Telangana High Court
Ch. Kishore Kumar vs The State Of Telangana on 30 July, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P.No.10697 OF 2024
Between:
Ch.Kishore Kumar
... Petitioner
And
The State of Telangana & others
... Respondents
JUDGMENT PRONOUNCED ON: 30.07.2024
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : Yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals?
3. Whether Their Lordships wish to : Yes
see the fair copy of the Judgment?
___________________________
MRS JUSTICE SUREPALLI NANDA
2
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P.No.10697 OF 2024
% 30.07.2024
Between:
# Ch.Kishore Kumar
... Petitioner
And
$ The State of Telangana & others
... Respondents
< Gist:
> Head Note:
! Counsel for the Petitioner : Sri B.Sudhakar Reddy
Smt. Neeraja Reddy
^ Counsel for Respondents : G.P. for Energy for R1,
Sri R.Pavan Reddy, for R2 to R4
? Cases Referred:
(1) 2007 (14) SCC Page 517
3
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HON'BLE MRS. JUSTICE SUREPALLI NANDA
WRIT PETITION No.10697 OF 2024
ORDER:
Heard the learned counsels Sri B.Sudhakar Reddy
and Neeraja Reddy, appearing on behalf of the petitioner,
the learned Government Pleader for Energy, appearing on
behalf of respondent No.1 and learned standing counsel
Sri R.Pavan Reddy, appearing on behalf of Respondent
Nos.2 to 4.
2. The petitioner approached the court seeking prayer
as under:
"To issue a Writ, Order or Direction more particularly one
in nature of Writ of CERTIORARI calling for records
pertaining to Lr.No.CE(C&C)/SE(C&C)/DE(C)/A1/F.MNG
(2023-24)/D.No.02/24, Dt:01.04.2024 and Quash the
same as bad in law, illegal and against principles of natural
justice and consequently direct the Respondents herein to
allow the Writ Petitioner to participate in Tender process by
taking into consideration the E-mail uploaded on
05.03.2024 and 01.04.2024 as well as hard copy sent by
Register Post on 01.04.2024, to the Respondents herein
pertaining to Price Bid details/format pertaining to
"Transportation of 42.0 Lakh Metric Tonnes of Coal from
Manuguru group of mines of M/s Singareni Collieries
Company Ltd to BTPS Coal yard by Road for a period of
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one year" and consider the same during the Bid price
opening along with other Tenderers/ Bidders in pursuance
of tender Notification vide E-Tender Specification No.
E-05/CE (C&C)/SE(C&C)/DE(C)/A1/05/2023-24, issued by
the Respondents 2, 3 and 4 and in the Interest of Justice."
3. The case of the petitioner in brief as per the
averments made by the petitioner in the affidavit filed by
the petitioner in support of the present writ petition, is as
under:
The Respondent Nos. 2 to 4 issued E-Tender Specification
No. E-05/CE (C & C)/ SE (C & C)/ DE(C)/ A1/05/2023-24 for
transportation of 42.0 Lakh Metric Tonnes of Coal from
Manuguru group of mines of M/s Singareni Collieries Company
Ltd (SCCL) to Bhadradri Thermal Power Station (BTPS), by road
for a period of one year. In pursuance of the said notification,
the petitioner paid Rs.29,500/- on 04.03.2024 with merchant
transaction Reference No. 2208726, with Atom Transaction
Reference No. 11000208420234 and submitted EMD with bank
guarantee of Rs. 1,35,00,000/- dated 04.03.2024.
Subsequently, at the final stage of bid submission the
petitioner encountered a technical glitch during online
submission on 05.03.2024 at4:17 hrs and due to the said glitch,
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the petitioner was unable to submit the application and was
directed to contact E-Procurement helpdesk from Vupadhi
Techno Services of Telangana. However, the help desk was
unable to resolve the issue and the petitioner sent an E-mail
representation dated 05.03.2024 at 5:42 PM. Subsequently, the
petitioner submitted another representation by E-Mail at 5:59 PM
along with required documents and the bank guarantee after the
E-Procurement help desk had directed the petitioner to contact
tender inviting authority for tender date extension for one (1)
day and the respondents failed to respond.
