M/S. Hanuman Road Lines vs The State Of Telengana
2023 Latest Caselaw 4433 Tel

Telangana High Court

M/S. Hanuman Road Lines vs The State Of Telengana on 29 December, 2023

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                                                                               SK, J
                                                               W.P.No.45296 of 2022




          THE HON'BLE SRI JUSTICE K.SARATH

                       W.P.Nos.45296 of 2022
ORDER:

This writ petition is filed with the following

prayer:

" to issue Writ or Writs Order or Orders or direction more particularly one in the nature of mandamus thereby declaring the action of the respondent No.2 in issuing a Letter No.Mktg/M2/2991/PTC/KMS-2022-23 dt. 23.11.2022 finalizing the 5th respondent as a successful Tenderer for Transportation of paddy and Gunnies for Husnabad Sector without following the clause No. VIII of Tender Terms and condition vide Notification Lr.No. TSCSCL/650/ Paddy and Gunny TPC/KMS 2022-2023 Dt.03.10. 2022 issued by the 4th respondent without considering the representation of the petitioner dt.16.11.2022 as being illegal, arbitrary and violative of Article 14, 19, 21 of the Constitution of India and consequently set aside the Letter No. Mktg/M2/2991/PTC/KMS2022-23 dt .23.11.2022 issued by the 2nd respondent in favour of the respondent No.5 finalizing the 5th respondent as a successful Tenderer for Husnabad cluster".

2. Learned counsel for the petitioner submits that

pursuant to the E-Tender Notification for appointment

of contractors for transportation of paddy and gunnies

for Kharif Marketing Season 2022-2023, the petitioner

filed application for Husnabad Sector and the

respondent No.5 filed two applications for Husnabad

and Bomraspet Sectors. The petitioner stood as L2

tenderer and the respondent No.5 stood as L1

tenderer. As per the terms and conditions of Tender

Notification, the tenderers have to submit separate

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vehicles for each tender, but the respondent No.5

offered same lorries for two tenders. Learned counsel

submits that the petitioner made a representation

dated 16.11.2022 to the respondent No.2 about

violation of the terms and conditions by the respondent

No.5, but without considering his representation, the

respondent No.2 issued a letter dated 23.11.2022

finalizing the tenders and declared that the respondent

No.5 as contractor for transportation of paddy and

gunnies for Husnabad Sector and the same is arbitrary

and illegal and requested to allow the writ petition.

3. Learned Counsel for the respondent No.2 based

on the counter averments submits that as the

respondent No.5 offered lowest rate, the District

Tender Committee has finalized the tender of the

respondent No.5. He submits that on verification, it

was noticed that the respondent No.5 offered two

vehicles at Siddipet and Vikarabad Districts and

thereafter, orders were issued on 23.11.2022

approving the tender of the respondent No.5 for

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Husnabad sector. Learned counsel has relied on the

Judgment of this Court in W.P.No.17934 of 2020 and

batch dated 07.12.2020 and submits that arbitration

clause is available to the parties to the tender

notification and any dispute arises, the same can be

referred to arbitration.

4. Learned Counsel for the respondent No.5 based

on the counter averments submits that the respondent

No.5 has shown two different vehicles for both the

tenders and the same is evident from the letter

dated 20.02.2023 of the District Manager, TSCSC Ltd.,

Vikarabad and they have also addressed a letter

dated 21.02.2023 to the respondent No.2 clarifying the

same and accordingly the respondent No.2 awarded

contract in favour of the respondent No.5. He submits

that the petitioner is not entitled the relief sought for

and he prays to dismiss the writ petition.

5. Having heard the learned counsel for both sides

and perusal of the record, this Court is of the

considered view that the petition is filed to declare the

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action of the respondent No.2 in finalizing tenders and

declaring the respondent No.5 as successful tenderer

for transportation of paddy and gunnies for Husnabad

sector by violating the terms and conditions of clause

No.Viii of tender notification dated 03.10.2022.

Admittedly, the respondent No.5 has offered least rate

and he is L1 tenderer and as such the respondent No.2

has allotted the tender to the respondent No.5 in the

impugned proceedings.

6. The contention of the learned Standing Counsel

for the respondent No.2 that as per the Judgment of

this Court in W.P.No.17934 of 2020 and batch

dated 07.12.2020 and as per Clause No.25 of the

terms and conditions of the tender notification

dated 03.10.2022, the petitioner has to avail the

arbitration clause and without approaching the

authorities under arbitration filed the present writ

petition and the same is not maintainable. The

relevant portion of the judgment in W.P.No.17934 of

2020 and batch dated 07.12.2020 is as follows;

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"13. No doubt, counsel appearing for the petitioners submits that existence of arbitration clause will not come in the way of this Court's inherent extraordinary jurisdiction in entertaining the writ petitions under Article 226 of the Constitution of India, but the question is why this Court should entertain the writ petitions, when there is efficacious alternate remedy is available to the writ petitioners by way of arbitration clause contained in the tender notification. It is well settled law that there is no bar in entertaining the writ petitions, even when there exists arbitration clause in the tender notification. However, it is the prerogative jurisdiction of this Court under Article 226 of the Constitution of India to entertain or not to entertain writ petition, when effective efficacious alternate remedy is available.

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18. Now, it is to be seen whether this Court can entertain the writ petitions and grant relief, when there exists arbitration clause in the tender documents. It is well settled law that existence of alternate remedy cannot be a bar for entertaining the writ petition. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. 15 (See M.P.State Agro Industries Development Corporation Limited v. Jahan Khan1). It is

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always discretion of this Court to entertain or not to entertain writ petition, which is in the nature of self imposed restriction. In the present case whether Court is of the opinion that factual matrix is required to be adjudicated by proper forum, as disputed questions of fact, which are to be resolved in the process, after hearing parties, after considering the nature of allegations made, this Court is of the considered opinion that the petitioners have to be relegated to alternate remedy by way of arbitration in terms of clause 47 of the tender conditions.

7. The finding of the above judgment squarely

applied to the facts of the present case and the

petitioner without availing arbitration proceedings filed

this writ petition and the same is liable to dismissed.

8. Accordingly, the Writ Petition is dismissed. There

shall be no order as to costs.

9. Miscellaneous Applications, if any pending in this

writ petition, shall stand dismissed.

_____________________ JUSTICE K.SARATH Date:29.12.2023 sj