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Petitioner v/s Respondent


    Writ Petition No. 12429 of 2021

    Decided On, 17 September 2021

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE SRI JUSTICE BATTU DEVANAND

    For the Petitioner: ------ For the Respondent: ------



Judgment Text

1. This writ petition has been filed to declare the action of the respondent Nos.5, 7 and 8 in calling for tenders vide tender Notice, dated 26.12.2020 by way of offline sealed tenders, instead of e-procurement tenders for the purpose of construction of 2 lakhs capacity of water tank in Prabhunagar, Poranki Gram Panchayat area, Poranki Village, Penamaluru Mandal, Krishna District for Rs.58 lakh as illegal, arbitrary, violation of principles of natural justice and violation of the relevant Government Rules and violation of Articles 14, 19(1)(g) and21 of Constitution of India and consequently set aside the tender notice, dated 26.12.2020 issued vide R.O.C.No.649/2020 and direct the official respondents to call for tenders by way of e-procurement platform as per the relevant Rules and Government Orders.2. Heard Sri P.S.P. Suresh Kumar, learned counsel for the petitioner and the learned Government Pleader for Panchayat Raj appearing for respondent Nos.1 to 4, Sri I. Koti Reddy, learned Standing Counsel for Gram Panchayat appearing for 5th respondent, Sri M. Manohar Reddy, learned Standing Counsel appearing for 6th respondent, learned Government Pleader for PR & RD appearing for 7th respondent, Sri K.S. Murthy, learned counsel representing Sri M. Siva Kumar, learned counsel for the 9th respondent on record. Perused the material available on record.3. The facts of the case of the petitioner are;(i) That the 5th respondent issued a Tender Notice vide R.O.C.No.649/2020, dated 26.12.2020, by calling offline sealed tenders for the purpose of construction of 2 lakh liters water tank in Prabhu Nagar, Poranki Gram Panchayat area, Krishna District, wherein it is stated that the tender schedule will be in between 11.01.2021 from morning 10 a.m. to evening 5 p.m. and the EMD was fixed as Rs.58,000/- and Rs.2,000/- as the application fee. Though the date of the tender notice was shown as 26.12.2020, the same has been published in the “SAKSHI” newspaper on 08.01.2021 and the tender schedule was fixed as 11.01.2021.(ii) As per the procedure contemplated, there shall not be any offline sealed tenders and all the Government works, where the value of the work is over and above Rs.5 lakh shall be by way of e-tenders. But, without calling e-tenders and without placing the present tender in e-portal, the respondent No.5 with the active support of respondent Nos.7 and 8, has purposefully called the offline sealed tenders by violating the settled Government norms and Rules with a view of benefit the unofficial respondent.(iii) Due to illegal and highhanded acts of the respondents, the petitioner and other various intending bidders could not participate in the tender process. The 9th respondent has submitted his tender and he was the sole person, who participated in the tender process and his tender was accepted and entrusted the work as specified in the tender notice, dated 26.12.2020.(iv) Therefore, there is a clear collusion in between the official respondents and unofficial respondent and out of their collusion only the said tenders were called for and many other intending parties including the petitioner were debarred from participating in the tender process and the valuable public money was spoiled only to benefit the unofficial respondent. Hence, the action of the respondent Nos.5, 7 and 8 in calling for offline tenders vide tender notice, dated 26.12.2020 instead of e-procurement tenders and accepting single bid and conferring the work to the unofficial respondent is illegal, arbitrary, violation of principles of natural justice and thereby set aside the tender notice, dated 26.12.2020.4. Counter-affidavits of Respondent Nos.4, 6, 7, and 9 have been filed.(a) In the counter-affidavit of 4th respondent, it is averred that on the representation of residents of Prabhu Nagar area in Poranki Gram Panchayat to the 5th respondent for construction of PWS water tank in their area, the 5th respondent Gram Panchayat, vide resolution No.113, dated 02.11.2020 has resolved to construction 200KL capacity water tank at Prabhu Nagar Area and the Assistant Engineer, RWS&S Section, Penamaluru has prepared estimates for construction of 200KL OHSR with estimated cost of Rs.58.00 lakh.