Andhra HC (Pre-Telangana)
A. Sreeramulu vs Superintending Engineer R & B, Nellore ... on 7 April, 1994
Equivalent citations: AIR1994AP352, 1994(2)ALT72, AIR 1994 ANDHRA PRADESH 352, (1994) 2 ANDH LT 72, (1994) 2 APLJ 57, (1994) 2 LS 210
Author: T.N.C. Rangarajan
Bench: T.N.C. Rangarajan
ORDER M.N. Rao, J.
1.The unsuccessful petitioner in Writ Petition No. 517 of 1994 is the appellant before us. The Superintending Engineer (R & B), Nellore Circle, Nellore, issued a notifcation on 22-11-1993 calling for tenders for the work of "forming road from Naidupet Dhuggarajapatnam Road --Shriharikota with a Link Road to Armugeon Light House at Vadapalem from KM 6.00 to 14.665 and Link Road from KM 0.00 to 4,380". The notification was published in all the newspapers, pursuant to which eight persons including the appellant and the second respondent submitted tenders. Condition No. 3 of the Tender Conditions is in the following terms:
"3. The contractors should produce evidence of their (i) Registration; (2) Required experience certificate as per Special Conditions along with their applications for tender schedules, Tender Schedules will not be issued, if the above evidence is not produced in the required manner along with application.
The last dare for obtaining tender schedules from the office of the first respondent was 31-12-1993 and the last date for submission of the tenders was 11-1-1994. The approximate value of the work is Rs. 89 lacks. Only Class I registered contractors are eligible to submit tenders. Before the specified date, the appellant obtained render schedules and submitted his tender. The second respondent got the tender schedules or 31-12-1993 and submitted the render on 11-1-1994. The tenders were opened at 3.30 P.M. on 11-1-1994 and it was found that the tender of the second respondent was the lowest. The authority competent to scrutinise the tenders and award the contract, is the State Government.
2. Both the appellant and the second respondent are Class I registered contractors. The registration certificate of the appellant is subsisting as Class I contractor. The second respondent's certificate expired on 5-12-1993. It applied for registration afresh on 21-1-1994 and the certificate was issued on 3-2-1994 for a period of five years reckoning from 2-2-1994, as per the proceedings of the Engineer-in-Chief (Administrative Wing), Hyderabad, dated 3-2-1994. The proceedings also mentioned that the Board of Engineers, after examining the applications received, decided in their meeting held on 31 -1 -1994 that certain applicants should be registered as Class I Contractors; included among them at S. No. 46 is the second respondent.
3. The appellant filed Writ Petition No. 571 of 1994 seeking for a direction to the Superintending Engineer, first respondent to reject the tender filed by the second respondent, and consider the tenders of other applicants according to Rules. After hearing both sides, the learned single Judge dismissed the writ petition inter alia relying upon the decision of the Supreme Court in M/s. G. J. Fernandez v. State of Karnataka, in which the fact situation was somewhat similar. The learned Judge had taken the view that what was necessary was the filing of the registration certificate but not whether the same was in operation on the date of submission of the tenders. Aggrieved by that, the present writ appeal was filed.
4. Sri P. Krishna Reddy, the learned counsel for the appellant, has contended that the language of Condition No. 3 clearly indicates that the two conditions stipulated therein are mandatory and no departure can be permitted from the requirements. When the second respondent did not have subsisting registration certificate on the two crucial dates, namely, 31-12-1993 when it obtained tender schedules and 11-1-1994 when it submitted the tender, its case should not be considered for awarding the contract. The issue of tender schedules to the second respondent was itself contrary to Condition No. 3 and, therefore, it should be kept out of competition.
5. After hearing both sides and considering the pleas raised, we are of the view that this writ appeal is bereft of merits. There is no dispute that the registration certificate of the second respondent expired by 5-12-1993. On 31-12-1993 when it obtained tender form, it did not have valid subsisting registration certificate and the same was the situation on 11-1-1994 when it submitted the tender. Although Condition No. 3 of the tender conditions gives an impression that there can be no departure from what is stipulated therein, that condition has to be read along with Memo No. 4I3-Y/65-5, dated 3-12-1965 issued by the Government of Andhra Pradesh, Public Works Department. The Memo reads:
"Complaints have come to the notice of Govt. that some of the Chief Engineers have been refusing to issue tender forms to certain intending contractors, for the reason that the Chief Engineers consider that some of the intending Contractors may be incompetent to undertake the work in question. The Government consider that such a refusal is wrong in principle as under Para 156 of the A.P.W.D. Code it is only at the time of selecting the tender the. competence and financial ability of the contractor have to be considered and not at the time of the issuing tender forms.
The Chief Engineer under Public Works Department are therefore requested to issue instructions to Subordinate Officers concerned to issue tender forms to all intending contractors and avoid complaints of refusal."
The crucial stage, according to the aforesaid memo, after scrutinising the competence and financial ability of the competitors, is not at the time of issuing tender forms but at the time of selecting the successful tenderers. The tender conditions stipulated by the Superintending Engineer, the first respondent, cannot be viewed in isolation; they should be read in the light of the general instructions contained in the aforesaid memo. So read, we are of the view that the action of the first respondent in issuing tender schedules to the second respondent subject to the latter giving a written undertaking that it would produce fresh registration certificate of Class I Contractor, cannot be faulted.
6. The Rules regarding registration of various classes of Contractors are incorporated in G.O.Ms. No. 521 dated 10-12-1984. Rule 9.01 says that the Contractor shall register himself afresh every five years and the registration shall be done "only twice in a year -- January and June". When the second respondent's certificate had expired on 5-12-1993, it could not have obtained registration earlier than January, 1994. That it could have applied for registration prior to 11-1-1994, the date when it submitted its tender, cannot be a relevant circumstance to judge the legality of the action of the first respondent so long as the rule permitted the second respondent to apply for registration till the end of January. It did apply for such registration on 21-1-1994 and the Board of Engineers in their meeting held on 31-1-1994 decided to register certain applicants including the second respondent as Class I Contractor and the decision was (sic) of Proceedings dated 3-2-1994.
7. In the notification inviting tenders inter alia required the intending tenderers to furnish certain information specified in paragraph 5 thereof. The unsuccessful tenderer did not produce his certificate within the specified time and the action of the authorities was challenged by the unsuccessful tenderers. The Supreme Court considered the question inter alia from the point of view of the prejudice caused to those who challeged the action. It was held.
"It is true that the relaxation of time schedule in the case of one party does affect even such a person in the sense he would otherwise have had one competitor less. But, we are inclined to agree with the respondent's contention that while the rule in Ramana's case (supra) will be readily applied by Courts to a case where a person complains that a departure from the qualifications has kept him out of the race, injustice is less apparent where the attempt of the applicant before the Court is only to gain immunity from competition. Assuming for purposes of argument that there has been a slight deviation from the terms of the NIT, it has not deprived the appellant of its right to be considered for the contract; on the other hand, its tender has received due and full consideration. If, save for the delay in filing one of the relevant documents, MCC is also found to be qualified to lender for the contract, no injustice can be said to have been done to the appellant by the consideration of its tender side by side with that of the MCC and in the KPC' going in for a choice of the better on the merits."
The fact situation in the case on hand is somewhat similar to the one that fell for consideration before the Supreme Court.
8. It is asserted by the second respondent that it has been doing contract works for the last sixteen years and in support of that certain papers have been filed before us. It appears that it is not a stranger to the business of contract works and its participation in the tender is not in the nature of speculation.
9. For the foregoing reasons, the writ appeal fails and accordingly dismissed. No costs.
Appeal dismissed.