Challenges to paddy and gunnies transportation tenders alleged acceptance of ineligible bids and violations of tender conditions. The Court held that the tender arbitration clause covered disputes before and after contract formation, declined writ intervention, and dismissed the petitions, relegating the petitioners to arbitration.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)
IVONDAY, THE SEVENTH DAY OF DECEIMBER TWO THOUSAND AND TWENTY
PRESENT
THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
WRIT PETITION NOS: 17934 19708 20820 18676 18773 AND 21456 0F 2020
wP NO.17934 0F 2020:
Betwee n:
A. IV. Swamy, S/o, A.Janakiramaiah, Aged 45 years, R/o 3-22-9914, Raja Street, Kollapur, Nagarkurnool District ...PETITIONER
AND
Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased io issue a Writ of lt4andamus or any other appropriate Writ or Writs, Order or Direction, declarng the action of 3rd Respondent in opening Financial Bids prior to opening and scrutinizing of Technical Bids in respect of E Tender issued by 2nd Respondent on 15.9.2020 in No.lVktgiPaddy Tenders/2020 for appointment of Contractors for transportation of Paddy and Gunnies and declaring the lowest bidder in Financial Bids as successful contractor, as illegal, arbitrary, violative of Arts. 14 and 21 of Constitution of lndia and in violation of the Tender Conditions and to consequently set aside the entire tender process Award costs
lA NO: 1 OF 2020
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit flled in support of the petition, the High Court may be pleased to grant interim stay of all further proceedings in pursuance to E Tender issued by 2nd Respondent on 15.9.2020 in No. lVktg/Paddy Tendersl2020 lor appointment of Contractors for transportation of Paddy and Gunnies, pending disposal of WP.No. of 2020
lA NO: 2 OF 2020:
Betwee n:
A. 1r,4. Swamy, S/o. A.Janakiramaiah, Aged 45years, R/o 3-22-991 A, Raja Street, Kollapur, Nagarkurnool District ...PETITIONER
AND
1 State of Telang ana, Represented by its Principal Secretary, ConsumerAffairs,Food and Civil Suppl ies Department at Secretariat, Hyderabad
Petition under Section 16(A) of Writ ProceedingRules praying lhat inthe
circumstances stated in the affidavit flled in support of thepetition, theHigh Court may be pleased to order to implead the proposed Respondent herein as Respondent No 4 to the above Writ Petition and all lvlisc Petition
Counsel for the Petitioner: SRI K. RAGHUVEER REDDY
Counsel for Respondent Nos. 1 & 3: GP FOR CIVIL SUPPLIES
Counsel for Respondent No. 2: SRI A. JAGAN,
SC FOR TELANGANA STATE CIVIL SUPPLIES CORPORATION
W NO: 19708 OF 2020
Between:
Sri Navadurga Enterprises (Firm No. 198212018), rep by its lVanaging Partnerl\4 lvlallesham Yadav S/o M. Pochaiah Yadav, aged about 42years R/o H.No 13-'1-156/1 , Shenhapuri Colony, Mothinagar, Borabanda, Balanagar, Medchal-lValkajn]:'r?+:ff8k._
AND
Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ or order or direction particularly in the nature of Writ of l,4andamus declaring the action of the respondents No, 2 and 3 in granting Contract Tender infavour of 5th respondent for Transport of Paddy and Gunnies as entrusted by the respondent No.2 from time to time under Paddy Procurement Operations from various Paddy Purchase Centre/ Storage Points/ Buffer Godowns/ Wagons to various Paddy Purchase Centres/ Buffer Godowns/ Rice lVills and other Godowns within the District and Outside the District for 2020-2021 (Khariff and Rabi) for the period 01-10-2020 to 30-09-2021 even though the respondent No. 5 is vrolated the rules and guidelines issued for Tenders and inspite of filing a wrong affidavit and by vrolating the clause No,7 (e) instead of rejecting the Tender of the respondent No.5 is gross violation of the conditions laid down under e-
-)
Iender Notice dated 16-09-2020 in Proceedings No. MklglM2l299lPPC/RR/KMC-202021 and arbitrary, unjust, illegal and in violation of rights guaranteed under the Constitution of lndia and consequently direct the respondent No. 1 to 4 to cancel the Tender confirmed infavour of the 5th respondent by allotting the Tender infavour of the petitio n e r
lA NO: 1 OF 2020
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petitio.n, the High Court may be pleased to stay of all further proceedings in pursuant to the E-Tender Notice dated 16-09-2020 in Proceedings No. N/ktg/lv2l299/PPC/RRiKIVC-2020-21 pending disposal of the Wrlt Petition Counsel for the Petitioner: SRI P. MEHAR SRINIVASA RAO
Counsel for Respondent Nos. 1, 3 & 4: GP FOR CIVIL SUPPLIES
Counsel for Respondent No. 2: SRI A. JAGAN,
SC FOR TELENGANA STATE CIVIL SUPPLIES CORPORATION
Counsel for Respondent Nos. 5 to 7: --
WP NO: 20820 OF 2O2O
Betwee n:
Sri Sai Baba Lorry Transport, at 1-1 3, Narketpally Village and Mandal, Nalgonda District, Rep,by its lzlanaging Partner
,.,PETITIONER
AND
4 The District l,4anager (TSCSCL), H, No.6-3-123, Ramgiri, Near lVathru Hospital, Nalgonda, Nalagonda District, H yderabad.
