Telangana High Court
M/S. Ans Transport vs The Director General on 12 October, 2022
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.16610 of 2022
ORDER:
Heard Sri K.Ram Reddy, learned counsel for the petitioner and Sri P.V.Ravindra Kumar, learned counsel for respondent.
This writ petition is filed to declare the impugned action of the respondent authority in issuing tender notification No.EPTRI/Laboratory/SCCL/Vehicle Hire/2022/March, 2022 dated 17.03.2022 without finalizing/informing the tenders floated vide tender notification dated 01.05.2021 as illegal and for consequential direction to respondent to take all those necessary steps to finalise the tender voucher vide notification dated 01.05.2021.
FACTS OF THE CASE:
i) Petitioner is a partnership firm. It engages in supply of transport vehicles of various types of lorries/heavy vehicles, light commercial vehicles and passenger vehicles/cars. It has been in supply of vehicles to the respondent organization since November 2015 and it is continuing the same till date.
ii) Respondent had issued a tender notification dated 01.05.2021 inviting the tenders for hiring vehicles. The tender is for a period of KL,J W.P.No.16610 of 2022 2 two years on contract/outsourcing basis through E-tendering.
Petitioner had submitted its tender. It stood as L-I. Period for contract is two years. It was orally instructed to continue the supply of vehicles with an assurance/promise that the fresh contract will be awarded to the petitioner's firm, being L-I bidder. It is also entitled for payment of bills as per the quoted rates and accepted in the fresh tender notice dated 01.05.2021. Respondent has requested the petitioner to wait for some time for issuance of formal work order and submit bills thereafter as per the rates quoted.
iii) Without finalizing the said tender process, the respondent had issued fresh tender notification dated 17.03.2022. Last date for submission of bids was 31.03.2022 and opening of technical bids was on 01.04.2022 and opening of commercial/financial bid was on 02.04.2022. Therefore, according to the petitioner, since it was L-I pursuant to the tender notification dated 01.05.2021, without awarding the work, respondent cannot issue fresh tender notification dated 17.03.2022. Therefore, the said action of the respondent is illegal.
2. The respondent had filed counter, contending that the present writ petition is not maintainable since respondent's society is not a state as defined under Article 12 of the Constitution of India.
KL,J W.P.No.16610 of 2022 3 Pursuant to tender notification dated 01.05.2021, petitioner and two other firms have participated in the said tender. Petitioner stood as L- I. Therefore, petitioner has been informed to execute the agreement relating to details of vehicles etc., that were sought to be provided to the respondent by the petitioner, such as Registration Certificates, Insurance Policies, Fitness Certificate issued by Road Transport Authorities, drivers details etc. The said requirement has to be complied with by the petitioner having been clearly indicated of the same in the tender notification. But the petitioner failed to submit the said documents to the respondent for processing of the tender for conclusion despite several reminders. Failing to provide the said details etc., amounted to default on the part of the petitioner and therefore petitioner is disentitled for the said contract. Therefore, it amounts to incomplete tender. Petitioner herein did not submit the aforesaid documents within the stipulated time.
3. It is further contended by respondent that as per Part-B of the said tender document dated 01.05.2021, schedule of tender it was clearly mentioned that the tender shall remain valid and open for acceptance for a period of 120 days from the last date of submission of tender. In view of the same respondent is forced to cancel the KL,J W.P.No.16610 of 2022 4 tender notification dated 01.05.2021. It has issued fresh e-tender dated 17.03.2022. There is no error in it. Therefore, petitioner is not entitled for the relief sought in the present writ petition. With the said submissions, learned counsel for the respondent sought to dismiss the present writ petition.
4. In view of the specified contentions taken by respondent that it is not amenable to writ jurisdiction, this Court directed learned counsel for the petitioner to file documents to show that respondent is an instrumentality of State and it is amenable to writ jurisdiction. In compliance of the said order, learned counsel for the petitioner had filed bylaws, memorandum of association of the petitioner herein. Even respondent had filed registration certificates to show that it is a society.
In the written arguments respondent contended as follows :
a) "The respondent society was registered under the A.P. (Telangana Area Public Societies Registration Act 1351 F).
b)It was not the case of the petitioner that either respondent society was funded by the Government or its revenue expenditure was being met by the latter.
