THE HON'BLE SRI JUSTICE GODA RAGHURAM and THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 26593 of 2008 Date: 08.12.2009 Between: Sri Captain Lingala Pandu Ranga Reddy S/o. Sri L. Janardhan Reddy R/o. Flat No.501, Shanti Souda Apartments, Erramanzil Colony, Hyderabad - 500 082. ..... PETITIONER AND 1 The State of Andhra Pradesh Rep. by Principal Secretary Department of Revenue, Secretariat, Hyderabad. 2 The Special Chief Secretary and Chief Commissioner of Land Administration Hyderabad. 3 The Commissioner Survey, Settlement & Land Records Government of Andhra Pradesh, Survey Bhavan, Narayanguda, Hyderabad. 4 The State Project Director Bhu Bharati O/o. Commissioner of Survey, Settlement & Land Records, Survey Bhavan, Narayanguda, Hyderabad. 5 M/s. Infotech Enterprises Limited Rep. by its Managing Director Registered Office at Plot No.11, New Software Layout, Infocity, Madhapur, Hyderabad. .....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 to pass an order or orders or a writ more particularly one in the nature of a Writ of Mandamus or any appropriate writ declaring the action of the respondents No.1 to 4 in issuing G.O.Ms.No. 1048 dated 20-8-2008 in so far as awarding contract of Bhu Bharati Rollout Phase-I Project in favour of 5th respondent and further allotting Nellore and Karimnagar Districts as arbitrary, illegal, contrary to conditions of Tender Notification vide No.BB/Survey/485/08 dated 18-1-2008 and judgment of this Hon'ble Court dated 2-5-2008 in W.P.No. 7370 of 2008 & W.P.No. 8599 of 2008 and in violation of Article 14 of the Constitution of India and to set aside the same and further order an enquiry against the persons responsible for awarding contract to the 5th respondent and to take disciplinary and criminal action against the persons responsible based on the result of the enquiry. Counsel for the Petitioner:MR.GANDRA MOHAN RAO Counsel for the Respondent No.: GP FOR REVENUE The Court made the following : Form-NIC-OGS/WP{KBJ} THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.26593 of 2008 ORDER: (Per Hon’ble Sri Justice Ramesh Ranganathan) This writ petition is filed in public interest to declare G.O.Ms. No.1048 dated 20.08.2008, in so far as the Bhu Bharati Rollout Phase- I Project contract in Nellore and Karimnagar districts was allotted in favour of the 5th respondent, as arbitrary, illegal, contrary to the conditions of the tender notification dated 18.01.2008 and in violation of Article 14 of the Constitution of India. Though allotment of Nellore and Karimnagar Districts to the 5th respondent is alone under challenge in the writ petition, we considered it appropriate, having regard to the pleadings and the issues arising, to implead the other three allottees, who were awarded work in one district each under the Bhu Bharati Rollout Phase-I Project, as respondent nos.6 to 8 in the writ petition. While Sri G. Mohan Rao, Learned Counsel for the petitioner, made elaborate submissions in challenge to the validity of the impugned G.O, the Learned Additional Advocate General, appearing on behalf of respondent Nos.1 to 4, argued extensively in support thereof. Detailed submissions were also made by Sri S.R. Ashok and Sri C. Kodandaram, Learned Senior Counsel appearing on behalf of the 5th and 8th respondents respectively. Sri Rajender Bussa, Learned Counsel for the 7th respondent, put forth his submissions. Despite service of notice, the 6th respondent chose not to appear. Facts, in brief, are that the Government of Andhra Pradesh undertook implementation of the Bhu Bharati Rollout Project in a phased manner. Under Phase-I Rollout Plan it was decided to implement the project in Kadapa, Anantapur, Nellore, Karimnagar and Srikakulam districts. The project involved aerial photography, special data processing, creation of special and non-special data bases and the establishment and management of Bhu Bharati delivery service centers. In its meeting held on 6.12.2007, the Project Implementation Committee (PIC) decided to issue a Request for proposal (RFP), for the work of aerial photography and field survey, inviting bids from private companies. The tender notification dated 18.01.2008 was published in the newspapers on 21.01.2008 inviting proposals from prospective bidders for providing aerial photography and cadastral survey for all the five districts. The last date for submission of bids was fixed as 21.02.2008. In the pre-bid conference held on 09.02.2008 the bidders requested that the last date for compliance with clause 2.3(b) of the RFP be extended upto the commercial evaluation stage. An errata was issued on 14.02.2008, intimated to all bidders, and the last date for submission of bids was extended upto 07.03.2008. Eight companies submitted their bids on 7.3.2008 and the pre-qualification bids were opened on the same day. Among the eight bids received, M/s Radiant Infosystems