Dismissed

P.Srinivasa Rao v. Tirumala Tirupati Devasthanam

Andhra Pradesh HC6 Dec 2019WP/11293/2019

Case brief

AI extract

What is this about?

Justice M. Satyanarayana Murthy dismissed a writ petition challenging the rejection of a canteen tender due to non-compliance with a specific sealing condition. The Court held that the tender schedule conditions prevailed over the notice, and the petitioner's failure to submit technical and financial bids as separate sealed covers justified rejection.

What did the court decide?

The writ petition seeking direction to allot the canteen license to the petitioner is dismissed. There shall be no order as to costs.

P.Srinivasa Rao Vs Tirumala Tirupati… — Public Procurement and Tenders | Andhra Pradesh HC (2019)

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THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY

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Writ Petition No.11293 of 2019

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ORDER:

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This writ petition under Article 226 of Constitution of India is filed, questioning the action of respondents in not considering the tender filed by the petitioner on 06.08.2019, for grant of license to run canteen inside Sri Venkateshwara (SV) Rest House, Tirumala, though the petitioner quoted highest bid in the tender process, declare the same as illegal, arbitrary and violative of Article 19, 21 and 300-A of Constitution of India, consequently direct the respondents to allot license in favour of the petitioner to run canteen inside Sri Venkateshwara (SV) Rest House, Tirumala.

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The petitioner is the proprietor of M/s. Sai Balaji Food Corporation, carrying on hotel business for the last twenty years. The first respondent Devasthanam issued tender notification dated 20.07.2019 in file No.TTD-81021(31)/82/2019-REDTML-TTD, dated 03.07.2019, inviting sealed tenders for grant of license to run canteen inside Sri Venkateshwara (SV) Rest House, Tirumala on AS IS WHERE IS BASIS for a period of three years with effect from the date of occupation. As per the pre-condition, the tenderer must be a Hindu, having experience in hotel business with a turnover of not less than above five crores in each year during the past five years, last date for submitting sealed tenders was 06.08.2019.

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The petitioner submitted his sealed tender, duly enclosing demand draft for Rs.10,00,000/-, EMD and other documents as specified in the tender notice. After completion of tender process, respondents opened sealed tenders on 06.08.2019 at 3.30 PM, for

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allotment of license to run canteen inside Sri Venkateshwara (SV) Rest House, Tirumala. Seven persons have participated in the tender process, submitted their sealed tenders. After opening the sealed tenders, the petitioner is the highest bidder, quoted Rs.17,88,999/towards monthly license fee to run the canteen. The second highest bidder quoted an amount of Rs.17,66,661/- though there is specific condition to submit experience certificate in hotel business, the second bidder has not submitted any experience certificate.

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Though the petitioner quoted highest amount, declared as highest bidder in the tender process to run canteen, but they are kept in abeyance on the ground that he has not submitted his tender form in separate bid, like technical bid and financial bid. As per the tender conditions of tender notice, there is no such condition to submit two separate sealed covers in one sealed cover containing technical bid and financial bid, in the absence of specific condition, the petitioner submitted his application, both technical bid and financial bid in one sealed cover, but the respondents did not accept the tender and proposing to issue license to second highest bidder.

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The respondents issued notification, inviting tenders for grant of license to run HVDC big canteen, Tirumala. As per the notification, the highest bidder submitted the tender i.e. technical bid as well as financial bid in one sealed cover, but the respondents refused to grant license, he approached High Court of Judicature at Hyderabad by way of writ petition in W.P No.9736 of 2018 and the Court held that “in the absence of any clause in the tender conditions prohibiting the

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petitioner from giving both the technical bid and financial bid in a single sealed cover, petitioner’s tender could not have been rejected by second respondent. Further any tender granted to third party shall stand suspended until further orders.” In pursuance of the order passed by the Court, respondents in proceedings Roc.No.Rev1/22/AEO/(P&R)/Tml/2018 dated 25.04.2018 awarded license in favour of M/s. D.R Hotels (Nellore) Pvt. Ltd., Nellore to run HVDC big canteen, Tirumala, failure to accept tender of the petitioner, though highest bidder is illegal and arbitrary exercise of power, requested to issue a direction as claimed.

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At the stage of admission, the learned Counsel for the petitioner would contend that the tender notice did not contain any condition to keep both the sealed covers containing technical bid and financial bid in one sealed cover, submitting tenders keeping both technical bid and financial bid in one sealed cover does not amount to violation of terms and conditions of tender notice. A similar question was decided by this Court in W.P No.9736 of 2018 by order dated 17.03.2018, whereby the order passed by the respondents herein was set aside, as there was no such condition in the tender conditions. The same principle is applicable to the present facts of the case, requested to set aside the decision of respondents and accept the tender of the petitioner granting license to the petitioner to run canteen inside Sri Venkateshwara (SV) Rest House, Tirumala on payment of monthly license fee of Rs.17,88,999/-.

