The High Court · 2025

AND THE HON'BLE SMT. JUSTICE RENUI(A YARA UTRIT APPEAL No.186 OF 2025 JUDGMENT: (Per Hon'ble SmL Justice Renuka Yara) Heard Sri T.Rajinikanth Reddy, learned Additional Advocate General appearing for the appellants and Sri Tarun G'Reddy, learned counsel for respondent Nos. 1 and 2. Perused the record'

2. This is an intra-court appeal hled by the appellants/ respondent Nos. 1 and 2 aggrieved by the order dated 28.IO.2O24 passed in W.P.No.21972 of 2024 by the learned Single Judge of this Court declaring the action of the appellants/ respondent Nos' 1 ar,d 2 in rejecting the tender bid of the respondents/writ petitioners in respect of tender No.TGMDC/ S&M/DSLT/JB / 2024 I 225, dated 14'06'2024 for de-siltation of 10,8O,OO0 MT of sand from Brahmanapallil2024 l2 sand reach at Jayashankar Bhupalpally District as illegal for not assigning .ea"or!, the award of tender No.TGMDC/S&M/DSLT/ JBl2O24l225, dated L4.O6.2O24 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/DSLT/JB /20241225' dated 14.06.2024. .J The background facts of the case ale that the writ appellant No.2 floated tender No.TGMDC/S&M/DSLT/JB I 2024 I 225, dated 1 \ I 7 .i

14.06.2024 for de siltation of 1O,8O,OO0 MT cf s and from Brahmanapallr I 2\)24 I 2 sand reach at Jayashankar ts hupalpally District ald thar the said tender was floated for a contra;t value of approximatell' Rs. 10,47,60.OO0/-. Respondeni No.1 reprr:sented by respondent No.2 and respondent No.3 participated in the bid. The bid vvas awarded n favour of respondent No.3 as per the arrard dated

19.07.2024. The bid submitted by respondent No.1 has been rejected as per the information provided in the Telangana e-procurement po rlal.

4. The rejectio;r of their bid is challenged by respon<lent Nos.1 and 2 on the premise that the writ appellants did not conduct the tender process and arn ar cling of the tender in fair and transparer tt manner by referring to tt e legal ratios laid down by the Ho n 'ble Supreme Court of India in Dharrnapal Satgapal Limited t', Deputg Commissioner of Central Excise, Gauhati and oth,arst, PKF Sridhar and. Santhqna,m a. Airports Econotnic Regulatory Authoritg of India (VW(C) No.72385 of 2027), Suadesh.i Cotton Mills u. Union of India2 and Punjab State Pouer Corporation Limited and. q.,nother a. EMTA Coal Limited and others3. Respondent Nos. and 2 primarily questioned the actic n of writ appellants in rejr:cting the tender without assigning rez sons and I ' 12ots1a scc sts ' atR tgat scc gt8 '1zozz1z scc r t t 3 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 Honble Supreme Court of India holding that decision making process adopted by the writ appellants is contrary to principles of natural justice and lacking in transparency in the tender process. It is held that no reason is assigned for rejecting respondent No. l's bid as failing to have fulhlled clause 3.2 tender conditions. In the light of the respondent No.l,s specihc case that it fulhlled the requirement under clause 3.2 of the tender conditions. It is held that as per the entry made in e-procurement web portal on 19.07.2024, the writ appellants have clearly observed that respondent No. t has fulf,rlled the eligibiiity criteria referring to the contents of Remarks column which are extracted and produced below: Remarks As per Tender Docs

5. Further, the learned Single Judge held that the writ appellants have failed to give an opportunity to respondent No. 1 to give clarification in case of any ambiguity about the contents of the Work Done Certificate. Lastly, the learned Single Judge also referred to the writ appellants issuing Letter of Intent to respondent No.3 on IO.O7.2024 and the award of tender to respondent No.3 took place on ) \ l 4