Petition under Article 226 of the Constitution of lndia praying that in the crrcumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate wrrt, order or direction, more particularly one in the nature of Writ of lr,4andamus declaring the Proceedings bearing Lr.No.Mktg/M2l336/PTC/KMS 2020-21 d1.3111012020 issued by the 3rd Respondent rejecting the petitioners representation d1.0111012020 and also declaring the action of Respondents 2 to 4 rn accepting the invalid technical bid of the Sth Respondent and taking steps to appoint the Sth Respondent as contractor of Chityal Block of Nalgonda District for transportation of Paddy and Gunnies under Tender Notice bearing Ref.No.lVktg/l\42l336lPIClKl\151202021 , dl1619l202O issued by the 3rd Respondent, as lllegal, unjusl, arbitrary, discriminatory, vitiated by mala fides, suffers from lack of jurisdiction and violative of Articles 14, 19 and 21 of the Constitution of lndia apart from contrary to the Tender Notice dt.16/9/2020 and contrary to thejudgment of this Hon'ble Court repoded in 2016 (3) ALD 126 and
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ionsequently set aside the impugnedproceedings d1.3111012020 and directRespondents 2 lo 4 to reject the tender ofthe 5th respondentand appoint the petitioner as the transport contractor of the said ChityalBlock as perthe said tender notice
lA NO: 1 OF 2020
Petition under Section 151 CPCpraying that in the circumstances statedin the affidavit filed in support of thepetition, theHigh Court may be pleasedto directthe Respondents not to appoint the sth Respondent as contractor ofChityal Block of Nalgonda District for transportation of Paddy andGunnies by suspending the impugned Proceedings bearing Lr. No. Mktg/M2l336/PTC/KIVS 12020-21 dl.31l10l2O2Oissued by the 3rd Respondent, pending disposal of the above writpetition
Counsel for the Petitioner: SRI SRINIVAS BOBBILI
Counsel for Respondent Nos. 1, 3 & 4: GP FOR CIVIL SUPPLIES
Counsel for Respondent No. 2: SRI A. JAGAN,
SC FOR TELANGANA STATE CIVIL SUPPLIES CORPORATION LIMITED
Counsel for Respondent No. 5: SRI CH. RAVINDER
WP NO: 18 676 0F 2020
Between:
Sri Sai Baba Lorry Transport,, at 1-13, Narketpally Village and [t/andal, Nalgonda District, Rep.by its ltrlanaging Partner
...PETITIONER
AND
Petition under Article 226 of the Constitution of lndiapraying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to lssue an appropriate writ, Order or direction- More particularly one in the nature of Writ of Mandamus declaring the action of Respondents 2 to 4 in accepting the invalid technical bid of the 5th Respondent and taking steps to appoint the 5th Respondent as contractor of Chityal Block of Nalgonda District for transportation of Paddy and Gunnies under Tender Notice bearing Ref.No. Mktg/M2l336/PTC/Kl\4S/2020-21 , dt-161912020 issued by the 3rd Respondent, as illegal, unjust, arbitrary, discriminatory, vitiated by mala fides, suffers from lack of.jurisdiction and violative of Articles 14,19 and,21of the Constitution of lndia apart, from contrary to the Tender Notice dt.16/9/2020 and. Contrary to the judgment of this Honble Court reported in 2016 (3) ALD 126 and consequently direct the respondents to reject the tender of the 5th respondent and appoint the petitioner as the transport contractor of the said Chityal BIock as per the said tender notice
lA NO: 1 OF 2020
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in pursuance of the Tender Notice bearing Ref. No. lVktg/lv2/336/PTC/KMS/2020-21, Dt-16.09.2020 issued by the 3rd Respondent, pending disposal of the above writ petition