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The learned Standing Counsel for Tirumala Tirupathi Devasthanam (for short T.T.D) would contend that tender notice is only an invitation to bid, whereas, the tender conditions issued by T.T.D contain specific clauses, directing the tenderers to keep two sealed covers containing technical bid and financial bid in one sealed cover, therefore, the petitioner failed to comply the requirement, consequently rejection of the petitioner’s tender, on the ground that the petitioner violated the terms and conditions of the tender is legal, the Court cannot interfere with such tender conditions, requested to dismiss the petition.

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Undisputedly first respondent temple/T.T.D issued tender notice dated 03.07.2019, calling for tenders for running canteen inside Sri Venkateshwara (SV) Rest House, Tirumala, fixing certain conditions. One of the conditions contained in the tender notice runs as “the tenderer should deposit a single sealed cover (containing separate cover in it viz. (1) Technical bid along with necessary documents & EMD Demand Draft (2) Financial bid) in tender box, kept in the chamber of Assistant Executive Officer (Panchayat and Revenue) T.T.D, Tirumala from 10.30 AM to 3.00 PM on 06.08.2019, the sealed covers shall be opened on 06.08.2019 at 3.30 PM in the chambers of Estate Officer, T.T.D, Tirumala. The tender schedule contained several conditions. The relevant condition is condition No.9, the same is extracted hereunder:

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“The tenderer should deposit a single sealed cover (containing two separate sealed covers in it viz. (1) Technical bid along with necessary documents & EMD Demand Draft (2) Financial bid) in the tender box.”

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As such, the pre-condition to accept a tender is compliance of condition No.9 in the tender conditions annexed to the tender schedule. But the difference between these two conditions contained in tender notice and tender conditions is missing of one word ' sealed between the words ‘two separate’ and ‘covers in it’. Hence, on account of missing of word “sealed” before the words “covers in it”, in the notice inviting tenders from the public, subject to qualifications and other conditions fixed there under, the petitioner contended that he complied all the required formalities.

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The notice issued inviting tenders is only an invitation to offer calling upon the public. However, in the second para of tender notice itself, it is specifically mentioned that the tender schedule and other details can be obtained from the Assistant Executive Officer (P&R), T.T.D, Tirumala on payment of Rs.2,240/- by way of demand draft in favour of Executive Officer, T.T.D, Tirumala between 10.30 AM to 5.00 PM on any working day up to 05.08.2019. This condition mentioned in the printed notice itself shows that a separate tender schedule and other details shall be obtained from the Assistant Executive Officer (P&R), T.T.D, Tirumala and the conditions annexed to the tender schedule are the actual conditions to be fulfilled by the tenderer, while filing tender forms. Though there is a difference of word ‘sealed’ between the notice and tender conditions annexed to tender schedule, the tender conditions will prevail over the notice inviting tenders i.e. only an offer to the public inviting tenders. Therefore, the tender schedule is the final document which contains conditions required to be fulfilled by the tenderers, but tender notice is not final. When the

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petitioner purchased the tender schedule along with other details from Assistant Executive Officer (P&R), T.T.D, Tirumala, the conditions annexed to the tender schedule are final. As per condition No.9 of tender conditions, extracted above, made it clear that the tenderer should deposit a single sealed cover (containing two separate sealed covers in it viz. (1) Technical bid along with necessary documents & EMD Demand Draft (2) Financial bid) in the tender box. Thus, it is clear that the words in ‘bracket’, specifically indicating the intention of the offeror, directing the tenderers to keep two separate sealed covers in one single sealed cover containing technical bid and financial bid, drop the same in the office of Assistant Executive Officer (P&R), T.T.D, Tirumala. Merely because the word ‘sealed’ is missing in the tender notice, it will not confer any right on the petitioner to contend that he is not required to comply the tender conditions. As discussed above, the tender notice is only an offer to the public inviting tenders, but it is always subject to conditions annexed to the tender schedule. Hence, the conditions annexed to the tender schedule are final and conditions contained therein shall be complied with strictly.

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Therefore, the mandatory requirement is to deposit two separate sealed covers containing technical bid and financial bid, keep the same in one sealed cover, drop the same in the tender box. Therefore, the petitioner is bound to adhere to the conditions contained in the tender schedule and not tender notice. Merely because the word ‘sealed’ is missing in the tender notice, still the petitioner is bound to keep technical bid and financial in two separate sealed covers, keep them in one sealed cover, drop in the tender box. Merely because, the

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word ‘sealed’ is missing, it cannot be construed that the petitioner need not keep the technical bid and financial bid in two separate sealed covers. When the petitioner failed to comply the tender conditions, he is not entitled to claim benefit, for his own fault.