79.07.2024. Thus, the writ petition was allowed leading .o hling of the writ appeal

6. The learned ,\dditional Advocate General would subrr it that the Government fo11<,rved correct procedure AS spelled or rt in the procurement mar ual and the tender notifltcation. [t is e nphasized that respondent |tro.l failed to meet the tender conditi()n No.3.2, which reads as foll:rvs "The bid(ler shall havc satisfactorily completed at least onc work of Minrng/Civil/ lrrig r lion work of value not less than Rs-8,38,08,000/ (Rupees Eight crorc 'l hrrt . EighL lakhs Eight thousand only) (8O9/. oI i'alue ol r\-ork) involving cxcar,a irn and removal any Earth/mineral inclu,ting sand in State/Ccntrrrl Cio\ ernmcrr L Undertakings during the last three (3) years.' 7 . In this regrr rd referring to the Work Done Certifi :ates uide Ref.Nos.KGM/JVII oC IIl2023l338Cl608 and KGM/,IVR OC- II /2023 I 338D I 6ctt , both da.ted 12 I 16 .O5.2O23 :iubr ritted by respondent No. 1 , it is argued that said certificatt,s clearly demonstrate that r.^spondent No. 1 did not complete the cor tracts but rather the rvork is still in progress in "Present status of work" column

8. In that con-ext, it is argued that any bidder has tr produce certificate shorving satisfactorily completed work of ,ralu, r not less than R s.8,38,O8,C O0/ during the last three years of the bid. It is ,r'gt'r"d) that amons i3 technical qualilied bidders, 7 were r jected for a1 5 not complying tender clause 3.2 ald the sarne was inforrned through e-procurement website on 08.07.2024. Respondent No.1 is one arnong 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 mala ftdes, arbitratiness and illegalities' Whereas, in the instant case, no specifrc instance of ma-lice is made out. Only because respondent No.l failed to satisfy the condition under clause 3.2 of tender condition its bid was rejected which is not arbitrary. The learned Additional Advocate General referred to the judgment of the Hon'ble Supreme Court in Agtnatel Indirr Priuate Limited a. Resourys Telecom and othersa, wherein it is held that "The above mentioned statements of law make it amply clear that the author o[ the tendcr document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with the language of the'tender document or subserving the purchase of the tender, the Court would prefcr to keep restraint- Further to that, the technical evaluation or comparison by thc Court is impermissible; and even if the interpretation given to the tendcr document by the person inviting offers is not as such acceptable to the constitutional court, that, by itsetf, would not be a reason for interfering with the interpretatron given." g. The contention of respondent No'l about giving opportunity under clause 21 to provide clarihcation with respect to Work Done '(zozz)s scc:oz j 5 Certificate, it is ar p3-red that the employer can seek clarificr Ltion at its discretion. When :he Work Done Certificate itseif clearl" reflected that respondent l'o.1 did not complete the work, there is rro need to seek any clarifica tion. Lastly, it is argued that the learr red Single Judge erred in otr:;erving that the letter of intent dated 1O.O7.2O24 was issued in favour of respondent No.2 and the same' is (ontrary to the information orr the r,r,eb site u,hich shows tender was a varded on

19.O7.2024. According to the learned Additiona-l Advocat: General, after the bids u'ere, submitted by prospective bidders, the bids were evaluated by the Tende r Evaluation Committee on O8.A7 .2024 to ascertain the conrl, tions stipulated and successful bidder r .as issued the letter of intent on 1O.O7.2024 and said information rr.ar uploaded on 19.O7.2024. kr the entire process, there is no mala fide or lack of transparency. I-e arned Additional Advocate General r:ferred to judgment in W.li Nos.116 and 117 of 2025, dated 13.O2.2O25 wherein it was held that: '16- A carelul readrng o[ Clause I7-O rcproduccd hcrcinabove sho! s thal if bidder has been bi rned b! any other body and has disclosed this facl cle..ly in his bid, as a rule of t 1umb, SCCL management will not disquali[y him. 'I he SCCL managemcnt rese r:s right ro take appropriate decision in such eventurrlity. The language employe(L in the aforesaid clause shows that it enat,les t1e SCCL management to take an appropriate decision in such cases q.here disclosure o[ banning is there. Thc decision raken by SCCL management in the prcsent ase is to disquality the petitrtoer- At this stagc, wc are not inclined to put the clock :ack ard direct Lhc Singareru Collierics Company Lirniaed to undertrke thc cnLir( exercise afresh. The Singarrrr CoLlicrres Company Limited ts serving public interest. For the smboth produ, rin r . n,1 ,r,,n,,r* o[ Singareni Col]reries Companl' Lirrited, iupply of buliexplosit,- rs '.,:l'nr.,l A n-\. rnterlcrcnce by us at this juncrure, v,,iJl harrper the activity of thc rnclrrr;rr'., anc1 consequenrly rvill have an adverse imcact rn public ,l 7 rnterest. Thus, in the peculiar facts of these cases, we arc not inclined to interfere in the mattcr- More-so, after passing oI impugned order, ttrird party riBhts are created and contracts have been granted to nine (9) contractors and they are not parties before us-"

