THE HON'BLE THE CHIEF JUSTICE SHRI NISAR AHMAD KAKRU and THE HON'BLE SHRI JUSTICE VILAS V. AFZULPURKAR Dated: 09-03-2011 WRIT APPEAL No. 126 OF 2011 Between: Koya Vijaya Raghavamma ... APPELLANT AND The A.P State Ware Housing Corporation, Ware Housing Sada, II Floor, Behind Gandhibhavan, Nampally, Hyderabad, rep., by its Managing Director and two others …RESPONDENTS THE HON'BLE THE CHIEF JUSTICE SHRI NISAR AHMAD KAKRU and THE HON'BLE SHRI JUSTICE VILAS V. AFZULPURKAR WRIT APPEAL No. 126 OF 2011 JUDGMENT: (per the Hon’ble the Chief Justice Shri Nisar Ahmad Kakru) 1. Contract for construction of one of the godowns at Palakole for storage of food grains allotted to the respondent 3 by the respondents 1 and 2 became subject matter of a writ petition at the instance of an unsuccessful tenderer, the writ petitioner, (appellant herein) on the ground that the proposed location of the godown is beyond the limits of Palakole, the place specified in the tender notice but of no avail to her because of dismissal of the writ petition, consequently this writ appeal on the ground as urged before the writ Court that is the alleged deviation in the location and the challenge is sought to be substantiated on the strength of a decision of the Supreme Court in Harminder Singh v. Union of India[1] wherein indulgence was displayed by the Supreme Court because tenders were not adjudged in accordance with the terms and conditions of the tender notice. It was a case where tenders were invited for supply of fresh buffalo and cow milk whereas the tenderer therein had filed his tender for supply of pasteurised milk and not fresh milk. In the case on hand the dispute being about the deviation in location, the judgment supra is not attracted. No other ground was taken before the writ Court and same is true before us. 2. To appreciate the challenge thrown to the allotment it would be appropriate to extract the general condition 20 of the tender; “The tenderer should furnish in technical bid all the details of the location, survey numbers, proof of ownership/lease of land/original affidavit mentioning the details of land which tenderer undertakes to acquire, area in acres indicating the boundaries along with non-encumbrance certificate and sketch plan about the location of the land. The details of the land should be furnished adequately as suitability of the land for the intended purpose is one of the major criteria for selection of the tenderer. The land must be free from high tension electric wires passing over it. Land must not be low lying. Land must not be in the flood or water logging prone area/zone. Polluting industries should not be in the vicinity and sufficient land should be available for ancillary works. A detailed layout plan proposed for the godowns, weigh bridge, office building, roads and railway siding (in case of godowns with railway siding) and other facilities should also be given in the technical bid.” 3. A perusal of the condition makes it manifestly clear that the tender was required to be accompanied by technical details with respect to the location, survey numbers, the boundaries and the sketch drawn, obviously, suitability of location was the major criteria for selection. Technical Evaluation Committee of respondent 1 had inspected the site proposed by respondent 3 and keeping in view lowest rate quoted by respondent 3, his tender was accepted. Significantly, there is no denying that the eligibility of a tenderer to participate depends on fulfilment of conditions, one being general condition 20 aforementioned, besides general condition 29 which too assumes significance in view of its relevance to the controversy, therefore reproduced hereunder; “At places where there is a full rake Railway goods shed, the site should preferably be within 8 KM of goods shed. Where no full rake railway goods shed exists the site should preferably be within a radius of 8 KM of the urban/rural boundary limits of such places. Wherever 25000 MT and above capacity is required, it should preferably have the provision for private railway siding. The land should preferably be on National or State Highway. The road leading to the godown should be free from any kind of traffic restriction for truck movement. Distance criteria of within 8 KMs. radius from full rake railways goods shed does not apply to dogowns with a railway siding.” 4. It transpires from a plain reading of condition 20 that the tenderer has to give details of location including survey numbers and boundaries, but no obligation is cast on the respondent - Food Corporation of India (FCI) to construct the godown at a particular spot of Palakole location and construction of a godown can come up anywhere in the location which position is manifest from general condition 29. However, it would be preferable to construct the godown within 8 KMs but there is noting in the general conditions which would require the FCI to restrict the construction within radius of 8 KMs. In this behalf, reference to para 5 of the counter affidavit becomes imperative which reads; “It is submitted that regarding the allegation of the petitioner that the 3rd respondent site does not come under the Palakole area. It is submitted that the location Palakol is identified by FCI basing on the requirement of storage space for matching the storage requirements in that particular area and has to be taken in a broader sense. The main intention of Food Corporation of India is to create storage space which can cater the storage requirements in and around Palakol area. It is not stated in the tender schedule that the proposed godowns shall be located within Palakol mandal boundaries only.” 5. A bare perusal of the averment makes it clear that the main purpose of the construction in question is to facilitate storage in and around Palakole area so that it caters the requirements of that area and the godowns need not be located at a particular portion of Palakole Mandal area. More so, on a plain reading of the conditions, it is clear that the selection of the spot or the godown depends entirely on suitability of the location. Thus going by the conditions of the contract coupled with the stand disclosed by the respondents, we find no fault with the judgment of the learned single Judge, resultantly this writ appeal fails and is dismissed along with miscellaneous petition. VILAS V. AFZULPURKAR, J NISAR AHMAD KAKRU, CJ 09-03-2011 K. Shyleshi [1] AIR 1986 SC 1527