(b) It is further averred in the counter-affidavit of 4th respondent that vide resolution No.114, dated 13.11.2020, the Gram Panchayat requested the Collector & District Magistrate, to accord Administrative Sanction for construction of 200KL capacity water tank at Prabhu Nagar area with an estimated cost of Rs.58.00 lakh. Accordingly, the Administrative Sanction was accorded by the Collector & District Magistrate vide E Office File No.866098/2020 Pts.10, dated 09.12.2020 of the Collector (P.W), Krishna, Machilipatnam, as he is competent authority to accord administrative sanction for the works whose estimated cost is over and above Rs.10.00 lakh vide G.O.Ms.No.62, PR&RD Dept., dated 31.05.2018.(c) It is further stated in the counter-affidavit of 4th respondent that according to Rule 3 of the Andhra Pradesh Gram Panchayat (Invitation and Acceptance of Tenders for Works and Purchases) Rules, 2000, the 5th respondent is competent to issue offline tenders (i.e.) invitation of tenders through sealed covers.(d) It is further stated in the counter-affidavit of 4th respondent that the Government of Andhra Pradesh has constituted YSR Tadigadapa Municipality by merging Tadigadapa, Kanuru, Yanamalakuduru and Poranki Gram Panchayats vide Gazette No.17, dated 31.12.2020 and for present, the 5th respondent Gram Panchayat is not in existence. As such, the respondents have strictly followed the Government Rules that were framed from time to time. Therefore, the 4th respondent prays to dismiss the writ petition.5. In the counter-affidavit of 6th respondent, it is stated that the present Municipality was formed on 31.12.2020 and the alleged tender notice was issued on 26.12.2020 by the erstwhile Gram Panchayat. In paragraphs 4 and 5 of the affidavit of the petitioner, it is alleged that the 5th respondent has purposefully called for offline tenders by violating the settled government norms and Rules, and that the Panchayat Secretary has colluded with the unofficial respondents and when the petitioner is attributing malafides against the then Panchayat Secretary and challenging the conduct of such individual, the truth will come into light only when the said Panchayat Secretary is brought on record in this litigation. The manner, in which the staff of the erstwhile panchayat conducted this tender process, is not within the personal knowledge of the 6th respondent, as he assumed charge only on 17.04.2021.6. In the counter-affidavit of 7th respondent, it is stated that as per the District Collector administrative sanction RWS&S Department is executing agency, the present respondent is no way responsible either for inviting tenders or concluding agreement. The execution of the work is primary job chart of the Deputy Executive Engineer after entering into the agreement with Gram Panchayat, Poranki. The Deputy Executive Engineer has no right to question concerned Gram Panchayat regarding accepting tenders or concluding agreement. The Deputy Executive Engineer can only obey as per agreement concluded and execute the said work.7. In the counter-affidavit of 9th respondent, it is averred that;(a) The petitioner has no locus standi to file the present writ petition and as such it is not maintainable as it is hit by latches (after completion of 85% of works the case is filed) and the case is filed to settle scores with some officers.(b) As per the averments made by the petitioner himself, he has not participated in the tender process by submitting any bid and he was not prevented from submitting his bid by any one, as the tenders were invited through news paper publication. The work was awarded in January now after nearly six months the case is filed and the works is at the stage of completion. This shows that there is hidden agenda to this case and the writ petitioner has not come to Court with clean hands. He also filed photographs showing the present stage of work which clearly demonstrates that almost the construction of overhead tank was completed and the remaining work will be completed within a few days.(c) In fact, the official respondents have estimated the contract value of Rs.58.00 lakh and he had submitted his bid for a sum of Rs.50,95,857/- much below the estimated price. As such, there is no loss that is caused to the state exchequer.(d) Even according to the Rule 17(2), no specific time framed between the publication of notice in the newspaper and the date of submission of tenders were framed for the amounts exceeding Rs.50,000/- and it prescribed about the publication of notice in one newspaper having maximum circulation that is satisfied.