The High Court · 2025

Petition unde' section 15'r cpc praying that in the circumstances stated in the affidavit fired in support of the petition, the High court may be preased to arow the writ Appear b'y setting aside the order dated 28..10.20 24 0f th,:>Learned singre Judge in Writ petirion No. 21971 of 2024. Counset for the Appeltants: SRt T. RAJ-INIKANTH REDDY, ADDITIONAL ADVdCATE GENERAL Counsel forthe Respondent Nos.1 and 2: SRI TARUN G. REDDY The Court Delivered the following: JUDGMENT THE HON'BLE THE ACTING CHIEF JUSTTCE SUJOY PAUL AND THE HON'BLE SMT. JUSTICE RENUKA YARA WRIT APPEAL No. 169 0F 2025 JUDGMENT: (Per Hon'ble Smt' Justice Renuka Yara) Heard Sri T Rajinikanth Reddy' learned Additional Advocate General appearing for the appeilants and Sri Tarun G'Reddy' learned counsel for respondent Nos'1 and 2' Perused the record'

2. This is an intra_court appeal fired by the appelrants/ respondent Nos. 1 and 2 aggrieved by the order dated 2alr} '2024 passed in w.p.No.2197 | of 2024 by the rearned Singre Judge of this court declaring the action of the appellants/respondent Nos.l and 2 in rejecting the tender bid of the respondents/writ petitioners in respect of tender No'TGMDC/S&M/DSLT/JB 12024 1225' dated 14'06'2024 for de-siltation of 10'80'000 MT of sand from Brahmanapallil2024 I 7 sand reach at Jayashankar Bhupalpally District as illegal for not assigning reasons' the award of tender No'TGMDC/S&M/DSLT/ JB 12024 1225' dated 14 '06 '2O2+ in favour of respondent No'3 has been set aside and the writ appellants are directed to call for fresh bids in respect of tender No.TGMDC/S&M/D.LT/JBl2o24 1225' dated 14.06.2024'

3. The background facts of the case are that the writ appellant tender No'TGMDC/S&M/D sL"t I JB I 2024 I 225' dated uo.ift^t"a i i I : i i I ! , I I l I l 2

14.06.2024 for de_siltation of 1O,BO,0OO MT of .;and from Bralrmanapalli /,2O24 /1 sald reach at Jayashankar I ihupalpally District and thtrt the said tender was floated for a contra ct value of approximately lts. 10,47,6O,531/-. Respondent No.1 repr,:sented by respondent No.1l a.nd respondent No.3 participated in the bid. The bid was au,ardecl ,n favour of respondent No.3 as per the alrard dated 19 .O7 .2024 . The birJ submitted by respondent No. t has been rejected as per the information provided in the .leialgana eTprocurement portal. Commtssioner

4. The reiection ,rf their bid is challenged by respondent j,{os.1 and 2 on tlne premise trat the writ appeilants did not conduct ttre tender process and awarcling of the tender in fair ald transpal.en; manner by referring to th e legal ratios laid down by the Flon,ble tsupreme Court of India r1r Dharmapal Satgapal Limited a. Deputg of Central Excise, Goruhati and. otherst, pKF Srid.har and Santhanam a. Airports Economic Regulatory Authoritg of India (Wp(C) No.12Ja5 oJ 2021), Swqdeshi Cotton Mitls a. tlnion oJ- Ind.ia2 and. punjab State pouer Corporation Limited. and. another u. EMTA Coal Limited q.nd otherss. 2 primariiy questioned the action of rvrit asstgnrng reasorts arrd Respondent Nos. 1 eLncl appellants ln relecting the tender without '(2015)8 scc 519 - AIR 1981 SCC 818 ' (202212 scc 1 3 transParency without giving them hearing for giving clarification on their Work Done Certifrcate' The learned Single Judge allowed the writ petition referring to various judgments of the Hon'ble Supreme Court of India holding that decision making process adopted by the writ appellants to principles of natural justice and iacking ln is contrary in the tender process' It is held that no reason is assigned for rejecting respondent No'1's bid as failing to have fulfilled clause 3.2 tender conditions' In the light of the respondent No' 1's cific case that it fulfrlled. the requirement under clause 3.2 of the conditions. It is held that as per the entry made in e-procurement web Portal on 1g.O7.2O24, the writ appellants have ciearlY observed that respondent No' t has fulfrlled the eligibility criteria referring to the contents of Remarks column extracted and Produced below: whickr are tender "rP" Remarks AS denTf re D 5 Further, the learned Single Judge held that the writ appellants have failed to glve an opportunitY to resPondent No'l to grve clarification in case of any ambiguity about the contents of the work Done certirrcate. Lastly, the learned Single Judge also referred to the writ appellants issuing Letter of Intent to respondent No'3 on lO.O7.2L24and the award of tender to respondent No'3 took place on / / \ \ 4

