Dismissed

Abhinaya Enterprises (Regd. No. A/6700 1-1313), v. The A.P. Transmission Corporation Limited

Telangana HC3 Sept 2013WP/20798/2013

Case brief

AI extract

What is this about?

A single Judge dismissed a writ petition filed by a privateenterprise challenging a government contract award. The Court held that the petitioner had abused its process by filing a second petition with identical prayers after the first remained pending, demonstrating a lack of bona fides. The petition was dismissed with costs imposed on the petitioner.

What did the court decide?

Interim order dated 17.07.2013 vacated; costs of Rs.20,000 imposed on petitioner; pending miscellaneous petitions dismissed.

Abhinaya Enterprises (Regd. No. A/6700 1-1313), Vs The… — Consumer Protection | Telangana HC (2013)

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HON’BLE SRI JUSTICE SANJAY KUMAR

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WRIT PETITION No.20798 of 2013

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Date: 03.09.2013

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Between:

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Abhinaya Enterprises (Regd. No.A/6700 1 -1313) Tatipaka, Razole Mandal, East Godavari district

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… Petitioner

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And

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The A.P. Transmission Corporation Limited, Hyderabad & others

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… Respondents

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HON’BLE SRI JUSTICE SANJAY KUMAR

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WRIT PETITION No.20798 of 2013

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ORDER:

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The petitioner concern earlier filed W.P.No.10658 of 2013 before this Court on 08.04.2013 with the following prayer.

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“For the reasons stated in the above accompanying affidavit, the petitioner herein pray that this Hon’ble Court may be pleased to issue an appropriate writ, order or direction more particularly one in the nature of writ of mandamus declaring the action of the respondents 3 to 5 in awarding the contract for maintenance of 132 KV SubStations at Prathap Nagar (Rjy-41) and Pitapuram (Rjy-42) in favour of the unqualified persons, the 6^th and 7^th respondents herein, as arbitrary, illegal and violative of Articles 14 and 19(1) (g) of the Constitution of India and contrary to the conditions mentioned in the open Tender Notice 04/12-13 dated 1.1.2013 and consequently set aside the awarding of the same, and direct the 3^rd respondent to award contract in favour of the petitioner pursuant to the open tender notice 04/12-13, dated 1.1.2013, and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances

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of the case.”

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2. Notice before admission was ordered in the matter on 09.04.2013 and the learned counsel for the petitioner was permitted to take out notice to respondents 6 and 7. The matter was adjourned thereafter to enable the learned counsel to effect service of the notice on respondents 6 and 7 through the 4^th respondent. On 17.06.2013, Sri Ch.Vidyasagar and Sri K. Rathangapani Reddy, learned counsel, who entered appearance for respondents 6 and 7, sought time to file their counters. The matter was adjourned thereafter on 10.07.2013 and again on 19.07.2013 for their counters.

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3. While so, the petitioner concern filed this writ petition on 16.07.2013 with the following prayer.

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“For the reasons stated in the accompanying affidavit, it is hereby prayed that this Hon’ble Court may be pleased to issue a writ, order or direction more particularly one in the nature of writ of mandamus to declaring the impugned proceedings of letter of intent dated 6.4.2013 issued by the respondents for maintenance of 132 KV sub station at Prathapnagar (RJY-41) in favour of the 4^th respondent is highly illegal arbitrary and violative of the article 14 and 19 clause (5)(g) of constitution of India and contrary to the conditions in the open tender notice dt.1.1.2013 and set a side the same and consequentially to suspend the proceedings of letter of intent dt.6.4.2013 by direct the respondents to cancel the letter of intent in favour of the 4^th respondent and award the contract in favour of petitioner as per the tender conditions dt.1.1.2013 and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.”