(e) There is no element of public interest is involved in the instant writ petition and in fact it is determental to the interest of general public. The project of drinking water supply is being considerably delayed by virtue of the present writ petition and thus escalating the cost far more than any saving besides causing much inconvenience due to non-completion of the overhead tank within time. Due to stoppage of work, the local people are unable to get drinking water supply. As such, the petitioner has not made out any case much less a prima facie case for interference of this Hon’ble Court. Therefore, he prays to dismiss the writ petition.8. The petitioner filed reply affidavit to the counter-affidavit filed by the 9th respondent wherein it is stated that as per the procedure contemplated in G.O.Ms.No.2, dated 03.02.2014, issued by Finance (Works & Projects F-7) Department, all works costing Rs.1.00 lakh and above, e-procurement platform should be adopted for enhancing transparency and also bring uniformity across all the departments. The said GO is being followed by all departments including the Panchayat Raj Department all these years.9. It is also stated in the reply that the 9th respondent is the relative of 7th respondent and only at her instance the 5th respondent has chosen to deviate with the procedure. Only to eliminate him from participating in the tender process, a false FIR was registered and he was also placed in black list. He filed W.P.No.5511 of 2021 and the same was disposed of by this Court on 17.03.2021 observing that the procedure for blacklisting was not followed and if the officials want to blacklist him, they need to follow the procedure. But, till date no action has been initiated against him since there is no truth in the allegations leveled against him.10. It is further stated in the reply affidavit that the Poranki Gram Panchayat got merged in YSR Tadigadapa Municipality by way of Ordinance No.17 of 2020, dated 31.12.2020. Hence, there is no Gram Panchayat in existence with effect from 31.12.2020. Admittedly the paper publication was published by the 5th respondent on 08.01.2021 and finalized the tender on 11.01.2021. As on the date of issuance of the tender, the 5th respondent is not having any authority or jurisdiction and the Commissioner of Municipality of YSR Tadigadapa has to take up the construction works as per the procedure and GOs issued under the Municipal Administration Department. Even the respondent Nos.7 and 8 also are not having jurisdiction to take up the works since they are entitled to only rural works and not of Municipal area works. Thus, it is clearly shows that the respondent Nos.5, 7 and 9 are hand-in-glove with each other and only to benefit 9th respondent, all these things were done.11. Learned counsel for the petitioner submits that 5th respondent has issued a tender notice on 26.12.2020. The said tender notice was published in “Sakshi” daily news paper on 08.01.2021, in which it is stated that intending bidders can obtain tender schedule from 10-00 a.m. to 5-00 p.m. on 11.01.2021 on payment of Rs.2,000/- from the Poranki Gram Panchayat. It is further stated in the tender notification that offline sealed tenders will be received up to 3-00 p.m. on 12.01.2021 in the Gram Panchayat and the same will be opened in the presence of bidders at 4-00 p.m.12. Learned counsel for the petitioner contends that though the date of tender notice was shown as 26.12.2020, the same was published only on 08.01.2021 and tender schedule was made available till only 11.01.2021. As such, it is clear that only with a view to confer the tender to the 9th respondent, illegal procedure was adopted by the 5th respondent with the active support and direction of respondent Nos.7 and 8.13. Learned counsel for the petitioner submits that as on the date of the publication of the tender notification (i.e.) on 08.01.2021, the 5th respondent-Gram Panchayat is not in existence and the Panchayat Secretary has no authority to issue such notification due to the reason that the 5th respondent-Gram Panchayat was merged into the 6th respondent-Y.S.R. Tadigadapa Municipality, Krishna District, which is newly constituted municipality as per the Andhra Pradesh Ordinance No.17 of2020, dated 31.12.2020.14. Leaned counsel for the petitioner further submits that as per G.O.Ms.No.2 Finance (Works & Projects-F7) Department, dated 03.02.2014, all works and material procurement costing Rs.1.00 Lakh and above the e-procurement Platform should be adopted so as to enhance transparency and bring uniformity across