19.O7.2024. Thrrs. the writ petition was allowed leadinp to filing of the writ appeal 6 The learnerl Ad<litionai Advocate General would subrnit that the Government follo\{ed correct procedure AS spelled c ut in the procurement manual and the tender notif,rcation. It is r,mphasized that respondenf I{o.1 lailed to meet the tender which reads as Ibrlows: condidrrn No.3.2, 'The biddcr :hall havc satisfactorily completed Mining/Civil /lrlg r ior.t rvork ol value not iess than Eighr crore Thi.L., Eighr lakhs involving excilvr t i()11 and rern Stare/Cen rral (ic,y :r.nmcr t Undcr Eighr thousand only) (80 ovai irny Earth/mineral takings during the last thrce 13) l,ears.,, at least onc work of Rs.8,38,08,000/ (Rupees 7u of value of rvork) includrnq sand in

7. Certihc ates uide In this re6;ard referring to the Work Done Ref.Nos.KGM/JVR OC II/2023/338C/608 and II / 2023 / 33aD / 6Ot) , both dated 12 / 1 6.05.2023 respondent No. 1 , it is demonstrate that rt:spondent No. 1 clid not complete the contt'acts but rather the u.ork is stili in progress in "present status ()f work,, subm itted by argued that said certificates clearly KGM/JVR oc_ column B. In that context, it is arguecl that any bidder has 1o produce certihcate showing satisfactorily completed work of value rrot less than Rs.8,38,OB,OOO /_ during the last three years of the bi(1. It is argudfl that among l4 technical quatified bidders, 7 u,ere rejected for 3t 5 not cornplyiflg tender clause 3'2 and the same was informed through e-procurement website on 08'07'2024' Respondent No' 1 is one among 7 bidders whose tender was rejected for failing to meet the criteria. The learned Additional Advocate General argued that the Hon'ble Supreme Court in various judgments held- that in contractual matters the scope of judicial review or interference under Article 226 of Constitution of India is available in exceptional circumstances' such as, on account of malo fid'es' arbittariness and illegalities' in the instant case' no specihc instance of malice is made out. Only because respondent No' 1 failed to satisfy the condition under clause 3.2 of tender condition its bid was reiected which is not arbitrary. The learned Additional Advocate General referred to the judgment of the Hon'ble Supreme Court in Agmatel India Priaate )Vhereas, Limiteda.ResourysTelecomandotherfl,whereinitiSheldthat "The above mentioned statements of law make it amply clear that the author of thc tendcr document 1s taken to bc the best person to rrnderstand and appreciate its rcquirements; and if its interpretatiol is marifcstly in consonance with the Ianguage of the tcnder document or subserving the purchase of the tender' the Court r,'ould prefer lo keep restraint Further to that' the technical evaluation or comparison by the Court is impermissible; arld even if the interpretation glven to the tender document by the person inviting offers is not as such acceptable to the constitutional court, that, by itselt, would not be a reason for interlering with the interPretation given " g. The contention of respondent No' 1 about giving opportunity underclause2ltoprovideclarifrcationwithrespecttoWorkDone /I o (zozz\s scc zoz \ \ 6 Certificate, it is; argued that the emplover can seek clarifi,:ation at its discretion. Whe;t the Work Done Certihcate itself cleal ly reflected that respondent l\io.I did not complete the work, there is no need to seek any clarificatron. Lastly, it is argued that the learned Single Judge erred in r,rrserving that the letter of intent cratecl ro .o7 .2024 was issued in fllvour of respondent No.2 ald the same is contrary to the information c,n the web site r.r,hich shows tender u,as z Lwarded on 19.o7.2024. A.c.rding to the learned Additionar Advocar.e General, after the bids u'ere submitted by prospective bidders, tl,re bids were evaluated bl, tlre Tender Evaiuation Committee on Og.(,2 .2024 to ascertain the conditions stipuiate<i and successful bidcrer.,ras issued the letter of intenr. on 1o.or.2024 and said information u.as, uploaded on 19.O7.2024. Lr the entire process, there is no mata fi.tl.e or lack of transparency. Learned Additional Aclvocate General rrrferred to judgment in W.A.Nos.116 and tt7 of 2O25, dated l).02.2025 wherein it uas hr.l,l lhat: "16. A carclul ieading of Clause lz.(.) reproduced hereinabovc sho$j that if bidder has beerr tra,r'red b1 any other body and has drsclosed rhls fact clearly 1n his bid, as a r-ule o1 tb umb, SCCL management will noL disqualrl]. him. ,lI e SCCL management rescr v-eri righr to take appropriate decision in such evcntua ity_ The language emplovt.d in rhc aforesaid clause shorvs that it cnabl{:s tht SCCL management to trle an appropriate decision in such cases whcrc dlscl rsure o[ banning rs therc.. .fhe dccisron taken by SCCL management in the presert c.rse is to disqualily the pctitioner. At this direcr the Singaren, corier.ies i.,i;", ffi::T'T::ii"tt;: ::::t]::::: afrcsh. The S:ngar-r i Collieries Cnmn"-,, r;*:.^r :^ _- - lompany Limited is serving pubirc rntercst. l.or the f srtooth producttoa ird runntrtr, of Singareni Collieries Company Limitcd, sr rpply of .__,I ourK exptoslve ls E\se.1tiai. Any interferencc by us at this.juncLure, will han per the activrty of thc irldustry and consequently will have an adverse lmpact o. public 1 interest. Thus, in the peculiar tacLs o[ thesc cases' we are not inclined to interfere rn the matter' More-so' after o^""t"*'',,'"t"ed order' thrrd party t"'* "t: "]::.:"'1 to nine (9) contractors and they are not partres and contracts have been be[ore us ' ""'*J