Counsel for the Petitioner: SRI SRINIVAS BOBBILI
Counsel for Respondent Nos. 1, 3 & 4: GP FOR CIVIL SUPPLIES
Counsel for Respondent No. 2: SRI A. JAGAN,
SC FOR TELANGANA STATE CIVIL SUPPLIES CORPORATION LIMITED
Counsel for Respondent No. 5: SRI CH. RAVINDER
WP NO: 18773 OF 2020
Between:
Sree Laxmi Narsimha Swamy Lorry Transport, at H.No.4-1-42127, Sher Bunglow, Nalagonda, Rep.by its lvlanaging Partner ...pETtloNER
AND
...RESpoNDENrs
Petition under Adicle 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate writ, order or direction, more particularly one in the nature of Writ of l,4andamus declaring the action of Respondents 2 to 4 in accepting the invalid technical bids of Respondents 5 and 6 and taking steps to appoint the 5th Respondent as contractor of Nalgonda Block of Nalgonda District for transportation of Paddy and Gunnies under Tender Notice bearing Ref.No.Mktg/lV21336lPf AKlrlS12020-21 , d1.16.9.2020 issued by the 3rd Respondent, as illegal, unjust, arbitrary, discriminatory, vitiated by mala fides, suffers from lack of jurisdiction and violative of Articles 14, 9 and 21 , of the Constitution of lndia apart from contrary to the Tender Notice dt.16.9.2020 and also contrary to the judgment of this Honorale Court reported in 2016 (3) ALD 126 and consequently direct the respo6clents to reject the tenders of Respondents 5 and 6 and appoint the petitioner as the transport contractor of the said Nalgonda Block of Nallonda District as per the said tender notice
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iA NO: 1 OF 2020
Petition under Section 151 CPCpraying that rn thecircumstancesstated in the affidavit filed in support of thepetition, theHigh Court may be pleasedto stay all further proceedings in pursuance of the Tender Notice bearrng Ref No.lVktg/lV2l336lPIClKl,ttSl2020-21, Dt.16.09.2020issued bythe 3rd Respondentto the extent of Nalgonda Block of Nalgonda District,pending disposalof the abovewrit petition
lA NO: 2 OF 2020:
Between:
l//s.lMallikarjun Transpo(, at H.No.4-2-35, Nehru Gunj, Nalagond a-508001 Rep.,by its N/anaging Partner Sri Pallerla Yadagir
PETITIONER/T
AND
Petition under Section 151 CPC praying that in the circumstances stated rn the affidavit filed in support of the petition, the High Court may bepleased to vacate the interim stay granted by this Honorable Court on 21 .10.2020 in l.A. No. 1 of 2020 in WP No.18773 of 2020 in the interest ofjustice
Counsel for the Petitioner: SRI SRINIVAS BOBBILI
Counsel for Respondent Nos. 1, 3 & 4: GP FOR CIVIL SUPPLIES
Counsel for Respondent No. 2: SRI A. JAGAN,
SC FOR TELANGANA STATE CIVIL SUPPLIES CORPORATION
Counsel for Respondent Nos. 5 & 6: SRI B. VIVEKANANDA
WP NO: 21456 OF 2020
Between:
AND
1
Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate writ, order or direction, more particularly one in the nature of Writ of It4andamus declaring (i)Lr.No.lr,tlktg/M21336lPIC1KMS 2020-21 dt.31l10l2O2O and (ii)Lr.No RTO/NLG/Paddy Tenderi2020 d1.711012020 issued by Respondents 3 and 5 respectively and also declaring the aclion of Respondents 2 to 4 in accepting the invalid technical bids of Respondents 6 and 7 and taking steps to appoint eilher of them as contractor of Nalgonda Block of Nalgonda District for transportation of Paddy and Gunnjes under Tender Notice bearing Ref . No. Mktg/N/2/336/PTC/KIVS/ 2020-21 , d|.161912020, as illegal, unlust, arbitrary, discriminatory, vitiated by mala fides, suffers f rom lack of jurisdiction and violative of Articles 14, 19 and 21 of the Constitution of lndia apart from contrary to the Tender Notice dt.16/9/2020 and contrary to thejudgment reported in 2016 (3) ALD 126 and consequently set aside the impugned proceedings di.31l1Ol2O20 and 711012020 and direct Respondents 2lo 41o reject the tenders of Respondents 6 and 7 and appoint the petitioner as the transport contractor of Nalgonda Block
