THE HON’BLE THE CHIEF JUSTICE SHRI MADAN B.LOKUR AND THE HON’BLE SHRI JUSTICE SANJAY KUMAR WRIT APPEAL NOS.988 AND 1073 OF 2011 DATED 15TH DECEMBER, 2011 Between Gupta Hair Products (P) Ltd., Venkatapuram Panchayat, Eluru Mandal, West Godavari District, Rep. by its Managing Director, Madupalli Mohana Gupta and others. …Appellants And Tirumala Tirupathi Devastanams, Tirupathi, Chittoor District, Rep. by its Executive Officer and others. ...Respondents THE HON’BLE THE CHIEF JUSTICE SHRI MADAN B.LOKUR AND THE HON’BLE SHRI JUSTICE SANJAY KUMAR WRIT APPEAL NOS.988 AND 1073 OF 2011 COMMON JUDGMENT (Per Sri Justice Sanjay Kumar) Sale of hair offered by devotees at the Tirumala Tirupati Devasthanams (TTD), Tirupati, is in issue. By the common order dated 05.11.2011, a learned Judge of this Court upheld the actions of the TTD in this regard and dismissed several writ petitions. Aggrieved thereby, the petitioners in two of the writ petitions, W.P.Nos.9860 and 10198 of 2011, are in appeal. Efforts by the TTD to dispose of these oblations through tenders met with failure on 07.04.2010, 07.06.2010, 27.10.2010 and 26.11.2010 as it could not garner even the upset price. The TTD then issued tender notification dated 31.01.2011 fixing the date for opening of tenders as 16.02.2011. The hair put to auction was segregated into five varieties on the basis of length and the sixth variety comprised ‘grey hair’. Though 46 tenders were submitted in response to the above notification, none of the offers matched the upset price fixed for each category, except in the case of one tenderer, who is not a party before us. Despite Condition No.4 of the tender conditions which mandated that a tender would become invalid if the rate quoted by the tenderer was less than the upset price, the TTD entered into negotiations with the tenderers for enhancement of the price offered by them. The petitioners in W.P.No.10198 of 2011, from which W.A.No.988 of 2011 arises, participated in this tender process and the subsequent negotiations. The revised bid dated 10.03.2011 said to have been offered by the first petitioner is placed on record and reflects that the price offered therein for the first, second and sixth varieties of hair just matched the upset prices while that offered for the third variety still continued to fall short of the upset price. The TTD apparently chose not to accept any of the revised bids and opted for issuing a fresh tender notice. The Short Tender Notice dated 23.03.2011 came to be issued accordingly. The varieties of hair put to sale thereunder and the corresponding upset prices were as follows: Varieties Stock available as on 09-03-2011 Upset Price (Per Kg.) Rs. First variety (31” and above) Human Hair 14,749 Kgs. 12,000/- Second variety (16” to 30”) Human Hair 51,320 Kgs. 10,920/- Third variety (10” to 15”) Human Hair 98,741 Kgs. 5,700/- Fourth variety (5” to 9”) Human Hair 4,630 Kgs. 4,510/- Fifth variety (Less than 5”) Human Hair 2,24,642 Kgs. 60/- Grey Hair 1,775 Kgs. 9,030/- Thirteen (13) tenders were received in response to the above tender notice which were opened on 31.03.2011. The Negotiations Committee, comprising the Joint Executive Officer, TTD, Tirumala; the Chief Vigilance and Security Officer, TTD, Tirupati; and the Financial Advisor and Chief Accounts Officer, TTD, Tirupati, conducted negotiations on the said day with the tenderers soliciting enhancement of their bids. The Minutes of this meeting manifest that upon such parleys, tendered and additional quantities of hair were allotted to the successful tenderers at more than the corresponding upset prices, except in the case of one tenderer who was allotted tendered and additional quantities of the second variety of hair at the upset price. This was because the bids received for this variety were for a meager quantity of 6,000 Kgs. as against the available stock of 51,320 Kgs. This tenderer was therefore allotted a major chunk of 19,800 Kgs. additional quantities along with the tendered quantity of 200 Kgs. at the upset price of Rs.10,920/-. Pertinent to note, the petitioner in W.P.No.9860 of 2011, from which W.A.No.1073 of 2011 arises, bid only for the fifth variety of hair but remained unsuccessful even after negotiations as he did not choose to match the upset price. As per the relevant Rules, the Board of Trustees of the TTD was the competent authority to confirm the aforestated sales. However, as the term of the erstwhile Board of Trustees of the TTD expired during the year 2010 the Government of Andhra Pradesh, in exercise of powers conferred by Section 137 of the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987 (for brevity, ‘the Act of 1987’), constituted a ‘Specified Authority’ comprising three members (vide G.O.Ms.No.904, Revenue (Endowments-III) Department, dated 25.08.2010) for a period of one year or till the constitution of a new Trust Board. This Specified Authority, which was empowered to discharge the powers of the Board of Trustees in this interregnum period therefore had to confirm the aforestated allotment and sale of hair. The matter was accordingly placed before the Specified Authority which, by Resolution No.384 dated 13.04.2011, ratified the actions taken for disposal of the stocks of human hair of different varieties to the bidders as recommended by the Negotiations Committee. While so, several writ petitions came to be filed before this Court assailing various aspects involved in the sale and disposal of hair by the TTD. These writ petitions ultimately came to be dismissed by the learned Judge on 05.11.2011. We are presently concerned only with two of those writ petitions. The case of the appellants in W.A.No.988 of 2011 (petitioners in W.P.No.10198 of 2011) was that they had responded to the tender notification dated 31.01.2011 and also submitted revised bids in the subsequent negotiations. It was their contention that without finalizing their tenders the TTD could not have initiated a fresh tender process under the Short Tender Notice dated 23.03.2011. They relied upon Rule 118-A(2) of the statutory rules framed in G.O.Ms.No.311, Revenue (Endowments-I) Department, dated 09.04.1990 and urged that their revised tenders were deemed to have been accepted thereunder upon the lapse of one month. The appellant in W.A.No.1073 of 2011 (petitioner in W.P.No.9860 of 2011) did not choose to disclose that he had responded to the Short Tender Notice dated 23.03.2011. Suppressing this fact, he challenged the said tender notice on the ground that the same was in violation of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Immovable Properties and other rights (other than Agricultural Lands) Leases and Licenses Rules, 2003 (for brevity, ‘the Rules of 2003’) and sought a further declaration that respondents 5 to 10, being the successful tenderers who were allotted stocks of the first, second and third varieties of hair in the meeting held on 31.03.2011, were liable to be blacklisted for a period of five years in terms of Condition No.12 of the Short Tender Notice dated 23.03.2011. Dealing with these and other grounds of challenge raised in the other writ petitions, the learned Judge framed five questions for consideration: “(1) Whether the petitioners who did not submit their tenders pursuant to the impugned tender notice dated 23.03.2011 have locus to maintain the writ petitions challenging the tender process? (2) Whether the action of T.T.D. in issuing the impugned Short Tender Notice, dated 23.03.2011 without rejecting the tenders submitted by the petitioners in response to the earlier tender notice dated 31.01.2011 is arbitrary and illegal? (3) Whether Conditions 11 & 12 of the impugned Short Tender Notice dated 23.03.2011 providing for allotment of additional quantities on the requisition of the bidders are valid? (4) Whether the acceptance of the bids of the successful bidders and allotment of tender quantities to them pursuant to the impugned short tender notice dated 23.03.2011 is vitiated by any legal infirmity? (5) Whether the allotment of additional quantities made in favour of respondents 2 to 7 in W.P.No.9838 of 2011, who are also arrayed as respondents 5 to 10 in W.P.No.9860 of 2011, is liable to be cancelled for non-compliance with Condition No.12 of the Tender Notice dated 23.03.2011, and whether they are liable to be blacklisted for a period of five years?” The learned Judge, in the final order dated 05.11.2011, held in favour of the petitioners in so far as the maintainability of the writ petitions was concerned but ruled against them on all the other questions and dismissed the writ petitions. In these two appeals, we are concerned only with the questions 2, 4 and 5 aforestated. Sri P.Gangaiah Naidu, learned senior counsel appearing for the appellants in both the appeals, contended that the action of the TTD, in deviating from Condition No.12 of the Short Tender Notice dated 23.03.2011 and permitting the bidders to deposit less than 20% of the cost of additional quantities requested by them, was illegal. Learned senior counsel argued that others also would have participated in the tender process had it been known that tenderers were required to deposit only 2.5% and not 20% of the price of additional quantities. He submitted that owing to this deviation, the TTD itself stood to suffer loss as huge stocks were knocked away by the bidders in the name of additional quantities at a lesser