Telangana High Court
Sri.G.Chandrasekhar, Warangal Dist vs Prl Secy, Cs Dept, Hyd And 3 Others on 14 August, 2024
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE` STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
WRIT PETITION Nos.40133 and 40548 of 2014
W.P. No.40133 of 2014
Between:
Nandini Cafetaria
Hyderabad
Rep. by its Managing Partner N.Raghavendra Rao
.. Petitioner
and
Andhra Pradesh State Road Transport Corporation
Rep. by its Vice Chairman & Managing Director, and another
.. Respondents
W.P. No.40548 of 2014
Between:
M/s. Yagnesh Virat Regency & Restaurant
Kurnool Road, Jadcherla
Rep. by its Managing Partner B.Ram Mohan Rao
.. Petitioner
and
Andhra Pradesh State Road Transport Corporation
Rep. by its Vice Chairman & Managing Director, and others
.. Respondents
DATE OF ORDER PRONOUNCED: 14.10.2015
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO
1. Whether Reporters of Local newspapers Yes
may be allowed to see the Judgments?
2. Whether the copies of judgment may be No
marked to Law Reporters/Journals?
3. Whether their Ladyship/Lordship wish to No
see the fair copy of the Judgment?
THE HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO
WRIT PETITION Nos.40133 and 40548 of 2014
COMMON ORDER:
These two writ petitions are filed by the petitioners challenging the rejection of
their tenders and these are being disposed of by a common order in view of the
common cause of action, after hearing the learned counsel for the petitioners
and the learned Standing Counsel for the respondents.
The second respondent invited tenders for filling up of vacant stalls/open space
in the Bus Stations of Mahabubnagar Region. There are several bus stations
under the jurisdiction of nine depot managers. A Tender Committee was
constituted under the Chairmanship of Deputy Chief Traffic Manager with three
members. The date of receipt of tenders was stated to be upto 14.00 hours on
13.11.2014. The tenders were opened and finalized on the same day at 15.00
hours. The petitioner in W.P.No.40133/2014 submitted its tender in respect of
stall No.25, APSRTC Bus stand, Mahabubnagar. The petitioner in W.P.
No.40548/2014 also filed a tender for the same stall. Both the tenders were
rejected on different grounds and challenging the said rejection, the present writ
petitions are filed.
W.P. No.40133/2014 :
The case of the petitioner is that it submitted a tender by submitting technical
bid, financial bid and the Earnest Money Deposit (for short, 'the EMD') by way
of demand draft each in separate covers and putting all the three covers in one
sealed cover. The tenders were opened on 13.11.2014 and the technical bid of
the petitioner was accepted by the second respondent, but later on it came to
know that its technical bid was rejected on the ground that the demand draft
towards EMD was submitted in a separate cover instead of enclosing it to the
technical bid. Though no such communication was issued to the petitioner,
challenging the action of rejection of bid, the petitioner filed this writ petition.
Counter affidavit is filed by the Law Officer on behalf of the first respondent
Corporation stating that the tenders were called for allotment of canteen at Bus
station, Mahabubnagar Region and eight tenderers submitted their tenders. The
tenders were opened on 13.11.2014 at 15.00 hours in the presence of the
tenderers by the Tender Committee and found that the demand draft towards
EMD was not available in the technical bid cover submitted by the petitioner.
As per the instructions given at Annexure-1, the EMD demand draft has to be
enclosed to the technical bid submitted by the tenderer. In the absence of such
demand draft towards EMD, the petitioner's tender was rejected and the
petitioner was informed of the same on 20.12.2014.