10. On the basis of above judgment' it is argued that this Court in similar cases on earlier occasions declined to interfere with the decision made by the Government while awarding tenders' 11. karned counsel for respondent Nos' 1 and 2 argued that it has fulfilled condition under clause 3'2 of tender conditions and therefore itt was found to have qualified as per the entry in web portal dated rg.o7.2024. It is argued that the rearned Single Judge had assessed in proPer the tender Process adopted bY the with respect to meetlng of tender the clause 3 '2 opportunity under tender clamse 2l Iot conditions, not Providing he Work Done Certificates and rejecting the giving clarification about t In that regard, learned counsel for tender without assigning reasons respondent Nos' 1 and 2 referred to judgment of the Hon''ble Supreme Krrsturi Lol LoLkshi Reddg' rep' bA its Court o[ India in M/s' Lat and others u' State of Jammu and partner Shri Kasfuti Kahs7nir and anotheto, wherein it is held that writ aPPellants persPectlve " t 5.........Where the government 1s jobs or entering into cofltracts or cannot act arbitrartly at its' sweet .,.rsLn it Pleatet but ils actron m *hich) i" not arbltrary' ilTarioncl o I ' 1tsao1+ scc r dealing with the public, whether by way of giving granting other forms of largess the Govemment will and, like a private individual' deal with any ust be in conformity with some standard or norm r irrelevant. The governmental action must not be / 8 arbitrar).or capr i(jious, but must be reason and relc\r ll1ce.. ." based on some principle \\rrrcit meet s the test of ( 12 . Learned corlnsel for the respondenls veherneltl l\ iirgued that no reasons arc. assigned for rejecting its bid and thereby there is violation of principles of natural justice. In that context, learned counsei for th<: r.espondents referred to judgment o1 t re Hon,ble Supreme Court of India in Dhartnapats case (1 supra) arrd relevalt portion is extractcrl and produced below: ,r "The princrples cI r,iturallusticc developed over a period of time iln.l !r.hicl is still in vogue and valid eret today rvere: (i) rulc against bias, i.e. n, and (ri) opportunir.. oI bcing heard to the concerned ,".,r, ,".:"^::i::,,"- ] ,;1._. These are l<norvn a s pnncJples of namral justice. fo tlr""" p.irr",pl"s a th rrc principle is added, which rs ol.rocent origin. It ls duty to givc reasonr i lrl sllpl)ol' of decision, namely, p:rssing 6,I r reasonerl order. i3. Analvsis by the court: A perusal of the recorcl anrl the arguments of. ltoth th: counsel show that the crux of the dispute is with respect to ,,r.heth er or not respondent No. 1 rnet the criteria under claus e 3.2 cf tender conditions, whelher the u.rit appellants acted with mctla. f.d..zs in not providing an opporrunity to respondent No. r to give clar.ification about its Work I)one Certihcate and lastly whether r he writ appellants did not gi,ze a reasoned order for rejection of bid srrbmitted by respondent lrtro 1 and thereby the tender proces:i lacks transparency ., I I \ 9

