IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIRST DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE N.V. RAMANA Writ Petition No.18321 of 2009 Between: Gutta Pitchaiah ..... PETITIONER AND Indian Oil Corporation and others. .....RESPONDENTS Order: The petitioner claims that he is carrying on the business of transport services under the name and style of M/s.New Car Travels at Vijayawada and he is an existing Transport Contractor of the Indian Oil Corporation, transporting its employees to its plant at Kondapalli, Vijayawada. Pursuant to the tender notification issued by the first respondent, namely, Indian Oil Corporation, inviting tenders from eligible persons for supply of transport services for picking up employees of Vijayawada Terminal at Kondapaali, the petitioner claims to have submitted his tender quoting a sum of Rs.98,122/- exclusive of service tax. He states that along with him, two other persons, namely, the third respondent herein and one M/s.Satyadeva Car Travels, participated in the tender process quoting Rs.1,00,017/- and Rs.1,00,026/- respectively. While so, it is the grievance of the petitioner that even though at the negotiations held, he clarified that the amount quoted by him is inclusive of service tax and by mistake it was mentioned as exclusive of tax, and has even reduced the rate per kilometer for the mileage beyond 2000 km per month per bus from Rs.9/- to Rs.6/- km and for Tavera, reduced from 35,100/- to Rs.33,500/-, the first and second respondents, have added service tax of 5%; and declared him as highest bidder, with an intention to award contract in favour of the third respondent. Hence, the present writ petition seeking appropriate directions in this regard. When the matter came up for consideration for the first time on 02.09.2009, in view of the urgency pleaded by the learned counsel for the petitioner, this Court ordered urgent notice before admission and posted the matter to 09.09.2009. Accordingly, when the matter was listed on 09.09.2009, the learned Standing Counsel appearing for respondent Nos.1 and 2 sought time and therefore, the matter was directed to be listed on 22.09.2009. Thereafter, the matter underwent four adjournments and finally, respondent Nos.1 and 2 filed counter in the matter and as per the directions of this Court, produced relevant record. Though the third respondent was served with the notice taken out by the petitioner, this Court directed the learned Standing Counsel to take out notice on the third respondent through the Corporation, as the notice sent through the Court was not served. Accordingly, when the matter was taken up on 20.11.2009, it was represented by the learned Standing Counsel that vide letter, dated 18.11.2009, the Corporation has informed the third respondent about the date of hearing of the writ petition, which was acknowledged by the third respondent. In spite of the same and printing the name of the third respondent in the cause list, none appeared for the third respondent. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the first and second respondents. Perused the material on record. From a perusal of the record, it is clear that pursuant to the tender notification issued by the Indian Oil Corporation Limited inviting tenders from eligible persons for picking up the employees of Vijayawada Terminal at Kondapalli, namely, the first respondent, the petitioner and two others, have submitted their bids. Initially, the petitioner quoted a sum of Rs.98,122/- exclusive of service tax, while the third respondent and another, M/s.Satyadeva Car Travels, quoted Rs.1,00,017/- and Rs.1,00,026/- respectively. It is categorically stated in the counter that as the petitioner did not state as to what amount he would claim for the service tax, vide letter, dated 29.07.2009, the Corporation sought clarification from the petitioner and pursuant thereto, it appears, though initially, the petitioner stated that the service tax would be 5% inasmuch as he is an existing contractor, later vide letter, dated 30.07.2009, the petitioner has offered to give up his claim for collecting service tax and also reduced the rate for one of the components in the tender. However, without taking into consideration the clarification given by the petitioner, the Corporation has taken the offer of the petitioner as Rs.98,122/- plus 5% service tax, which would come to Rs.1,03,028/-, and declared that the third respondent’s bid was lowest i.e., Rs.1,00,017/- and awarded the contract in its favour. Here it is to be noted that though in the counter it is specifically stated that in the tender process, the Corporation does not negotiate for lowering the price after receiving the sealed bids and that as per the directives from the Union of India, no such negotiations are permissible and at best, only clarifications can be sought, the fact remains that vide letter, dated 30.07.2009, the petitioner has given clarification to the effect that he is willing to give up his claim for collecting service tax and also even reduced the rate for one of the components in the tender. The relevant portion of the letter, dated 30.07.2009, reads as under: “1.Remark on Rate Schedule: I confirm that the remark regarding Service Tax was written by mistake on the Rate schedule. I confirm that the rates quoted by me in the said Rate schedule of the subject Limited Tender is also inclusive of all Taxes (i.e., service tax). I shall not claim any extra amount on Service Tax. 2.Rate/KM beyond 2000 KM/PM for Bus : I offer to reduce the rate per KM for mileage beyond 2000 KM per month for Bus from Rs.9-00 to Rs.6-00/KM. 3.Lumpsum rate for Tavera for mileage 2000 KM : I offer to reduce the lumpsum rate per month for mileage upto 2000 KM/PM for Tavera from Rs.35,100.00 to Rs.33,500.00.” In the circumstances, this Court is of the considered opinion that the Corporation ought to have considered the offer of the petitioner in the light of the clarification given by him vide letter, dated 30.07.2009, instead of awarding contract in favour of the third respondent, as the offer of the petitioner is lower than the offer of the third respondent. Therefore, I see no justification in the action of the Corporation in awarding contract in favour of the third respondent. For the foregoing reasons, the writ petition is allowed and the contract awarded in favour of the third respondent is set aside. The respondent-Corporation shall consider the case of the petitioner for allotment of the subject contract by taking into consideration the letter, dated 30.7.2009, submitted by him. No costs. ___________________ N.V. RAMANA, J. Date:01.12.2009 VGB