IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FOURTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 10986 of 2008 Between: K. Venkateshwar Reddy S/o Ram Reddy r//o H. No. 1-7-493, Revenue Colony, besides Collector's Office Subedari, Hanamkodna, Warangal District. ..... PETITIONER AND 1 project Manager, Information Technology & Communication Department, Secretariat, Hyderabad. 2 Andhra Pradesh Technology Service Ltd., BRKR Bhavan "B" Block, Tank Bund Road, Hyderabad. 3 Superintending Engineer, Panchayat Raj Warangal, Warangal District. 4 Superintending Engineer, Irrigation & Command Development Department, Hyderabad. 5 The State of Andhra Pradesh, Rep. by its Secretary, Irrigation and CAD (PW Reforms) Department, Secretariat, Secretariat Building, Hyderabad. (R5 is impleaded as per Court Order dated 19-09-2008 in WPMP No. 26570/2008) .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue an appropriate Writ, order or Direction, more particularly one in the nature of Writ of Mandamus declaringthe action of the Respondents 1 & 2 in disqualifying the petitioner from participating any tenders on "E- procurement Platform" by disbarrign the petitioner's I-key User ID as being illegal, arbitrary, unconstitutional and in violation of Principles of natural justice and set a side the said action and direct the Respondents to permit the petitioner to participate in tenders on "E-Procurement Platform" without any hindrance/restricitions and to pass such other order or orders. Counsel for the Petitioner: MR.Y.ASHOK RAJ Counsel for the Respondent No.: GP FOR IRRIGATION & COMM AREA DEV. The Court made the following : O R D E R: 1. This Writ Petition has been ﬁled by K.Venkateshwar Reddy with a prayer to issue a Writ of Mandamus declaring G.O.Ms.No.245 I & CAD Department, dated 30.12.2005 issued by Project Manager, Information Technology and Communication Department-1st respondent as illegal, arbitrary and unconstitutional and violative of principles of natural justice. 2. The petitioner is a Class III contractor. He has been carrying out various civil contracts. The Superintending Engineer-3rd respondent issued a tender notice in No.54/SE/PR /WGL/2007-08, dated 17.1.2008 in respect of works pertaining to construction of Cross Drainage works and metalling to link road Mupparam village, Kammaripet, NABARD Cross Roads at Mupparam village of Dharmasagar Mandal of Warangal District. The petitioner submitted tender before the speciﬁed date. As per the tender conditions hard copies of tender documents are required to be submitted before opening of price bid which was scheduled to 18.2.2008. The petitioner submitted his price bid through E- Procurement, but he failed to submit hard copies of EMD. According to the petitioner, he could not submit hard copies since he was pre-occupied with other civil contracts with the Government at the relevant point of time. The tenders were opened on 18.8.2008. The price bid of the petitioner was not considered for non-submission of hard copies. When the petitioner sought to ﬁle and participate in another tender called for by the 3rd respondent, he came to know that the authorities blocked his I- key user ID. On enquiry he learnt that the authorities have blocked his I-key user ID on account of non-submission of hard copies in respect of tender dated 17-1-2008 called for by 3rd respondent. 3. It is the grievance of the petitioner that the authorities blocked his I-key user ID without issuing a notice to him. For better understanding of the grievance of the petitioner, I deem it appropriate to refer paras 7 to 10 of the writ aﬃdavit, which read as under: “ 7. This has been done without issuing notice to the petitioner and the petitioner’s electronic I key User ID barred/blocked. Only on 13.5.2008 when the petitioner sought to ﬁle and participate in another tender called by the 4th respondent for the project of improvement to feeder channel from Kethreddy anicut to Paddacheruvu Maddirala village, Tungathurthi Mandal of Nalgonda District, the petitioner realized to his shocking that the I key User ID was barred and on making further enquiries the petitioner came to know that it was on account of non receipt of hard copies to the 3rd respondent this action was resorted to and as such I am prevented from participating in any tenders. 8. It is respectfully submitted that no notice was issued to the petitioner prior to the barring of the petitioners’ I key User ID had any notice been issued to the petitioner, the petitioner would have been able to explain the circumstances which could have possibly satisﬁed the respondents 1 and 2. The non-issuance of notice was therefore in breach of principles of natural justice. 