all the departments. This procedure is not followed by issuing tender notification for estimated cost of Rs.58.00 Lakh.15. Learned counsel for the petitioner brought to the notice of this Court relevant provisions of the Panchayat Raj Act, Municipal Administration Act and Andhra Pradesh Municipalities Act with regard to constitution of Gram Panchayat, construction of water tanks and merging of villages into municipalities, etc.16. Learned counsel for the petitioner relied on a decision in Chimpula Sailaja and others vs. State of Telangana and others (2017(5) AD 131). Upon perusal of the same, in the opinion of the Court, the said judgment is not applicable to the facts and circumstances of the present case.17. On the other hand, the learned Government Pleader for Panchayat Raj, submits that as per the procedure provided under Andhra Pradesh Gram Panchayat (Invitation and Acceptance of Tenders for works and purchases) Rules, 2000. Under Rules 3, 4 and 5 the procedure for invitation of tenders is prescribed and as per Rule 17(b) when the anticipated cost exceeds Rs.50,000/- by advertisement in atleast one Newspaper with maximum circulation in the district. In the present case the prescribed procedure is followed while issuing the tender notification.18. Learned Government Pleader further submits that this is not bonafide litigation and the petitioner approached this Court belatedly though he is aware of the issuance of the 13 tender notification and if he is having any grievance, he has to approach this Court immediately.19. Learned Government Pleader for Panchayat Raj relied on a judgment of the Hon’ble Apex Court in R & M Trust vs. Koramangala Residents Vigilance Group and others (2005) 3 Supreme Court Cases 91).20. Sri K.S. Murthy, learned counsel appearing on behalf of 9th respondent, submits that the Andhra Pradesh Gram Panchayat (Invitation and Acceptance of Tenders for works and purchases) Rules, 2000 governance the field as statutory rules. E-tendering need not be undertaken due to the reason that as per Rule 17(b) if the anticipated cost exceeds Rs.50,000/-, tender notification can be issued by advertisement in atleast one Newspaper with maximum circulation in the district. He further submits that the tender notification was issued on 26.12.2020 and therefore tender process is commenced prior to Gram Panchayat merged into Nagar Panchayat. As such, there is no irregularity in the tender process.21. Learned counsel for the 9th respondent further submits that the petitioner has no locus-standi to file the writ petition as it is not maintainable as it is hit by latches and the writ petition is filed after completion of 85% works and to settle 14 scores with some officers, the present writ petition is filed. Learned counsel brought to the notice of the Court with regard to registering the FIR against the petitioner. But, in our opinion, it is not relevant to the present case.22. Learned counsel for 9th respondent relied on a judgment of the Hon’ble Apex Court in Bharat Coking Coal Limited and others vs. AMR DEV Prabha and others (2020) 16 Supreme Court Cases 759)in which it was held that the power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.23. Learned counsel for 9th respondent also relied on a judgment of the Hon’ble Apex Court in Master Marine Services (P) Ltd., vs. Metcalfe & Hodgkinson (P) Ltd., and another (2005) 6 Supreme Court Cases 138).24. On careful consideration of the above said two judgments relied by the learned counsel for 9th respondent and judgment relied by the learned Government Pleader, in our opinion, there is no dispute with regard to the principles laid down in the said judgments, but, with great respect stating that the facts and circumstances of the present case are different.25. The respective counsels appearing for other respondents also made their submissions as per the averments in their counter-affidavits.26. Having heard the submissions of the respective learned counsel and upon perusal of the material available on record, it is clear that the tender notification was issued on 26.12.2020 and the same was published in “Sakshi” daily Newspaper on 08.01.2021.27. Rule 17 of Andhra Pradesh Gram Panchayat (Invitation and Acceptance of Tenders for works and purchases) Rules, 2000 prescribed the procedure for invitation of the tenders by the Executive Authority. Rule 17 is extracted hereunder for proper adjudication of the present case.17. Invitation of tenders by the Executive Authority: (1) Tenders which shall be in sealed covers, shall be invited by the Executive authority in the most open and public manner possible. (a) In all cases by a notice in the Chief language or languages of the district posted at the office of the Gram Panchayat and at such other places as the Executive Authority may deem fit.