IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SECOND DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.17087 of 2009 Between: M.C. Anki Reddy ..... PETITIONER AND The Engineer-in-Chief, Panchayat Raj Department, Kadapa and three others ..... RESPONDENTS ORDER: Heard Sri G. Ramachandra Reddy, the learned counsel representing the writ petitioner, the learned Assistant Government Pleader for Panchayat Raj representing respondents 1 to 3 and Sri A. Bhaskara Chari representing respondent No.4. 2. The writ petition is filed seeking a writ of Mandamus to direct the respondents to award the work with “Package No.A.P.VI 04 21 Koilakuntla – Jammalamadugu Road 28/0 to A.Kambaladinne” to the petitioner pursuant to the agreement entered with No.07/2007- 2008 dated 20-07-2007 by revising the rates as per SSR 2008-09 and by declaring the action of respondents in calling for fresh tenders as illegal and arbitrary and pass such other suitable orders. 3. Several facts had been made in the affidavit filed in support of the writ petition. Counter-affidavits had been filed and a reply affidavit also had been filed. 4. The fourth respondent filed W.V.M.P.No.3323 of 2009 to vacate the interim order. 5. This court ordered notice before admission on 20-08-2009 and further observed that any finalization to be made would be subject to the further orders passed in the present writ petition. This court issued rule nisi on 05-10-2009. 6. That the case of the writ petitioner that he is the Class-I Contractor and got eligibility to tender for the work of “Package No.A.P.VI 04 21 Koilakuntla – Jammalamadugu Road 28/0 to A. Kambaladinne”. The said work along with other works were notified and the petitioner submitted his tender for the said road work. The estimated cost for the said work was fixed as 203.74 lakhs based on SSR rates of 2006-07. The petitioner quoted 4.05% less than the estimated cost i.e., Rs.1,77,52,182.33/-. The tenders were finalized and the work was awarded to the petitioner. Even agreement was entered into with No.07/2007-08 on 20-07-2007. In the said agreement, it is stipulated that, the work had to be completed within 12 months and the time is the essence of the contract. Pursuant to that agreement, the petitioner mobilized men, equipment and material to commence the work from 01-09-2007. At that stage, to the surprise of the petitioner, the agreement was terminated by the second respondent in his proceedings No.AE1/PMGSY-VI-04-21/2007 dated 27-08-2007, on the ground that, the road for which work is proposed is under the control of the Roads and Buildings Department and as such Panchayat Raj Department had no power to entertain the same. The petitioner, after receipt of the said proceedings, made representation on 22-09-2007 requesting to withdraw the said termination proceedings. When there is no response for the said representation, the petitioner got issued legal notice dated 22-01-2008 and the same is even received by the respondents 2 and 3 herein. Even for that, there was no response and as such the petitioner filed suit O.S.No.15 of 2008 on the file of the II Additional District Judge, Proddatur seeking a declaration that the proceedings of termination of the agreement dated 27-08-2007 as arbitrary, void and illegal and for settlement of claims. In the said suit the respondents 2 and 3 made their appearance and sought time for filing written statement. While so, the petitioner came to know that, the Roads and Buildings Department has entrusted the very same road works to Panchayat Raj Department. After knowing the same, the petitioner made a representation on 13-11-2008, requesting the second respondent to entrust the said work to him based on the already executed agreement but at the SSR rates of 2008-2009. It is stated that without responding to the said representation, when the respondents in a deceitful and secret manner wanted to invite fresh tenders, the petitioner immediately moved an I.A.No.311 of 2009 in O.S.No.15 of 2008 and obtained temporary injunction on 30-03-2009, restraining them from calling for tenders and receiving them till 05-06-2009. It is pertinent to mention that, the respondents have not disclosed their intention to go for fresh tenders either in written statement or in the counter. As such, the petitioner is kept in dark about the process of calling for fresh tenders and created an impression that, pending suit, they are not resorting to the same. 7. It is also the case of the petitioner that the respondents on one hand taking time in the suit and I.A. for filing their written statement and counter, on the other hand initiated the proceedings for calling for fresh tenders, which is contrary to law, yielding to political pressure to achieve their ulterior motives. It is stated that when the I.A. came up for hearing on 08-07-2009, the respondents conceded for early disposal of the main suit and on that consideration the I.A. is dismissed. Now taking advantage of the same, the respondent instead of waiting for the result of the suit, proceeding with inviting tenders afresh. In furtherance of the said action, the respondents have published a notification calling for tenders for the very same work with same estimate cost in “SAKSHI” daily news paper on 28-01-2009. By the time petitioner came to know of the same the process had already commenced and he could not participate in the same. It is stated that the action of the respondents in inviting the tenders for the very same work which agreement was also executed and when the matter is sub- judice is arbitrary and illegal. 