Pvt. Ltd was disqualified as they failed to submit the required documents relating to their turnover. A committee was formed for evaluation of the technical bids which were opened on 12.3.2008. The Government, after careful examination, accorded administrative sanction, vide G.O.Ms. No.323 Revenue (S.S.1) Department dated 12.3.2008, to take up the Bhu Bharati Project (ILIS) in five districts. Rs.40.00 Crores was provided thereto in the budget estimates of 2008-09. After the bidders made their presentation on 17.3.2008 and 18.3.2008, scores were allotted to them by the technical evaluation committee. On 19.3.2008, the result of the technical evaluation was announced and the 5th respondent was assessed as having obtained the highest technical score, among the seven bidders, with 91.30 points. M/s Navayuga Engineering Co. and M/s Geo-CAD failed to get the required minimum technical score and were declared disqualified. While the 8th respondent produced copies of the required permission, the sixth respondent produced a consent letter from the 8th respondent. The other bidders, however, sought time to discuss with the 8th respondent for taking their consent for aerial flying. Five companies, including respondent nos. 5 to 8, were short listed and they were asked to produce the required clearance certificates or a subsisting contract. It was decided that the commercial bids would be opened on 20.3.2008. In the meeting held on 20.3.2008 the 5th respondent and M/s IIC Technologies Pvt. Limited were disqualified and their commercial bid was not opened. The Ministry of Defence, Government of India, vide letter dated 3.4.2008, (received by the State Government on 16.4.2008), informed the State Government that only the list of approved aerial photographic agencies, to whom the contract to undertake the survey task had been finalized, should be forwarded to them for their approval. Both the 5th respondent and M/s IIC Technologies Private Limited filed W.P. No.7370 of 2008 and W.P. No.8599 of 2008 respectively questioning the action of the respondents in disqualifying them for their failure to obtain clearance from the Ministry of Defence, Government of India. A learned single judge of this court, by order in W.P. Nos.7370 and 8599 of 2008 dated 02.05.2008, dismissed both the writ petitions. In its meeting held on 23.4.2008, the PIC constituted a sub-committee to conduct price negotiations with the qualified bidders, other than the 8th respondent, to take a decision regarding selection of the implementing agencies for the five districts. While referring to the proceedings of the PIC dated 23.04.2008 and 31.05.2008, the 3rd respondent, vide letter dated 15.7.2008, requested the 1st respondent to issue suitable orders in the matter. While matters stood thus, the 5th respondent addressed letter dated 30.6.2008 requesting that necessary orders be issued for award of works to them under the Bhu Bharati first phase roll-out programme. While enclosing a copy of the representation of the fifth respondent, the Chief Minister’s Office, vide letter dated 13.7.2008, requested the 1st respondent to have the representation examined and the file circulated. The 2nd respondent, vide letter dated 4.8.2008, enclosed a note to the 1st respondent informing him that the representation made by the 5th respondent deserved no consideration. The Minutes of the meeting held on 06.08.2008 record the Chief Minister as having stated that the work in Nellore and Karimnagar districts should be allotted to the 5th respondent. Pursuant thereto, G.O.Ms. No.1048 Revenue (SS.I) Department dated 20.08.2008 was issued allotting work in the five districts to respondent Nos.5 to 8. The 2nd respondent, vide letter dated 29.8.2008, requested the Government to issue orders on the agreement price to be adopted for allotment of work to the implementing agencies. The 2nd respondent was requested, vide letter dated 04.09.2008, to open the commercial bid of the 5th respondent and furnish a report to the Government. The commercial bid of the 5th respondent was opened on 06.09.2008 and was evaluated on a combined technical and commercial score. The 2nd respondent, vide letter dated 11.9.2008, suggested that the Government may refer the matter to the PIC, to negotiate with the 5th respondent to reduce their price, before fixing the prices at which the work in Nellore and Karimnagar districts should be entrusted to them. On 17.9.2008, a representation was received from M/s IIC Technologies Pvt. Limited requesting that the benefit accorded to the 5th respondent be extended to them also. On 22.9.2008, remarks were submitted to the Government on the representation submitted by M/s IIC Technologies Pvt. Ltd. The 8th respondent, vide letter dated 22.9.2008, requested that, in addition to the district awarded to them vide G.O.Ms. No.1048 dated 20.8.2008, they may be allotted another