THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.14307 OF 2010 DATED AUGUST, 2010 BETWEEN M/S.Sri Sinivasa Engineering Works, 6-8-189, Ravindra Nagar, Nalgonda, Represented by its Proprietor, V.Shekaraiah. … Petitioner AND Transmission Corporation of Andhra Pradesh Limited, represented by its Chief Engineer,T L & SS, Rural Zone, Hyderabad. And Another. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.14307 OF 2010 ORDER: The petitioner proprietorship was awarded the work of ‘Carrying out Operation and Maintenance including Watch and Ward, MRT Assistance and Assistance for Telecom of EHT Sub-Stations in TL & SS Circle on Works Contract Basis’ under proceedings dated 29.04.2010 passed by the Transmission Corporation of Andhra Pradesh Limited (APTRANSCO). It assails the action of the APTRANSCO in issuing Short Tender Notice dated 09.06.2010 in respect of the very same work without terminating its contract and seeks a consequential direction to permit it to continue in terms of the said contract without reference to the Short Tender Notice dated 09.06.2010. The APTRANSCO issued a Tender Notification inviting sealed tenders from contractors for carrying out operation and maintenance (O&M) works in respect of the EHT Sub-Stations in TL & SS Circle on works contract basis. The petitioner, being eligible in all respects, submitted its tender and was declared successful and consequently, the APTRANSCO awarded the work in its favour under the proceedings dated 29.04.2010. The contract period was from 01.05.2010 to 30.04.2011 in respect of 132 KV Seethapuram Switching Station. While so, Show Cause Notice dated 01.05.2010 was addressed by the APTRANSCO calling upon the petitioner to explain as to why the contract should not be terminated on the ground of suppression of the fact that the son of the proprietor of the petitioner was employed as a Sub-Engineer in Central Power Distribution Company of Andhra Pradesh Limited (APCPDCL). The petitioner submitted an explanation on 11.05.2010. No orders were passed thereupon but in the meanwhile, Short Tender Notice dated 09.06.2010 was floated by the APTRANSCO once again inviting tenders for the very same work which was awarded to the petitioner. It is the case of the petitioner that Condition No.7 of the Terms and Conditions of the tender document furnished to it only required disclosure of relationship, if any, with the Officers/Directors of APTRANSCO and therefore no fault could be found with it for not disclosing the service particulars of the son of the proprietor of the petitioner who worked in the APCPDCL. The petitioner therefore asserts that there is no violation of the tender conditions warranting cancellation of the contract. By order dated 23.06.2010, this Court while admitting the writ petition granted interim stay of all further proceedings pursuant to the Short Tender Notice dated 09.06.2010. In the counter affidavit filed in support of its vacate stay application, the APTRANSCO, speaking through its Chief Engineer, Transmission Lines and Sub-Stations, Rural Zone, Hyderabad, stated as under: “………. I submit that a short tender notice was issued on 09.06.2010 and it was decided to communicate the order before finalizing the tender as termination of the contract before finalization would hamper the functioning of the substation as the manning and maintenance is a continuous nature. It is submitted that the action of the Respondents is perfectly legal and valid.” While admitting that Condition No.7 of the Terms and Conditions of the tender document required declaration of relationship with the Officers/Directors of APTRANSCO, the Chief Engineer pointed out that such declaration was to be furnished in the format given in Annexure-III. Annexure-III indicates that relationship with Officers/Employees of APTRANSCO/Distributing Companies (DISCOMS) is to be disclosed. It is further pointed out that the Annexure made it clear that if any information furnished therein is found to be false or incorrect, the APTRANSCO/DISCOM is entitled to terminate the contract/agreement. It is further stated that a complaint was received against the petitioner and due enquiry revealed that the son of the petitioner’s proprietor was employed in the APCPDCL. As this information was not revealed by the petitioner, an explanation was called for in accordance with due procedure and a decision was taken to cancel the contract awarded to the petitioner. As the functioning of the Sub-Station would be hampered if the O & M works were stalled, a Short Tender Notice was issued on 09.06.2010 prior to cancellation of the petitioner’s contract, so that the manning and maintenance works which are of a continuous nature could go on without interruption. S ri K.V.Sudhakar Reddy, learned counsel for the petitioner, submitted that once the tender condition stipulated in clear terms that only relationship with Officers/Directors of APTRANSCO was to be disclosed, it is not open to the respondents to import an additional requirement of disclosure of relationship with employees of the Distributing Companies. He relied upon the Judgment of the Supreme