lA NO: 1 OF 2020
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may bepleased to direct the Respondents not to appoint Respondents 6 and 7 as contractor of Nalgonda Block of Nalgonda District for transportation of Paddy and Gunnies by suspending the impugned (i)Lr.No l,4ktg/lV2l336lPrd K[/S 2020-21 d|.3111012020 and (ii)Lr.No,RTO/ NLG/Paddy Tenderl2020 d|.711012020 issued by Respondents 3 and 5 respectively, pending disposal of the above writ petition
Counsel for the Petitioner: SRI SRINIVAS BOBBILI
Counsel for Respondent Nos. 1, 3 & 4: GP FOR CIVIL SUPPLIES
Counsel for Respondent No. 2: SRI A. JAGAN,
SC FOR TELANGANA STATE CIVIL SUPPLIES CORPORATION
Counsel for Respondent No. 5: GP FOR TRANSPORT
Counsel for Respondent Nos. 6 & 7: SRI B. VIVEKANANDA
The Court made the following: COMMON ORDER
HON'BLE SRI JUSTICE A.RAJASHEKERREDDY
W.P.Nos.17934, 19708, 2O82O,18676, 18773 and 21456 of 2O2O
COMMON ORDER:
Since the issue involved in a1l these writ petitions is one and the same, they are being disposed of by way of this Common Order. In al1 these writ petitions, the petitioners are basically challenging the tender process and ar,r,ard of contracts on tl-re ground that the respondent Corporation has violated the tender conditions
2.W.P.No.17934 of 2O2O
This writ petition is iiled declaring the action of the 3"r respondent-Additional Collector (Civil Supplies) at Nagarkurnool Nagarkurnool District, in opening linancial bids prior to openrng and scrutinizing of Technical bids in respect of E-tender issued b1' the 2nd respondent on 15.09.2O2O vide No.Mktg/Padd"vTenders 12020 for appointment of Contractors for transportation of Paddy and Gunnies and declaring the lorvest bidder in Financial Bids as successful bidder, AS il1egal and arbitrary and consequently to set aside the same.
It is the case of the petitioner that pursuant to the impugned tender notification, the petitioner applied for tender u,ork, but the respondent-Corporation without opening the technical bid, opened the linancial bid and awarded the contract to L 1 , n,ho does not have his own vehicles and the vehicles shou,n in his tender form are not owned by him and that L1 bidder is ineligible to get the contract, but he was awarded with the tender work.
Counter affidavit is filed by the 3,d respondent denying the averments in the affidavit filed in support of the writ petition stating that unless the technica,l bid is opened, they will not open the financial bid and that they have opened the technical bid on 25.09.2O2O at about 1.15 p.m and after completion of eva,iuation, financial bid was opened at 4.06 pm. The successful bidder filed a lease deed from its original owner, as such, any disputes between the owner and the successful bidder would workout in appropriate forum. It is stated that the petitioner quoted 7 9'/o and the lowest successful bidder quoted 49%.
Rep11, affidavit is filed by the petitioner clenying the averments in the counter affidavit filed bi, the 3'a respondent.
Learned Standing Counsel . for the respondent Corporation submitS that the contract was awarded to the lowest tenderer i.e., L1 after opening of both the technical and financial bids. He submits that the person in whose favour contract was awarded has not been made party to the writ petition.