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. Learned counsel for respondent Nos. 1 and 2 argued that it has fulfrlled condition under clause 3.2 of tender conditions and therefore it was found to have qualified as per the entry in web portal dated

19.07.2024. It is argued that the learned Single Judge had assessed the tender process adopted by the writ appellants in proper perspective with respect to meeting the clause 3.2 of tender conditions, not providing opportunity r.rnder tender clause 2l for giving clarihcation about the Work Done Certifrcates and rejecting the tender without assigning reasons. In that regard, learned counsel for respondent Nos. 1 and 2 referred to judgmeirt of the Hon'ble Supreme Court of India in M/s. Klrsturi I'al Lakshi Reddg, rep. bg its partner Shrt Kasturi Lal and others u. Stdte oJ Jamtnu and Krrhsrnir and anothers, wherein it is held that "15.........where the govemment is dealing with the public, whetler by way of giving jobs or entering into contracts or granting other forms of largess. the Government cannot act arbitrarity at its, sweet wrll and, like a private individual, deal with any ) person it plcases, but its action must be in conformity with some standard or norm )which is nol arbitrary, irrational or irrelevant. The govemmental actlon must not be ' (rgao)+ scc r 8 arbitrary or caprlc aus, but must be based on somc principle which rneets the test of reason and relevar ce.. -"

12. Learned counsel for the respondents vehemently a'gued that no reasons are z s;signed for rejecting its bid ancl theret y there is violation of principles of natural justice. In that contel.:t, learned counsel for the r.espondents referred to judgment of tlLe Hon'ble Supreme Court o'India in Dhannapal's case (1 supra) ar.d relevant portion is extractt <1 and produced below: "The principles of rrirtural justice dcveloped ovcr a pcriod of time and u.hrcl is still in vogue and valid cr,cn today $.e.e: (i) rule agalnst bias, i.c. nemo iudcx in rausa sua; and (ii) opportunit-, ol being heard to the concerned party, r.c- audi rrltera n parLem. These are knorvn as principles of naturaljustice. To thcsc principles :r rltrr< principle is added, which is o[ recent orlgin. lt is cluty to givc reasons in support o dccision, namcly, passing ola reasoned orcler'.

13. Analysis by the Court A perusai ol the record and the arguments of both tlre counsel show that the cnu< of the dispute is u.ith respect to \\,het:rer or not respondent No. 1 met the criteria under clause ll.2 of tender conditions, ',\.hether the writ appellants acted nith ma.la fi.l.es tn r:ot providing an opportunity to respondent No. 1 to give c. arifrcation about its Work Done Certificate and lastly whether the writ appellants did not rgive a reasoned order for rejection of bid submitted by respondent ltlo. 1 and thereby the tender procr rss lacks transparency t I ) \ a - 9

