.8805 & 32996 of 2022




       Heard   the   learned   counsel     for   the    petitioner,   Sri

T.P.   Acharya,   learned   Standing      Counsel      for   respondent-

Corporation, and Sri Upender Sangem, learned counsel for

respondent No.3.

Learned counsel for the petitioner has stated that rejection

of the petitioner's technical bid without assigning cogent reason

is totally illegal and done only to favour respondent No.3.

Learned counsel has stated that as per the counter filed by

respondent No.2 the reason for rejecting the technical bid of the

petitioner is that she has not submitted the Annexure-VIII in

prescribed format, which is contrary to the e-tender notice dated

22.12.2021. Learned counsel has stated that as per clause

50(i)(k) of the tender conditions, annexure-VIII is applicable only

for the Lorry Owner Association and not for individual lorry

owners like the petitioner. That even though the petitioner has

submitted Annexure-VIII clearly mentioning that the said

affidavit is not applicable to the petitioner, the authorities

concerned only to favour the respondent No.3 have rejected the

technical bid of the petitioner. That as a matter of fact, the price

bid offered by the petitioner is less than the offer made by

respondent No.3 and therefore the action of the respondents in

rejecting the bid of the petitioner is highly unsustainable and

thus prayed to allow the writ petition.

5 AAR, J W.P. Nos.8805 & 32996 of 2022

Per contra, the learned Standing Counsel for respondent

No.2 Corporation has stated that the official respondents have

duly followed the tender conditions and rejected the bid of the

petitioner at the technical stage itself. Learned counsel has

drawn the attention of the Court to the tender documents, more

particularly clause 50(i)(k) thereof and also Annexure-VIII

wherein the petitioner has not signed the affidavit, but has got it

notarized and stated that the petitioner's bid was rejected at the

technical level, inconsonance with clause 50(i)(k). That the

learned counsel has also stated that the transportation of the

food grains, pulses and other commodities are time bound

programs and the authorities concerned have already issued the

work order to respondent No.3, but for the status quo order

granted by this Court, the respondent No.3 is unable to

transport the material. Therefore, the learned counsel has

prayed this Court to dismiss the writ petitions.

Learned counsel appearing for respondent No.3 while

adopting the arguments of the learned counsel appearing for

respondent No.2 has stated that the petitioner's bid was rightly

rejected by the authorities concerned as the petitioner has not

signed in annexure-VIII, even though he got it notarized.

Further, it is stated that the entire tender process is only

through online process and there is no manual interference by 6 AAR, J W.P. Nos.8805 & 32996 of 2022

person, much less, the respondent authorities. That respondent

No.3 has already procured the vehicles for transportation of the

commodities and even though the work order has been issued,

he is unable to execute the same due to the status quo order

granted by this Court and therefore prayed this Court to dismiss

the writ petition.

Perused the record.

For better adjudication of the matter, clauses 50(i) and

50(i)(k) of the tender conditions are hereby reproduced:

50(i) It is mandatory for all the Tenderers to upload scanned copies of the following documents and Annexures in the website www.tender.telangana.gov.in as per the given time schedule. If any particular Annexure is not applicable, then the Annexure must be submitted as "Not Applicable" in the same prescribed format. Failure to upload any of the documents or Annexures will lead to Technical disqualification of the tenderer. 50(i)(k) Annexure-VIII - Affidavit for Lorry Owner Associations as indicated in clause no.11 should be uploaded in the prescribed proforma.

The main contention of the respondent authorities for

rejecting the tender submitted by the petitioner is that the

petitioner has not submitted annexure-VIII as stipulated.

A perusal of the Annexure-VIII enclosed by the petitioner

along with the material papers to the writ petition shows that

even though the petitioner has written on the said affidavit that 7 AAR, J W.P. Nos.8805 & 32996 of 2022

the same is not applicable to him, but he has got it notarized

through one P. Rama Chandra Reddy, Advocate & Notary, on

05.01.2022, but the said affidavit is not signed by the deponent

i.e. the petitioner herein.

Even though the learned counsel for the petitioner has

vehemently contended that the petitioner has submitted

Annexure-VIII in the required format and also mentioned on the

said affidavit that the same is not applicable as envisaged under

clause 50(i)(k), admittedly, the petitioner has not signed the

same. Therefore, it cannot be said that the petitioner has

submitted the same in the prescribed manner. Merely endorsing

on the affidavit that it is not applicable to them without

appending the signature cannot be countenanced and the

affidavit cannot be said to be a legally valid document.

Insofar as tender matters are concerned, the scope of

interference by the Courts in Writ Petitions filed under Article

226 of the Constitution of India is limited. This Court as well as

the Hon'ble Apex Court in number of judgments have repeatedly

held that wherever a particular procedure is prescribed, the

same has to be scrupulously followed. The petitioner, who is

well aware of the prescribed procedure in which the documents

have to be filed, ought to have submitted the annexure in the

prescribed manner and there is no explanation whatsoever as to 8 AAR, J W.P. Nos.8805 & 32996 of 2022

why the petitioner got it notarized by a Notary Advocate without

appending his (petitioner's) signature thereon that too when the

said annexure is not applicable to him, as contended by him.

In Silppi Constructions Contractors V. Union of India

and another1, at para 20, the Hon'ble Supreme Court has

observed as under:

"The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity."

(emphasis added)

For the above reasons and the law laid down by the

Hon'ble Supreme Court in the above referred judgment, this

1 (2019) SCC Online SC 1133 9 AAR, J W.P. Nos.8805 & 32996 of 2022

Court is not inclined to interfere with the decision taken by the

respondent authorities in rejecting the tender of the petitioner

and therefore, the Writ Petitions are liable to be dismissed.