price. Sri Y.V.Ravi Prasad, learned standing counsel for the TTD, on the other hand asserted that every action taken by the TTD while finalizing the allotment and sale pursuant to the Short Tender Notice dated 23.03.2011 was fair and transparent. He pointed out the circumstances in which a decision was taken in the Negotiations Committee Meeting held on 31.03.2011 to reduce the deposit amount for additional quantities from 20% to 2.5% and submitted that the appellants could have no real grievance about the same as no prejudice was caused to them thereby. Learned standing counsel submitted that the order under appeal did not brook interference, be it on facts or in law, and prayed for dismissal of the appeals. Echoing these submissions, learned counsel appearing for some of the successful bidders, respondents 5 to 10 in W.A.No.1073 of 2011, supported the order of the learned Judge. Though the learned senior counsel for the appellants did not touch upon the challenge laid by the appellants in W.A.No.988 of 2011 in the course of his arguments, we consider it appropriate to deal with the same. It was their case that they had submitted revised bids in the negotiations held pursuant to the tender notification dated 31.01.2011 and that the same ought to have been held confirmed under the relevant deeming provision, thereby invalidating the action of the TTD in floating a fresh tender notice thereafter. They pointed out that Rule 118-A(2) of the rules contained in G.O.Ms.No.311 dated 09.04.1990 postulated that a sale which required to be confirmed under Rule 118- A(1) was deemed to have been so confirmed if, within one month from the date of the sale, no order confirming the sale was received by the purchaser. They therefore contended that as no action was taken to confirm the sale within one month after the submission of their revised bids on 10.03.2011, the aforestated rule would come into operation and it must be deemed that the sale was confirmed in their favour as per their revised bids. Dealing with this contention, the learned Judge held, and in our opinion rightly so, that the deeming provision would only apply to a valid tender. Admittedly, the price quoted by the appellants in W.A.No.988 of 2011 in their original bids for each variety did not match the upset price. Condition No.4 of the tender conditions dated 31.01.2011 stipulated that a tender shall become invalid if the rate quoted therein was less than the upset price fixed by the TTD. In consequence, as the price offered by the appellants rendered their tenders invalid, the mere fact that the TTD entertained them for negotiations thereafter would not have the effect of validating their tenders, whereby they could seek the benefit of the deeming provision in Rule 118-A(2). Just because these appellants submitted revised bids pursuant to the negotiations held on 17.02.2011, which itself is disputed by the TTD, the same would not have the effect of binding the TTD. The Short Tender Notice dated 23.03.2011 therefore does not suffer from any illegality on this count. As regards the appellant in W.A.No.1073 of 2011, this Court cannot ignore the fact that he responded to the Short Tender Notice dated 23.03.2011 by bidding for 1000 Kgs. of the fifth variety of hair but wilfully withheld this information in his writ affidavit. This suppression reflected on his lack of bona fides and would have well justified the dismissal of his writ petition on this short ground. However, as the learned Judge has already held in favour of the petitioners in all the cases on the issue of maintainability of the writ petitions, we deem it proper to deal with his challenge on merits. This appellant unsuccessfully bid only for the fifth variety of hair but his grievance in the writ petition was with regard to the action of the TTD in allotting additional quantities of the first, second and third varieties of hair to the bidders arrayed as respondents 5 to 10 in the appeal. His challenge was on the ground that the Short Tender Notice fell foul of the Rules of 2003 and that the TTD also violated Condition No.12 of the tender conditions. The appellant’s contention that the tender notice dated 23.03.2011 violated the procedure prescribed in the Rules of 2003 does not hold water. The rules in G.O.Ms.No.311 dated 09.04.1990 were promulgated under Section 97 read with Section 153 of the Act of 1987, delineating the powers and functions of the Board of Trustees of the TTD. Chapter XVI of the said Rules dealt with the sale of movable properties of the TTD and the procedure to be followed therefor. Rule 118-A falls in this Chapter. In the light of these rules made specifically for the TTD, the general Rules of 2003 which