14. First and foremost tender under clause 3.2 makes it maldatory for the bidders to submit Work Done Certifrcate showing satisfactory completion of at least one work of mining/civil/irrigation of value not less than Rs.B,3B,0B,0OO/- (8O% of value of work) involying excavation ald removal any earth/mineral including sand in State/ Central Government Undertakings during the last three yeurs. The aforementioned condition requires that the bidder shall complete at least one work of required monitory value, complete satisfactorily that too within last three years of the date of the bid. While so, the Work Done Certificate submitted by respondent No.1 shows that the said company has taken up the work of Singareni Collieries through work order No.760OOO9282, dated 21.1O.2022 and has completed certain work upto MarcIl 2023 ald the status of the work is "work in progress". Similarly, respondent No. I has taken up another work from Singareni Collieries Company Limited and the certihcate shows that the work is still in progress. The contents of the Work Done Certihcates submitted by respondent No.1 failed to meet two criteria, i.e. completion of work and completion of work satisfactorily. Only when the entire work is completed that too to the satisfaction of the employer, it can be said that respondent No.1 has sugcessfully fulfilled the criteria under clause 3.2 of tender \ conditions and not otherwise. The contents of the Work Done Certificate speak for themselves and cannot be given any other 10 *--'1 lnterpretation. The respondents would contend that the contracts awarded are f<,r. a period of 1 1 months and 17 month; respectively and each comlx)nent of work done is a separate prece rrork which is to be treated as completed satisfactorily. Such in t,:rpr,:tation of the contents of the \Vork Done Certificates is not acceptable.

15. coming t. the aspect of seeking crarihcation from he bidder as per clause 2 1 o' tender conditions, said tender conchtion itserf crearly shows that the :larification may be sought at the disc_etion of the employer. In ca se, the employer after perusing thr: co rtents Work Done certilicate has come to the conclusion that the r,".c rk is still in progress ald tt at has not been completed, no lault cz n be found with the emplol e.r A conjoint reading of clause 3 .12 an d 2 i of the together with the contents rrf \ Vork Done Certificates does not make out a positive case in Iavour of respondent tender conditio n s No. 1

16. Coming to the contention of respondent Nos. 1 anrl 2 that as per clause 22'7,1rte erigibility criteria is as per derrnition r-.B clause 3 and only when tL:e erigibiliry criteria is met, the further evaluation takes place. To ,lscertain the case of respondent Nos.1 end 2, said entry in the rveb trx>rtal is produced below: ) ) I / 1-L Min Max 000

0.oo Technical parameters list: Type tender document Tender Docs Evaluation comments Clause 3.2 of Tender conditions fulfilled

17. A reference is made to the contents of above award of tender dated 19.07.2024 to the "Remarks" column wherein it is entered as "As per Tender docs". This entry in the Remarks column is mis- interpreted by respondent No. 1 to mealr that respondent No. I has met the eligibility criteria as per 3.2. To the contrar5r, the meaning of the contents of "Remarks" column can be construed as that respondent No. 1 qualifred for further evaluation of the bid as it has met the eligibility criteria by filing all the required tender documents including the Work Done Certificate. The title of the column is "Remarks". Remarks with respect to whether the bidders have filed all the documents or not. Only such bidders who have frled alt the documents are eligible for evaluation of their bids and further steps.

18. The next column is titled "evaluation comments", wherein it is clearly mentioned as "clause 3.2 of Tender conditions not fulfrlled". 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 the eligibility of a bidder pima facie on account to frling of required t I I 17 t documents as per l.ender notification and not on the basis r'f contents of said documents,. Only after the documents hled for the evaluation of the bid are in crder, the contents are examined and an evaluation is made as to thr: eligibility of the bidders and therebl respondent No.1 has been for-Lr-rd to be lacking to have met the conditions under clause 3.2. I{ovrever, respondent No. 1 is mis interp -eting the contents of "Rer:arks" column and the "evaluation < omments" column and the r;ame has been erroneously relied Llp,)n by the learned Single Ju<lge while passing the impugned order.