8. It is further stated that the respondents after due process, have entrusted the work and even entered into agreement. The agreement was terminated, on a pretext that the said works come under the Roads and Buildings Department purview. After the termination, now again invited tenders for the same work by the Panchayat Raj Department on a pretext that the work is transferred to it. It is stated that the whole process is only to avoid the petitioner and entrust the same to the party, in which the respondents have vested interest. Having entered the agreement the respondents have adopted the novel method of showing that they have no power and again after termination calling for tenders afresh. Thus, there are no bonafides on their part. It is stated that if the work is entrusted to the third party i.e., fourth respondent by entering into an agreement, the petitioner would suffer irreparable injury, loss and hardship. In such circumstances, the writ petitioner approached this court by filing the present writ petition. 9. In the counter-affidavit filed by the second respondent it is stated that it is true that the petitioner is Class-I Contractor and got eligibility for participating in tender for the work of “Package No.APVI0421 Koilakuntla – Jammalamadugu Road 28/0 to A.Kambaladinne”. The said work along with other works were notified and the petitioner submitted his tender for the said road work. The estimated cost for the said work was fixed at Rs.203.74 Lakhs based on SSR rates of 2006-07. The petitioner quoted 4.05% less than the estimated cost i.e., Rs.1,77,52,182=53. The tenders were finalized and the work was awarded to the petitioner and agreement was entered into with the petitioner vide CR Agreement No.07/2007-08 dated 20-07-2007 of the Superintending Engineer, Panchayat Raj, Kadapa duly fixing 12 months time for completion of work i.e., on or before 19-07-2008. Though the agreement was entered on dated 20-07-2007, the petitioner had not executed any work till 25-08-2007, in-spite of the site had been handed over to the petitioner. 10. It is further stated that the Engineer-in-Chief, R&B in its letter dated 22-08-2007 informed the first respondent herein that the laying of road which is a subject matter of agreement No.7/2007-08 dated 20-07-2007 with the petitioner is under the control of R & B Department and advises not to take up any work on this road. Accordingly, the agreement entered with the petitioner was cancelled by a letter dated 27-08-2007. Challenging that, the petitioner herein filed a suit in O.S.No.15/2008 on the file of the II Additional District Judge, Kadapa at Proddatur praying that: a. The court may be pleased to pass decree declaring the impugned proceedings No.AE1/PMGSY-VI-04-21/2007, dated 27-08-2007 issued by the second defendant, as arbitrary, void and illegal. b. That the court may be pleased to pass decree against the defendants, directing them to pay Rs.78,34,300/- (Rupees seventy eight lakh thirty four thousand and three hundred only) to the plaintiff towards settlement of claims specified in plaint para No.XI. c. That interest be awarded @ 18% per annum on the claims allowed by the court till realization. d. That to award costs of the suit to the plaintiff; and e. That to grant such other better relief/s in favour of the plaintiff, which the Court may deem fit and just and proper under the circumstances of the case. 11. Further it is stated that a written statement had been filed in the suit denying all the contentions raised by the petitioner and the suit is pending for adjudication. 12. It is also stated that on re-transferring of the road to the Panchayat Raj Department, a fresh tender had been called for on 21-01-2009 and on administrative grounds, a revised tender was published on 19-03-2009 in “SAKSHI” & “DECCAN CHRONICLE” newspapers by fixing the last date of tenders as 30-03-2009. At this juncture, the petitioner herein filed I.A. in the pending suit on the file of the II Additional Judge, Kadapa at Proddatur wherein the learned II Additional Judge was pleased to pass an order as “the respondents herein restrain from calling tenders and receiving tenders till 05-06-2009” in compliance of the order passed by the learned II Additional District Judge, Kadapa at Proddatur. Though the tenders were received by 30-03-2009 but the processing had been stopped. After filing a counter Affidavit in I.A.No.311/2009 in O.S.No.15/2008, the II Additional District Judge, Kadapa at Proddatur was pleased to dismiss the I.A.No.311/2009 on 08-07- 2009. 13. It is further stated that the petitioner had submitted a letter on 13-11-2008 questioning the respondents to allot the very same work in the current SSR rates rating his earlier tender which was not accepted. In fact, the petitioner after cancellation of the agreement, EMD deposit and insurance which was remitted at the time of filing tender and entering into an agreement was returned to the petitioner by registered post and the same had been acknowledged by the petitioner. 