The petitioner submitted a representation to the Chief Commercial Manager
stating that it participated in the tender held on 13.11.2014 and stated that after
opening the tender cover submitted by him, an EMD demand draft cover was
also opened by the concerned Deputy Chief Traffic Manager, who is the
Chairman of Tender Committee. After going through all the tender applications,
noticing the availability of demand draft, the technical bid was accepted. The
Chairman of the Tender Committee kept the demand draft cover of the
petitioner and financial bid along with other tenderers' demand drafts and
financial bids in a big cover and was sealed by the Tender Committee and all
the tenderers signed on that cover. After receiving the said representation, the
Chief Commercial Manager/Head Office advised the Regional Manager,
Mahabubnagar, to call the concerned tenderers duly fixing the date to open the
big cover containing the financial bids in front of them to verify whether the
EMD demand draft cover submitted by the petitioner was available in that cover
as stated by him in his representation. Accordingly, the Tender Committee met
on 05.01.2015 at 13.00 hours in the Office of Regional Manager,
Mahabubnagar, duly calling the concerned tenderers and opened the financial
bid cover, but no demand draft was found in the cover as stated by the
petitioner. The financial bid submitted by the petitioner was also opened and it
was thoroughly verified by the Regional Tender Committee in the presence of
the petitioner and no EMD demand draft was available in the said cover also;
the signature of the petitioner was obtained to the said effect. Since the
petitioner did not enclose the demand draft, his tender was found to be not
eligible for consideration.
W.P. No.40548/2014:
The case of the petitioner is that he is a Managing Partner of the
petitioner firm and the firm submitted its bid as per the tender conditions on
13.11.2014 on time. Along with the petitioner, five others also submitted their
tenders and three tenders were rejected due to various non-compliances of the
conditions of tender. Only three tenders remained valid. The petitioner was
stated to have submitted a representation on 08.12.2014 on coming to know of
the fact that another tender was submitted by one of the partners of the
petitioner firm by name B.Krishna Murthy as if he was representing the firm
without informing the firm. The said Krishna Murthy is none other than the
father of the Managing Partner of the petitioner firm. The first respondent by
letter dated 20.12.2014 through its Chief Commercial Manager rejected the
petitioner's tender on the ground that two tenders were received in the name of
the same firm. Challenging the rejection of the petitioner's tender, this writ
petition is filed.
In the counter affidavit, it was stated that two tender forms were submitted on
behalf of the petitioner, i.e., one submitted by one B.Krishna Murthy and
another submitted by Sri B.Ram Mohan Rao. But the tender submitted by
Krishna Murthy, on behalf of the firm, was without TIN number, experience
certificate and authorisation certificate and the tender document did not fulfil the
tender conditions. Hence the tender was rejected by the Tender Committee.
The other tender submitted by the petitioner though fulfilled the tender
conditions, the Tender Committee could not take a decision as two tenders
were submitted by two different persons on behalf of the same firm. The matter
was referred to the Head Office by the Regional Manager, Mahabubnagar. The
Chief Commercial Manager clarified that two bids submitted by the same firm is
against the principles of tendering process and therefore, the two bids
submitted in the name of the petitioner shall be treated as invalid and the
rejection was communicated by letter dated 20.12.2014.
Both the petitioners filed reply affidavits reiterating their stand taken
in the writ petitions.
The points for consideration are:
i. In respect of W.P. No.40133/2014, whether the bid of petitioner
was valid even though the demand draft was not found
along with tender.
ii. In respect of W.P. No.40548/2014, whether the bid of petitioner
is valid though two bids were submitted in the name of
the same firm, one by Managing Partner and another by
the Partner.
The relevant terms and conditions for allotment of canteens are as
follows:
1. The TENDER FORMS and terms and conditions of tenders shall
be obtained from the Depot Manager's Office concerned on
any working day during the office hours on dates notified by
paying the requisite cost of Tender Form. The Earnest Money
Deposit (EMD) prescribed should be in the form of Demand
Draft drawn in favour of "Accounts Officer, A.P.S.R.T.C,
MBNR Region" obtained from a Scheduled Bank. The
Demand Draft in original should be enclosed to the tender
form and cheques etc. will not be accepted. The EMD amount
will not carry any interest.
2. The filled in Tender form along with demand draft towards EMD
together with terms and conditions of tender form shall
invariably signed by the tenderer and kept in a sealed cover
duly super scribed on the cover, the number of the stall and
nature of business with clear address shall be placed in a
Tender Box kept in the Office of the Regional Manager,
Mahabubnagar on the date notified from 10.30 to 14.00 Hrs.
The Tenders received after stipulated date and time will not be
accepted. Tenders will be opened by the Tender Committee at
15.00 Hrs on the same day in the presence of tenderers or
their representatives.
