High Court · 2025

circumstances stated in the affidavit filed therewith, the High Court may be pleased to assue an appropriate writ or order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd respondent in cancelling the Award of Contract besides forfeiting the E.M.D. amount of Rs.12.00 lakhs (Rupees twelve lakhs only) and blac*listing and prohibiting the p€titioner from participating in the future tenders of the Corporation vide proceedings No. PDS 2/Mow./FG 5 (13)/133112012-13, dt.09.O1.2013 as being arbitrary, illegal, unconstitutional and in violation of Articles 14, 19, and 21 of the Constitution of lndia and consequently direct the respondents to refuM the Earnest Money Deposit of Rs.12.00 lakhs (Rupees twelve lakhs only) with interest and to permit the petitioner to participate in the future tenders of the respondent Corporation by lifting the blacklisting and prohibitory orders. l.A. NO| 1oF 201 . NO: t339 oF 2013 I Petition under Section 151 Crc praying that in the circumstances stated in the affidavit filed in support of the petitinn, the High Court may be pleased to suspend the operation of the proceedings No. PDS 2/Movt./FG 5 (13)1133112012- 13, dt.09.01.2013 issued by the 2d respondent, pending disposal of the Writ Petition. Counsel for the Petitioner: SRI K. S. V- SUBBA RAO Counsel for the Respondents: SRI T. P. ACHARYA, S.C. FOR CIVIL SUPPLIES SRI A. JAGAN, S.C. FOR CIVIL SUPPLIES The Court made the following: ORDER THE HONOT]RABLB SMT. JUSTICE T. MADIIAVI DEVI WRIT PETITTON NO.TlOs OF 2013 ORDER In this Writ Petition, the petitioner is challenging the action of the 2nd respondent in cancelling the award of contract besides forfeiting the EMD amount of Rs.12,00,000i- and blacklisting and prohibiting the petitioner from participating in future tenders of the respondent Corporation vrde proceedings No.PDS 2lMovt.lEG 5 (13)/1331/2012-13 d1.09.01 .20 I 3 as illegal, arbitrary and unconstitutional and consequently to direct the respondents to refund the Eamest Money Deposit (EMD) of Rs.12,00,000/- with interest and to permit the petitioner to participate in future tenders of the respondent Corporation and to pass such other' order or orders.

2. Brief facts leading to the filing of the present Writ Petition are that the respondent Corporation issued tender notification for transportation of essential commodities from FCI Godown to MLS point in Khammam District for the year 2012-13 vde Notihcation dt.30.01 .20 12. The petitioner participated and was declared as the lowest tenderer and the work order dt.21.03.2012 was issued to him and was served on26.03.2012. The work order required that within three (3) 2 W.P.No.l105 of20l3 days from the date ofreceipt of the said order, the petitioner has to enter into an agreement with the I't respondent Corporation by paying Rs.18,00,000/-. The petitioner frled W.p.No.g546 of 2012 seeking clarification or direction to the l"t respondent corporation either not to demand the Hamali charges or altematively to direct the I., respondent to pay the Hamali charges to a tune of Rs.600l for r0 metric tonnes of rice for loading and unloading as the said expenditure was not included in the tender notification. This court disposed of the said writ petition directing the l" respondent to pass appropriate orders on the representation of the petitioner and therefore, the petitioner fired another application dt-02.04-20r2 detailing as to how the Hamali charges are high and it would be a huge financial burden on the petitioner. I{owever, the said representation was rejected and therefore, the petitioner filed W.P.No.l08l7 of 2012 and the same was also disposed of by this Court vide orders dt.l2.l2.zor2 by obsewing that in rhe co,nrer atrdavit filed by the respondents, it was stated that the Transport contractor need not pay Hamali charges either at FCI Depots or at MLS poinrs for loading and unloading of food grains, as clarified in the office Letter bearing No'PDS.2rvlovt./FG 5(13)ir33r/20r2-r3 and it was turther observed that if the ls respondent wishes to continue the contractor. pursuant to -t W.P.No.l105 of 2013 the tenders already offered, it may do so within a period of one week from the said date. Liberty was also given to the respondents to issue a fresh tender notice if they so want. The petitioner clai-ars to have made a representation on 19.12.2012 specifically requesting to incorporate the condition that the contractor would not be made responsible for payment of Hamali charges and that since nine (9) months have passed by, he was ready to deposit Rs.15,00,000/- for the remaining three (3) months period of contract and requested that a letter may be issued in writing in order to carry out the transportation work. However, the respondents have issued a notice d'.l7.l2.2}l2 requiring the petitioner to deposit a sum of Rs.60,00,000/- for three (3) months period though originally it was to be deposited over a period of 12 months. Challenging the same, the petitioner filed W.P.No.40582 of 2012. During the pendency of the said Writ Petition, the 2nd respondent issued orders in proceedings No.PDS2/lvlovt/FG 5 ( I 3yl 33 ll2}l2- 13 dt.09.0 1.20 I 3 cancelling the award of contract besides forfeiting the EMD amount of Rs'12,00,000/- and blacklisting and prohibiting the petitioner from participating in any further tenders of the Corporation and reiterating the contents of the notice dt.17.12.2012. Challenging the same, the present Writ Petition was filed. 4 W.P.No. t 105 of 20i3

