THE HON'BLE Ms. JUSTICE G. ROHINI WRIT PETITION Nos.1530 AND 12305 OF 2011 Dated: 06.07.2011 WRIT PETITION No.1530 OF 2011 Between: Merugu Parasu Ramulu … Petitioner AND The General Manager (Civil), Singareni Colleries Company Limited And another … Respondents WRIT PETITION No.12305 OF 2011 Between: M/s. Sri Sai Constructions … Petitioner AND The Singareni Colleries Company Limited … Respondent This Court made the following : THE HON’BLE Ms. JUSTICE G.ROHINI WRIT PETITION Nos.1530 AND 12305 OF 2011 COMMON ORDER: The petitioners in both the writ petitions claim to be the contractors executing regularly the works of the respondent- Singareni Colleries Company Limited. The petitioner in Writ Petition No.1530 of 2011 had participated pursuant to the tenders invited vide E-Procurement NIT dated 13.08.2010 for supply of Pit Material to Goleti I and IA incline for the year 2010-11 in Bellampalli Area. The technical bids were opened on 09.09.2010 and having found that the petitioner had failed to submit the EMD and EMD documents offline before the last date prescribed in NIT, the petitioner was technically disqualified. That apart by letter dated 19.10.2010 while informing that petitioner that as per Clause No.X of NIT, he should be debarred from participation of tenders of the respondent for a period of one year, he was called upon to explain as to why he should not be debarred from further participating in tenders of the respondent including works of unit rate system for a period of one year. The petitioner submitted his explanation stating that as he was under an impression that the documents should be submitted offline in the civil office, he went to the civil office and there he was informed that the documents should be submitted to the P.A. of General Manager and immediately he went there and had actually reached the office of the General Manager in time on 08.09.2010 i.e., last date fixed for submission of tenders. However, as the P.A. was not available, the tender documents were not received and therefore the proceedings initiated to debar him from participation in the future tenders may be dropped. The said explanation was not accepted and by order dated 24.12.2010, the petitioner was debarred from further participating in tenders for a period of one year with immediate effect stating that in the notification itself it was clearly mentioned that EMD should be sent offline to the General Manager within the stipulated time. Aggrieved by the said order, Writ Petition No.1530 of 2011 has been filed. In Writ Petition No.12305 of 2011, the tenders were invited by the respondent for construction of a community hall at Ramakrishnapuram, Mandamarri area by E-Procurement vide NIT dated 28.12.2010 and pursuant thereto, the petitioner submitted his bid. After opening the technical bids having found that the petitioner failed to submit the EMD and other documents offline before last date fixed, the petitioner’s bid was technically disqualified and by notice dated 12.03.2011, the petitioner was called upon as to why he should not be debarred from participating in tenders including work of unit rate system for a period of one year. The petitioner submitted his explanation dated 25.03.2011 stating that he fell sick and was hospitalised from 20.01.2011 to 23.01.2011 and therefore, his case may be considered sympathetically and not to debar him from participating in tenders for future works. The respondent by letter dated 05.04.2011, informed the petitioner that his explanation was not acceptable since the downloading of the documents as per the notification started on 30.12.2010 and the time was granted upto 20.01.2011 and for submission offline the time was granted upto 22.01.2011. Thus, the petitioner’s plea that the documents could not be submitted offline as he fell sick was not accepted and the petitioner was debarred from participating in the tenders of the respondent including the works of unit rate system for a period of one year. The above order is under challenge Writ Petition No.12305 of 2011. I have heard the learned counsel for both the parties. The learned counsel for the petitioners while submitting that the Clause under the tender documents which provided for debarring the tenderers was is in violation of Article 19 (1) (g) of the Constitution of India, vehemently contended that the impugned orders which were passed without properly appreciating the explanations offered by the petitioners are arbitrary and illegal. In support of his submission, the learned counsel for the petitioners relied upon a decision in Chintamanrao and another v. The State of Madhya Pradesh[1]. At the outset, it is to be noticed that both the petitioners have admittedly failed to submit the EMDs offline within the stipulated time. The explanation offered by them for their failure to submit the EMDs offline was found to be not acceptable by the respondents. Therefore the action of the respondents in rejecting the technical bids of the petitioners cannot be found fault with. So far as the action of the respondents in debarring the petitioners from participation of their tenders for a period of one year is concerned, it is to be noticed that there is a specific clause in the tender notifications which are the subject-matters of both the writ petitions. The said clause reads as under: “Technical bids of the tenderer who fail to submit EMDs offline within stipulated time will be disqualified. Apart from this, the defaulter will be debarred from participation of tenders in SCCL for a period of one year.” The petitioners are very well aware of the consequences of the non-submission of the EMDs offline within the stipulated time. Having voluntarily participated in the tenders without raising any objection with regard to the above mentioned clause in the tender notifications, it is not open to the petitioners now to contend that the condition itself is authoritative of Article 19 (1) (g) of the Constitution of India. As a matter of fact, it is explained in the counter-affidavit that the mandatory offline submission of EMD within the stipulated time and date have been incorporated in the tender notifications to protect the commercial interest of the respondent so as to restrain the bidders not to back out after award of the work. It is also stated that taking advantage of submission of offline original EMD, the contractors are prevailing on other colleague contractors not to submit the offline EMD to enable them to garner the work at their quoted rates. To prevent this unhealthy practice, a clause has been provided in Notice Inviting Tender (NIT) as a policy issue. The stand taken by the respondents in the counter-affidavit makes it clear that a policy decision has been taken to debar the defaulters from participation in tenders for a period of one year to achieve a specific purpose. Therefore the contention of the petitioners that the said clause is arbitrary and illegal is untenable. For the aforesaid reasons, the impugned orders debarring the petitioners from participating in tenders for a period of one year which have been passed in terms of the specific clause stipulated in the NIT cannot be held to be illegal on any ground whatsoever. Accordingly, both the Writ Petitions which are devoid of any merit are hereby dismissed. No costs. ___________ G.ROHINI, J JULY 06, 2011 Ivd [1] A.I.R (38) 1951 Supreme Court 118