9. The action of the respondents in disbarring and disqualifying the petitioner even without considering the extenuating circumstances renders the action of 1st respondent and 2nd respondent as arbitrary and irrational thereby violating Article 14 of the Constitution of India. 10. On account of the said illegal action of the respondents 1 and 2 the petitioner is being prevented from participating any further tenders notiﬁed on “E-Procurement Platform” including some tenders in respect of which the uploading would have been done on 13.5.2008 and on various dates thereafter. The said action is therefore infringes the petitioner’s fundamental rights and livelihood of the petitioner under Article 21 of the Constitution of India. The illegal action is also in violative of the principles of the Article 19(1)(g) of the Constitution of India.” Initially the petitioner ﬁled the writ petition assailing the action of R1 and R2 in disqualifying him from participating in any tender on E-procurement Platform by disbarring his I-key User ID. Subsequently he ﬁled W.P.M.P.No.18722 of 2008 and got the relief amended questioning the validity of G.O.Ms.No.245 I & CAD (PW REFORMS) Department, dated 30.12.2005. 4. Rule nisi came to be issued on 20.5.2008. The petitioner also moved WPMP.No.14299 of 2008 seeking interim relief. The 1 st respondent ﬁled counter aﬃdavit. It is stated in the counter aﬃdavit that the petitioner has submitted his tender through E- procurement system in response to the tender notice dated 17.1.2008. As per para 3 of the E-procurement tender notice and the relevant conditions of tender document, the petitioner shall invariably submit the original hard copies of DDs of uploaded scanned ﬁles into the E-Procurement system towards the EMD before the stipulated price bid opening date i.e. 18.2.2008 at 5.00 P.M. to 3rd respondent either personally or through courier or by post and the receipt of the same within the stipulated date shall be the responsibility of the bidder and the department shall not take any responsibility for the delay. Further, as per para 4 in the e-procurement tender notice and relevant tender document conditions, the bidders who are found defaulting in submission of original hard copies of EMD to the Tender Inviting Authority before the stipulated price bid opening date will be suspended/disqualiﬁed from participating in tenders through E- Procurement platform for a period of 12 months. The petitioner having submitted tender through e-procurement in response to the tender notice dated 17.1.2008 and having full knowledge of rules and consequences of not complying the conditions willfully defaulted in submitting the original hard copies of EMD within the price bid opening date as stipulated in the tender conditions and therefore the action of respondents in disqualifying him for 12 months in E-Procurement system is in accordance with the tender conditions. For better appreciation, I may refer relevant portion of the counter, which reads as under: “ In reply to para 10 of the aﬃdavit it is submitted that the petitioner having submitted the tender in eProcurement system against tender notice No.54/Se/PR/WGL/2007-08 dated 17.1.2008 issued by the 3rd respondent for construction of Cross drainage works and metalling to link road Mupparam village Kammaripet NABARD X road at Mupparam village of Dharmasagar Mandal in Warangal district and having full knowledge of the rules and penalty that would fall upon him for the default has willfully defaulted by failing to submit the original hard copies of EMD before the stipulated date in order to unlawfully help his competitor who has quoted a very high value to gain the contract thereby causing loss to the exchequer. The petitioner and ﬁve other colluded with Sri.J.Raghava Reddy, who quoted 4.94% excess thereby a loss has been caused to the government to a tune of Rs.4,47,000/-. The petitioner is fully aware that default in submission of original DD/BG towards EMD entitles the suspended/disqualiﬁcation of the bidder for 12 months in e-procurement system. The same fact was also brought to the notice of petitioner through special notes/notices in eprocurement system in the relevant pages of bid submission i.e., while entering the details of EMD particulars in eprocurement system. Hence, the suspension/disqualiﬁcation of the petitioner was aﬀected in eProcurement system based on the recommendation of the Superintending Engineer, Panchayat Raj Engineering Department, Warangal Circle. Hence, the action of the respondents is well within the frame work o rules and as such it is not violation of Article 14 of the Constitution of India.” 