Andhra Pradesh High Court - Amravati
M/S Phoenix Logistics Pvt. Ltd., vs The State Of Andhra Pradesh, on 29 October, 2024
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APHC010131162024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
FRIDAY ,THE TWENTY NINTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NO: 6816 OF 2024
Between:
M/s Phoenix Logistics Pvt. Ltd., ...PETITIONER
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. UNNAM SRAVAN KUMAR
Counsel for the Respondent(S):
1. JESHTADI SUNIL KUMAR
2. J UGRANARASIMHA
3. GP FOR INDUSTRIES COMMERCE
The Court made the following:
ORDER:-
This Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief:
".....to issue a Writ, Order or direction more particularly one in the nature of Writ of mandamus a) to declare the Corrigendum-1, dated 05.03.2024, sent by the 2nd respondent and all consequential actions initiated/ already taken by the respondents 1 and 2 based on the said corrigendum to be illegal, arbitrary, high handed and in gross violation of Article 14 of the Constitution of India. b) to declare the actions of the respondents 1 and 2 in awarding the lease to the 3rd respondent as illegal, arbitrary, high handed and in gross 2 violation of the principles of natural justice. C) And to pass such other order(s) or issue any other appropriate writs by moulding the relief as this Hon‟ble Court may deem fit proper in the circumstances of the present case and pass such other orders...."
2. Heard Mr.Unnam Sravan Kumar, learned counsel for the petitioners; learned Assistant Government Pleader, Industries for the 1st respondent; Mr. W.B.Srinivas, learned Senior Counsel, representing Mr. J. Sunil Kumar, learned counsel for the 2nd respondent and Mr. J. Ugranarasimha, learned counsel for the 3rd respondent.
3. During hearing learned counsel for the petitioner would contend that the 2nd respondent owns premises admeasuring 58,034 sq.ft., comprising of (Office building measuring 4676 Sq.ft., covered/ shed area of 34,328 Sq.ft., and open/ uncovered area of 19,030 Sq.ft.,) situated at D.No.52-14-77, Resapuvanipalem, Visakhaptnam, A.P. The petitioner has been leasing the Demised Premises for the past 20 years and has neither missed a single monthly rental nor caused any issue to the 2nd respondent. At present, the demised premises are utilized to operate a hyper market which directly resulted in 1000s of people being gainfully employed. On 05.03.2004, after going through a public tendering process, the 2nd respondent leased the demand premises for a period of 10 years to the petitioner through a registered lease deed dated 05.03.2004, wherein it was recited that before the expiry of lease, the 2nd respondent contacted the petitioner and sought confirmation if it would exercise the First Right of Refusal and Right to Match the highest bid price to renew the lease and informed to renew the lease in 3 2013, the 2nd respondent called for another public tendering process for the demised process. Clause 1.1.6 of the 2013 Tender Document had a Right for First Refusal in the writ petitioner‟s favour. In accordance with the said clause, the petitioner was not even required to participate in the tendering process, merely matching the highest bid is sufficient for the petitioner to renew the lease for another 10 years. Accordingly the 2nd respondent leased the demised premises for a period of 10 years to the petitioner through a registered lease deed dated 25.04.2014. As the renewed lease deed is set to expire on 31.03.2024, the 2nd respondent has called for fresh public tender process, but failed to attract any bidders twice and called second round of tendering process on 02.03.2024 by modifying the Right of First Refusal (in short „RoFR‟). Under clause 1.1.6 of the March, 2024 Tender documents, the petitioner was conferred with a First Right of Refusal, subject to matching the highest rate quoted in the bidding process and an option to renew the lease in the Demised premises for a period of 20 years, instead of 10 years that was informed in December, 2023 and February, 2024 tendering processes. However, just 3 days after this substantially beneficial option which improved on the contractually binding on original „RoFR‟ was given, unilaterally, without any reason or regard to the contractually agreed upon original RoFR clause, the 2nd respondent issued a Corrigendum-1, dated 05.03.2024, attempting to withdraw the updated „RoFR‟, without any notice or opportunity to comment to the petitioner or any sort of explanation, which has become a contractual obligation on the 2nd respondent.