This rr",rit petition is fiied seeking writ of mandamus declaring the action of the respondent Nos.2 and 3 in granting Contract Tender in favour of 5th respondent for transportation of paddy and guinnies as entrusted by the 2"d respondent under Paddy Procurement Operations from various paddy purchase centers for the period from 01. 10.2020 to 30,09,2021 , even though the 51h respondent has violated the rules and guidelines issued for Tenders, in violation of clause 7(e) of the tender conditions and for consequential directions.
It is the case of the petitioner that inpursuance to thee- notification issued by the 3.d respondent dated16.09 .2O2O, lhe petitioner and Sth respondent applied to the same. The petitioner came to know that the representative of Sth respondentalready filed tender for Stage-2, Hayathnagar on 22.09.2020 onbehalf of 6th respondent, even though he is not eligible to file a tender as per Clause No.7(e) of Annexure-V of terms and conditions of the Tender. Even though the petitioner filed representation dated 26.09.2020, the same has not been considered by the respondents 2 and 3.
The 4tn respondent filed counter denying the averments in the affidavit filed in support of the writ petition stating that the1,have followed the terms and conditions of the tender notification, in conducting the tender process.
This writ petition is filed seeking writ of mandamus declaring the proceedings bearing Lr.No.Mktg/M2 I 336 IPTC I KMC 2O2O-21, dated 31.10.2O2O issued by the 3rd respondent rejecting the petrtioner's representation dated Ol.IO.2O2O and also for declaring the action of the respondent Nos. 2 to 4 in accepting the invalid technical bid of the 5tn respondent and taking steps to appoint the Sth respondent as contractor .of Chityal Block of Nalgonda District for transportation of Paddy & Gunnies under Tender Notice bearing Ref.No.Mktgl M2 I 336 I WC I KMS l2O2O-21, dated 16.09.2020 issued by the 3.d respondent as illegal and arbitrary and consequently to direct the respondent Nos,2 to 4 to
t
I
reject the tender of the 5rh respondent ald appoint the petitioner as the transport contractor ol the said Chityal Block.
It is the case of the petitioner that in pursuant to the tender notification issued by the 3'd respondent on 16.09.2O2O, the petitioner participated in the tender process along with 5th respondent. After completion of the process of opening financial bids, it came to that the Sth respondent's technical bid is invalid and it is in contravention of the tender conditions, as such, the technical bid of the 5th respondent is liable to be rejected. However, the respondents 2 to 4 illegally accepted the invalid technical bid oI 5th respondent and are taking steps to appoint Sth respondent as Contractor of Chityal Block of Nalgonda District. Though the petitioner made representation dated 01.10.2020 informing the 3.r respondent about non submission of registration certificate by the $tt respondent, no action is being taken. The 3.a respondent issued impugned proceedings dated 31 .10,2020 rejecting the petitioner's representation dated 0l.lO.2O2O. S.W.P.No. 18676 of 2O2O
This writ petition is filed seeking writ of mandamus declaring the action of the respondent Nos. 2 to 4 in accepting the invalid technical bid of the 5th respondent and taking steps to appoint the Sth respondent as contractor of Chityal Block of Nalgonda District for transportation of Paddy & Gunnies under Tender Notice bearing Ref.No.MktglM2 I X6 lmC I KMS l2O2O-21, dated 16.09.2020 issued by the 3.d respondent as i11ega1 anci arbitrary and consequently to direct the respondents to reject the
tender of the stl respondent and appoint the petitioner as the transport contractor of the said Chityal Block.
It is the case of the petitioner. that in pursuance to the e- tender notice issued by the 3.d respondent dated 16.09.2020, for appointment of contractors for transportation of padd1, & gunnies as entrusted by TSCSCL, the petitioner along with sth respondent submitted bids. As per the tender schedule, the respondents 2 to 4 opened all the technical bids submitted bv the bidders on 25.09.2020 at 12.00 and declared that a1l the bidders have qualified at the technical bid stage and that they have also opened financial bids on the same day at 8.00 p.m. Subsequentlr,, the petitioner came to know that the technical bid submitted by the Sth respondent is invalid and the same is liable to be rejected. Though the petitioner made representation dated Ol .lO.2O2O informing the 3.d respondent about non submission of registration certificate by the $tt respondent, no action is being taken. The 3.4 respondent issued impugned proceedings dated 3l .lO.2O2O rejecting the petitione5's representation dated 01. 10.2020.