5. When the WPMP.No.14299 of 2008 came up for consideration, with the consent of learned counsel for the parties, this writ petition itself is taken up for final hearing. 6. Heard learned counsel appearing for the petitioner and learned Government Pleader for R1 and R2. 7. Learned counsel appearing for the petitioner submits that debarring the petitioner from participating in the tender through e-procurement platform without putting him on notice is in violation of the principles of natural justice and therefore G.O.Ms.No.245, dated 30.12.2005 is liable to be set aside. In support of his submission he placed reliance on the judgment of Supreme Court in ERUSIAN EQUIPMENT AND CHEMICALS LIMITED VS. STATE OF WEST BENGAL [1] and the decision of Calcutta High Court in KALYAN BANERJEE V. KAMARHATI MUNICIPALITY[2]. 8. Learned Government Pleader for R1 and R2 submits that the petitioner knowing fully well of the consequences for non- submission of hard copies of EMD and tender conditions, failed to furnish the hard copies before opening the price bid. The petitioner having known the consequences of non-submission of documents cannot be permitted to contend that the disqualiﬁcation imposed on him is in violation of principles of natural justice. 9. A fact remains that the petitioner submitted tender through e-procurement platform and subsequently he did not submit the hard copies and thereby breached the tender conditions. The consequences of violation of tender conditions is stipulated in the tender document itself. 10. It is the contention of the petitioner that G.O.Ms.No.245, dated 30.12.2005 is in violation of the principles of natural justice and therefore it is liable to be set aside. For better understanding the relevant portion of the G.O. is extracted below: “ The Government has further decided that notwithstanding any existing provisions of the A.P. Public Works Department code as well as other orders and executive instructions in force, if any tenderer fails to submit the hard copies of DD/BG for EMD, DD for transaction fee, hard copies of uploaded documents within the stipulated time, the tenderer will be suspended/disqualiﬁed from participating in the tenders on “eprocurement platform for a period of 12 months from the date of bid submission. The suspension of tenderer shall be automatically enforced by the eprocurement system.” 11. The Government constituted a committee to examine the grievances of the eﬀected contractors. A mechanism to examine the grievances of the eﬀected contractors has been provided by the Government in G.O.Ms.No.216, dated 27.11.2006. 12. Learned counsel appearing for the petitioner submits the committee constituted under G.O.Ms.No.216, dated 27.11.2006 may not consider his representation since the grievance of the petitioner is not coming within the purview of the committee. I do not see any substance in his contention. What is stated in G.O.Ms.No.216, dated 27.11.2006 is that the committee has to examine the grievances of aﬀected contractors, who could not submit the hard copies due to reasons beyond their control like natural calamities etc. The power has been given to the committee to examine the grievances eﬀected to the contractors with regard to non supply of hard copies. Therefore, the petitioner is at liberty to make his representation detailing the circumstances under which he could not submit the hard copies and thereupon the committee has to consider and pass appropriate orders. The petitioner having submitted his tender through e-procurement process and having full knowledge of the consequences cannot be permitted to question the validity of G.O.Ms.No.245, dated 30.12.2005. A separate inhouse mechanism has been provided for the grievances of the eﬀected contractors. In that view of the matter, the disqualiﬁcation stipulated in the G.O.Ms.No.245, dated 30.12.2005 on the contractors who failed to submit hard copies cannot be said as arbitrary and illegal. 13. Accordingly, this writ petition is disposed of with a liberty to the petitioner to make a representation to the Committee within a week from today detailing the circumstances under which he failed to submit the hard copies and thereupon the committee shall consider and pass appropriate orders within three weeks thereon. No costs. 4th November, 2008. (B.Seshasayana Reddy,J) cc in two days. tnb THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.10986 OF 2008 4TH NOVEMBER, 2008. ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRT} [1] 1975(1) SCC 70 [2] AIR 2001 CALCUT T A 21