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2025 DIGILAW 1459 (TS)

Karna Ankith reddy v. State of Telangana

2025-11-12

ANIL KUMAR JUKANTI

body2025
ORDER : ANIL KUMAR JUKANTI, J. This writ petition is filed with the following prayer: “…to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondent No.2 in opening the Bid of the Respondent No.3 though he violated the tender condition i.e., ‘EMD DD should be after the tender publication date only be considered’ as illegal, arbitrary, unconstitutional and violation of Article 14, 19(1) of the Constitution of India and consequently direct the Respondents No.1 and 2 to declare the Bid submitted by the Respondent No.3 as invalid and the Petitioner as L1 successful bidder and pass …” 2. Heard Ms. S.Annapurna, learned counsel for petitioner and Ms. S.Swathi, learned Assistant Government Pleader for Irrigation & Command Area Development for respondents. 3. Petitioner and respondent No.3 participated in the bid, namely, Mission Kakatiya Phase-II, Restoration and Improvements to Goragandla bavi cheruvu, Thammadapally village, Peddavoora Mandal, Nalgonda District. As per bid document downloading start date is 30.03.2016 at 11.00 A.M (Pg.No.26). The bid is floated by Superintending Engineer, Irrigation Circle, Nalgonda. As per the Tender document annexed at Pg.No.9 (P1), one of the conditions is that Earnest Money Deposit (EMD) DD should be after the tender publication date for an amount of Rs.82,700/-. In all three members were listed as participating bidders, respondent No.3 was declared as lowest bidder, L1. Petitioner is L2. Writ Petition is filed by the second lowest bidder, L2. Being the lowest bidder, respondent No.3 purportedly issued a Banker’s Cheque for the EMD for an amount of Rs.82,700/- dated 22.03.2016 drawn in favour of Pay and Accounts Officer, GV Gudem, Nalgonda, drawn on the bank of Bank of India (BOI), Nalgonda Branch. The Banker’s Cheque bearing No.006093 is annexed at Pg.No.11 (photocopy). 4. Learned counsel for petitioner contended that in view of the violation of tender condition, a requirement that EMD DD should be taken in favour of the concerned officer/authority only after 30.03.2016 which is the bid document downloading date. In other words, a DD drawn prior to 30.03.2016 cannot be accepted. It is further submitted that a DD dated 22.03.2016 is in violation of the condition (as per the condition) of tender document. 5. Counter affidavit is filed by Superintending Engineer, Irrigation Circle, Nalgonda. In other words, a DD drawn prior to 30.03.2016 cannot be accepted. It is further submitted that a DD dated 22.03.2016 is in violation of the condition (as per the condition) of tender document. 5. Counter affidavit is filed by Superintending Engineer, Irrigation Circle, Nalgonda. In paragraph No.5 of counter affidavit, it is averred that the mistake of respondents is a procedural irregularity committed while finalizing tenders to benefit the Government and accepted the DD which was drawn prior to the date of Publication of Tender. 6. Learned Assistant Government Pleader submitted that mere procedural lapses or irregularities of such nature would not in any way be a hurdle for avoiding the tender work, as the Mission Kakatiya Phase-II works are for the benefit of farmers and that they need to be completed on time. It is also submitted that if the decision to award a contract is bonafide and is in public interest, any interference would be prejudicial to the benefit of farmers. 7. Heard learned counsels perused the record and considered the submissions. 8. A tender notification bearing No.105SE/2015-16 (2 nd Call) dated 06.02.2016, was issued, calling for work, namely Mission Kakatiya Phase-II, Restoration and Improvements to Goragandla bavi cheruvu, Thammadapally village, Peddavoora Mandal, Nalgonda District. Respondent No.3 was the lowest bidder, quoted an amount of Rs.28,38,533.16 paise. Petitioner was placed at L2, quoted an amount of Rs.29,59,625.38 paise, one Mr.Karna Damodar reddy was L3 quoted an amount of Rs.33,58,388.25/- paise. The period of contract was for six months. 9. One of the tender conditions is that EMD DD has to be drawn in favour of pay and accounts officer for an amount of Rs.82,700/- (EMD). The condition embedded DD drawn should be taken after the tender publication, in other words, a DD has to be drawn in favour of the concerned authority which should be only after 30.03.2016. DD drawn in favour of concerned authority (Pay and Accounts officer, GV Gudem, Nalgonda), prior to 30.03.2016, would not be a valid DD for the purposes of tender. 10. The contention that DD drawn by respondent No.3 is a procedural lapse, cannot be accepted in the light of the tender condition, that DD cannot be dated prior to 30.03.2016. 11. DD drawn in favour of concerned authority (Pay and Accounts officer, GV Gudem, Nalgonda), prior to 30.03.2016, would not be a valid DD for the purposes of tender. 10. The contention that DD drawn by respondent No.3 is a procedural lapse, cannot be accepted in the light of the tender condition, that DD cannot be dated prior to 30.03.2016. 