(b) When the anticipated cost exceeds Rs.50000 by advertisement in at least one Newspaper with maximum circulation in the district.(2) Every notice or advertisement published under sub-rules(1) shall state inter-alia(a) the conditions under which, the officer from whom, and the price, if any, for which a copy of the schedule of quantities of the various kinds of articles can be obtained; If these cannot be mentioned in detail in the notice of advertisement itself;(b) the precise form in which the tenders shall be made, that is whether prices for the various articles are to be quoted and whether the comparative value of the tender will be examined with reference to each article mentioned in the schedule Of quantities or for all such articles conjointly or, for groups of such articles;(c) the time when and the place where the tenders are to be submitted allowing a period fatalist ten days from the date or publication of the notice at the office of the Gram Panchayat.(d) The time when and the place where the tenders are to be opened.(e) The amount of earnest money which should accompany the tender and the amount and nature of the security which will be required in case the tender is accepted.(f) The authority competent to accept the tender.(g) That the authority competent to accept the tender, reserves the right to reject any or all of the tenders received, without assigning reasons and(h) That a tenderer who withdraws his tender, without valid reasons, which shall be decided by the authority competent to accept the tender shall be liable to have Ills subsequent tenders summarily rejected.28. As per Rule 17(1)(b) when the anticipated cost exceeds Rs.50,000/- the tenders shall be invited by the Executive Authority in sealed covers by advertisement in at least one Newspaper with maximum circulation in the district. In the light of the Rule 17(1)(b), it is clear that if the cost of the work exceeds Rs.50,000/-, tender shall be invited by advertisement in atleast one newspaper.29. The 6th respondent (i.e.,) the Commissioner, Y.S.R. Tadigadapa Municipality filed his counter-affidavit in which it is stated that Y.S.R. Tadigadapa Municipality is a newly constituted municipality as per the Andhra Pradesh Ordinance No.17 of 2020, dated 31.12.2020. The Commissioner and Director of Municipal Administration, Guntur has appointed the Commissioner/FAC Y.S.R. Tadigadapa Municipality vide order in Roc.No.20024/26/2021/A1, dated 07.01.2021, appointed one Smt. D. Venkata Lakshmi, Municipal Commissioner Grade-I (now working as Deputy Commissioner, Vijayawada Municipal Corporation) as Full Additional Charge of the post of Municipal Commissioner until further orders.30. In the said order the Municipal Commissioner is instructed to take important actions mentioned in the said order apart from other activities to be performed as per the provisions of the Andhra Pradesh Municipalities Act, 1965 and directions of the C&DMA and the Government. In the said order the new Commissioner has to take charge of all immovable properties and to take over the assets and liabilities registers and get the particulars of all immovable properties (i.e.) building, parks and playgrounds, reserved open sites, etc., and the Commissioner has to get the particulars of ongoing schemes in Gram Panchayat in the prescribed proforma as Annexure-IX of G.O.Ms.No.18, MA&UD Department, dated 07.01.2019. The Commissioner has to get the particulars of works/material bills and other dues payable.31. But, in the counter filed by the 6th respondent, it is averred that the Panchayat Secretary did not submit entire records to the Commissioner till the date of filing of the counter-affidavit. Only upon repeated requests, file was submitted finally on 12.07.2021 at 7-00 p.m., even though the files contain the official communication of the said tender process. It is stated that the 6th respondent do not have any personal knowledge about as to why Panchayat Secretary purposefully called for offline tender as alleged by the petitioner.32. Upon perusal of the Andhra Pradesh Ordinance No.17 of 2020, it appears that it was promulgated by the Governor on 31.12.2020 and it shall come into force at once.33. In the present case the tender notification though it was dated as 26.12.2020, it was published in “Sakshi” newspaper only