4
4. While the matter stood thus, without being aware of the motive of the 2nd respondent confer the lease to the 3rd respondent, the petitioner has sent an offer dated 11.03.2024, requesting that the lease on demand premises be renewed with a monthly rental increase of 10% from the existing rental and a further annual increase of 5%. Even after the petitioner‟s communication regarding renew the lease, the 2nd respondent did not inform the petitioner of the existence of impugned corrigendum nor replied to the petitioner‟s proposal and awarded the lease over the Demised Premises to the 3rd respondent is blatently illegal and arbitrary. Hence, inaction of the respondents is questioned in this writ petition and requested to allow the writ petition.
5. Per contra, 2nd respondent filed counter-affidavit denying all material averments made in the writ affidavit and mainly contended that after going through 4 series of tenders and finding no participant and sensing the conditions of clause No.1.1.6 of the e-tender dated 02.03.2024 „RoFR‟ is a hurdle for participation of bidders, the corporation has issued a Corrigendum dated 05.03.2024 to the e-tender dated 02.03.2024, removing the said clause as per the 2nd respondent‟s board resolution in its 55th meeting. This has resulted in participation of 2 bidders. The 3rd respondent is the highest bidder. The tender conditions can always be changed and modified by the 2nd respondent in its best interest and in the interest of public. The petitioner cannot insist the corporation about any of the tender conditions. Even the tender floated in the year 2014, the conditions of tender clearly stipulate that this respondent has ample powers to amend the tender and its conditions and 5 therefore, it is not agreed procedure as contended by the petitioner, nor the agreement of lease grants any permanent lease hold rights or right of renewal of leases permanently to the existing lessee. There is no such clause in the contract or lease agreement entered with the petitioner that the lease shall be renewed automatically at the end of the term to the existing lessee/ tenant. The Corporation has deleted the „RoFR‟ condition from the tender dated 02.03.2024 by issuing Corrigendum dated 05.03.2024 since the tenders floated on 05.12.2023, 07.02.2024 no bidders came forward due to clause 1.1.6 i.e „RoFR‟. Therefore, a decision was taken in the best interest of the corporation by Board Resolution No.55 dated 04.03.2024 to modify the tender dated 02.03.2024 so as to enable participation of tenders by duly removal of this condition which was against interest of corporation since no bidders came forward. The said action of Corporation i.e issuing Corrigendum dated 05.03.2024 to the e-tender dated 02.03.2024 cannot be faulted and the petitioner cannot question and cannot claim perpetual rights towards leased property of the corporation. The end result is corporation has got 33% hike as lease rent after the new bidding process. Therefore, the petitioner is not entitled to claim any relief in this writ petition and requested to dismiss the same.
6. Per contra, 3rd respondent filed counter-affidavit and mainly contended that the 3rd respondent participated in the e-tender and quoted its bid in the public tender and being the highest bidder and was awarded LOA on 12.03.2024. The petitioner never participated in the tender process, as 6 such he cannot question the contract granted in favour of the 3rd respondent. It is admitted fact that the 2nd respondent issued public e-tender with regard to the subject property on 05.12.2023 and 07.02.2024, in which no bidder participated. Again the 2nd respondent called for fresh e-tender on 02.03.2024. In all these tenders, clause 1.1.6 as it stood before deletion, conferred undue benefit on existing lease holder/ tenant which clause is in fact arbitrary and not in consonance with the principles of fairness and transparency. It is submitted that after the LOA was awarded to the 3rd respondent on 12.03.2024 and having known that the petitioner has to make away and handover subject property, somehow to avoid the same, as an afterthought filed this writ petition, after the contract was awarded to the 3rd respondent and obtained interim order on 18.03.2024 suppressing the material facts. Therefore, the writ petition is liable to be dismissed.
7. Perused the record.
8. During hearing learned counsel for the petitioner reiterated the contents urged in the writ petition and relied on a decision of Hon‟ble Apex Court in "PSA Mumbai Investments PTE. Limited v. Board of Trustees of the Jawaharlal Nehru Port Trust and Another 1 ", wherein the Hon‟ble Division Bench of Supreme Court held as follows:-
"14. Under Section 7 of the Contract Act, 1872 in order to convert a proposal into a promise, the acceptance must be absolute and unqualified. It is clear on the facts of this case that there is no absolute and unqualified 1 (2018) 10 SCC 525 7 accepted by the letter of award - two or three very important steps have to be undergone before there could be said to be an agreement which would be enforceable in law as a contract between the parties".
9. In "ABL International Ltd., and Another v. Export Credit Guarantee Corporation of India Limited and Others"2, wherein the Hon‟ble Division Bench of Hon‟ble Apex Court held as follows:-
"26. Therefore, this objection must also fail because in a given case it is open to the writ court to give such monetary relief also.