14. First ald foremost tender under clause 3 '2 makes it mandatory for the bidders to submit Work Done Certificate showing satisfactory completion of at least one work of mining/ civil/ irrigation of value not less than Rs 8'38'08'000/- (BO% of vah.r'e of work) invorving excavation a.d removal any earth/mineral including sand in State / Central Government Undertakings during the last three years. The aforementioned condition reqrrires that the bidder shall comPlete at least one work of required monitory value' complete gatisfactorily that too within last three years of the date of the bid' While so, the Work Done Certifrcate submitted by respondent No'I shows that the said company has taken up the work of Singareni Collieries through work order No'7600OO92 82' dated 2l 'lO '2022 and has completed certain work upto Match 2023 and the status of the work is "work in progress". Similarly' respond'ent No' t has taken up Limited and the another work from Singareni Collieries Company The contents of certificate shows that the work is still in progress' the Work Done Certihcates submitted by respondent No'l failed to meet two criteria, i'e' compietion of work and completion of work satisfactorily. Only when the entire work is completed that too to the satisfaction of the employer' it cal be said that respondent No' 1 has the criteria under clause 3'2 of tender successfullY fulfrlled otherwise. The contents of the Work Done conditfuns and not Certificate speak for themselves and cannot be given any other \ o' 10 interpretation . 1'he respondents would contend that ttre contracts awarded are for a period of 11 months and 17 months respectively and each comporent of work done is a separate prece u,crk i.l,hich is to be treated as completed satisfactorily. Such interpret;rtion of the contents of the \.4'ork Done Certificates is not acceptable.

15. Coming tc the aspect of seeking clarification from ih,: bidcler as per clause 21 of lender conditions, said tender condition it self clearly shows that the clarification may be sought at the discrerion of the employer. In cast:, the employer after perusing the cont,lnts Work Done Certificate has come to the conclusion that the worl. is still in progress and thar has not been completed, no lault can be found with the employ,_-r. A conjoint reading of clause 3.2 and 21 of the tender conditions, together with the contents o1. Wr rk Done Certificates does nct make out a positive case in favour oi.rt.spondent No. 1. 16' coming to ;:h6' corrl"rtion of respondent Nos.1 anrl 2 that as per clause 22 r, t'j^te eligibility criteria is as per definition ITII clause 3 and only whe, the erigibiiity criteria is met, the further e.,aruation takes p1ace. 'l'o ascertain the case of respondent Nos.1 anrl !, su16 entry in the web porr.al is produced belou.: ,, / 11 Technical Parameters list: Operat DaLe Tvpe Text Min o.00 Max

0.00 Para docr.r Fultrll Per As Tender Documenl Evaluatlon alause 3 2 of Tender conditions futfiled

17. A reference is made to the contents of above award of tender tlated 19 'O7 '2024 tothe "Remarks' column wherein it is entered as ,,As per Tender document'' This entry in the Remarks column is mrs- interpreted by respondent No'1 to mean that respondent No'l has -^ .^^' 2 c To the contrary' the meaning of ') ,rr"t ttt" eligibility criteria as per 3'2' To the cor the contents of "Remarks" column can be construed as that respondent No'1 qualihed for further evaluation of the bid as it has met the eligibility crrteria by hling a1l the required tender documents including the Work Done Certihcate' The title of the column rs ,Remarks'. Remarks with respect to whether the bidders have frled a[ the documents or not' Only such bidders who have frled all the documents are eligible for evaluation of their birls and further steps' 18. The next column is titled " evaluation comments"' wherein it is clearly mentioned as 'clause 3'2 of Tender cond'itions not fulhlled" ' Therefore, a close scrutiny of the contents of "Remarks" column and the contents of "evaluation comments" column shows that the contents of the Remarks column are meant for noting down tkre eligibility of a bidder prima facie on account to frling of required \/ \ I 1 l 72 t documents as per tender notification and not on the hasi:; of contents of said documerLl.s. Only after the documents iiied for th: evaluation of the bid are in crder, the contents are examinecl and atr evaluation is made as to the eligibility of the bidders and thereby respondent No. t has been found to be lacking to have met the condi[ions under clause 3.2. Hc,u.ever, respondent No. 1 is mis interpreting the contents of "Fie'rnarks" column and the ,.evaluation column and ttLe same has been erroneously relied upon by the Iearned Single Juclge r.r,hile passing the impugned orcler. comments,, I i I I I I I I