Counter affidavit is filed by the 4th respondent denying the averments in the affidavit filed in support of the writ petition stating that the Sth respondent's firm had already been registered in the year 2019. The representation of the petitioner dated O1.IO.2O2O was considered and rejected the same on 3l.lO.2O2O rvhile answering the objections of the petitioner in detail. It is also clarified that Memorandum of acknowledging the receipt ol documents can be treated as firm registration certificate. Since
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the 5,t respondent has fulfilled all the tender conditions, the contract was rightly awarded in his favour.
This writ petition is filed seeking writ of mandamus declaring the action of the respondent Nos. 2 to 4 in accepting the invalid technical bid of the respondents 5 & 6 and taking steps to appoint the respondents 5 & 6 as contractor of Nalgonda Block of Nalgonda District for transportation of Paddy & Gunnies under Tender Notice bearing Ref.No.Mktgl M2 I 336 I PTC IKl|/rS I 2O2O-21, dated 16.09.2020 issued by the 3'd respondent as illegal and arbitrary and consequently to direct the respondents to reject the tender of the respondents 5 & 6 and appoint the petitioner as the transport contractor of the said Nalgonda Block of Nalgonda District.
It is the case of the petitioner that in pursuance to the e- tender notice issued by the 3'd respondent dated 16.09.2O2O, for appointment of contractors for transportation of paddy & gunnies as entrusted by TSCSCL, the petitioner along with sth and 6th respondents submitted bids. As per the tender schedule, the respondents 2 to 4 opened all the technica-l bids submitted by the bidders on 25.O9.2020 at 12.00 and declared that al1 the bidders have qualilied at the technical bid stage and that they have also opened financial bids on the same day at 8.00 p.m. Subsequently, the petitioner came to know that the technical bid submitted by the respondents 5 & 6 are invalid and the same is Iable to be rejected. Though the petitioner made representation dated 01. 10.2020 informing the 3'd respondent about non
1
no submission of registration certificate by the 5tt' respondent, action is being taken
The Str, respondent filed counter denying the averments in the affidavit filed in support of the n,rit petition stating that the objections raised by the petitioner have been considered by the tender committee and thev have come to a conclusion that the said objections raised bv the petitioner are u,ithout any merit and sought for dismissal of the writ petition
7.W.P.No.21456 of 2O2O
This writ petition is filed seeking writ of mandamus declaring (i) Letter No.Mktg/M2 1336 IPTCIKMS 2O2O-21, dated 3t.lO.2O2O & (ii) Lr.No.RTO/NLG/Paddy Tenderl2O2O, dated 07.10.2020 issued by the respondent Nos.3 & 5 respectivelv and also declaring the action of the respondents 2 to 4 in accepting the invalid technical bids of respondent Nos. 6 & 7 and taking steps to appoint either of them as contractor of Nalgonda Block of Nalgonda District for transportation of Paddy & Gunnies under Tender Notice bearing Ref.No.Mktgl M2 I 336 I YI'C I KMS I 2020-21, dated 16.09.2020 as illegal and arbitrary and consequently to set aside the impugned proceedings dated 3l .lO.2O2O and 07 .1O.2O2O and direct the respondent Nos. 2 lo 4 to reject the tenders of respondent Nos.6 & 7 and appoint the petitioner as the transport contractor of Nalgonda B1ock.