TENDER FORMS IS NOT TRANSFERABLE, i.e., THE PERSON
WHO PURCHASES THE TENDER FORM SHALL ONLY ELIGIBLE
FOR FILLING THE TENDER FORM ON HIS NAME ONLY. IF
DEFERRED, THE TENDER FORM WILL BE REJECTED AS INVALID
AND EMD AMOUNT WILL BE FORFEITED.
a. Individual Tender form have to submitted for each Canteen.
b. The Tenderer shall affix passport/stamp size photo at
specified place in the Tender form without fail.
The tender form contains the check list of documents to be submitted in
Annexure-I. Annexure-II contains certificate of break-up of sales turnover duly
certified by a Chartered Accountant. A separate notice was put up on the notice
board stating that the technical bid along with Annexure-I should be kept in a
sealed cover. The commercial bid itself shall be kept in a separate sealed
cover. The two covers should be kept in one cover and that one cover should
be placed in the tender box. Those who are qualified in the technical bid alone
are entitled for opening the financial bid.
The minutes of the Tender Committee disclose that six tenders were rejected
and the tenders of the petitioners in the above two writ petitions were referred
to the Head Office in view of the objections raised to by the other bidders. In
respect of the rejection of tender of petitioner in W.P. No.40133/2014, it was
observed as follows:
"Enclosed all necessary documents with technical bid as per check list, but
E.M.D. DD not available with Technical bid and the party informed that D.D. kept
in Financial bid."
After receiving the clarification from the Head Office, the bids submitted by the
above two writ petitioners were also rejected. As a result, there was no valid
bid as on the date of filing of these writ petitions.
So far as W.P. No.40133/2014 is concerned, the observation of the Tender
Committee is that all necessary documents were enclosed with technical bid as
per check list, but EMD D.D. was not available with technical bid and the party
informed that the demand draft was kept in financial bid. As stated above, both
the tenderers raised objections against each other's tender. The Regional
Manager addressed a letter to the Chief Commercial Manager on 26.11.2014
and 19.11.2014 respectively in respect of the objections raised against the
tenders of the petitioners and sought directions. The petitioner in
W.P.No.40133/2014 separately raised objections on 14.11.2.014 to the Joint
Managing Director and the same was referred to the Regional Manager by the
Chief Commercial Manager on 17.11.2014. Similarly the petitioner in W.P.
No.40548/2014 also submitted objections to the tender of the petitioner in
W.P.No.40133/2014 to the Joint Managing Director on 20.11.2014 and the same
was referred to the Regional Manager by the Chief Commercial Manager on
20.11.2014 for his comments. The Regional Manager by his letter dated
26.11.2014 submitted a report to the Chief Commercial Manager on the tenders
submitted by both the parties. Thereafter, the correspondence from the
petitioners ensued. The Deputy Chief Traffic Manager of the Office of the
Regional Manager in his letter dated 15.12.2014, addressed to the Chief
Commercial Manager, clearly stated that while verifying the technical bid, one
Xerox copy of the demand draft bearing No.223813 dated 10.11.2014 for
Rs.8,55,000/- issued in favour of the Accounts Officer, APSRTC,
Mahabubnagar Region by Bank of Maharashtra, Jambagh Branch, Hyderabad
was found along with technical documents. He further informed that the original
demand draft may be in financial bid sealed cover. Ultimately the Chief
Commercial Manager by his letter dated 20.12.2014 communicated to the
Regional Manager that the SLO opined that the tender of petitioner in W.P.
No.40133/2014 should be treated as invalid as the demand draft towards EMD
was not enclosed as per the Annexure-1 to the tender documents, but was
placed in the same in the cover containing financial bid. Similarly, since two
tenders were submitted by the same firm and as it is against the principles of
tendering process, the bid of the petitioner in W.P.No.40548/2014 has to be
rejec ted. Based on the same, two bids were ultimately rejected. A
communication was sent to that effect to the petitioner. Thereafter, both parties
submitted representations to the Joint Managing Director of the Corporation and
on their representations the Chief Commercial Manager directed the Regional
Manager to call the concerned tenderers for opening of the bid cover containing
financial bids in front of them to verify whether the EMD demand draft cover
submitted by the petitioner in W.P.No.40133/2014 was in a separate cover or
not. Accordingly, the Tender Committee met on 05.01.2015 at 13.00 hours,
calling all the tenderers and opened the financial bids cover in their presence.
