Telangana High Court
B.Mouna Nihitha vs The State Of Telangana on 8 January, 2025
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
WRIT PETITION NO.30561 OF 2024
AND
WRIT PETITION NO.30986 OF 2024
COMMON ORDER
In both these Writ Petitions, the petitioners have responded to the
short e-tender notice dt.16.10.2024 issued by the 2nd respondent, by
submitting their technical as well as financial bids. The 5th respondent
also has participated in the same. The technical bids were opened on
26.10.2024 and thereafter, the financial bids were to be opened on
28.10.2024. However, on 28.10.2024, the official respondents did not
open the financial bids of the petitioners, but have declared that only the
5th respondent is the successful tenderer and also initiated negotiations
with the 5th respondent. According to the petitioners, the petitioner in
W.P.No.30561 of 2024 is L-1 bidder and the petitioner in
W.P.No.30986 of 2024 is L-2 bidder and without considering their bids
which are lower than the bid of the 5th respondent, the official
respondents are trying to award the contract in favour of the 5th
W.P.Nos.30561 & 30986 of 2024
respondent. Challenging the same, the present Writ Petitions have been
filed.
2. Learned counsel for the petitioners submitted that the petitioner in
W.P.No.30561 of 2024, L-1 bidder, has quoted only 60% and the
petitioner in W.P.No.30986 of 2024, L-2 bidder, has quoted 69%,
whereas the 5th respondent has quoted 89% and therefore, is L-4 bidder
and the person who quoted the lowest should have been considered for
negotiations for the tender.
3. This Court, vide order dt.30.10.2024 in W.P.No.30561 of 2024
and order dt.06.11.2024 in W.P.No.30986 of 2024, had directed the
respondents to maintain status quo as on the date of the order, i.e., not to
finalize the tenders.
4. The 4th respondent has filed a counter affidavit stating that
amongst four bidders, three were found to have been disqualified and
only the 5th respondent was found to be qualified. It is submitted that
after opening the technical bids, it was noticed that the petitioner in
W.P.No.30561 of 2024 had not submitted GSTN along with the
application and the petitioner in W.P.No.30986 of 2024 was disqualified
for having 6-A cases against it in Wanaparthy and also having
W.P.Nos.30561 & 30986 of 2024
connections with rice millers. Since the bidders were found to be
disqualified in technical bid itself, their financial bids were not opened
and the work was allotted to the 5th respondent, whose technical bid was
valid.
5. Learned counsel appearing for the 5th respondent relied upon the
averments made in the counter affidavit and submitted that only when
the bidders are qualified, technical bids or financial bids would be
opened and in this case, the technical bids of the petitioners were not in
order and therefore, they were disqualified and their financial bids were
not opened and the 5th respondent was found to be qualified and hence,
the contract should be finalised in its favour. He referred to the tender
conditions and the documents to be furnished under Clause 5 of the
tender agreement, under which it was prescribed that copies of GSTN
and PAN should be uploaded and hard copy shall be furnished. He
placed reliance upon the judgment of Rajasthan High Court in the case
of Project Director RUIDP and others Vs. Ms. Ramky
Infrastructure Ltd., and another 1, wherein it relied upon the judgment
of the Hon'ble Supreme Court in the case of Goldyne Technoserve
D.B. Special Appeal (Writ) No.804/2018 dt.29.03.2019
W.P.Nos.30561 & 30986 of 2024
Ltd. Vs. State of Madhya Pradesh 2 holding that the ISO certificate
which was not submitted along with the technical bid despite the fact
that the certificate was available and held that the decision of the
procuring entity in rejecting the bid was not perverse. It had further
relied upon the decision of the Hon'ble Supreme Court in the case of
Sorath Builders Vs. Shreejikrupa Buildcon Ltd. and another 3,
wherein the tender notice provided for online submission of price bid
within seven days of date of well-advertised tender notice and pre-
qualification documents were required to be received physically one day
before price bidding closed and the Hon'ble Supreme Court held that the
said requirement is not unreasonable or arbitrary and the bid of the
respondent before the Hon'ble Supreme Court was lowest but since he
submitted the pre-qualification documents with delay of three days, it
was held that the terms and conditions of the tender are required to be
adhered to strictly. The Hon'ble Supreme Court has observed that the
disqualified bidder cannot be considered only from the point of view of
saving public money as that would not justify going through the tender
process again and where the bidder was negligent and was not sincere in
submitting the documents within the time schedule, the documents
(2011) 5 SCC 103
(2009) 11 SCC 9
W.P.Nos.30561 & 30986 of 2024
received after the time schedule cannot be considered as the terms and
conditions of the tender are to be strictly adhered to. Therefore,
according to the learned counsel for the 5th respondent, even though the
petitioner in W.P.No.30561 of 2024 now claims to have obtained the
GSTN subsequently and claims to be ready to submit the same before
entering into the agreement, the same cannot be accepted in view of the
above judgments of the Hon'ble Supreme Court which have been
followed by the Rajasthan High Court in the above cited case.