district also. The 1st respondent, vide memo dated 27.9.2008, informed the 2nd respondent that the Government, after examining the issues, had decided to award the project work in Nellore and Karimnagar districts to the 5th respondent subject to the conditions specified therein. The 5th respondent, vide letter dated 6.10.2008, conveyed their acceptance for undertaking the project work in the districts of Nellore and Karimnagar at L1 + 5%. The 4th respondent informed respondent nos.5 to 8, by letter dated 18.10.2008, that their proposals, at the total contract value as indicated in the table, was provisionally accepted subject to fulfillment of the conditions prescribed therein. This writ petition was filed on 13.12.2008 and a Division Bench of this Court, by order dated 24.12.2008, directed that no further action should be taken pursuant to the decision taken on 20.8.2008 under G.O.Ms.No.1048 in so far as Nellore and Karimnagar districts were concerned. The Ministry of Defence, Government of India, vide memo dated 7.7.2009, issued security clearance to the 5th respondent, for aerial photography in Nellore and Karimnagar districts, valid for one year from the date of issue of the memo. On 15.9.2009 this Court, while directing that respondents 6 to 8 be impleaded as respondents in the writ petition, noted the submission of the Learned Additional- Advocate General that, as on date, respondents 6 to 8 had not commenced work in respect of the districts allotted to them consequent on the orders issued in G.O.Ms. No.1048 dated 20.8.2008. Status quo was directed to be maintained until further orders. The rival contentions, and our opinion thereon can, conveniently, be placed under six different heads as under:- 1 . Were the Respondents justified in granting relaxation, of the RFP conditions, and postponing the pre-qualification stage requirement, of obtaining aerial permission from the Ministry of Defence, till the stage of commercial evaluation? Sri G. Mohan Rao, Learned Counsel for the petitioner, would submit that, while the RFP condition, of obtaining aerial permission from the Ministry of Defence, should have been complied with at the pre-qualification stage, it was postponed to the stage of commercial evaluation at the request of a few bidders. He would submit that such relaxation of the RFP conditions could only have been made by way of a fresh invitation to tender, after deleting the requirement of obtaining aerial clearance, as it would then have enabled all others who were eligible to also participate in the tender process. On the other hand both the Learned Additional-Advocate General and Sri S.R. Ashok, Learned Senior Counsel, would contend that the 5th respondent, and other bidders, had requested the Government to extend the date for compliance, and this condition was relaxed in exercise of the powers conferred under the RFP. Clause 1.15 of the RFP relates to disqualification. Under sub- clause (vi) thereof, a proposal is liable to be disqualified if not accompanied by all the requisite documents. Clause 2.3 relates to evaluation of pre-qualification bids and, under sub-clause (b) as it originally stood, the bidder was required to obtain the stipulated clearance certificates for aerial photography or to have a subsisting contract with a firm which had obtained such a clearance, evidence of which was required to be furnished as part of the pre-qualification proposal. Clause 1.1(h) of the RFP empowered the 3rd respondent, if he deemed it appropriate, to revise any part of the RFP and to issue supplements thereto. Such supplemental information was to be communicated to all the bidders by e-mail and any such supplement was to be deemed to be incorporated into the RFP. Clause 1.1(n)(iii) of the RFP empowered the 3rd respondent, in exceptional circumstances and at its discretion, to extend the deadline for submission of proposals by issuing an addendum or by intimating all bidders who had been provided the RFP, in writing or through e-mail, in which case all rights and obligations of the 3rd respondent and the bidders, previously subject to the original deadline, would, thereafter, be subject to the deadline as extended. Clause 1.10 of the RFP, which relates to amendment of the RFP, empowered the 3rd respondent, at any time prior to the deadline for submission of proposals and for any reason, to modify the RFP by amendment, notified in writing or by fax or email to all bidders who had received the RFP, and such amendment was to be binding on them. All prospective bidders must be presumed to be aware of the RFP conditions and the power of relaxation conferred thereunder. In the pre-bid conference held on 09.02.2008, the bidders requested that the last date for submission of aerial clearance from the Ministry of Defence be extended till the commercial evaluation stage. The original deadline for submission of proposals