After opening the financial bid cover of the petitioner in W.P. No.40133/2014,
only single cover was found and no EMD demand draft was found and the said
cover was once again sealed. Later on, the petitioner in W.P. No.40133/2014
sent a representation to the Joint Managing Director stating that the cover
containing the EMD demand draft was missing and stated that the concerned
Clerk/Superintendent in the Office of the Regional Manager was responsible for
the missing demand draft cover and what was opened was only the financial bid
cover, missing the cover containing the demand draft. The file submitted to this
Court contains the Xerox copy of the demand draft filed by the petitioner along
with the certificate from the Bank dated 03.01.2015 stating that a demand draft
was issued in favour of the "ACCOUNTS OFFICER APSRTC MBNR REGION"'
which was purchased by Maha Ganapathi Enterprises (Hotel Nandini). This
Court asked the petitioner to submit a fresh certificate from the Bank and the
learned counsel for the petitioner produced the same dated 24.09.2015 at the
time of hearing of the writ petition, which clearly showed that the demand draft
was not cancelled. Pursuant to rejection of the tenders of the petitioners, the
Tender Committee met on 13.02.2015 and issued proceedings stating that all
the tenders were rejected.
Learned counsel for the petitioner in W.P.No.40133/2014 vehemently argued
that the petitioner submitted the demand draft by filling up the particulars in
Annexure-1 and the same was noticed initially by the Tender Committee. The
tender of the petitioner ought not to have been rejected on the ground that the
demand draft was not enclosed to the technical bid.
Learned Standing Counsel for the respondents, on the other hand submitted
that since the demand draft was not enclosed to the technical bid, the rejection
of the technical bid was valid and since all the tenders were rejected, it is open
to the respondents to call for fresh tenders. Similarly, in respect of
W.P.No.40548/2014, he justified the action of the respondents in rejecting the
said tender as two tenders were filed in the name of the same firm.
This Court verified the record and is satisfied that the petitioner submitted a
demand draft though not along with technical bid, but in a separate cover and
the said cover along with technical bid and financial bid were placed in one
cover in the tender box. The details of the demand draft along with Xerox copy
were available in the technical bid. The evidence of taking demand draft was
given by the Bank in the form of a certificate and the validity of the demand
draft was asserted at the time of hearing of the writ petitions also. The initial
proceedings of the Tender Committee, immediately after opening of the
technical bid also substantiate the case of the petitioner, but since the demand
draft was not enclosed to the technical bid the matter was referred to the Head
Office. At the time of opening the financial bid, somehow the envelope
containing the demand draft was missing and no demand draft was found in the
financial bid. It is not the case of the petitioner that he placed the demand draft
in the financial bid, but he put the demand draft in separate cover along with
two envelopes containing technical bid and financial bid and all the three
envelopes were put in a cover and placed in the tender box. Whoever may be
responsible for the missing envelope containing demand draft, in view of the
particulars mentioned in Annexure-1 to the tender document coupled with the
certificate issued by the Bank, the tender of the petitioner should not have been
rejected. Hence, this should have been considered along with other valid
tenders provided the tender of the petitioner fulfils all other conditions.
Similarly, the tender of petitioner in W.P. No.40548/2014 was found have been
valid in all respects, but the same was rejected only on the ground that another
tender in the name of the same firm was filed. There is no clause prohibiting
filing multiple tenders in a single name. Even otherwise also, at the time of
scrutiny of the technical bids, when the tender of the other partner was
rejected, the tender of the petitioner remains and it was found to be valid. But
the same was rejected on the ground that two tenders were filed in the name of
the firm. The Tender Committee on its own should have taken a decision in the
above two cases in accordance with tender conditions. On the opinion of the
SLO, the tenders were rejected ultimately and a communication was sent to the
parties on 20.12.2014. Hence, the tender of petitioner in W.P.No.40548/2014
can also be considered along with other valid tenders provided it fulfils all other
conditions.
In view of the above, both these Writ Petitions are allowed. There shall be no
order as to costs.
Miscellaneous Petitions, if any, pending in these writ petitions shall stand
closed.
______________________________
A.RAMALINGESWARA RAO, J
Date: 14.10.2015
MVA