Payment of Salaries and other expenditure has to be borne by the society.
KL,J W.P.No.16610 of 2022 5
c)The constitution of the Board of governors of the society as projected by the petitioner does not give any governmental color to it for the mere reason an ex- officio tag entwined to them.
d) Mere nomination of some personnel of the Government in to the arena of membership with reference to their ex-officio capacity doesn't bring the society it into the classification of other authorities or make it an instrumentality or agency of the Government.
e)It may have to be seen from the byelaws of the society doesn't provide any privileges nominated ex-officio members in their functioning and have to work within the framework of the byelaws.
f)The objects of memorandum of association at item 3(i) provide information that respondent society organizes training and study courses, conferences, seminars, lectures and research of environmental problems and related subjects in India.
g)Further it should be seen that the respondent engages itself for publishing papers, periodical books in furtherance of its object.
h)Item 4(c) of Memorandum of Association helps understand that the society is competent to impose and recover fees and charges for the services rendered by it."
KL,J W.P.No.16610 of 2022 6
5. Clause - 3 of Memorandum of Association of respondent society deals with Constitution of Board of Governors and the same is extracted below :
1 Chief Secretary to Government of Telangana. Chairman 2 Principal Secretary to Government, EFS&T Vice Chairman/Member Department, Government of Telangana. 3 Director General, EPTRI Vice Chairman 4 Principal Secretary to Government, Industries Member & Commerce Department, Government of Telangana.
5 Principal Secretary to Government, MA & UD Member Department, Government of Telanagna. 6 Addl. Secretary/Joint Secretary, Ministry of Member Environment, Forests and Climate Change, Government of India, New Delhi.
7 Principal Secretary to Government, I&CAD Member Department, Government of Telangana. 8 Principal Secretary to Government, Finance Member Department, Government of Telangana. 9 Principal Chief Conservator of Forests, Member Government of Telangana or a senior officer nominated by Principal Chief Conservator of Forests.
10 Member Secretary, Telangana State Pollution Member Control Board.
11 VC & MD, Telangana New & Renewable Member Energy Development Corporation Limited
6. Clause - 8 of the said Memorandum of Association deals with constitution of Execution Committee and it shall consists of the following members :
KL,J W.P.No.16610 of 2022 7 i. DG EPTRI - Chairman ii. Principal Secretary, Finance Department - Member iii. Member Secretary TSPCB - Member iv. Head, CSIR-NEERI, Zonal Centre, Hyd'bad - Member v. Principal Secretary, I & CAD Department - Member (Member nominated by the BoG from among its members)
7. Clause 10 of the Memorandum of Association, deals with the funds of the society and it may consist of the following :
a. Grants made by the Government of Telangana or any other Government.
b. Contributions from other sources. c. Income from investment d. amounts collected as fees fro conducting trainings/courses e. amounts received on account of consultancy f. receipts from other sources including money borrowed with or without security g. funds from other agencies for carrying activities within the charter of the institute.
8. Clause 11 deals with accounts and audit, it is also extracted below :
a) "Accounts and Audit i. The institute shall maintain proper Accounts and other relevant records and prepare an annual statement of accounts including the balance sheet in such form as may be prescribed by the Government of Telangana.
ii. The accounts of the institute shall be audited annually by the Accountant General of Telangana and any expenditure incurred in connection with the audit of the accounts of the institute shall be payable by the institute. iii. The accountant General shall have the same rights, privileges and authorities in connection with the audit of accounts of the institute as the Accountant General has in KL,J W.P.No.16610 of 2022 8 connection with the audit of Government accounts in particular shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Institute.
b) An annual report of the proceedings of the institute and all work undertaken during the financial year shall be prepared by the Board of Governors. Copies of the Annual Report and yearly accounts approved by the Board shall be forwarded to the Government.
c) The Director General shall also set up an internal/independent audit system to be taken up by the Chartered Accountants."