It is the case of the petitioner that in pursuance to the e- tender notice issued by the 3.d respondent dated 76.09.2020, lor appointment of contractors for transportation of paddy & gunnies as entrusted by TSCSCL, the petitioner along with respondents 6
S
& 7 submitted bids. As per the tender schedule, the respondents 2 to 4 opened all the technical bids submitted by the bidders on 25.09.2020 at 12.00 and declared that all the bidders have qualilied at the technical bid stage and that they have also opened financial bids on the same day at 8.00 p.m. Subsequently, the petitioner came to know that the technical bid submitted by the 6th and 7th respondents are invalid and the same is liable to be rejected. Though the petitioner made representation dated Ol.lO.2O2O informing the 3.a respondent about non submission of firm registration certificate by the respondents 6 & 7, no action is being taken. The 3.a respondent issued impugned proceedings dated 31. lO.2O2O rejecting the petitioner's representation dated 01. 10.2020.
f . in all these writ petitions, the petitioners are mainly challenging the award of tenders in favour of unofficia-l respondents on the allegations that the successful bidders have not lulfilied the eligibility criteria as per the terms and conditions laid dor.r,n in the impugne d tender notice. It is also alleged that even though some of the unofficial respondents have notproduced
I
the firm registration certificates, those who are inefigible and disqualified, have also participated in the tender process and that they have been awarded the contracts.
t0
not be required in the present case, since there exists an arbitration Clause i.e., Clause No. 47 in the tender notification at page 35, u,hich reads as follou,s:
"47. Arbitration:
Any dispute arising out of this tender shall be resolved as per the Arbitration and Conciliation Act, 1996, duiy nominated Arbitrator b_y the VC & Managing Director, TSCSCL,"
i 3. No doubt, coun sel appearing for the petitioners submits that existence of arbitration clause will not come in the u,av of this Court's inherent extraordinary jurisdiction in entertaining the writ petitions under Article 226 of the Constitution of India, but the question IS why this Court should entertain the writ petitions, rvhen there is efficacious alternate remedy is available to the writ petitioners by u,ay of arbitration clause contained in the tender notification. It is well settled law that there is no bar in entertaining the writ petitions, even when there exists arbitration clause in the tender notification. However, it is the prerogative jurisdiction of this Court under Article 226 of the Constitution of lndra to entertain or not to entertain writ petition, when effectirre efficacious alternate remedy is available. For the sake of convenience. Arttcle 226 of the Constitution of India reads as follorvs:
(2) The power conferred by clause ( I ) to issue directions, orders or r.vrits to any Government, autholity or person rnay also be exercised by any Higli Court exercising jurisdiction in relation to the teritories withrn which thc cause ol action, wholly or in part, arises for the exercise of such power,
ll
notwithstanding that tirc seat of sttch Covel'ntnent or authority orthc residence of such person is not within those teritories
Q)Where any party againstwhoman interimorder, whetherby way ol' injunction or stay or in any other manner, is tnade on. or it.i any procectlings relating to, a petition under clause ('l ), without (4) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being hearcl, makes an application to the High Court for the vacation of such order a:rd furnishes ir copy of such application to the party in whose f'avour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so fumished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterr.r,ards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry ofthe aid next day, stand vacated
(!) The power conferred on a High Court by this article shall not be in derogation of the pou,er conferred on the Supreme court by c)ause ( 2 ) of Article 32
"46. Laws Coverning the Contract & Dispute Resolution
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(i) The contract will be governed by the laws of India for the time being in force.
(ii) In case of any dispute arising out of and touching upon the contract, the decision of the VC & Managing Director, TSCSCL will be final and binding on the Tenderers. If any disputes remain thereafter, the same will be settled in the Court of Law having competent jurisdiction."
"arbitration agreement" means an agreementreferred toin Section 7.
rl
Section 7 of the Act reads as follor,vs:
7 Arbitration agreement. --
(Q ln this Part, "arbitration agreement" rneans an agreement b1, the parties to submit to arbitration all or certain disputes which have arisen or which may arise between therr in respect of a defined legal relationship, whether contractual or not.
Q)An arbitrationagreementmay be in the lom of an arbitration clause in a contract or in the form ofa separate agreernent.
(3) An arbitration agreelrrent shall be in writing.
(4) An arbitration agreement is in rvriting if it is contained in-
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegratns or other ttteans of telecommunication which provide a record ol the agreelnent: or
(c) an exchange of staterrents ol claim ancl'defence in rvhich the existence of the agreernent is alleged by one party arrd not deniecl by the other.
(!) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreelnent if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.
I..1
b5' the respondent Corporation inviting tenders and it is implied on the part of the petitioners and unofficial respondents that they have accepted all the documents and tender conditions and it is also presumed that they are well aware of the Clause 47 of the tender conditions. Being aware of Clause 47, th,ey have offered their bids in response to the tender notification, as such, any dispute arising out of tender process, whether it is before the aw'arding of contract or after conclusion of the same, the same can be referred to arbitrator, as per the said clause.