was 21.02.2008. Acceding to the bidders request, the 3rd respondent issued an errata on 14.02.2008, which was communicated to all the bidders, postponing not only this requirement from the pre-qualification stage till the commercial evaluation stage, but also extending the last date for submission of bids till 07.03.2008. Extending the time for submission of aerial clearance certificate from the pre-qualification stage to the commercial evaluation stage is in accordance with the RFP conditions. The time frame within which the power of relaxation could be exercised was not open ended but was limited, by the RFP, upto the deadline for submission of proposals. In the present case the power, to relax the conditions, was exercised well before the last date of submission of proposals on 07.03.2008 and, as it was uniform to all the bidders, such exercise of power cannot be faulted. We are unable, therefore, to accept the submission that this condition could have been relaxed only on tenders being invited afresh. 2. Consequence of the order of this Court, in W.P. No.7370 of 2008 dated 02.05.2008, having attained finality? Sri G. Mohan Rao, Learned Counsel for the petitioner, would submit that the order of this Court in W.P. No.7370 of 2008 dated 2.5.2008, rejecting a challenge by the fifth respondent to their disqualification, had attained finality despite which they were unduly favoured by award of work, that too in two districts while those who had fulfilled the stipulated tender conditions were awarded work in only one district each. The 5th respondent herein had filed W.P. No.7370 of 2008 to declare the tender process, initiated by the 3rd respondent for awarding cadastral survey in five districts of Andhra Pradesh under Bhu Bharati Rollout Phase-I Project, pursuant to the tender notification dated 18.01.2008, and in disqualifying their bid, as illegal, vitiated in view of the onerous conditions imposed and in violation of Article 14 of the Constitution of India. They relied on the letter of the Ministry of Defence dated 03.04.2008 to contend that it was next to impossible for them to obtain clearance from the Ministry of Defence as it was to be granted only if the contract work had been finalized in favour of a particular agency. They contended that the tender conditions, contrary thereto, were illegal and arbitrary. The State Government, and its officers, contended that, but for postponement of the schedule for compliance with this condition, the 5th respondent’s bid would have been rejected at the pre-qualification stage itself; despite postponing the schedule, and providing ample time, the 5th respondent could neither produce the clearance nor form into a consortium with those who possessed such a clearance; the letter dated 03.04.2008 had only prospective effect and, on the basis of the said letter, it could not be said that the respondents had intentionally framed tender conditions contrary thereto. In his order dated 02.05.2008, the learned single judge held that the 8th respondent herein was vigilant and, on making the necessary enquiries, had taken timely action by obtaining clearance from the Ministry concerned; all companies, interested in the project, were kept informed of the clearances required to be obtained for bidding; the tender process, which was originally scheduled to be completed on 12.03.2008, was extended upto 26.03.2008 to facilitate the 5th respondent herein to obtain clearance; the State had agreed to extend time till 30.04.2008 at the Court’s behest; the 5th respondent herein had failed to obtain clearance even by that date; the 5th respondent could not take shelter under the letter dated 03.04.2008, to contend that it was impossible for them to obtain clearance, as the said letter was issued after expiry of the tender process except for its finalisation and the 3rd respondent herein had substituted the original clause 2.3(b) to ensure that there was healthy competition by reason of which the necessity of obtaining clearance from the Ministry of Defence at the pre-qualification stage itself was removed and was postponed to the stage of evaluation of commercial bids. While dismissing the Writ Petition the learned single judge held that, as the 5th respondent had failed to either obtain clearance or form into a consortium, the impugned action of the respondents, in rejecting their bid, did not necessitate interference. A judgment of the High Court under Article 226, passed after a hearing on merits, must bind the parties till set aside in appeal. (Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra[1]; UPSRTC v. State of U.P.