27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition:
(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.
(b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.
(c) A Writ petition involving a consequential relief of monetary claim is also maintainable."
10. In "The State of Madhya Pradesh v. M/s Sew Construction Limited and Others"3, wherein the Hon‟ble Division Bench of Supreme Court held as follows:-
"24. In the context of discretion, we may reiterate this principle. The rights and duties of the parties to the contract subsist or perish in terms of the contract itself. Even if a party to the contract is a governmental authority, there is no place of discretion vested in the officers administering the contract. Discretion, a principle within the province of administrative law, has no place 2 (2004) 3 SCC 553: 2003 SCC OnLine SC 1442 3 Civil Appeal No. 8571 of 2022, dated 18.11.2022 8 in contractual matters unless, of course, the parties have expressly incorporated it as a part of the contract. It is the bounden duty of the court while interpreting the terms of the contracts, to reject the exercise of any such discretion that is entirely outside the realm of the contract."
11. In "Vidarbha Irrigation Development Corporation and Others v. Anoj Kumar Agarwala and Others"4, wherein the Hon‟ble Supreme Court held as follows:-
"14. The law is settled that an essential condition of a tender has to be strictly complied with. In Poddar Steel Corpn. V. Ganesh Engg. Works5 this Court held as under: (SCC p.276, para 6) „6.....The requirements in a tender notice can be classified into two categories - those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance with the condition in appropriate cases‟.
....
15. Similarly in B.S.N.Joshi and Sons Ltd., v. Nair Coal Services 6 Ltd., Court held as under: (SCC pp.571-72, para 66)
(i).....
(ii)....
(iii)....
(iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court 4 (2020) 17 SCC 577 5 (1991) 3 SCC 273 6 (2006) 11 SCC 548 9 otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction;.."
12. In "Suresh Kumar Wadhwa v. State of Madhya Pradesh and Others"7 wherein the Hon‟ble Division Bench of Supreme Court held as follows:-
"30. So far as the four special conditions are concerned, these conditions were also not part of the public notice and nor they were ever communicated to the bidders before auction proceedings. There is no whisper of such conditions being ever considered as a part of the auction proceedings enabling the bidders to make their compliance, in case, their bid is accepted.
31. In our considered opinion, it was mandatory on the part of the respondent State to have published the four special conditions at the time of inviting the bids itself because how much money/ rent the bidder would be required to pay to the State on allotment of plot to him was a material terms and therefore, the bidders were entitled to know these material terms at the time of submitting the bid itself. It was, however, not done in this case.
32. Since these four conditions were added unilaterally and communicated to the appellant by Respondent 3 while accepting his bid, the appellant had every right to refuse to accept such conditions and wriggle out of the auction proceedings and demand refund of his security amount. The State, in such circumstances, had no right to insist upon the appellant to accept such conditions much less to comply and nor it had a right to cancel the bid on the ground of non-compliance with these conditions by the appellant."
13. In "State of Uttar Pradesh v. Sudhir Kumar Singh and Others"8 wherein the Hon‟ble Supreme Court held as follows:- 7
(2017) 16 SCC 757 8 (2021) 19 SCC 706 10 "42.4. In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.
42.5. The "Prejudice" exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non- observance of natural justice".
14. Therefore, learned counsel for the petitioner vehemently argued that in the light of decisions cited supra, this Court has power to decide the matter as the writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable as per ABL International Limited case (supra) Hence, requested to consider the decisions cites supra and allow the writ petition.
15. On the other hand, learned counsel for the respondents relied on a decision of the Hon‟ble Apex Court in "Tata Motors Limited v. The Brihan Mumbai Electric Supply & Transport Undertaking (Best) and Others" 9, wherein the Hon‟ble Apex Court held as follows:-
"49.....