1 B. Now, it is to be seen whether this Court can entertain the u,rit petitions and grant relief, when there exists arbitration clause in the tender documents. It is well settled law that existence of alternate remedy cannot be a bar for entertaining the writ petition. There ls no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universa-l application. The rule of exclusion of writjurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a r,vrit court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are whol1y without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar.
15
(See M.P.State Agro Industries Developrnent Corporation Limited v. Jahan Khanl). It is always discretion of this Court to entertain or not to entertain writ petition, which is in the nature of self imposed restriction. In the present case whether Court is of the opinion that factual matrix is required to be adjudicated by proper forum, as disputed questions of fact, which are to be resolved in the process, after hearing parties, after considering the nature of allegations made, this Court is of the considered opinion that the petitioners have to be relegated to alternate remedy by r,vay of arbitration in terms of clause 47 of the tender conditions. 19. Though the learned counsel for the petitioners have reliecl on thej udgments reported in Tulip I.T.Services Limited v. Punjab National Bank reported 1n [2Oo4 l2l ARBLR 447 Delhi] and Managing Director, West Bengal Dairy and Poultry Development Corporation Limited v. Jayanti Bose {LAWS (CAL) 2018 4 3l.l of Calcutta High Court. The Delhi High Court has not dea-lt with the definition of arbitration agreement contained in Section 2(g) rl'.r Section 7 of the Act, as such, I am not in agreement r;r,it the same, with great respect. Similarly, judgment of Hon'ble Supreme in reported in M/s. PSA Mumbai Investments PTE Limited v. The Board of Trustees of the Jawaharlal Nehru Port Trust and another (Civil Appeal No.9352 of 2018) and West Bengal Dairy and Poultry Development Corporation Limited v. Jayanti Bose (supra) har.,e not dealt with similar arbitration clause, as in the present case, AS such, the same are not applicable to the facts and circumstances of the present case on hand.
r(ZOOZ) lO Supreme Coun Cases 88
l6
In view of above facts and circumstances, Ido notsee any merit in the writ petitions and accordingly,the same are dismissed. There shall be no order as to costs'As a sequel thereto, miscellaneouspetitions, ifany, pendingsha1l stald dismissed.
SD/-N.CHANDRA SEKHAR RAO ASSISTANT REGIS
,TRUE COPY//
SECTI OFFICE R
To,
l/BC qr-i
9
HIGH COURT
DATED: 0711212020
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"19 t}Ec ?$20 c') l
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Pi.T
COMMON ORDER
WP NOS: 17934,19708, 20820,18676, 18773 AND 21456 0F 2020
DISMISSING THE WRIT PETITIONS
WITHOUT COSTS
S:U <sup>c-oi) "\ a{l/2 )rrr\
2 issues framed by the court
Did the tender's arbitration clause cover disputes arising before a concluded contract?
Should the Court entertain tender challenges involving disputed facts when arbitration was available?
Colour shows how this judgement treated each authority
M.P.State Agro Industries Developrnent Corporation Limited v. Jahan KhanRelied on¶227
M.P.State Agro Industries Developrnent Corporation Limited v. Jahan Khanl
Tulip I.T.Services Limited v. Punjab National BankDissented from¶227
Tulip I.T.Services Limited v. Punjab National Bank reported 1n [2Oo4 l2l ARBLR 447 Delhi]
Managing Director, West Bengal Dairy and Poultry Development Corporation Limited v. Jayanti BoseDistinguished¶227
{LAWS (CAL) 2018 4 3l.l
M/s. PSA Mumbai Investments PTE Limited v. The Board of Trustees of the Jawaharlal Nehru Port Trust and anotherDistinguished¶227
(Civil Appeal No.9352 of 2018)
4 provisions across 2 enactments
A. IV. Swamy
State of Telangana
Telangana State Civil Supplies Corporation
The Additional Collector (Civil Supplies), at Nagarkurnool
Sri Navadurga Enterprises
Sri Sai Baba Lorry Transport
A. RAJASHEKER REDDY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
