IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION Nos. 6909 of 2005 & 6897 of 2005 W.P.No.6909 of 2005: Between: M/s. Gani's Scientific, Surgicals & Chemicals, 4-1-880/881, Reddy Hostel Building, Beside Surya Theatre, Abids, Tilak Road, Hyderabad. Rep. by Managing Partner, Dr. M.A. Samad S/o. Late M.A. Gani, Aged 52 yrs, Occ: Business, R/o. Banjara Hills, Hyderabad. ..... PETITIONER AND 1 State of Andhra Pradesh, Rep,. by the Secretary, Department of School Education, Secretariat, Hyderabad. 2 The Collector, Ranga Reddy District, Hyderabad. 3 The Chairman, District Purchase Committee, Sarva Siksha Abhiyan (SSA) & Joint Collector, & Addl. District Magistrate, Ranga Reddy District, Hyderabad. 4 Additional Projaect Co-ordinator, DPEP-SSA, Ranga Reddy District, Hyderabad. .....RESPONDENTS 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 to issue a writ, Order or iIrection in the nature of Mandamus or otherwise declaring the impugned proceedings bearing Rc.No. 4197/A1/DPEP/RR/2003 dt. 6-11-2004 of the 4th Respondent (Annexure IV) unilaterally canceling the petitioner's tender is arbitrary, illegal and consequently declare the same as unenforceable and further direct the respondents herein to forthwith place the order in terms of the tender of the petitioner to enable the petitioner to maek supplies as per the tender and be pleased to pass such other order or orders as this Honourable Court deems fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.MPAPA REDDY Counsel for the Respondent No.: GP FOR EDUCATION Form-NIC-OGS/WP{VSMI} WRIT PETITION No.6897 of 2005 Between: M/s. MINA Enterpirses, G-16, Reddy Hostel Compex, Tilak Road, Abids, Hyderabad, Proprietory Concern, rep. by its Proprietor, Sri A.M. Rashad, Late M.A. Samad, R/o. Banjara Hills, Hyderabad. ..... PETITIONER AND 1 State of A.P., rep. by the Secretary, Department of School Education, Secretariat, Hyderabad. 2 The Collector, R.R.District, Hyderabad. 3 The Chairman, District Purchase Committee, Sarva Siksha Abhiyan, ( SSA) & Joint Collector, & Addl. District Magistrate, R.R.District, Hyderabad,. 4 Additional Project Co-Ordinator, DPEP-SSA, Ranga Reddy District, Hyderabad,( Dist. Primary Education Programme - Sarva Siksha- Abhiyan). .....RESPONDENTS 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 a Writ, Order or direction in the nature of Mandamus or otherwise declaringthe impugned proceedings bearing Rc.No.4197/A1/DPEP/RR/2003 dt. 6.11.2004 of the 4th respondent ( Annexure IV) unilaterally canceling the petitioners tender is arbitrary, illegal and cosnequently declare the same as unenforceable and further direct the respodnents herein to forthwith place the order in terms of the tender of the petitioner to enable the petitioner to make supplies as per the tender and be pleased to pass such other order or ordrs as this Hon'ble Court deems fit and proper in the circusmtances of the case. Counsel for the Petitioner:MR.MPAPA REDDY Counsel for the Respondent No.: GP FOR SCHOOL EDUCATION The Court made the following: Form-NIC-OGS/WP{JGK} THE HON'BLE SRI JUSTICE V.ESWARAIAH WRIT PETITION Nos.6909 of 2005 & 6897 of 2005 COMMON ORDER: Both the petitioners question the similar proceedings dated 06.11.2004 issued by the 4th respondent-Additional Project Coordinator, DPEP-SSA, Ranga Reddy District. The proceedings of the 4th respondent that have been questioned in Rc.No.4197/A1/EPEP/RR/2003, dated 06.11.2004 were issued requesting the petitioners who have been identified for supply of teaching learning equipment to produce samples as per the specification to attend the office of the 4th respondent on 19.11.2004. Thereafter, both the petitioners filed WPMP No.7330/2006 in WP.No.6909/2005 and WPMP.No.7329/2006 in WP.No.6897/2005 for amendment of the writ prayers by correcting the date of impugned proceedings as 21.03.2005 instead of 06.11.2004 and the same were ordered on 31.03.2006. The impugned proceedings in both the writ petitions in Lr. Rc.No.4197/A1/A3/DPEP/03-01, dated 21.03.2005 goes to show that the petitioners were informed stating that their tenders were cancelled vide Notification letter dated 11.03.2004 and therefore, the EMD amount of Rs.4,50,000/- is returned vide enclosed demand drafts. Therefore, what is questioned is only the return of EMD amount of Rs.4,50,000/-, but not the notification in Rc.No.4197/A1/DPEP/RR/2003, dated 06.11.2004 by which the tenders were cancelled. The learned counsel appearing for the petitioners submits that a tender notification dated 11.03.2004 was called for supply of the material throughout Andhra Pradesh and up building reputation over the years. The tenders submitted by the petitioners were accepted vide letters dated 03.09.2004 by the District Level Purchase Committee. It is stated that as per the terms and conditions mentioned in the letter of acceptance, the samples selected by the Expert Committee, before the supply of equipment should undergo a check and verification with the samples submitted along with the offer of the supplier, and further supply is required to be made within two months from the date of issuance of the order. It is stated that the petitioners procured the equipment and produced the same for verification. It is further stated that though the lists of the schools were furnished to the petitioners, but it was not indicated to which of particular school the material has to be supplied. It is stated that apart from the deposit of Rs.4,50,000/- in the shape of EMD, each of the petitioners has invested substantial amounts of Rs.15 lakh in procuring the material and while awaiting for orders of details of supply, they have received the communication dated 21.03.2005 informing them that their tenders have been cancelled and EMDs are returned enclosing the cheques. Thus, the petitioners question the action of the respondents for unilateral canceling the tender notifications without giving any opportunity and without giving any show cause notice, as illegal and arbitrary. It is stated that having accepted their tender schedules, there cannot be any justification on the part of the respondents in canceling the entire tender process. A counter has been filed stating that according to terms and conditions mentioned in the tender schedule the Expert Committee will verify the teaching, learning equipment (TLA) and the same has to be certified by the said Committee before the same are