came thereafter would have no application to it. The actions of the TTD would therefore have to measure up to the rules prescribed in G.O.Ms.No.311 dated 09.04.1990 only. Examined thus, the tender notice dated 23.03.2011 does not reflect any violation or irregularity of the prescribed norms. Condition Nos.11 and 12 of the tender conditions appended to the Short Tender Notice dated 23.03.2011 are of relevance and read as under: “11. The TTD reserves the right to allot the remaining tender quantity of all varieties of Human Hair to the Tenderers/ Companies/Persons whoever taken part in the tender. On the written request made by the Company/Person/ Tenderer for the said quantity at the rates approved by the TTD, confirmation orders will be placed on them. 12. The bidder/tenderer has to pay 20% cost of the Additional quantity as deposit on the price quoted by him within (7) seven days from the date of requisition of the tenderer concerned failing which the request for such allotment will be cancelled and the firm will be blacklisted for a period of (5) five years. The balance 80% cost for such Additional quantity has to be paid within 30 days from the date of confirmation orders and to take delivery, failing which 20% amount so paid for allotment of remaining quantities will be forfeited.” The dispute raised by the appellant is with regard to the deposits to be made by the tenderers for allotment of additional quantities. In this regard, it would be relevant to notice that the earlier tender notifications issued by the TTD in the year 2010 and on 31.01.2011 required a Minimum Deposit, i.e., Earnest Money Deposit (EMD), quantified at 20% of the upset price fixed for the stipulated quantities of each variety of hair. It is a matter of record that in the meeting held on 18.03.2011 under the Chairmanship of one of the members of the Specified Authority, the Negotiations Committee of the TTD, while concluding that the auction conducted in the month of February, 2011 pursuant to the tender notification dated 31.01.2011 was over and deciding to go in for a fresh Short Tender Notice, also resolved to modify the tender conditions. One such modification was to reduce the EMD to 2.5%, instead of 20% of the upset price for the stipulated quantity of hair as was being done earlier, so as to allow more number of participants. This decision was put into practice as is evident from the Short Tender Notice dated 23.03.2011 wherein the minimum deposits for the different varieties of hair came down drastically when compared with those stipulated in the earlier notifications. However, in so far as the EMDs for additional quantities of hair were concerned, it appears that the same reduction was not extended and Condition No.12 of the tender conditions continued to read to the effect that the bidder/tenderer had to pay 20% of the additional quantity amount as deposit within seven days from the date of requisition of such quantity. While so, in the meeting held by the Negotiations Committee on 31.03.2011 with the tenderers who had responded to the Short Tender Notice dated 23.03.2011, taking note of the fact that the EMD amount had been reduced on principle in so far as the tendered quantities were concerned and accepting the request of the tenderers to extend the same to the deposits to be made for the additional quantities, the Committee reduced the percentage of such deposit to 2.5% of the offered amount for additional quantities also. This EMD amount was to be paid within seven days from the date of requisition of the additional quantities and the balance 97.5% of the amount was to be paid within thirty days from the date of the confirmation order issued by the TTD or the date of delivery, whichever was earlier. The grievance of the appellant in W.A.No.1073 of 2011 is that the TTD ought not to have permitted such reduction in the minimum deposits to be made by the tenderers for additional quantities. Be it noted that the appellant, who participated in the Negotiations Committee Meeting held on 31.02.2011, did not choose to revise his bid for the tendered quantity of 1,000 Kgs. of the fifth variety of hair. Others who had quoted less than the upset price like him but thereafter revised their bids during the negotiations were allotted the tendered as well as additional quantities of hair requested by them at the rate approved by the TTD. The appellant however did not choose to take similar advantage of the negotiations. It was only the tenderers who secured the quantities tendered by them that were eligible to aspire for ‘additional’ quantities. The decision of the TTD to reduce the minimum deposit for the tendered quantities having already been put into practice in