Case: M/S N RAMACHANDRA REDDY Vs. THE STATE OF TELANGANA

4. Necessary facts in nutshell, for disposal of this appeal are as under:The Roads and Buildings Department of the First Respondent-State of Telangana, floated a tender notice dated 21.04.2018, inviting bids for construction of BT Road from Gujed to Buddaguda, in Mahabubabad District of Telangana State. Tender is floated by Standard Bidding Document for Road Connectivity Project for Left Wing Extremism Affected Areas (RCPLWEA) for construction and Maintenance - issued by the National Rural Roads Development Agency, Ministry of Rural Development,Government of India. The appellant and the fourth respondent participated in the tender process by submitting the requisite documents. As per the tender conditions, there is a requirement to furnish necessary certificates from the District Officers of R & B Department to exhibit proof of owning Batch Type Hot Mix Plant of capacity 100-120 TPH and that such Batch Type Hot Mix Plant shall be located within a distance of 100 kilometers from the last point of working reach, for which, bids are invited. The relevant clause in the tender document under Clause 4.4 B(b) reads as under:-(i) availability for construction work, either owned, or on lease or on hire, of the key equipment (except Batch Type Hot Mix Plant) stated in the Appendix to ITB including equipments required for establishing field laboratory to perform mandatory tests, and those stated in the Appendix to ITB; Note: For Batch Type Hot Mix Plant, as per G.O.Rt. No.211, T.R&B(R.1)Dept., Dt.21-04-2018(a) The bidders shall exhibit proof of owning Batch Type Hot Mix Plant of capacity 100-120 TPH and such Batch Type Hot Mix Plant shall be located within a distance of 100 Kms from the last point of working reach for which bids are invited(b) The bidders to furnish necessary certificates from the concerned District Officers of R & B where such plants have been located and the District Officers of R & B shall inspect and certify with route maps on the (1) location (2) distance from last point of work reach and (3) ownership of such plants for which the bidders are intending to bid(c) The Superintendent Engineer of R & B concerned shall ensure the veracity of such certificate/documents uploaded by the bidders in support of the eligibility criteria on machinery before finalizing the technical evaluation of the bids5. The Bid Document consists of two parts, Part-I & Part-II i.e technical bid and price bid respectively6. Pursuant to tender notice, there were two offers by the bidders i.e the fourth respondent as well as the appellant herein. The technical bids were opened on 18.05.2018 at 04:00 P.M. and as the fourth respondent as well as the appellant were qualified in the technical bid, the Part-II bid i.e the price bid was opened on 31.05.2018 at 03:00 P.M7. In the price bid, the fourth respondent herein, offered to execute the work at the cost of Rs.31,51,27,865.82 whereas, the appellant offered the cost of Rs.31,31,69,427.04 for executing the work. As much as the offer made by the appellant was lowest, the Letter of Intent was issued to the appellant8. As per the tender conditions, the appellant herein has produced the document issued by the Executive Engineer, Roads and Buildings Department, Mahabubabad Division, showing distance from the Batch Type Hot Mix Plant to that of the site at 99.05 kilometers. Disputing correctness of such distance, the fourth respondent/ writ petitioner has on 18.05.2018, filed a complaint before the concerned authority i.e. the Chief Engineer. On such complaint, the Chief Engineer, called for a verification report from the Superintending Engineer, R & B Circle, Warangal. As per the report dated 30.05.2018 submitted by the Superintending Engineer, the actual distance between the Hot Mix Plant and the last point of working reach was shown at 101.50 kilometers. In the same report, the Superintending Engineer, Warangal, has also mentioned that the distance when measured from an alternate route, the actual distance from the Hot Mix Plant to the last point of working reach comes to 99.90 kilometers9. In view of the dispute raised by the fourth respondent again, about the correctness of distances mentioned in the report submitted by the Superintending Engineer, Warangal, the Chief Engineer vide his letter dated 11.06.2018, requested the Superintending Engineer, Karimnagar, to verify the distance between the location from the point of Hot Mix Plant, owned by the appellant, to that of the last point of working reach of the site in question10. Vide report dated 04.07.2018, the Superintending Engineer, Karimnagar informed the Chief Engineer that the distance between the Hot Mix Plant, owned by the appellant and the last point of working reach is 98.1 kilometers11. In the report dated 04.07.2018, filed by the Superintending Engineer, Karimnagar, addressed to the Chief Engineer, as the distance between Hot Mix Plant owned by the appellant and the last point of working reach was shown at 98.1 kilometers, same was accepted by the authorities and tender was finalized in favour of the appellant. The fourth respondent has questioned the same by way of Writ Petition filed under Article 226 of the Constitution of India12. The learned Single Judge of the High Court has held that in absence of any specific mala fides against any individual, the re-verification undertaken, about the distance, by the Chief Engineer, is not illegal. Learned Single Judge has observed that when the tender conditions permit the tenderer to make objection, which obviously, require consideration, by necessary implication, permit the tendering authority to re-verify and re-consider the material submitted before him. It is observed that when the fourth respondent has raised an objection against the certificate issued in favour of the appellant, no fault can be attributed to the authorities in getting the re-verification done and obtaining a report from an independent authority. Having found that there is no illegality or arbitrariness on the part of the authorities, in decision-making process, learned Single Judge dismissed the Writ Petition vide order dated 25.02.201913. When the said order is questioned by way of intra court appeal under clause 15 of the Letters Patent, the Division Bench of the High Court has found fault with the report of the Superintending Engineer, Warangal, to the extent in giving distance particulars from the alternate route. Further, it is observed that when the report of the Superintending Engineer, Warangal, was not accepted, the Chief Engineer should not have sought a second report from the Superintending Engineer, Karimnagar. In the order it is stated that the jurisdictional Engineer is Superintending Engineer, Warangal but not Superintending Engineer, Karimnagar. It is stated in the order that since the report submitted by the Superintending Engineer, Karimnagar was not legally justified, as such, it could not have been relied on to finalize tender in favour of the appellant14. On the aforesaid grounds, the Division Bench allowed the intra court appeal, by impugned order, with a direction to award the work in question, on the basis of a report submitted by the Superintending Engineer, Warangal.