It is the case of the petitioner that, on 06.03.2024, at
10:35 AM, the petitioner made a request for postponement of
tender for one day to enable the petitioner to submit all the
forms online along with the bank guarantee. Even on
14.03.2024, the petitioner requested Respondent no. 2 to 4 to
give the petitioner a chance for contract as the petitioner had
been a successful bidder for the past 3 years and in response the
was asked to submit his contact details. Aggrieved by the
inaction of the respondents the petitioner filed W.P No. 7179 of
2024 for considering the petitioner's representation and allowing
the petitioner to participate in the opening of price bid on
18.03.2024. The said writ petition was allowed directing the
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Respondents to consider the representation of the petitioner for
participating in the price bid.
In pursuance of the order dated 18.03.2024 passed in W.P
No. 7179 of 2024, the Respondent No. 4 rejected the petitioner's
claim for postponing the submission of the Pre-qualification bid
and was silent about the opening of the price bid. On
01.04.2024, the petitioner sent all the technical documents
including the price bid through a Registered post. However, the
respondents failed to consider the same. Aggrieved by the said
inaction of the respondents the present Writ Petition is filed.
PERUSED THE RECORD :
4. This Court on 22.04.2024 passed interim orders
observing as under :
"Taking into consideration the submissions of learned
counsel appearing on behalf of both the parties, and duly
considering the averments made by the petitioner in the
affidavit filed in support of the present writ petition, there
shall be stay of the opening of Price Bid in pursuance of
E-Tender Specification No.E-05/CE (C&C)/SE(C&C)/DE(C)/
A1/05/2023-24, issued by the respondents 2, 3 and 4, till
24.04.2024."
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5. Counter and Vacate Stay Petition had been filed on
behalf of respondents 2, 3 and 4, the relevant paras 6 and
8 are extracted hereunder :
"6. I submit that in reply to the Para No.7 of the affidavit,
the bidder shall upload the bid documents in two parts i.e
Part - I & Part - II which shall be uploaded jointly through
online only, on e-procurement platform before schedule
closing time and date i.e., before 16:30 Hrs on
05.03.2024. Submission of documents in any other mode
shall not be considered. Part - I called Pre-qualification bid
and shall contain financial standing, record of previous
experience. In Part - II (Price bid) the price bid document
shall be uploaded in a commercial bid template only. The
petitioner has not submitted their bid online as per the
schedule closing date and time i.e before 16:30 Hrs on
05.03.2024. Whereas, the petitioner alleging that his
uploading of price bid on 05.03.2024 at 05:42 p.m. is
beyond the specified time and has no iota of evidence.
Those tenders which contain the full information and which
comply with the requirements regarding technical and
financial qualifications, experience and equipment will be
considered. The price-bids of such tenderers who are
determined to have complied with the eligibility criteria will
only be considered. As the petitioner has not uploaded the
bid within schedule closing date and time i.e. 16:30 Hrs on
05.03.2024 acceptance of the bid documents sent by
e-mail cannot be considered which is in deviation to the
e-procurement tender conditions.
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8. I submit that in reply to the Para No.8 of the Petition,
the petitioner had no right to seek extension of time
because of fault of the Petitioner. In the history of the
Corporation, at any point of time not even a single tender
was extended its time of submission of bids, based on the
fault of the bidder. The Petitioner ought to have tried to
submit his tender well prior to the end of date of
submission of tenders, since he had the knowledge of the
issuance of tender notification. For the fault of bidders if
the tender timings are goes on extending, the process of
tender shall not move further and will be in the bidding
stage only which will lead the Respondent Corporation into
irrevocable loss. As such the Writ Petition shall be
dismissed imposing exemplary costs on to the Petitioner
who not only wasted the valuable time of the Hon'ble Court
but harassed the Respondents so far, in all aspects."