3. Leamr:d counsel for the petitioner, while reiterating the submissions made in the writ affidavit, submitted that except for issuance of the work order, there u/as no agreement errtered into between the petitioner and the respondents and therefore, there is no binding contract between the ls respondent Corporation and the petitioner; and since the period of contract expired by 31.03.2013, there was no requirement ftrr the petitioner to make the payment of entire amount of Rs.60,00,000/- towards the contract. It is submitted thar rhe EMD of Rs' 12'00,000/- therefore could not have been forfeited by the respondenr Corporation and he is seeking refund of the same with interest. As regards the bracidisting, it is submitted that the btackristing is usuaily for a period cfcne year and since the period ofone year has already lapsed, the said order is not effective any more. The leamed counsel for the petitioner has drawn the attention of this Court to the proceedings dt.09.01.2013, rvherein, there is reference to Condition No.3g of the tender schedule that no tenderer is entitled to withdraw his offer at any stage during or after the tender process and if he withdraws the offer, his EMD stands forfeited without any notice. He submitted that this Condition would be applicable only if the agreement was entered into between the tenderer and the Corporation and since no such agreement W.P.No.l105 of 2013 hasbeenenteredintoandthepetitionerhasnotcancelledorwithdrawn his offer, the impugned order is bad in law.

4. The respondents, however, have filed a counter affidavit stating that under clause No.42 0f the tender document and clause No.6 0f the appointment order, in case the successful tenderer fails to execute the agreement within three days of offer of contractor' the EMD will not only be forfeited, but award of contract will be cancelled besides collecting liquidated damages and btacklisting. It is submitted that the petitioner has not come forward to enter into the agreement with the Corporation even after the order of this Court dt' 12' 12'2012 in W.P.No.lO8lTof2Ol2,buthasbeenfilingoneorotherapplications before the corporation and due to the same, there has been considerable delay in entering into the agreement; and the respondent Corporation cannot be found fault with for the same. The respondents also referred to the tender terms and condition No.25 thereof in support of their , contentions. They therefore justified the impugned order'

5.Havingregardtotherivalcontentionsandthematerialonrecord, this court finds that though the petitioner has been declared as the lowest tenderer, the agreement could not be entered into initially because there was no clarity about the payment of Hamali charges and 6 W.P.No.l 105 of 2013 the issue was finalry decided on r2-r2.2or2and therearler, the petitioner had again approached this Court by way of W.p.No.4O 5g2 of 2Ol2 for relaxation of the condition of deposit of Rs.60,00,000/_.within a period of three (3) monrhs and the said Writ petition was admitted on 03.01.2013 and pending the same, the respondents issued the impugned order. Theref<rre, it is noticed that there was considerable delay in the decisions being taken about the agreement. However, the delay cannot be attributed to either the petitioner or the respondent Corporation. It is not the case that the petitioner, the lowest tenderer, has withdrawn from the tender process. but it is the case of delay in finalization of tender due to pendency of litigation before this Court.

6. Therefore, this Court is of the opinion that the forfeiture of EMD amount of Rs. 12,00,000/_ is not justified and the respondenrs are therefore directed to refund the sum of Rs.12,00,000/_ to rhe petitioner within a period of three (3) months from the date of receipt of a copy of this order.

7. As regards the claim of interest on this amount of Rs. I 2,00,000/_, this court is ofthe opinion that even the corporation has suffered due to delay in finalization of the tender and therefore, it woulcl also be a burden on the Corporation if interest on the EMD amount is awarded 7 W.P.No.l 105 of 2013 and the delay in finalisation was due to the pendency of the Writ Petitions filed by the petitioner. In view of the same, this Court is not inclined to award any interest on the sum of Rs.12,00,000/-. However, if the EMD amount is not paid within a period of three (3) months as directed above, the petitioner shall be eligible for simple interest @ 8% per annum from the expiry of three (3) months tilt the date of payment

8. As regards the blacklisting of the peritioner, since the period of blacklisting has already expired, this Court is of the opinion that the said order has become ineffective.

9. With the above observations, the Writ Petition is disposed of. No order as to costs.

10. Pending miscellaneous petitions, if any, in this Writ Petition shail stand closed. SD'. V.KAVITHA ASSISTANT REGISTRAR ,ITRUE COPY// 0 SECTION OFFICER \ To, lff;t#'$ffi**ffi$$?$,f,#gnH#i,-::r:: MP PSK 'o{ HIGH COURT nATEn.r,r trl4 lanrE art, l r.Llr&r, ,y'Fl a Lv.L TtlE s14 ,,,'r" 20FE! zffi :) :l \ I \ .^ 6( C' DER WP.No.1105 of 2013 DISPOSING OF THE WRIT PETITION WITHOUT COSTS \9\'rM- W