supplied to the school points. It is stated that Two Expert Committees were constituted for that purpose and the first Expert Committee gave its opinion stating that the material produced by the petitioners was not in accordance with the tender specifications. The verification of the teaching, learning equipment supplied by the petitioners continued from 06.06.2004 to 24.12.2004 and the Expert Committee met for five times and the petitioners produced the sample before the Expert Committee when they were asked to produce samples as per the specifications for verification in the office of the 4th respondent on 19.11.2004. It is the case of the respondents that either the list of the schools or details of items to be supplied was not at all furnished to the petitioners. It is further stated that at the request of the petitioners, the date of verification fixed on 19.11.2004 was postponed to 23rd and 24th December, 2004. But the petitioners failed to give a live demonstration of their products on the postponed date. The averments with regard to investment of the petitioners for procuring the material have been denied stating that the same is false and baseless. Both the petitioners are the sister concern as their address and persons who represent both the firms are one and the same namely Dr.M.A.Samad who claims to be Managing Partner of M/s. Gani Scientific, Surgicals & Chemicals i.e. petitioner in WP.6909/2005. It is stated that the petitioners addressed a letter dated 28.09.2004 requesting the respondents to furnish them the list of schools to which materials are to be supplied in order to enabling them to procure material. It is stated that the contention of the petitioners that the respondents gave the list of the neither schools nor detailed specifications for procurement of the materials has been accepted. It is stated that as the samples produced by the petitioner were found not inconformity with the tender specifications, they have decided to cancel the entire tender process. Accordingly, the tender process has been cancelled by proceedings dated 11.03.2004. The petitioners never chosen to question the notification dated 11.03.2004 by which the tenders were cancelled, but only chosen to question the letter dated 21.03.2005 in refunding the EMD of Rs.4,50,000/- in favour of each of the petitioners. The learned counsel for the petitioners submits that the cancellation of the tenders by notification dated 11.03.2004 was never furnished or communicated to the petitioners, and therefore, there was no occasion to question the said cancellation of the tender notification dated 11.03.2004. In fact, the writ petition has been filed initially questioning the proceedings of the 4th respondent dated 06.11.2004 which relates to production of samples and thereafter the prayer was amended to question the letter dated 21.03.2005 which relates to refund of EMD. I have considered the rival contentions of the learned counsel for the petitioners as well as the Government Pleader appearing for the respondents. Even assuming that the letter dated 21.03.2005 itself is the cancellation of the tender notification, the further question that arise for consideration is whether the petitioners are entitled for declaration that the said impugned notification dated 06.11.2004 issued by the 4th respondent in unilaterally canceling the tender, as illegal and arbitrary and unenforceable, directing the respondents to place the order forthwith in terms of the tender of the petitioners to enable them to make supplies as per the tender. There are serious disputed questions of facts in respect of placing samples for verification of the Expert Committee, which is said to have been found not inconformity with the tender notification. If that be so, in the absence of any specific order even after accepting the tenders of the petitioners, I am of the opinion that it cannot be said that the sample equipment supplied by the petitioners is inconformity with the specifications of the tender notification and that the petitioners shall entitle to supply the learning, teaching equipment. If there is any violation of the legal or statutory right, I am of the opinion that the only course open for the petitioners is to proceed against the respondents for the damages caused on account of the acts of the respondents, but the contract in force is not executable. There cannot be any enforcement of specific performance of the impugned contract in view of the serious disputed questions of facts that the samples supplied by the petitioners are not inconformity with the specifications. Though the termination of the contract is unsustainable on the ground that no notice was issued and no reasonable opportunity was given to the petitioners before cancellation, but still the petitioners are not entitled for any relief claimed in the writ petition. As per the judgment of the Supreme Court in ABL International Ltd. V. Export Credit Guarantee Corpn.of India Ltd.[1] no doubt a Writ of Mandamus can be issued even in respect of the contractual matters if there are no disputed questions of facts. But, in the instant case, in view of serious disputed questions of facts with regard to the quality of material said to have been placed before the Expert Committee by the petitioners and the petitioners stated that the quality of material is inconformity with the specifications, but the respondents are seriously disputing that the quality of the material placed by the petitioners is not inconformity with the specifications, and in the absence of placing an order to supply specified equipment to the named schools, I am of the opinion that no Writ of Mandamus can be issued as prayed for in the present writ petitions. Both the Writ Petitions are, accordingly, dismissed. No order as to costs. _____________________ V.ESWARAIAH,J Dated: 22.07.2008 Dsr .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 State of A.P., rep. by the Secretary, Department of School Education, Secretariat, Hyderabad. 2 The Collector, R.R.District, Hyderabad. 3 The Chairman, District Purchase Committee, Sarva Siksha Abhiyan, ( SSA) & Joint Collector, & Addl. District Magistrate, R.R.District, Hyderabad,. 4 Additional Project Co-Ordinator, DPEP-SSA, Ranga Reddy District, Hyderabad,( Dist. Primary Education Programme - Sarva Siksha- Abhiyan). 5. 2CCs to 6. 2CD copies [1] (2004) 3 Supreme Court Cases 553