HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY W.P. No. 1070 OF 2014
O R D E R :
This writ petition is filed seeking Mandamus declaring the action of the respondent Corporation in issuing a Corrigendum dated 10.01.2014 postponing the auction to 21.01.2014 pursuant to the tender notification ref.No.M&S-84/BAR-C&D/13, due on 10.01.2014, inviting tenders from prospective purchasers/tenders to sell 15 lakhs MT of C+D+W barytes, quoting Rs.1120/- per MT as minimum price without taking into account the sale price of Rs.1,926/- per MT finalized with the petitioner in the earlier agreement as illegal and arbitrary and consequently to direct the respondent Corporation to consider the representation of the petitioner dated 27.12.2013 and thereafter take a decision to conduct the auction.
2. The respondent Corporation issued notification for sale of 2500 MT low grade barytes ore mixed with waste (C+D+W) on as is where is basis. The petitioner participated in the said tender and was the successful tenderer having quoted Rs.1,926/- per MT on ex- Mangampeta Stockyard basis and in pursuance of the same, an agreement dated 05.06.2013 was executed between the respondent Corporation and the petitioner and the same is in force till 23.04.2014. By virtue of the agreement, the petitioner has deposited Rs.48 lakhs and is required to lift 2500 MT and started lifting the material and till now, the petitioner has lifted 2000MT. The respondent Corporation has issued notification for sale of 15.00 lakh MT quoting minimum price as Rs.1,126/- per MT. They should have quoted in and around Rs.1,926/- or Rs.1,900/- which was quoted by the petitioner in the earlier bid, which would get profit for the respondent Corporation. It is stated that there is no rational basis for the respondents to fix the price at Rs.1,120/- per MT for a loss of about Rs.800/- per MT. It is further stated that because of the action of the respondent Corporation in undervaluing the material by quoting minimum price of Rs.1,120/- per MT, it would be difficult for the petitioner to sell the stock which he has to lift in the open market. The action on the part of the respondent Corporation, which is the subject matter of the writ petition is illegal and arbitrary.
3. Heard the learned counsel for the petitioner as well as the learned Advocate General for the respondent Corporation.
4. Learned counsel for the petitioner submits that the respondent Corporation cannot fix the low reserved/upset price at Rs.1,120/- per MT lower than the highest quoted price in the earlier tender notification as Rs.1,926/- per MT. He further submits that if the respondents proceed with the impugned tender notification, the petitioner would sustain huge loss and also to the respondent Corporation and that the Corporation cannot at their whims and fancies fix the minimum price when admittedly in the last Tender notification a reasonable price of Rs.1926/- per MT was offered by the petitioner. The learned counsel contends that if condition of minimum bid quantity is kept at 2.00 lakhs MTs, petitioner would not be able to participate in the bid as he is not in need of such huge quantity. By this condition, not only petitioner but also other similarly situated like petitioners will not be able to participate in the tender process. As such, imposition of such condition is harsh and arbitrary. He further submits that the petitioner has filed W.P.No.39463 of 2013 by raising all the above grounds and this Court by interim order dated 09.01.2014 in W.P.M.P.No.48995 of 2013 directed the respondents to pass appropriate orders in accordance with law on the representation of the petitioner dated 27.12.2013 and without disposing the same, the respondent Corporation has issued impugned notification dated 10.01.2014, which is illegal and arbitrary.
5. Learned Advocate General submits that earlier the petitioner participated in the bid and he was successful bidder and agreement dated 05.06.2013 was executed between the petitioner and the respondent Corporation. It is not the case of the petitioner that the respondent Corporation has violated any of the terms and conditions of the agreement entered into between the respondent Corporation and the petitioner. As huge stock of 45.00 lakhs of MTs of C+D+W of barytes was lying with the Corporation, and in order to dispose of the same and it has become very difficult for the respondent Corporation to protect the same, the impugned tender notification dated 10.01.2014 was issued. It is further stated that the petitioner quoted Rs.1926/- per MT in pursuance to the earlier tender notification and he has lifted only 2000 MTs. An agreement is executed on 05.06.2013 and the agreement is in force till 23.04.2014, it is not known whether the petitioners will be able to lift the balance quantity as the petitioner has lifted only 2000 MTs and to avoid such circumstances the respondent Corporation has fixed minimum bid quantity as 2.00 lakh MTs of barytes. He further submits that the petitioner has no locus standi to challenge the tender notification as it is not the case of the petitioner that he was not supplied the stocks in pursuance of the earlier agreement entered into between the respondent Corporation and the petitioner. He further submits that the jurisdiction of this Court in reviewing the tender conditions by exercising jurisdiction under Article 226 of the Constitution of India is very limited and the petitioner has not made out any case for reviewing the conditions imposed in the impugned tender notification. He also contends that just because the minimum upset price is fixed at Rs.1,120/-, the stock shall not be allotted on the basis of the same rate, but will be allotted to highest tenderer. Learned Advocate General has submitted that all pulverizing units will be supplied 2000 MTs of barytes per month at the rate to be fixed in pursuance of impugned notification dated 10.01.2014.
6. In this case, no doubt, the petitioner was successful bidder in respect of earlier tender notification for sale of barytes and the agreement was entered into by the respondent Corporation in favour of the petitioner on 05.06.2013 at the rate Rs.1,926/- per MT and the petitioner has also deposited Rs.48 lakhs and started lifting the material. Now, the grievance of the petitioner is that the first respondent Corporation has fixed minimum upset price at Rs.1,120/- per MT in the impugned notification dated 10.01.2014, since, the petitioner quoted Rs.1,926/- per MT in pursuance of the earlier tender notification, the respondent Corporation cannot fix the upset price less than Rs.1,926/- per MT. Since it is stated that minimum upset prize/reserve price is fixed by taking 1/4th value of A grade barytes and just because minimum upset prize is fixed at Rs.1,120/-, it cannot be said that stocks will be sold at that rate. Highest bidder will only be allotted stocks.
7. However, in the instant case, the petitioner has not stated that the first respondent Corporation has violated the terms and conditions of agreement dated 05.06.2013 entered into with the petitioner for supply of barytes in pursuance of earlier tender notification. As such, the petitioner should not have any grievance for issuance of impugned tender notification for sale of 15.00 lakhs MTs of barytes as the respondent Corporation wants to dispose of huge stocks and it has become very difficult for it to store the same.
8. Moreover, the power of reviewing the tender conditions by this Court under Article 226 of the Constitution of India is very limited as
[1]
held by the Apex Court in Tata Cellular v. Union of India , Michigan
[2]
Rubber (India) Limited v. State of Karnataka and others and Tejas Constructions and Infrastructure Private Limited v. Municipal Council, Sendhwa and another[3] as well as by this Court in W.P.No.31216 of 2013 on 02.01.2014. The petitioner has not made out any case for quashing conditions in the impugned tender notification.
9. In view of the above discussion and the statement made by the learned Advocate General, I do not see any reason to interdict the impugned tender notification dated 10.01.2014 issued by the first respondent Corporation for sale of 15.00 lakh MTs of C+D+W barytes.
Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending in this writ petition, shall stand dismissed.
A.RAJASHEKER REDDY, J January, 23, 2014. Note: Issue cc today. B/o.
KVS
HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY W.P. No.1070 OF 2014
Date: 23-01-2014
KVS
[1] (1994) 6 Supreme Court Cases 651
[2] (2012) 8 Supreme Court Cases 216
[3] (2012) 6 Supreme Court Cases 464