Andhra Pradesh High Court - Amravati
Suraz Earth Mover And Engg Works vs Government Of Andhra Pradesh, on 28 January, 2022
Author: M.Ganga Rao
Bench: M.Ganga Rao
THE HON'BLE SRI JUSTICE M.GANGA RAO
WRIT PETITION No.18539 OF 2020
ORDER:
This writ petition is filed to issue a Writ of Mandamus declaring the action of the respondents 3 and 4 in not updating the GPRS software of spot billing machines and thereby without cancelling or recalling the award of contract entrusted to the petitioner vide letter dated 23.09.2020, issued the impugned letter vide letter dated 03.10.2020 awarding contract in favour of 5th respondent, as illegal and arbitrary.
2. The case of the petitioner is that the 3rd respondent had issued tender notification dated 15.09.2020 through E-tendering process for carrying out spot billing works i.e., preparation and serving of spot bills in consumer premises of LT Cat.-I, Cat.-II & Cat.IV (excluding non-slab services) with GPRS enabled spot billing machines with/without IR/IRDA port readings wherever IRDA port compatible meters exist under ERO, Nandyal of Operation Circle, Kurnool. The petitioner was emerged as L-1 tenderer. The 3rd respondent vide letter dated 23.09.2020, awarded contract to the petitioner for the period from 01.10.2020 to 31.07.2021. Accordingly, the petitioner went to the office of 4th respondent on 01.10.2020, 02.10.2020 and 03.10.2020 for updating the software system in the spot billing machines i.e., GPRS 2 enabled, but they were not responded for updating machines/equipment placed before them. Then, the petitioner brought the same to the notice of the respondents 2 and 3 by way of representation dated 03.10.2020 through e-mail requesting them to direct the 4th respondent and other concerned officers to cooperate for updating the spot billing machines. But, surprisingly, the 3rd respondent issued the impugned proceedings dated 03.10.2020 awarding the contract in favour of the 5th respondent, without any notice and without cancelling the petitioner's contract. Being aggrieved by the arbitrary action of the 3rd respondent, the petitioner filed the writ petition.
3. This Court, after enabling the learned standing counsel appearing for the respondents 2 to 4 to get instructions, passed interim orders on 14.10.2020, directing the respondents to update the spot billing machines of the petitioner to enable its staff to carry out the contract work awarded to it through the proceedings dated 23.09.2020 forthwith.
4. The respondents 2 to 4 filed I.A.No.3 of 2020 to vacate the interim order passed on 14.10.2020. The 5th respondent also filed I.A.No.2 of 2020 to vacate the interim order passed on 14.10.2020. The petitioner also filed reply-affidavit.
5. Heard the learned counsel for the petitioner, Sri Y.Nagi Reddy, learned Standing Counsel appearing for the 3 respondents 2 to 4 and Sri N.Siva Reddy, learned counsel appearing for the 5th respondent.
6. The petitioner being the L-1 tenderer was awarded the contract for carrying out spot billing works i.e., preparation and serving of spot bills in consumer premises of LT Cat.-I, Cat.-II & Cat.IV (excluding non-slab services) with GPRS enabled spot billing machines with/without IR/IRDA port readings wherever IRDA port compatible meters exist under ERO, Nandyal of Operation Circle, Kurnool, by letter dated 23.09.2020 for the tender value of the work of Rs.96,93,968/- against the Estimated Contract Value of Rs.1,01,78,667/-. The period of contract was from 01.10.2020 to 31.07.2021. In spite of the request of the petitioner, the 4th respondent failed to update the software in the spot billing machines i.e., GPRS enabled software.
7. The 4th respondent filed counter stating that the petitioner failed to commence the work of spot billing from 01.10.2020 as per the authorization letter by keeping the GPRS software of spot billing machines readily available. The 3rd respondent has issued urgent notice to the petitioner on 02.10.2020 to start the work immediately or otherwise the work will be cancelled. It is the responsibility of the petitioner for uploading the available software in the spot billing machines. As the petitioner failed to make available the necessary equipment/spot billing machines as on 01.10.2020 4 and also failed to commence the work upto 03.10.2020, the reminder was given to the petitioner by the respondent officials that due to his negligence in taking up the work, heavy loss would be caused and the same was reminded on 02.10.2020 instructing the petitioner to start spot billing work by 03.10.2020, otherwise the work awarded to the petitioner would be cancelled without any notice. Therefore, the authorization letter issued to the petitioner was cancelled on 03.10.2020 and the same was informed to the petitioner. The petitioner has not carried out the spot billing work within the stipulated time and caused delay of two days and also caused loss to the respondent-department. As the work of spot billing is time bound work and the petitioner failed to commence the spot billing work with required machinery, the work was entrusted to the 5th respondent by proceedings dated 03.10.2020, who offered the bid for the equivalent amount of L-1 tenderer, the petitioner. Accordingly, the 5th respondent commenced the spot billing work as per the proceedings dated 03.10.2020 and completed the spot billing work for the month of October, 2020 and continued the billing work.
8. The learned counsel for the petitioner would contend that the petitioner was awarded contract of work by letter dated 23.09.2020 for the period from 01.10.2020 to 31.07.2021. But, the same was not cancelled and not even referred in the impugned order dated 03.10.2020 by which 5 the tender work was awarded to the 5th respondent and the cancellation order was not communicated to the petitioner. The 3rd respondent awarded the contract work to the 5th respondent on the political pressure, which is illegal, arbitrary and contrary to the tender conditions.
9. Sri Y.Nagi Reddy, learned Standing Counsel appearing for the respondents 2 to 4 and Sri N.Siva Reddy, learned counsel appearing for the 5th respondent, vehemently submit that for non-commencement of work as per the tender conditions in spite of reminders, the petitioner's authorization was cancelled on 03.10.2020 and the work was entrusted to the 5th respondent on 03.10.2020. Suppressing the said fact of cancellation of authorization issued to the petitioner and entrustment of work to the 5th respondent and commencement of same by the 5th respondent, the petitioner filed the present writ petition. Hence, the writ petition is liable to be dismissed on the ground of suppressio veri and suggestion falsi. Even though the petitioner filed the reply- affidavit, the same has not brought to the notice of this Court with regard to factum of continuing the contract work by the 5th respondent in spite of passing the interim order dated 14.10.2020.
10. This Court found that the disputed questions of fact and law arise for consideration in deciding the lis i.e., whether the petitioner's authorization was cancelled by letter dated 6 03.10.2020 and the same was communicated to the petitioner or not; whether the petitioner violated the terms and conditions of the award of contract by not commencing the work of spot billing within the stipulated time which caused delay and loss to the respondent-department; and whether the subsequent entrustment of work to the 5th respondent is as per the terms and conditions of the tender notification, are all need to be examined by leading of evidence, cross- examination, filing of required documents based on evidence and interpretation of terms and conditions of the contract. This Court, while exercising the power under Article 226 of the Constitution of India, generally would not embark upon the interpretation of terms and conditions of contract of agreement with reference to the evidence.
11. In those circumstances, this Court, in the interest of justice, felt it appropriate to dispose of the writ petition giving liberty to the petitioner to approach the competent Civil Court by way of comprehensive suit, in the event of it suffered any damage in view of cancellation of authorization and subsequent entrustment of the award of contract work to the 5th respondent, as per law.
12. Accordingly, the Writ Petition is disposed of. No order as to costs.
(Contd...) 7
13. Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.
____________________________ JUSTICE M.GANGA RAO 28-01-2022 anr 8 THE HON'BLE SRI JUSTICE M.GANGA RAO WRIT PETITION No. 18539 OF 2020 28-01-2022 anr