Reasoning:
31. From a reading of the impugned order, it appears that the Division Bench has reversed the order of the learned Single Judge, only on the ground that the report received from the Superintending Engineer, Karimnagar, is not in accordance with the procedure. The Division Bench of the High Court has also held that the Chief Engineer had stepped out of his jurisdiction, when he called a report from the Superintending Engineer, Karimnagar32. We are not convinced, with such a view, as expressed above, by the Division Bench of the High Court. First of all, it is to be noticed that there is no dispute that appellant owns a Hot Mix Plant, as required in the tender conditions. It is his specific case that the location of such Hot Mix Plant is within 100 kilometers, as required. It is true that when a complaint is made by the fourth respondent/writ petitioner, it was found that the distance is 101.50 kilometers from one route and 99.90 kilometers from the other route. From the alternate route, shown in the report dated 30.05.2018, submitted by the Superintending Engineer, Warangal, it is at a distance less than 100 kilometers33. We find nothing wrong in the first report, mentioning the distance from the alternate route. In view of such discrepancy in the report, the Chief Engineer has further called for a report from the Superintending Engineer, Karimnagar, an independent authority, who has further, after re-verification, submitted a report dated 04.07.2018, stating that the distance is only 98.1 kilometers. To make sure whether the plant of the appellant is within the distance of 100 kilometers or not, in compliance of the tender conditions, in view of the dispute raised by the fourth respondent/writ petitioner and the report dated 30.05.2018, the Chief Engineer got re-verified from an independent authority by addressing to Superintendent Engineer, Karimnagar. In absence of any prescribed procedure for verification, it was fair on the part of the Chief Engineer to call for a report from an independent Superintending Engineer i.e. the Superintending Engineer, Karimnagar. There is no definite procedure for verification in the event of any complaint filed by any of the bidders, as contemplated under clause 22.6 of the tender conditions. The Division Bench has committed an error, in recording a finding that, calling for a report from the Superintending Engineer, Karimnagar, by the Chief Engineer, is not in accordance with the procedure34. Having regard to the nature of dispute, it was always open for the Chief Engineer to call for a report from an independent authority i.e. Superintending Engineer, Karimnagar. Such a procedure adopted by the Chief Engineer was fair and cannot be said to be either illegal or arbitrary. Such a report is made basis in the decision-making process, to open the bid of the appellant in Part-II39. All the judgments referred above, support the case of the appellant, as much as, we are of the view that the procedure adopted by the tendering authority is fair, just and reasonable. In absence of any specific mala fides and grant of exemption from any essential conditions of tender, authorities have acted within their authority, as such, it cannot be construed either as a relaxation or violation of tender conditions40. The learned senior counsel, Sri Basant, appearing for the fourth respondent/writ petitioner, has relied on the judgments in the case of Poddar Steel Corporation v. Ganesh Engineering Works (1991)3 SCC 273 , BSN Joshi & SWons Ltd. v. Nmair Coal Services Ltd. and Ors (2006)11 SCC 548 Bakshi Security and Personnel Services Pvt. Ltd. v. Devkishan Computed Private Limited and Ors.(2016)8 SCC 446 Central Coalfields Limited and others v. SLL-SML and others (2016)8 SCC 622 , in support of his arguments that the essential clauses of a tender should be enforced strictly and no deviation is permissible under law41. We are of the view that the above said judgments have no application to the facts of this case, for the reason that, it is not a case of violation of any tender conditions. Further, pleading that no case is made out by the appellant for interference under Article 136 of the Constitution of India, learned counsel, in support of his argument, has relied on judgment in the case of Pritam Singh v. State AIR 1950 SC 169 ; Penu Balakrishna Iyer & Ors. v. Ariya M. Ramaswamy Iyer & Ors. AIR 1965 SC 195 ; Shaikh Ali Hossain & Ors. v. Shaikh Showkat Ali & Anr. (2008)8 SCC 180 42. With reference to the same, it is to be noticed that the power conferred on this Court, under Article 136 of the Constitution of India, is the corrective jurisdiction to settle the law. Further, it is to be noticed that when the learned Single Judge of the High Court has found that the process of re-verification done by the Chief Engineer, on the dispute in question, is fair and acceptable for arriving at a decision, but the Division Bench has set aside such order, only on the ground that the report is called for from the Superintending Engineer, Karimnagar, who is not the concerned Engineer, as per the procedure. In absence of any prescribed procedure to deal with complaints, it was fair on the part of the Chief Engineer, in calling a report from the independent authority, other than the jurisdictional officers. As the issue does not relate to strict construction of territorial jurisdiction, it is always open for the decision-making authority, to have a report from the independent authority, to arrive at the just decision43. Further, in the case of Management of Narendra & Company Pvt. Ltd. v. Workmen of Narendra & Company (2016) 3 SCC 340 , while considering the scope of the intra court appeal, this Court has held that, unless Appellate Bench concludes that findings of the learned Single Judge are perverse, it shall not disturb the same.