27. In the present case, however, the relaxation was permissible under the terms of the tender. The relaxation which the Board has granted to M/s Raunaq International Ltd. is on valid principles looking to the expertise of the tenderer and his past experience although it does not exactly tally with the prescribed criteria. What is more relevant, M/s I.V.R. Construction Ltd. who 9 2023(0) AIR (SC) 2717 11 have challenged this award of tender themselves do not fulfil the requisite criteria. They do not possess the prescribed experience qualification. Therefore, any judicial relief at the instance of a party which does not fulfil the requisite criteria seems to be misplaced. Even if the criteria can be relaxed both for M/s/ Raunaq International Ltd. and M/s I.V.R. Construction Ltd., it is clear that the offer of M/s Raunaq International Ltd. is lower and it is on this ground that the Board has accepted the offer of M/s Raunaq International Ltd. We fail to see how the award of tender can be stayed at the instance of a party which does not fulfil the requisite criteria itself and whose offer is higher than the offer which has been accepted. It is also obvious that by stopping the performance of the contract so awarded, there is a major detriment to the public because the construction of two thermal power units, each of 210 MW, is held up on account of this dispute. Shortages of power have become notorious. They also seriously affect industrial development and the resulting job opportunities for a large number of people. In the present case, there is no overwhelming public interest in stopping the project. There is no allegation whatsoever of any mala fides or collateral reasons for granting the contract to M/s. Raunaq International Ltd." (Emphasis supplied)
16. In The Bharat Coking Coal Ltd., and Others v. AMR Dev Prabha and Others"10, wherein the Hon‟ble Apex Court discussed the case Raunaq International Limited case (supra). Further, in "Rishi Kiran Logistics Pvt., Ltd., v. Board of Trustees of Kandla Port Trust and Others"11, wherein the Hon‟ble Apex Court held as follows:-
31. In so far as the issue regarding concluded contract in the present case is concerned, , this falls squarely in the realm of the contract law, without any hue or shade of any public law. In fact, that is not even pleaded or argued. At the same time, whether there was a concluded contract or not is seriously disputed by the respondents and, therefore, in the first instance it was not even necessary for the High Court to go into this issue and could have relegated the appellant to ordinary civil remedy. We are conscious of the 10 2020(5) ALT (SC) 198 11 2014(0) AIR (SC) 3358 12 position that merely because one of the authorities raises a dispute in regard to the facts, it may not be always necessary to relegate the parties to a suit.
This was so Stated in ABL International Ltd. & Anr. v. Export Credit Guarantee Corporation of India Ltd. & Ors.; JT 2013 (10) SC 300 in the following manner:-
"37. In our opinion, this limited areas of dispute can be settled by looking into the terms of the contract of insurance as well as the export contract, and the same does not require consideration of any oral evidence or any other documentary evidence other than what is already on record. The claim of the contesting parties will stand or fall on the terms of the contracts, interpretation of which, as stated above, does not require any external aid."
17. In "M/s N.G.Projects Limited v. M/s Vinod Kumar Jain and Others"12, wherein the Hon‟ble Apex Court held as follows:-
"13.....
19.......In contracts involving technical issues the courts should be even more reluctant because most of us in judges‟ robes do not have the necessary expertise to adjudicate upon technical issues beyond our domine. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints"
to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer.
15.....
42. We must begin by noticing that we are examining the case, as already stated above, on the parameters discussed at the inception. In commercial tender matters there is obviously an aspect of commercial competitiveness. For every succeeding party who gets a tender there may be a couple or more parties who are not awarded the tender as there can be only one L-1. The question is should the judicial process be resorted to for 12 2022(0) AIR (SC) 1531 13 downplaying the freedom which a tendering party has, merely because it is a State or a public authority, making the said process even more cumbersome. We have already noted that element of transparency is always required in such tenders because of the nature of economic activity carried on by the State, but the contours under which they are to be examined are restricted as set out in Tata Cellular vs. Union of India, (1994) 6 SCC 651 and other cases. The objective is not to make the Court an appellate authority for scrutinising as to whom the tender should be awarded. Economics must be permitted to play its role for which the tendering authority knows best as to what is suited in terms of technology and price for them." (Emphasis supplied).
18. In " State of Arunachal Pradesh v. Nezone Law House, Assam" 13
wherein the Hon‟ble Apex Court held as follows:-
"14.....it is well meant caution. Otherwise, a resourceful litigant having vested interest in contract, licenses, etc., can successfully indulge in getting welfare activities mandated by directing principles thwarted to further his own interest., The caution, particularly in the changing scenario becomes all the more important".
19. In "Jagdish Mandal v. State of Orissa and Others" 14 wherein the Hon‟ble Apex Court held as follows:-
"19. Judicial review of administrate action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. It is purpose to check whether choice or decision is made lawfully and not to check whether choice or decision is „sound‟. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind, a contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not in exercise of power judicial review, interfere even if a 13 2008(0) AIR (SC) 2045 14 2007 (14) SCC 517 14 prócedural aberration or error in assessment or prejudice to a tenderer, is made out. The power is judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interference, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone. OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: 'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached.'
ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226 Cases involving black-listing or imposition of penal consequences on a tenderer/ contractor or distribution of state largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.
20. Further, learned counsel for the respondents would contend that the employer has inherent power to deviate from terms and conditions of the contract and can effect changes and the terms of contract are not open to judicial scrutiny since the same are the realm of contract. Since there is no element of public interest and in absence of patent arbitrariness and allegation of mala fides a Writ of Mandamus cannot be issued by the Court as held by 15 the Hon‟ble Apex Court in "M/s Agile Security Force Private Limited and Others v. South Central Railway, rep., by its General Manager, Rail Nilayam, Hyderabad and Others"15. Further, contended that Corrigendum to NIT can be issued. If there is no element of public interest involved, interference of the Court cannot be called for in a writ petition. When the decision is not perverse, the same would not be interfered as held by the Hon‟ble Apex Court in "M/s Hi-Tech Construction Company and Others v. The Chief Secretary, Government of Nagaland and Others"16. So also, Amendment to terms of contract by way of issue of addendum amending the contract is permissible as held High Court of Patna in "Larsen and Tubro Ltd., v. VJN Thermal (P) Ltd.,"17. It is further contended that publishing in official website is compliance of communication and need not be individually communicated as held by the High Court of Delhi at New Delhi in "Dr. Renuka Bulani Prasad v. National Board Examinations in Medical Sciences (Nbems)"18 . Notice inviting e-tender once published on website is sufficient and need not give wide publicity and the same is available to public on the website as held by the High Court of Gauhati "M/s Capital Enterprises v. The State of Arunachal Pradesh and Others"19.
21. Learned Senior Counsel for the 2nd respondent relied on a decision of Hon‟ble Apex Court in "TATA Motors Limited v. The Brihan Mumbai 15 2022(2) ALD 104 16 2022 (0) Supreme (GAU) 1155 17 AIRONLINE 2019 PAT 2324 18 2023 (0) Supreme (Del) 3005.
192023(0) Supreme (Gau) 956 16 Electric Supply and Transport Undertaking (Best) and Others" 20, wherein it was held as follows:-
"53. The law relating to award of contract by the State and public sector corporations was reviewed in Air India Ltd v. Chochin International Airport Ltd., reported in (2000) 2 SCC 617 and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere."
22. Learned counsel for the respondents vehemently argued that in view of catena of decisions relied, the petitioner have no authority to question the tender process in the matter and also the issue involved in this writ petition is not maintainable under Article 226 of the Constitution of India. Therefore, the writ petition is liable to be dismissed.
23. It is the contention of learned counsel for the petitioner that there are no technicalities involved in the present case and the observations made in the judgments relied by the respondents are in the realm of technical contracts and there is no dispute about that ratio because, the tenderer is the best person to technically procure what it exactly requires. In that context, 20 AIR 2023 (0) SC 2717 17 improvisation of any technical term is always permitted and in the domain of the tenderer. Therefore, the decisions relied by the respondents has no application to the facts of the present case. It is also further contended that in the present writ petition, in December, 2023, February, 2024 and March 2024 tender conditions expressly asked the petitioner to stay out of the tender process. The tender conditions never said that the existing tenant should keep track of the website. Per contra, the petitioner was informed that once all the bids are obtained, the petitioner will be contacted to match the highest bid. Therefore, the writ petition is liable to be allowed.
24. Whereas, learned counsel for the respondents vehemently argued that the petitioner did not participate in the tender process and further 3rd respondent participated and became highest bidder. Therefore, the petitioner cannot question the tender process as it was not availed an opportunity to participate in the tender. Therefore, the petitioner cannot seek any relief under Article 226 of the Constitution.
25. In "State of Rajasthan and Others v. Sharwan Kumar Kumawat etc., "21, wherein the Hon‟ble Apex Court discussed the case in "State of Tamil Nadu v. Hind Stone22", wherein it was held as follows:-
"13. ................While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the 21 2023 SCC OnLine SC 898 22 (1981) 2 SCC 205 18 rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant of renewal of a lease dealt with in a particular way, by applying particular provision. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application.