Court in M.K.ABRAHAM & CO. v. STATE OF KERALA[1] to support his contention. S r i O.Manohar Reddy, learned standing counsel for the APTRANSCO, placed before the Court a copy of the undertaking to be furnished by the tenderer in Annexure-III as per Condition No.7 of the Terms and Conditions of the tender document. He pointed out that the clauses therein clearly demonstrate that the tenderer is required to disclose relationship, if any, with Officers/ Employees of not only the APTRANSCO but also the Distributing Companies. He therefore submitted that the petitioner’s contract was liable to be cancelled in view of the violation of the conditions of the tender as per Annexure-III. Unless the petitioner suppressed information which it was required to disclose as per the Terms and Conditions of the tender document, the APTRANSCO cannot cancel the contract on such ground. Condition No.7 of the Terms and Conditions of the tender reads as under: “7. DECLARATION OF REALTIONSHIP: The Tenderer shall declare their relationship, if any, with the officers/Directors of APTRANSCO along with the bids/tenders. The bids not accompanying the above certificate will be rejected. The declaration must be furnished in the format given in Annexure-III. Any false information furnished in the declaration/ disclosure, if found later the contract is liable for termination as well as recovery of damages.” It is no doubt true that Annexure-III, to which reference is made in Condition No.7, speaks of not only the APTRANSCO but also Distributing Companies. The relevant clauses may be extracted: “(a) That myself or any of the representative of my Company/Firm do not have any relatives as defined in appended Annexure-IV in the APTRANSCO/DISCOM. OR (b) That the following officers/employees of the APTRANSCO/DISCOM are related to me or to representatives of my Company/Firm and their status in the APTRANSCO/DISCOMS is as under:” The issue is whether Annexure-III would prevail over the specific and unequivocally worded Condition No.7. S r i K.V.Sudhakar Reddy, learned counsel, submitted that Annexure-III was a common format applicable to both the APTRANSCO and Distributing Companies and therefore the specific condition which applies to the APTRANSCO, embodied in Condition No.7, would prevail over the general wording in Annexure-III, a format common to both APTRANSCO and DISCOMS. I find merit in this contention. It is to be noted that the APTRANSCO and the Distributing Companies are separate legal entities. That being so, Condition No.7 logically requires disclosure of relationship with Officers/Directors of APTRANSCO only. The general format applicable to both APTRANSCO and DISCOMS contained in Annexure-III cannot therefore prevail over Condition No.7 of the Terms and Conditions of the tender. This aspect is further clarified by the concluding paragraph in Annexure-III which reads as under: “It is clear that the information furnished above is true to the best of my knowledge and belief. It is hereby undertaken that in the event of any of the above information found to be false or incorrect at a later date, the APTRANSCO/DISCOM is entitled to terminate the contract/agreement entered into besides recovering damages as may be found necessary, with due notice.” The reference therein to the power of the APTRANSCO/DISCOM to terminate the contract/agreement in the event the information furnished therein is found to be false or incorrect, clearly indicates that if the contract pertains to APTRANSCO the relationship with the employees of APTRANSCO required to be disclosed, and if the contract pertained to a DISCOM, relationship with the employees of such DISCOM would have to be furnished. Failure entitled the APTRANSCO or the DISCOM, as the case may be, to terminate the contract. As pointed out by the Supreme Court in M.K.ABRAHAM & CO., where the contract has several annexures/attachments, prepared at different points of time, unless a contrary intention is apparent, the latter in point of time would normally prevail over the one earlier in point of time. Applying the same principle, the specific Condition No.7 in the Terms and Conditions of the tender document would prevail over the general format prescribed in Annexure-III, which has applicability not only to the APTRANSCO but also to DISCOMS. In the present case, the contract is with the APTRANSCO whereas the son of the proprietor of the petitioner is an employee of the DISCOM, APCPDCL. Therefore there is no suppression of information which had to be furnished, warranting cancellation of the contract. The actions of the APTRANSCO in proposing cancellation of the petitioner’s contract and in floating the Short Tender Notice dated 09.06.2010 are therefore legally unsustainable. The Writ Petition is accordingly allowed setting aside the Short Tender Notice dated 09.06.2010 and directing the respondents to permit the petitioner to continue in terms of the contract awarded under proceedings dated 29.04.2010. In the facts and circumstances of the case, no order as to costs. ____________________ SANJAY KUMAR, J. ________ AUGUST, 2010 PGS [1] (2009) 7 SCC 636