6. Learned counsel for the petitioners, on the other hand, submitted
that the petitioner in W.P.No.30561 of 2024 has obtained the GST
certificate on 29.11.2024 and is ready to submit the same at the time of
entering into the agreement and since the petitioner was the lowest
bidder, she should be considered. It is further submitted that in the case
of similar contract in Narayanpet, the successful bidder therein also did
not submit the GSTN at the time of submitting the tender form and has
obtained the same subsequently and the respondents have permitted him
to do so. Therefore, he prayed that similar treatment should be given to
the petitioner herein as well.
W.P.Nos.30561 & 30986 of 2024
7. In respect of the petitioner in W.P.No.30986 of 2024, the learned
counsel for the petitioner submitted that there were no 6-A proceedings
pending against the petitioner either in Wanaparthy or in Kollapur as
alleged by the respondents and therefore, the contentions of the
respondents are incorrect.
8. Learned Standing Counsel for the 4th respondent, however, has
filed a copy of the Register maintained in respect of 6-A proceedings to
submit that one Vijay Kumar was representing the petitioner in
W.P.No.30986 of 2024 and the proceedings were pending against him in
Wanaparthy.
9. The learned counsel for the petitioners, however, submitted that
the said Vijay Kumar was only a representative and if the proceedings
are pending against him, it does not mean that the proceedings are
pending against the petitioner in W.P.No.30986 of 2024. He submitted
that the Proprietor of the petitioner in W.P.No.30986 of 2024 is Ms.
Katta Shanthi and not Mr. Vijay Kumar and no proceedings are pending
against the said Proprietor.
10. The learned counsel for the 5th respondent, however, filed certain
documents along with the counter affidavit in support of his contentions
W.P.Nos.30561 & 30986 of 2024
that the petitioner in W.P.No.30986 of 2024 is involved in 6-A
proceedings and therefore, it is disqualified from participating in the
bids.
11. Having regard to the rival contentions and the material on record,
this Court finds that one of the requirements of the tender conditions is
that GSTIN and PAN documents should be enclosed along with the
tender application. Admittedly, the petitioner in W.P.No.30561 of 2024
who is the lowest bidder, has not submitted the GSTN along with the
tender form and therefore, she has been declared as disqualified after the
technical bid was opened. As held by the Division Bench of the
Rajasthan High Court at Jaipur Bench in the case of Project Director
RUIDP and others Vs. Ms. Ramky Infrastructure Ltd., and another
(1 supra), the tender conditions have to be adhered to strictly. Though
the learned counsel for the petitioners submitted that the petitioner in
W.P.No.30561 of 2024 is an individual and therefore, there was no
requirement to obtain GSTN and thereafter, only after finding her
financial bid to be the lowest, she has applied for GST number and is
ready to file the same, this Court is of the opinion that there is no
exemption in respect of individuals from obtaining GST number if he is
intending to do business. The petitioner in W.P.No.30561 of 2024,
W.P.Nos.30561 & 30986 of 2024
though is L-1 bidder, cannot be considered since she has not satisfied
the tender conditions.
12. In respect of the petitioner in W.P.No.30986 of 2024, this Court
finds that 6-A proceedings are not pending against the petitioner therein
or its Proprietor. The copies of the alleged proceedings against the
petitioner filed by the respsondents are in respect of one Vijay Kumar
who is alleged to be the representative of the petitioner. In the
documents filed by the respondents, the presence of Vijay Kumar is not
mentioned as the representative of the petitioner and therefore, it cannot
be presumed that the said cases are against the petitioner in
W.P.No.30986 of 2024. Therefore, the disqualification of the said
petitioner is not sustainable. The 4th respondent in W.P.No.30986 of
2024 is therefore directed to consider the financial bid of the petitioner
in W.P.No.30986 of 2024 and it being lower than the 5th respondent, i.e.,
L-2, the 4th respondent shall negotiate with the petitioner in
W.P.No.30986 of 2024 and finalise the contract accordingly.
13. In the result,
(1) W.P.No.30561 of 2024 is accordingly dismissed.
(2) W.P.No.30986 of 2024 is accordingly allowed.
W.P.Nos.30561 & 30986 of 2024
(3) There shall be no order as to costs in both the Writ Petitions.
14. Pending miscellaneous petitions, if any, in both these Writ
Petitions shall stand closed.
___________________________
JUSTICE T. MADHAVI DEVI
Date: 08.01.2025
Svv