19. Coming to tre aspect of observing principles of natu'a1 justice, about passing a reasoned order while rejecting an app lication, a reasoned order is; passed when there is an adjudic:rtio r process, where there are t')r o or more rival contestants, each perso I is heard and an evaluatio-r is made of the rival contentions and reasoned order is passecl. In the instalt case, the entire tender pr;cess took place online whetr:in the bids are submitted online and the resr.rlt also has been declared online. A reason for rejection is the criteria for meeting the requirements of principles of natural jus tice. The said reasoned orcerr could be one word, one line or a. par agraph or more. In the ins tant case, the employer has given the :eason for rejecting bid of respondent No. I by stating that respondent No. 1 failed to meet the r:onditions of clause 3.2 of tender conciitions. The )' TJ 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 while the information was made available by the writ appellants on e- procurement website indicated that respondent No.3 was declared the successful bidder and awarded the tender only on 19.07.2024. In this regard, it is seen that the said allegation was not made by respondent No. 1 in the writ petition but was raised only at the time of frling a rejoinder to the counter filed by respondent No.3 2I. In this regard, as per judgment of the Hon"ble Supreme Court h Arti Sapnt a. State of Jammu and Kashniro, the allegations made for the hrst time in the rejoinder affidavit do not give scope for reasonable opportunity to the respondents to give reply and therefore cannot form basis for a frnding in favour of the petitioner. Likewise in the matter of Ashok Lanka u. Rtsht DikshitT, the Hon'ble Supreme Court held that when the allegations are made in the rejoinder, when no new plea cal be permitted in the rejoinder, without the leave of the Court, such allegations cannot be relied upon. While legal precedents do not support respondent No. l's u llgatyzscc +sa ' lzooq)sscc so \ I l I t 14 I allegations mzLrle in the rejoinder for the first tim,: attributing mala Jides, we are r>-'the considered opinion that the contelrts of the web portal dated 1\\.O7.2024 are also mis-interpreted on zccount of the fact that the tender evaluation process has been :ompieted by OA.O7 .2024 an C the letter of intent was issued to t ee successful bidder on 1O.O7.2O24 and said information \\/as Lrp oaded in the website on l') .O7 .2024. Last but not least. alter the bids are evaluated, the eligible bidder has been selectecl b1, rva,. of lottery in the presence rf all the bidders. The learned Additional Advocate General pointerl out that even respondent No. 1 partrr ipated in the lottery process that took place on 1O.O7.2024 and therr.fore , no mala fides cart be att:ibuted to reference Nos. l and 2, as the :ntire process has been cond:cted in transparent manner as per the t:nder process contemplated ir) the tender conditions as well as notrfir:ation. When the successful l;idder is selected through the process o drarving lots in the presenoe of all the eligible bidders, no m.ola fdes can be attributed to tlr: writ appellants in conducting the terx er process in fair and tra:rsparent manner.

22. For the f<l-egoing reasons, we are of the considerer opinion that the learned Single Judge erred in reading the contents of the Work Done Certihcal os, the e procurement award dated 19.07.2024 and the fagtum of issuance of letter of intent dateci 10. )7.2024 and, ,/ / 15 publishing said information on 19.07 .2024 in the e-procurement online website arrd therefore the said impugned of the learned Single Judge is liable to be set aside. o2 In the result, the Writ Appeal is allowed setting aside the ord-er dated 28. 1O.2O24 in W.P.No.21972 of 2024 passed by the learned Single Judge. There shall be no order as to costs Miscellaneous applications, if any, pending in this appeal, shall stand closed To, //TRUE COPY// SD/-K.SRINIVASA RAO JOINT REGISTRAR ECTION OFFICER '+si-uilfl:i"iff31",1'sl3r"-%3#[ir3i?"p,!r!!&"fi[:#rr{,"J!'#::{ "premises rear block 3rd floor' oz-tii5,"hruws-SB ?fl 3'9fl;chairman^*y:ff:?llgBiii."J"I,I?Aigil,f, #l€triB"J':'SSH:ll Corooration Limited Tgmdt ?i.X"[::tiJ%h[!i,'',i,'fri3id,,:[1f11X11, s"",,"" Hish court ror the State or If;L'B??tfu8fl?!?ii$]it lNon-s"rice), Section Hish court for the state of If;53g??h?#St"lat"ting section ' Hish court for the state of reransana ' +#"sttsf" ADDITIoNAL ADVO-CATE GENERAL' Hish court for the state g*mTn]+Iflxfffl *fl3^Jo'hcB'sv:f ,1,""?Y3\o,,", . Two CD'CoPies

3. 4 5 6 7 BI BM LS HIGH COURT DATED:27103t2025 t {, oi..7€ L,I,1, \ o o.$ c2 o 2,o \- JUDGMENT WA.No.186 of 2025 ALLOWING OF THE WRIT APPEAL WITHOUT COSTS .Y!=