9. The afore stated facts including the constitution of Board of Governors Executive Committee, Funds of Account and Audit would reveal that, the Government is having control over the respondent society. Therefore, respondent cannot say that it is not a state as defined under Article 12 of the Constitution of India and it is not amenable to writ jurisdiction. In view of the aforesaid facts, this Court is of the considered view that respondent is instrumentality of the state as defined under Article 12 of the Constitution of India and it is amenable to writ jurisdiction. Therefore, the present writ petition filed against respondent society is maintainable.
10. Perusal of the record would reveal that the petitioner herein had participated in the tender process conducted by Respondent in 2018, a work order dated 01.08.2018 was given to the petitioner on the KL,J W.P.No.16610 of 2022 9 specific terms and conditions mentioned therein. The said contract was valid for a period of two years and it was expired on 31.07.2020. However, the respondent had issued the aforesaid tender notification dated 01.05.2021 inviting the tenders for hiring vehicles. As per the aforesaid tender notification, bidder has to submit their technical bids and financial bids as per the standard formats available at the E- marketplace, they should scan and upload the documents mentioned therein.
11. As per Clause-22, part-B of the said tender notification, a prospective bidder shall furnish certain documents along with their financial bid including the list of vehicles along with photocopy of their Registration Certitificates/fitness and permit owned by contractor and also photos of vehicle (Front, Side and Back).
12. Therefore, according to the respondent, petitioner herein did not submit the aforesaid documents which are mandatory within a stipulated time. The tender document of the petitioner is an 'incomplete document.'
13. As per Part - B of Schedule of Tender, the aforesaid tender document dated 01.05.2021, the tender shall remain valid for acceptance for a period of 120 days from the last date of submission KL,J W.P.No.16610 of 2022 10 of Tender. Since the petitioner herein did not submit the aforesaid documents, therefore, respondent has cancelled the said tender dated 01.05.2021 on 08.03.2022 itself. The said cancellation is placed in the E-procurement portal of the respondent, which was the same portal through which tender was offered by the petitioner. Therefore, the petitioner herein cannot contend that the respondent without cancelling the earlier tender notification dated 01.05.2021, issued fresh tender notification dated 17.03.2022. The said contention of the petitioner is untenable.
14. As stated above, according to the respondent, petitioner failed to submit the aforesaid documents which are mandatory within stipulated period and the tender is valid for only 120 days. Therefore, the tender of the petitioner is incomplete and as such respondent had cancelled the said tender notification dated 01.05.2021 and issued fresh tender notification dated 17.03.2022.
15. It is relevant to note that Hon'ble Apex Court in National High Speed Rail Corporation Vs. Montecarlo Limited1 relying on the principle laid down by it in earlier judgments including Tata Cellular 1 2022 6 SCC 401 KL,J W.P.No.16610 of 2022 11 v. Union of India2 framed the following issues with regard to inference of constitutional Courts in tender process :
i) "whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or
ii) whether the process adopted or decision made is arbitrary and irrational that the court can say that the decision is such that no responsible authority acting reasonably and in accordance with relevant law would have reached; and
iii) whether the public interest is affected, If answer is yes, the Court can interfere, if the answer is no, the Court cannot interfere."
Result:
16. As stated supra, in the present case, petitioner herein failed to submit the required documents which are mandatory within the stipulated period and therefore, respondent has cancelled the said tender notification dated 01.05.2021 on 08.03.2022. The same was placed in the very same E-procurement portal of the respondent through which the petitioner had submitted its tender pursuant to tender notification 01.05.2021. The petitioner failed to make out any case to interfere with the same by invoking inherent powers of this Court under Article 226 of Constitution of India. 2 (1994) 6 SCC 651 KL,J W.P.No.16610 of 2022 12
17. In view of the aforesaid discussion, viewed from any angle, this writ petition is liable to be dismissed. Accordingly, it is dismissed.
As a sequel, the miscellaneous petitions, if any, pending in the Writ Petition shall stand closed.
__________________ K. LAKSHMAN, J Date: 12.10.2022 vns KL,J W.P.No.16610 of 2022 13 HON'BLE SRI JUSTICE K. LAKSHMAN WRIT PETITION No.16610 of 2022 October 12, 2022 vns KL,J W.P.No.16610 of 2022 14 HON'BLE SRI JUSTICE K.LAKSHMAN P.D ORDER IN WRIT PETITION No.13366 OF 2018 VNS