on 08.01.2021. Admittedly, as on the date of 08.01.2021 the 5th respondent is not in existence and the Poranki Gram Panchayat merged into Y.S.R. Tadigadapa Municipality by Ordinance No.17 of 2020, dated 31.12.2020 and as such in our view, the 5th respondent has no authority or jurisdiction to call for the tenders and to finalise the tenders on 12.01.2021. The 6th respondent-Y.S.R. Tadigadapa Municipality is the competent authority to issue tender notification for the works to be undertaken in their jurisdiction by calling for tender notification and to finalize the tender process.34. It appears from the material filed by the 6th respondent along with his counter, the concerned Panchayat Secretary of the 5th respondent-Gram Panchayat did not handover the records itself to the 6th respondent even after issuance of specific instructions vide Memos, dated 19.04.2021, 08.02.2021 and 15.05.2021. The said memos establishes that even after merger of Gram Panchayat with the 6th respondent-Municipality, the concerned Panchayat Secretary did not hand over the records to the Commissioner of 6th respondent-Municipality. It appears the concerned Panchayat Secretary has no respect towards the law and rules. Once the Gram Panchayat was merged into Municipality and a Commissioner was appointed to carryout the functions of the said Municipality, it is very strange to note that how the Panchayat Secretary kept the records with him.35. It is to be noted that as and when the Gram Panchayat lost its identity by merging into the 6th respondent-Municipality finalizing the tender process in the name of Gram Panchayat and declaring the 9th respondent as successful bidder and entrusting the said works for execution to the 9th respondent, appears to be

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illegal, arbitrary and unjust.36. After careful consideration of the factual position in the present case, the Court opines that the entire tender process from publication of tender notification in the newspaper to execution of work is taken up with malafide intention by the Panchayat Secretary of the 5th respondent-Gram Panchayat to do undue favour to the 9th respondent. As and when State Government is taking steps to merge the 5th respondent-Gram Panchayat into the Y.S.R. Tadigadapa Municipality, it is not understandable, what is the hurry to the 5th respondent to issue such tender notification at the fag end of its merger, if there is no intention to do undue favour to the 9th respondent. In the considered opinion of the Court even though 5th respondent issued tender notification as per Andhra Pradesh Gram Panchayat (Invitation and Acceptance of Tenders for works and purchases) Rules, 2000, the procedure provided under Rule 17 is not followed. On that ground also this tender process has to be set aside.37. As per the contentions of the learned counsel appearing for the respondents and the material available on record, 9th respondent executed some work after declaring him as successful bidder and stalling the construction at this stage is against to the public interest. We are unable to accept the said contention. As and when tender process was initiated and finalized in contrary to the procedure, with malafide intention, arbitrarily and there is loss to the public exchequer due to the procedure adopted by the 5th respondent, continuing the construction work with 9th respondent is not warranted.38. For the reasons stated above, this Court is holding that the tender notice issued in Roc.No.649/2020, dated 26.12.2020 by the 5th respondent till declaring the 9th respondent as successful bidder, the entire process is vitiated under law.39. To protect the interest of public, the unfinished water tank shall take over by the 6th respondent-Municipality and to take steps to complete the work by departmentally or by calling for the tenders for unfinished work by following due process of law. If the 9th respondent feels that he sustained any loss, it is open for him to initiate appropriate proceedings as per law.40. For the reasons stated above, the writ petition is allowed and the tender notification vide Roc.No.649/2020, dated 26.12.2020 issued by the 5th respondent is set aside. The 6th respondent-Municipality is directed to take over unfinished water tank and to take steps to complete the unfinished work to make the water tank fit for use in the interest of public.41. There shall be no order as to costs.Miscellaneous petitions pending, if any, in this case shall stand closed.
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