We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of G.O.Ms.No.1312 should be dealt with as if Rule 8-C did not exist". Fundamental Right
18. The question of applicants not having fundamental right in mining is no longer res integra, Monnet Ispat & Energy Ltd. v. Union of India (2012) 11 SCC 1 may shed some light, "No fundamental right in mining
133. ..............It goes without saying that no person can claim any right in any land belonging to the Government or in any mines in any land belonging to the Government except under the 1957 Act and the 1960 Rules. No person has any fundamental right to claim that he should be granted mining lease or prospecting licence or permitted reconnaissance operation in any land belonging to the Government. It is apt to quote the following statement of O. Chinnappa Reddy, J. In Hind Stone (1981) 2 SCC 205) (SCC p.213, para 6) albeit in the context of minor mineral.
6. ....The public interest which induced Parliament to make the declaration contained in Section 2.... has naturally to be the paramount consideration in all matters concerning the regulation of mines and the development of minerals ....."
10. ....The statute with which we are concerned, the Mines and Minerals (Development and Regulation) Act, is aimed.....at the conservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of conservation 19 and prudent exploitation. If you want to conserve for the future, you must prohibit in the present".
26. In the light of decision cited supra, when a decision is taken by the authority in public interest by evolving a better process such as auction, a right, if any, to an applicant seeking lease over a Government land evaporates on its own. An applicant cannot have an exclusive right in seeking a grant of license of a mineral unless facilitated accordingly by a statute. Therefore, the petitioner is not entitled to claim as a fundamental right.
27. It is apparent on the face of the record that the subject matter is civil in nature as per issue involved in this writ petition. Further, it is purely contractual obligations in between the parties. Therefore, questioning the action of the respondents in conducting auction by the petitioner is not permissible under Article 226 of the Constitution of India in the light of terms and conditions of the tender process. The petitioner is disputing the tender process conducted by the respondents and also modification of certain terms and conditions, which was within the knowledge of the petitioner. In the light of Jagdish Mandal's case (supra) and also Sharwan Kumar Kumawat etc., case (supra), the subject issue deserves to be decided on merits by the competent civil court of law to avoid further litigation and for fair justice.
28. Under the aforementioned circumstances, this Writ Petition is dismissed. However, liberty is given to the petitioner to approach competent court of law to redress their grievance, if any, in accordance with law for fair 20 justice in the matter. Interim order granted earlier by this Court shall stands vacated. There shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
______________________________ DR. JUSTICE K. MANMADHA RAO Dated: 29.10.2024.
Note: L.R.Copy marked B/o KK 21 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI + WRIT PETITION No. 6816 of 2024 % 29.10.2024 # M/s Phoenix Logistics Pvt., Ltd., ... Petitioner.
Vs. $ The State of Andhra Pradesh, rep., by its Special Chief Secretary, Department of Industries & Commerce, Secretariat Buildings, Velagapudi, Guntur District and others ... Respondents.
! Counsel for the Appellant : Mr. Unnam Sravan Kumar ! Counsel for the 1st Respondent: 1. Learned Government Pleader, Industries for 1st respondent.
Mr. W.B.Srinivas, learned Senior Counsel
2. Representing Mr. J. Sunil Kumar, learned counsel for the 2nd respondent.
3. Mr. J. Ugranarasimha, learned counsel for the 3rd respondent.
< Gist:
> Head Note:
? Cases referred:
1. (2018) 10 SCC 525
2. (2004) 3 SCC 553: 2003 SCC OnLine SC 1442
3. Civil Appeal No. 8571 of 2022, dated 18.11.2022
4. (2020) 17 SCC 577
5. (1991) 3 SCC 273
6. (2006) 11 SCC 548
7. (2017) 16 SCC 757
8. (2021) 19 SCC 706
9. 2023(0) AIR (SC) 2717
10. 2020(5) ALT (SC) 198
11. 2014(0) AIR (SC) 3358
12. 2022(0) AIR (SC) 1531
13. 2008(0) AIR (SC) 2045
14. 2007 (14) SCC 517 22
15. 2022(2) ALD 104
16. 2022 (0) Supreme (GAU) 1155
17. AIRONLINE 2019 PAT 2324
18. 2023 (0) Supreme (Del) 3005.
19. 2023(0) Supreme (Gau) 956
20. AIR 2023 (0) SC 2717
21. 2023 SCC OnLine SC 898
22. (1981) 2 SCC 205 DATE OF ORDER PRONOUNCED: 29.10.2024 * THE HON'BLE DR. JUSTICE K. MANMADHA RAO
1. Whether Reporters of Local newspapers Yes may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes Marked to Law Reporters/Journals.
3. Whether Their Ladyship/Lordship wish Yes to see the fair copy of the Judgment?
_______________________ DR.K. MANMADHA RAO, J