14. Further it is averred that though the revised tender notification was published in two (2) widely circulated newspapers i.e., “SAKSHI” and “DECCAN CHRONICLE” on 19-03-2009 by fixing the date as 30-03-2009, though the petitioner had ample time to submit his tender, but he did not choose to file his tenders which shows that he is not interested in execution of work. One M/s.Hindustan Engineering and Syndicate Company had filed the tenders in pursuance to the tender notification dated 19-03-2009. Since he was the sole tenderer, the tender was confirmed in his favour and a letter of acceptance was issued to the sole tenderer on 30-07-2009 and asking him to enter into the agreement on 20- 08-2009 and complete the work within a period of 12 months from the date of agreement. In pursuance of the agreement, the work had been started. 15. It is also stated that it is clear that the petitioner having acknowledged the EMD and insurance wants to drag on the issue on some or the other pretext and it is also clear that though the petitioner had ample time to participate in tenders, he did not choose to do so and hence, the writ petition is dismissed. 16. In the counter-affidavit filed by the fourth respondent it is stated that it is true that the work “Package No.APVI0421 Koilakuntla – Jammalamadugu Road 28/0 to A.Kambaladinne” was awarded to petitioner and agreement was also entered into on 20- 07-2007 and the work had to be completed within 12 months period. The site had been handed over to the petitioner, but the petitioner did not execute any work till 25-08-2007. In the meanwhile, the Engineer-in-Chief, R&B in its letter dated 22-08- 2007 informed the first respondent herein that the laying of road which is a subject matter of agreement entered into with the petitioner herein is under the control of R&B Department and advised not to take up any work on this road. Consequently the agreement entered into with the petitioner was cancelled by letter dated 27-08-2007 and the same had become final. 17. It is further stated that the petitioner filed suit in O.S.No.15/2008 on the file of the II Additional District Judge, Kadapa at Proddatur seeking to pass decree declaring the proceedings of cancellation of agreement dated 27-08-2007, as arbitrary, void and illegal, and further sought for to pass decree directing to pay Rs.78,34,300/- to the petitioner towards settlement of claims and award of interest etc., and the said suit is pending. 18. It is also averred that the said road was re-transferred to the Panchayat Raj Department and a fresh tender had been called for on 19-03-2009 in “SAKSHI” and “DECCAN CHRONICLE” newspapers by fixing the last date of tenders as on 30-03-2009. It is further stated that at this stage the petitioner filed I.A.No.311 of 2009 in the pending suit and the learned Judge passed an order restraining the official respondents from calling tenders and receiving tenders till 05-06-2009 and subsequently the said I.A.No.311 of 2009 was dismissed on 08-07-2009. 19. Further it is stated that the tenders were called for in two widely circulated newspapers and the petitioner did not choose to file tenders and on the other hand the fourth respondent herein submitted tenders in pursuance of the tender notification and the tender of the fourth respondent was accepted and confirmation letter dated 30-07-2009 was issued to this respondent and agreement was entered into on 20-08-2009. The work is to be completed within 12 months and in pursuance of the agreement the work had been started by this respondent. 20. It is also stated that the petitioner filed this writ petition seeking to issue writ of Mandamus directing the official respondents to award work with “Package No.APVIO421 Koilakuntala – Jammalamadugu Road 28/0 to A.Kambaladinne” to the petitioner pursuant to the agreement dated 20-07-2007 etc. It is stated that the agreement dated 20-07-2007 entered into with the petitioner was admittedly cancelled by proceedings dated 27-08- 2007 and therefore, there is no agreement in existence and therefore, the petitioner had no legal right to get the cancelled agreement enforced through process of law. It is also an admitted fact that the petitioner had filed suit for declaration of cancellation of agreement as arbitrary etc., and sought for direction to pay Rs.78,34,300/- to the petitioner towards settlement of claims and award of interest etc., and the said suit is pending. Therefore, the cancellation of agreement entered into with the petitioner has become final. Therefore, the writ petition filed seeking to award work in pursuance of the cancelled agreement itself is not maintainable and is liable to be dismissed in limini, since there is no cause of action. 