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4. Except for the fact that this prayer is restricted to Pratap Nagar (RJY-41) and does not include Pitapuram (RJY-42), there is no other difference in the import of the prayers in the two cases. The prayer in the earlier writ petition acknowledged the action of respondent authorities in ‘awarding’ the contract to respondents 6 and 7 and the prayer in the present writ petition only goes one step further by mentioning the letter of intent dated 06.04.2013 issued by the

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respondent authorities to the 4^th respondent herein for maintenance of the sub-station at Pratap Nagar. Pertinent to note, this letter of intent was issued prior to the date of institution of WP No.10658 of 2013. In fact, in para 8 of the affidavit filed in support of W.P.No.10658 of 2013, the petitioner concern specifically stated that the contract was awarded on 06.04.2013 but agreements were yet to be executed between the authorities and respondents 6 and 7 therein. In the affidavit filed in support of this writ petition, the petitioner concern no doubt mentioned the fact that it had earlier filed WP No.10658 of 2013 before this Court but conveniently, it changed its stand and stated as under in para 12:

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“It is submitted that against the award of the contract in favour of the 4^th respondent the petitioner approached the authorities and requested them for issuance of rejection of contract but the refused the same petitioner apprehending awarding of contract in favour of the 4^th respondent he filed the writ petition No.10658 of 2013 seeking a direction from this Hon’ble Court to stay of awarding of contract which is pending, but the authorities already issued the letter of intent dt.6.4.2013 and same was communicated to the 4^th respondent hence questioning the proceedings of letter of intent petitioner filed the present writ petition. And also now the authorities are taking steps for execution of agreement as per the letter of intent dt.6.4.2013.”

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5. This writ petition came up for admission before another learned single Judge of this Court on 17.07.2013 and it was duly admitted and interim suspension was granted as prayed for in WP MP No.25489 of 2013 in WP No.20798 of 2013. The prayer in WP MP No.25489 of 2013 in WP No.20798 of 2013 is as follows:

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“This Hon’ble Court may be pleased to suspend the proceedings of letter of intent dt.6.4.2013 by direct the respondents to cancel the letter of intent in favour of the 4^th respondent and award the contract in favour of petitioner as per the Tender conditions pending disposal of the above writ petition, and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.”

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6. On 19.07.2013 when WP No.10658 of 2013 was posted before this Court, Sri Bokka Satyanarayana, learned counsel for the petitioner concern, made a representation to the effect that the writ petition did not survive for consideration. This Court thereupon passed the following order:

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“Sri Bokka Satyanarayana, learned counsel for the petitioner states that in the light of the later developments, the cause no longer survives for adjudication in this writ petition.

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Recording the said submission the writ petition is dismissed. Pending miscellaneous petitions, if any shall stand dismissed in consequence. No costs.”

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7. WV MP No.2692 of 2013 is filed by the authorities of the APTRANSCO and WVMP No.2378 of 2013 is filed by the 4^th respondent, the beneficiary of the letter of intent dated 06.04.2013, to vacate the above interim order dated 17.07.2013 passed in this writ petition.

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8. Though Sri Bokka Satyanarayana, learned counsel for the petitioner concern, sought to advance arguments on the merits of the matter, this Court deems it unnecessary to venture into the merits in the light of the established abuse of process by the petitioner concern as demonstrated by the facts set out supra. Having filed a writ petition earlier and having failed to secure an interim order therein, the petitioner concern conveniently filed a second writ petition with a prayer which was identical in terms with that in the earlier writ petition. Having secured an interim order in the second writ petition, the petitioner concern conveniently got the earlier writ petition dismissed though the issue raised as regards the Sub-station at Pithapuram remained unresolved. Needless to state, a petitioner who invokes the extraordinary jurisdiction of this Court under Article 226 of the Constitution is expected to do so with clean hands. Procedure, be it only a hand-maid and not the mistress of the law, cannot be subjected

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to abuse so as to secure the interest of a party approaching the Court by clandestine means. In the present case, the clear lack of bona fides on the part of the petitioner concern disentitles it from seeking relief in this writ petition.

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9. The writ petition is accordingly dismissed. Given the manifest abuse of process by the petitioner concern, this Court is constrained to impose costs of Rs.20,000/- (Rupees twenty thousand only), which shall be paid by the petitioner concern to the A.P. State Legal Services Authority within two (2) weeks from today. Interim order dated 17.07.2013 shall stand vacated. Pending miscellaneous petitions in this writ petition shall stand dismissed in consequence.

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10. Office is directed to post the matter on 01.10.2013 for confirmation of the payment of costs.

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________________ SANJAY KUMAR, J Date: 03.09.2013 Note: Office is directed to furnish a copy of this order within one week. (BO) BSS

Abhinaya Enterprises (Regd. No. A/6700 1-1313), v. The A.P. Transmission Corporation Limited

Case brief

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Abhinaya Enterprises (Regd. No. A/6700 1-1313), v. The A.P. Transmission Corporation Limited

Case brief

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