DISCUSSION AND CONCLUSION:
6. A bare perusal of the record and the averments made in
the counter affidavit filed on behalf of respondents 2, 3 and 4
indicates that the petitioner had not submitted the petitioner's
bid online as per the schedule closing date and time i.e., before
16:30 Hours on 05.03.2024 and they were received by the
respondent office at 18:00 hours on 05.03.2024 and 10:33 A.M.,
on 06.03.2024, which are beyond the bid submission closing
date and time i.e., 16:30 Hrs on 05.03.2024.
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7. It is the specific case of the petitioner that the respondents
ought to have accepted petitioners bid physically in a sealed
cover or through Online since petitioner encountered a technical
glitch on 05.03.2024 and respondents arbitrarily rejected
petitioner's request for postponement of tender to one day for
submission of petitioner's bid in the subject work.
It is further the specific plea of the petitioner that the third
party rights had not been created so far as Tenders have not
been opened till today.
8. A bare perusal of the averments in the counter affidavit
filed on behalf of respondent Nos.2, 3 and 4 clearly indicates that
the Price-bids of tenders who are determined to have complied
with the eligibility criteria will only be considered and since the
petitioner had not uploaded the bid within schedule closing date
and time i.e., 16:30 Hours on 05.03.2024 acceptance of the bid
documents sent by e-mail cannot be considered which is in
deviation to the e-procurement tender conditions.
9. A bare perusal of the order impugned dated 01.04.2024 of
the Chief Engineer/Coal and Commercial, Telangana State Power
Generation Corporation Limited, Vidyut Soudha-Hyderabad
indicates that the prequalification bids were already opened on
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06.03.2024 as per the schedule date mentioned in the tender
document hence the specific plea of the petitioner in the reply
affidavit filed on behalf of the petitioner that no prejudice will be
caused in accepting petitioner's price bid in a sealed cover
physically now is not tenable and hence rejected.
10. This Court opines that Mandamus exists when petitioner
has an existing legal right and the same is infringed arbitrarily by
an Authority but in the present case it is borne on record that
the petitioner is seeking acceptance of petitioner's bid by the
respondents physically in a sealed cover or through online having
failed to upload the bid within schedule closing date and time
i.e., 16:30 hours on 05.03.2024 in deviation to the
e-procurement tender conditions, and admittedly petitioner does
not have any legal right that had been infringed by the
respondents arbitrarily.
11. The Apex Court in the Judgment reported in 2007
(14) SCC Page 517 in "Jagdish Mandal v. State or Orissa
and others", held that while invoking power of Judicial
review in matters as to tenders or award of contracts,
certain special features should be borne in mind that
evaluation of tenders and awarding of contracts are
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essentially commercial functions and principles of equity
and natural justice stay at a distance in such matters. If
the decision relating to award of contract is bonafide and
is in public interest Courts will not interfere by exercising
powers of judicial review even if a procedural aberration
or error in assessment or prejudice to a tenderer is made
out. Power of Judicial review will not be invoked to
protect private interest at the cost of public interest or
decide contractual disputes.
12. This Court opines that the Judgments relied upon by
the learned counsel appearing on behalf of the petitioner
do not apply to the facts of the present case.
13. Taking into consideration:
(a) The aforesaid facts and circumstances,
(b) Duly considering the averments made in the counter
affidavit filed on behalf of respondents 2, 3 and 4,
referred to and extracted above,
(c) Duly considering the view and observations of the
Apex Court in the Judgment reported in 2007 (14)
SCC Page 517 in "Jagdish Mandal v. State or Orissa
and others",
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The Writ Petition is dismissed since the same is
devoid of merits and the Interim orders dated 22.04.2024
passed in the present W.P.No.10697 of 2024 stand
vacated. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Writ
Petition, shall stand closed.
______________________________
MRS. JUSTICE SUREPALLI NANDA
Date: 30.07.2024.
Note: L.R.Copy to be marked
(B/o) Yvkr