21. It is further averred that this court was pleased to pass interim order dated 20-08-2009 as follows “Any finalization to be made would be subject to the further orders to be passed in the present writ petition”. The petitioner taking advantage of this order trying to influence the Official Respondents and also trying to interfere with the execution of work by the fourth respondent and the fourth respondent had to complete the work within 12 months. Therefore, unless this court is pleased to vacate the interim order dated 20-08-2009 the fourth respondent herein will be put to irreparable loss, hardship and injury. 22. A reply affidavit had been filed again reiterating the stand taken in the affidavit filed in support of the writ petition. It is averred in para No.3 of the reply affidavit that it is admitted by the fourth respondent that the very same work, which is now entrusted to him had once allotted to the petitioner. It is also admitted that the time given for completion of 12 months. It is not true and it is not for fourth respondent to say that the petitioner had not commenced the work till 25-08-2007. It is stated that the fourth respondent had admitted that, the fresh tenders are called for same work on 19-03-2009. It is stated that, by the date, the suit O.S.No.15/2008 on the file of the II Additional District Judge, Kadapa is pending. Even the petitioner moved an I.A.No.311 of 2009 in the said suit, praying for restraining the respondents therein and who are respondents in the present writ petition from allotting the work in favour of third parties. The I.A. is moved on 03-03-2009 and notice was taken on 03-03-2009 by the Assistant Government Pleader on behalf of respondents and took time for filing counter. After giving sufficient time, I.A. was ordered on 30-03-2009. It is stated that without filing counter in I.A. in order to frustrate the I.A. proceedings, called for the fresh tenders on 19-03-2009, fixing the last date for finalization of tenders as 30-03-2009. This clearly shows the malafide action of respondents 2 and 3 to favour the fourth respondent. It is stated that the second respondent herein filed counter in the IA subsequently in June, 2009 and concealed about the issuance of notification calling for tenders on 19-03-2009 but stated that the same was called for on 22-01-2009. This shows, the second respondent in collusion with fourth respondent to allot work to him and to avoid the petitioner. It is stated that even the fact that, tenders were called for on 19-03-2009 is also concealed to the court below and mislead the court from passing immediate orders. Finally court passed orders restraining the respondents in IA not to allot work to any third party on 30-03-2009. It seems pursuant to the said orders, the respondents stopped finalization of tenders. When the I.A. came up for hearing, the IA is dismissed on condition that suit will be disposed of within six months. As the said order is a consent order, the petitioner is under impression that, the respondents would not initiate any action detrimental to the interest of the petitioner. It is stated that contrary to same, when petitioner came to know that, the respondents are taking steps to finalize tenders, he approached this court by way of present writ petition. The said writ petition came up for admission on 19-08-2009 and at the request of the other side to get instructions, the matter is adjourned to 20-08-2009. On 20-08-2009 order is passed saying any confirmation to be made would be subject to the further orders to be passed in the writ petition. It is stated that the respondents are aware of the writ proceedings and once again in order to avoid court orders, the respondents colluded with each other and entered into agreement with fourth respondent on 20-08-2009. It is stated in the counter the fourth respondent though averred that, he had not commenced the work in view of the orders passed by this Court, in fact he had commenced the work. It is stated that the averment made in the counter that this petitioner is interfering with the execution of work is blatant lie. It is stated that on one hand, he states that he had to start work and on the other hand, he states that the petitioner is interfering in the execution of work. It is stated that the respondents have colluded with each other and even mislead the courts to benefit the fourth respondent and want to frustrate all proceedings pending before the courts. 23. In the light of the nature of the relief prayed for and also the respective stands taken by the parties as can be seen from the averments made in the affidavit filed in support of the writ petition and the averments made in the counter-affidavit and also the averments made in the reply affidavit as well inasmuch as a suit already had been instituted in relation thereto, since the writ petition is not having any enforceable right as such for the purpose of maintaining the writ petition at present liberty is given to the writ petitioner to pursue his remedies, in accordance with law, even otherwise if he so advised. But as far as the relief prayed for in the writ petition is concerned, the same cannot be granted. 24. In the light of the same, the writ petition is dismissed. There shall be no order as to costs. ___________________ P.S. NARAYANA, J December 22, 2009. PN THE HON'BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.17087 of 2009 December 22, 2009