11. It is averred in the counter affidavit at Paragraph No.5 that it is only a procedural irregularity committed while finalizing tenders for the benefit of Government and for which DD was accepted. Though, learned Assistant Government Pleader has tried to impress upon this Court that a mere procedural irregularity would not render the bid to be nullified, the same cannot be accepted. In the light of the fact that Tender Document states as follows: “EMD DD should be after the tender publication date only be considered.” 12. On a reading of the condition in tender, it is apparent that DD should be drawn in favour of authorities after the date of publication of tender. The word ‘should’ is to be construed as mandatory and it is not directive. Further, condition also stipulates that the DD after the tender publication date only be considered. The Phrase ‘only be considered’ if read with ‘should’ be after the tender publication implies that DD drawn in favour of authority prior to tender publication cannot be accepted. Though, a ground has been raised that in the interest of farmers, works cannot be stopped, it is trite law that a clause of a contract or tender condition has to be read as it is, there cannot be any room for construction otherwise than what is inferred from the condition. The Hon’ble Apex Court in The State of Madhya Pradesh v. M/s. Sew Construction Limited and others , [Civil Appeal No.8571 of 2022] held as follows: “22. A contractual clause which provides for the finality of rates quoted by the Contractor and disallows any future claims for escalation is conclusive and binding on the parties. If the clause debarring future claims permits escalation subject to certain conditions, no claim is admissible if the conditions are not satisfied. However, if the conditions are satisfied, the Contractor will have a right to claim escalation. This is a contractual right. The right originates and subsists by virtue of the contract itself. If the clause debarring future claims permits escalation subject to certain conditions, no claim is admissible if the conditions are not satisfied. However, if the conditions are satisfied, the Contractor will have a right to claim escalation. This is a contractual right. The right originates and subsists by virtue of the contract itself. It is the duty of the Court, while interpreting the contract to decipher the true and correct meaning the parties intended and enforce the rights arising out of the contract. Officers administering the contract will not have any discretion whatsoever to admit or deny escalation after the conditions specified in a contract are satisfied. 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 for discretion vested in the officers administering the contract. Discretion, a principle within the province of administrative law, has no place 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.” 13. In view of the law laid down by the Hon’ble Apex Court and the fact that DD submitted by respondent No.3 is dated 22.03.2016, apparently there is a violation of the tender condition as the DD is dated prior to the date of tender. 14. Learned counsel for petitioner submitted that petitioner be declared as lowest bidder and disqualify respondent No.3 who was declared as L1, i.e., the lowest bidder qualified. On a query by this Court, learned Assistant Government Pleader (Irrigation Department) has submitted that Mission Kakatiya works have been shelved. This Court by order dated 25.04.2016, granted interim directions are as follows: “Notice before admission. The learned counsel for the petitioner is permitted to take out personal notice to Respondent No.3 by RPAD and file proof of service. Prima facie there is a violation of the tender condition. Perused the instructions. The matter requires consideration. This Court by order dated 25.04.2016, granted interim directions are as follows: “Notice before admission. The learned counsel for the petitioner is permitted to take out personal notice to Respondent No.3 by RPAD and file proof of service. Prima facie there is a violation of the tender condition. Perused the instructions. The matter requires consideration. If the relaxation of the nature which is to be allowed has been notified, there is always possibility that similarly situated persons like 3 rd Respondent would have an opportunity to participate. As criterion of evolution has been done after issuance of the notification, prima facie award of the contract in favour of the petitioner cannot be sustained. In that view of the matter, there shall be stay of all further proceedings pursuant to Tender Notice No.105SE/2015-16(2nd call), dated 06-02-2016.” Interim directions granted are still in existence. 15. Having considered the entire factual matrix of the case and taking into consideration the submission of learned counsel for petitioner, this Court deems it appropriate that if the tender work is to be taken up, writ petitioner being the 2 nd lowest bidder is permitted to make a representation to the concerned authorities. If the concerned authorities intend to go ahead with the tender work, the concerned authorities shall consider the representation of petitioner, for the work which tender has been issued on 30.03.2016 is to be taken. 16. With the above observations, Writ Petition is disposed of. No costs. Miscellaneous applications pending, if any, shall stand closed.