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When the petitioner relied on the direction issued by High Court of Judicature at Hyderabad in W.P No.9736 of 2018 dated 17.03.2018, where the Court held as follows:

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In the absence of any clause in the tender conditions prohibiting the petitioner from giving both technical bid and financial bid in a single sealed cover, petitioner’s tender could not have been rejected by second respondent. Further any tender granted to third party shall stand suspended until further orders.

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Taking advantage of this interim order passed on 17.03.2018,

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the learned Counsel for the petitioner Sri P.R.K Amarendra Kumar contended that rejection of petitioner’s tender is illegal and arbitrary. There is no quarrel about the law declared by High Court of Judicature at Hyderabad in W.P No.9736 of 2018, but the specific words used in the order “in the tender conditions ” assumes importance in the present facts of the case. The tender conditions contained a specific clause which I extracted in the earlier paras, calling upon the tenderer to keep two separate sealed covers containing technical bid and financial bid in one sealed cover, drop the same in the tender box. The plain language used in the conditions is a sufficient direction to the tenderer, non-compliance of the same leads to rejection of tender of the petitioner, since the petitioner in the affidavit, clearly admitted that he did not keep technical bid and

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financial bid in two separate sealed covers, but kept in one sealed cover.

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Normal procedure is opening of sealed tenders, containing two separate sealed covers viz. technical bid and financial bid, one after another, but in the present facts of the case, on account of keeping both technical bid and financial bid in one sealed cover, opening of main sealed cover amounts to opening of both technical bid and financial bid, there is no secrecy in the process, thereby rejection of tender of the petitioner cannot be faulted.

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The intention of respondents can be inferred from the language used in third para of tender notice that the tenderer is required to deposit a single sealed cover (containing separate cover in it viz. (1) technical bid along with necessary documents & EMD demand draft (2) financial bid). The words in ‘brackets’ must be considered harmoniously. Even otherwise, it is not the case of the petitioner that he kept the technical bid and financial bid in two separate covers, but not sealed, kept in one sealed cover, dropped in the box. The clear admission in fourth para of the affidavit that as per tender conditions, imposed by the respondents, there is no condition that the tenderer shall submit the application separately for technical bid and financial bid in a sealed cover. In the absence of specific condition, the petitioner submitted his application both technical and financial bid in one sealed cover. This admission is sufficient to conclude that the petitioner failed to comply the requirements, even as per tender notice as well as tender conditions.

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The words mentioned within brackets in the tender notice as well as tender conditions with a variation of the word ‘sealed’, between these two words it is used in both tender notice and tender conditions, it is explicit that the tenderer is required to submit his technical bid and financial bid in two separate sealed covers, kept in one sealed cover, drop the same in the tender box. For the reason that the words ‘containing separate cover in it ‘ viz ’ indicates the intention that technical bid and financial bid separately. The abbreviation of the word ‘ viz ’ means, namely and it is derived from a contraction of the term videlicet , to wit, namely or that is to say. A term used to highlight or make more specific something previously indicated only in general terms.

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“ viz ” is short for the Latin loanword videlicet (meaning, literally, it is permitted to see). Though ‘viz’ is an abbreviation it is a contraction of videlicet as stated above. But the symbol “z” is not the actual word borrowed from Italians, the supporting ‘viz’ is the continuation of an abbreviation using Tironian et (vi7), the “z” replacing the 7 once the latter had fallen out of common use. The contradistinctions to i.e. and e.g., viz, is used to indicate a detailed description of something stated before, and when it preceeds a list of group members, it implies (near) completeness. Therefore, when abbreviation “viz” is used, it is only to mere indicating the mind of the author of the document. When the word viz is used before technical bid, it is the indication of both financial bid and technical bid, shall be kept in two separate sealed covers. Based on the tender conditions or

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even as per the tender notice, they shall be kept in two separate covers, because the word ‘sealed’ is missing, but the petitioner failed to comply the requirement both as per tender notice and tender conditions, thereby rejection of tender of the petitioner is wholly justifiable.

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Normally courts would not interfere with the tenders, interpreting tender conditions, relaxing any tender conditions, in view of law declared by the Apex Court in Durgawathi Devi v. Union of India THR, Its Secretary, Ministry and others¹ .

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On close analysis of the language used in both tender notice and tender conditions, it is clear that the tenderer shall drop one sealed cover containing two sealed covers containing technical bid and financial bid separately, failure to comply the same leads to rejection. Hence, the act of the respondents is justifiable, even by applying the principle laid down by High Court of Judicature at Hyderabad in W.P No.9736 of 2018 between K. Dhanunjaya Reddy v. State of Andhra Pradesh and others .

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In view of my foregoing discussion, I find no ground to exercise power of judicial review under Article 226 of Constitution of India, in the set of circumstances narrated above, to issue any direction to the respondents as claimed by the petitioner, consequently the petition is liable to be dismissed.

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