19. Comir-rg to rhe aspect of observing principles of narural justice, about passing il leasoned order while re3ecttng an applic_-ation, a reasoned orcler is passed when there is an adjudicatio;r process, where there are t\\, o or more rival contestants, each persorl is hearcl and an evaluation is made of the rival contentions and reasoned order is passed. jtr the instant case, the entire tender l)rc,cess took place online r,l,he.r-r:in the bids are submitted oniine ancl r he result also has been cleclared online. A reason for rejection is tlre criteria for meeting the t.eciuirements of principles of natural juslice. The said reasoned orr1t'r. could be one word, one line or a parr,.graph or more. In the in:stant case, the employer has given the r,rason for rejecting bid of respondent No.1 by stating that respondent No. 1 failed to meet the r'.nditions of clause 3.2 of tender concliti.ns. The 13 a said reason when written in one line or in an elaborate manner would convey the same meaning' Thus' there is no ground to accuse the writ appellants of not observing the principles of natural justice'

20. Lastly, mala fides are attributed to the writ appellants on the basis of issuance of letter of intent dated 1O'07 2024 whlle tlre information was made avaiiable by the writ appellants on e- procurement website indicated that respondent No'3 was declared the successful bidder and awarded the tender only on 19 'O7 '2024 ' i., tt i" regard, it is seen that the said allegation was not made by respond.ent No.l in the writ petition but was raised only at the time of filing a rejoinder to the counter hled by respondent No'3'

21. In this regard, as per judgment of the Hon'ble Supreme Court rn Arti Sapru u. Stclte o:f Jomnu and Kashmir6' the allegations made for the frrst time in the rejoinder affrdavit do not give scope for reasonable opportunity to the respond'ents to give reply and therefore Cannotformbasisforafrndinginfavourofthepetitioner.Likewise in the matter of Asholc Lanka u' Rishi Dikshifl ' the Hon"trle Supreme Court held that when the allegation s are made in the rejoinder, when no new plea can be permitted in the rejoinder' without the leave of the court, such allegations cannot be relied upon. While legat precedents do not support respondent No' l's " ltsstlzscc +8+ ' {zooq)sscc so \ ;. :t t r*i&?a 3 ','"t I 14 allegations made in the rejoinder for the rrrst time attriblrting maro fi.des, we are of ttre considered opinion that the contents of the web portal dated 19 .(yt .2024 are also mis interpreted on acc<,unt of the fact that the tender evaluation process has been cornpleted by O8.O7 .2024 and the letter of intent was issued. to the successful bidder on 7O.O'l .i,O24 and said information was uploar led in the website on 19.0'7.2024. Last but not least, atter the bids are evaiuated, the elieible bidder has been selected b1 rvay or lottery in fhe presence of iL, the bidders. The rearned Additionar Aclvocate General pointed < rrrt that even responclent No. I participar ecl in the lottery process thal tool< place on 1O.O2.2024 and ther_eforr ., no malct fi.des can be attributed to reference Nos. 1 and 2, as the entire process has been conducte r[ in transparent rnanner as per the tencli:r process contemplate<l in the tender conditions as well as notificati(,n. When the successful birlder is selected through the process of clri r,r.ing lots in the presence of all the eligible bidders, no mala fide; can be attributed to the u rit appellants in conducting the tend er p,rocess in fair and transpar€,rt manner_

22. For the foregoing reasons, we are of the considered opinion that the learned Singlt: iudge erred i, reading the contents o1. rhe work Done Certihcates, lhe e procurement award dated the fagtum of issrtance of letter of intent dated I9.O7.2C24 and 7O.O7.2,:')24 artd 15 publishing said information on 19.07 .2024 in the e-procurement online website and therefore the said impugned of the learned Single Judge is liable to be set aside.

23. In the result, the Writ Appeal is allowed setling aside the order dated 28. 10.2024 in W.P.No.2197l ol 2024 passed by the learned Single Judge. There shall be no order as to costs. Miscellareous applications, if any, pending in this appeal, sh stand closed. I ';}"?ffi //TRUE COPY'/ SD/.K.S RINTVAS RAO JOINT REGI RAR SECTION OFFICER #il$*tffirs'*fr"i}#gi$iffiiYf:lE:flffi:ffi TJ LS Y+-- \ HIGH COURT I DATED:2710312025 n JUDGMENT WA.No.169 of 2025 -(Hi: SfA r4: 3 O Y 0? unv 2[[ + .}. 6( t C)I .tt ^r.nt9Z '=--:-'' ALLOWING THE WRIT APPEAI. WITHOUT COSTS ? ll- 4lo r)