HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY W.P.Nos.20669 and 23791 of 2009 Date : 30-6-2011 W.P.No.20669/2009 Between: M/s.Sri Changalamma Constructions, represented by its Managing Partner Venati Ramachandra Reddy and others ..Petitioners and State of Andhra Pradesh, represented by its Principal Secretary, Roads and Buildings Department, Secretariat, Hyderabad and others ..Respondents W.P.No.20669/2009 Counsel for petitioner : Sri Mangena Sree Rama Rao for Sri Nimmagadda Satyanarayana Counsel for respondent Nos.1 & 2 : A.G.P. for Roads & Buildings Counsel for respondent No.3 : S.V. Muni Reddy W.P.No.23791/2009 Counsel for petitioner : Sri S.V. Muni Reddy Counsel for respondent Nos.1 & 2 : A.G.P. for Roads & Buildings Counsel for respondent No.3 : Sri Mangena Sree Rama Rao for Sri Nimmagadda Satyanarayana The Court made the following: COMMON ORDER: These two Writ Petitions are connected with each other and they are taken up for hearing and disposal with the consent of the learned counsel for the parties, at the Interlocutory stage. W.P.No.20669/2009 is filed for a mandamus to declare the action of the respondents in not finalizing the work allotted in favour of the petitioner vide proceedings Endt.No.6/AT01/2009-10 dated 21-7-2009 of respondent No.2, as illegal and arbitrary. The petitioner sought for a consequential direction to the respondents to finalise the work in its favour. W.P.No.23791/2009 is filed for a mandamus to direct respondent Nos.1 and 2 to award the contract work relating to improvements to M.C. Road to Kattuvapalli (via) Poolathota road from K.M. 0/0 to 11/8 (Reach from K.M.6/0 to 8/630), R&B Circle, Nellore, to him forthwith by declaring the action of respondent No.2 in not rejecting the tender of respondent No.3 as illegal and arbitrary. For convenience, the parties are referred as they are arrayed in W.P.No.20669/2009. In pursuance of the tenders called for by respondent No.2, the petitioner and respondent No.3 have filed their respective tenders for the above mentioned work. The petitioner has offered Rs.39,36,,447/- and respondent No.3 has offered Rs.41,70,469-20 ps. Accordingly, the petitioner was declared as the lowest tenderer (L1) and respondent No.3 has become L2. Respondent No.2 has issued letter Endt.No.6/ATO1/2009-10, dated 21-7-2009 informing the petitioner that its tender for Rs.39,36,447/- being the lowest, is accepted and requiring the petitioner to attend the office of respondent No.2 on or before 4-8-2009 by complying with all the necessary formalities for entering into an agreement. As the agreement was not entered into, the petitioner filed W.P.No.20669/2009. Respondent No.3 filed W.P.No.23791/2009 assailing the action in not entrusting the work to him on the ground that the petitioner was disqualified for producing a fake VAT clearance certificate. In the counter-affidavit filed in W.P.No.20669/2009, respondent No.2 admitted that the petitioner, having offered Rs.39,36,447/-, has become L1 and respondent No.3 who offered Rs.41,70,469-20 ps., has become L2. He has further stated that as per communication dated 21-7- 2009 issued by him, the petitioner shall enter into the agreement on or before 4-8-2009 by producing the required EMD, hard copies of documents etc. That on respondent No.3 giving a complaint that the petitioner has produced a false VAT clearance certificate, respondent No.2 has addressed letter dated 29-8-2009 to the Assistant Commercial Tax Officer, Gudur and also deputed the Assistant Executive Engineer, R&B, Sullurpeta by issuing urgent memo dated 13-9-2009 for obtaining confirmation of VAT clearance certificate produced by the petitioner and that the Commercial Tax Officer, Gudur in his letter dated 17-9-2009 has informed that no clearance certificate was issued from his office to the petitioner. It is further stated that after the petitioner filed W.P.No.20669/2009, in which an interim order of status quo was granted, respondent No.2 has addressed letter dated 8-10-2009 to the petitioner calling for its explanation for producing false VAT clearance certificate and to explain why its tender should not be disqualified. That the petitioner replied to the effect that its staff member by name D.Rama Murthy has submitted the VAT clearance certificate and that the said person died on 14-12-2008. From this explanation, respondent No.2 has construed that the petitioner has accepted the allegation of furnishing false VAT clearance certificate by throwing the blame on its employee who is no more and it has accordingly disqualified the petitioner’s tender. Respondent No.2 has placed reliance on condition Nos.3.4(1) and para- 9(a) and G.O.Ms.No.94, Irrigation and Command Area Development, (Pw-COD) Department, dated 1-7-2003, for disqualifying the petitioner. No reply affidavit is filed by the petitioner, controverting the above averments contained in the counter-affidavit. Since the allegation against the petitioner that it has produced a false VAT clearance certificate stood proved, respondent No.2 is justified in disqualifying its tender in exercise of his powers traceable to the Notice Inviting Tenders (NIT) and G.O.Ms.No.94, dated 1-7-2003. Hence, no exception can be taken to the action of respondent No.2 in this regard. Therefore, I am of the opinion that the petitioner is not entitled to insist on entering into agreement for execution of the work in question. W.P.No.20669/2009 is accordingly dismissed. As regards W.P.No.23791/2009, as respondent No.2 has admitted the offer of the petitioner therein who is respondent No.3 in W.P.No.20669/2009, as the second lowest with the exclusion of the petitioner in W.P.No.20669/2009, respondent No.3 is entitled to award of the contract. In order to save the public exchequer, this court has asked Sri S.V. Muni Reddy, learned counsel for respondent No.3, whether his client is prepared to work at the same rate as offered by the petitioner. The learned counsel fairly conceded that in public interest, his client will undertake the work at the same rate as offered by the petitioner i.e., at Rs.39,36,447/-. This fair gesture of the learned counsel is placed on record and W.P.No.23791/2009 is accordingly allowed with the direction to respondent No.2 to entrust the work to the petitioner therein, who is respondent No.3 in W.P.No.20669/2009, for a sum of Rs.39,36,447/-. As a sequel, interim order dated 20-11-2009 is vacated, WPMP No.26942/2009 is dismissed and WPMP No.30904/2009 is disposed of as infructuous. ________________________ Justice C.V. Nagarjuna Reddy Date : 30-6-2011 AM