the Short Tender Notice dated 23.03.2011, the successful tenderers were justified in requesting the TTD to grant similar benefit to them in respect of the deposits to be made for the additional quantities. The response of the TTD in doing so was only a logical extension of its decision in this regard in respect of tendered quantities and was perhaps in aid of its endeavour to expeditiously dispose of the accumulated stocks of hair which had built up owing to the failure of several tender notifications earlier. We therefore find that the action of the TTD in accepting the request of the tenderers and reducing the EMD for additional quantities on par with the EMD for the tendered quantities to be bona fide and aboveboard. Further, the time stipulation in the tender conditions puts it beyond the pale of doubt that no prejudice or loss was caused to the TTD as the successful tenderers, in any event, had to deposit the entire amount for the additional quantities within thirty days from the date of confirmation of the allotment of such additional quantities at the prices approved by the TTD or when they lifted such stocks, whichever was earlier. We further find that no prejudice was caused to the appellant in W.A.No.1073 of 2011 by this so-called deviation as he did not choose to offer even the upset price for the tendered quantity. The argument of the learned senior counsel that others would have participated if Condition No.12 of the tender conditions had indicated the correct percentage of the minimum deposit for additional quantities does not stand to reason. The tender notice demonstrated that the EMD for the tendered quantities was fixed at 2.5% of the value. The entitlement to additional quantities was limited to only those who secured the tendered quantities. To contend that there would have been more participation for additional quantities had lesser EMDs been indicated, when such persons did not even come forward to bid for the tendered quantities at a lesser EMD is patently ludicrous. As pointed out by the Supreme Court in G.J.FERNANDEZ v. STATE OF KARNATAKA[1], a deviation from the tender conditions would not vitiate the tender process unless it is established that such deviation resulted in arbitrariness or discrimination. Substantial prejudice or injustice must be caused by the deviation to warrant interference, which is not demonstrated on facts in the present case. At this stage, we must make it clear that the successful tenderers had no vested right to insist on additional quantities being allotted to them and the TTD was clothed with the discretion to allot the remaining tender quantities of hair to the tenderers who had participated, upon their written request and at the rates approved by it. Such allotment was subject to confirmation orders being placed on the tenderers and upon their making the payments for such additional quantities within the time stipulations posited by the tender conditions. No tenderer could therefore claim allotment of any additional quantities as a matter of right. It may also be noted that additional quantities to be so allotted were restricted to the remaining tender quantities only. The record reflects that confirmation letters were addressed by the TTD to the successful tenderers on 07.04.2011 as regards the tendered and additional quantities allotted to them and some of the tenderers were also allowed to lift the additional quantities upon making requisite payments. However, some of the additional quantities, allotment of which was confirmed by the TTD and for which requisite amounts were also paid as per norms by the successful tenderers, are yet to be released by the TTD and seem to have been held up owing to the pendency of these appeals. In the light of this final order and as the TTD has already confirmed the allotment of stipulated additional quantities of hair to the successful tenderers under its letters dated 07.04.2011, it shall release the named additional quantities to those tenderers who remitted the amounts due for such quantities within time. As regards any remaining tender quantities of hair, it would be for the TTD to exercise its discretion under Condition No.11 of the tender conditions and decide whether it should allot such quantities to the bidders and if so, at what prices or opt for a fresh tender process. On the above analysis, we find no reason to interfere with the well-considered order of the learned Judge, which we accordingly confirm. The Writ Appeals are devoid of merit and are consequently dismissed. Parties shall bear their own costs. _______________________ MADAN B.LOKUR, CJ. ____________________ SANJAY KUMAR, J. 15TH DECEMBER, 2011. PGS/VGSR [1] (1990) 2 SCC 488