[2]). An order passed by a Court having jurisdiction over the subject matter, and over the parties, cannot be ignored unless such orders are corrected in accordance with law. Such orders bind the parties in a subsequent litigation or before the same Court in the subsequent stage of the proceedings. (Barkat Ali Vs. Badrinarain[3]). Once a matter, which was the subject-matter of a lis, stood determined by a competent Court no party can, thereafter, be permitted to reopen it in a subsequent litigation. (Swamy Atmananda v. Swami Bodhananda[4]; Iswar Dath Vs. Land Acquisition Collector[5]). Sri S.R. Ashok, Learned Senior Counsel, would submit that the letter of the Ministry of Defence dated 01.05.2006 specified the format in which the application for grant of permission for aerial photography should be made; the application was required to be made atleast six weeks before the date on which photography was sought to be carried out; column No.7 thereof stipulated that a copy of the authority of the concerned government should be attached; it was imperative for the State government to first issue a work order for an agency to carry out aerial photography and clause 2.3(b) of the RFP, which required clearance to be obtained from the Ministry of Defence at the pre- qualification or commercial evaluation stage, was onerous and impossible to comply. Learned Senior Counsel would submit that the 5th respondent was at a loss to understand how to obtain clearance from the Ministry of Defence without a work order and they had, therefore, requested the Government, by their letter dated 13.02.2008, to issue a written document which would facilitate their applying to the Ministry of Defence; while the Government had issued letter dated 26.02.2008 to that effect, the Ministry of Defence was expecting a work order and the 5th respondent had applied to the Ministry of Defence, seeking grant of the required permission, on 07.03.2008. Learned Senior Counsel would submit that, as the letter of the Ministry of Defence dated 03.04.2008 was received by them on 16.04.2008, the State government may not have had occasion to examine the letter and may, therefore, have opposed W.P. No.7370 of 2008 and this Court, in W.P. No.7370 of 2008, had no occasion to consider the stipulation in Column No.7 of the application format. He would submit that the 5th respondent did not prefer an appeal against the order of this Court, in W.P. No.7370 of 2008 dated 02.05.2008, as they felt it inappropriate to do so when the Government had rectified its mistake in insisting on a clearance from the Ministry of Defence before allotment of districts. The Memo, issued by the Ministry of Defence, dated 03.04.2008 was considered by the learned single judge in his order in W.P. No.7370 of 2008 dated 02.05.2008. The Instructions dated 01.05.2006, and the forms prescribed therein, were issued much prior to the proceedings dated 03.04.2008 and ought to have been brought to the notice of the learned single judge. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of matters of claim or defence. Explanation IV of Section 11 C.P.C. is applicable to writ proceedings also and the principle underlying it is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. (Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri[6]). Having failed to raise all such contentions, as were available when W.P. No.7370 of 2008 was heard, it is not now open to the 5th respondent to put forth such contentions in the present proceedings as the order, in W.P. No.7370 of 2008 dated 02.05.2008, has attained finality. The Learned Additional Advocate General would submit that the effect of dismissal of W.P. No.7370 of 2008 was that the 5th respondent no longer had the right to claim award of work in their favour and that the order of this Court did not disentitle the State from considering allotment of work to an agency which had obtained the highest technical score. We shall proceed on the premise that the order of this Court, in W.P. No.7370 of 2008 dated 02.05.2008, does not prohibit the Government from allotting work to an agency whose challenge to their earlier disqualification was rejected by this Court. But then, the Government is as much bound to adhere to the RFP conditions as any of the bidders, who participated in the tender process, are. It is not even the case of the respondents that allotment of work to the 5th respondent was on relaxation of the RFP conditions, for the RFP requires relaxation of the condition to be intimated to all the bidders. Even otherwise, the power of relaxation of the stipulated conditions, under the amended Clause 2.5(b), could have been exercised, in terms of Clause 1.10 of the RFP, only before the last date for submission of bids i.e., 07.03.2008 and not thereafter. The prescription in the RFP, of obtaining aerial permission, is an essential tender condition as the entire work is founded on aerial photography for which clearance from the Ministry of Defence is a must. Such essential conditions necessitate adherence not only by the bidders who have participated in the tender process but also by the State Government which has