THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR AND THE HON’BLE SRI JUSTICE T. SUNIL CHOWDARY W.A. Nos. 1255 and 1257 of 2012 And C.C.Nos. 1225 and 1226 of 2013 Date of Judgment: 14.11.2014 Between:
N. Naveen Kumar and another …Appellants And Regional Manager, Andhra Pradesh State Road Transport Corporation and others ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR AND THE HON’BLE SRI JUSTICE T. SUNIL CHOWDARY W.A. Nos. 1255 and 1257 of 2012 And C.C.Nos. 1225 and 1226 of 2013 COMMON JUDGMENT:
All these matters were heard together and disposed of by common judgment.
W.A.No. 1255 of 2012 is filed by the petitioners in W.P.No. W.P.No. 11297 of 2012 and W.A.No. 1257 of 2012 by the petitioner in W.P.No. 10586 of 2012. The appellants herein had submitted their competitive bids for Fast Food Center at MG Bus stand, Hyderabad and Departmental Store at Jubilee Bus Station, Secunderabad. Those two writ petitions were disposed of by the learned Single Judge under a common order dated 7.9.2012 with the following directions, “(a) The action of the Corporation in accepting the tenders of the contesting respondents i.e., respondent No.4 in W.P.No. 10586 of 2012 and respondent Nos. 3 and 4 in W.P.No. 11297 of 2012 is contrary to the mandatory tender condition relating to non-transferability of the tender forms and hence the said action is declared as invalid;
(b) the Corporation shall forthwith call for fresh tenders and finalize the same within a period of one month from the date of receipt of this Judgment, strictly in terms of the tender conditions/regulations/circulars/executive instructions holding the field;
© the petitioners shall be allowed to continue their businesses in their respective stalls on the same terms and conditions on which they were permitted by the Corporation beyond their licence periods upto 30.9.2012. The petitioners’ continuance from 1.10.2012 till finalization of fresh tenders shall be subject to their paying the highest offers made by the contesting respondents in each of these writ petitions in relation to the respective stalls in their occupation; and (d) if the petitioners do not intend to continue their businesses from 1.10.2012 in the respective stalls in their occupation by paying the highest rates offered by the contesting respondents, they shall vacate the stalls on 30.9.2012, failing which the Corporation shall be entitled to recover possession of the stalls and the licence amounts as directed above.”
The appellants have questioned the aforesaid directions under (b), (c) and (d) in the writ appeals on the ground that they go beyond the scope of the writ petitions and are contrary to the circulars issued by the respondents-Corporation and as such the conditions imposed therein have become onerous.
By interim order dated 10.10.2012 this Court stayed the impugned directions and it was made clear that it will not stand in the way of the respondents to take steps in accordance with the provisions of law.
It appears from the record that on 14.2.2013 the writ appeals were dismissed in default, as there was no appearance on behalf of the appellants and on applications filed by the appellants, the writ appeals were restored to file on 14.6.2013. In the interregnum since the interim stay was not operative, the respondents-Corporation issued a fresh tender notification on 30.5.2013 and the tenders were finalized on 18.6.2013. One G. Raj Kumar emerged as a successful bidder and was allotted a space No. C2 (for scooter parking at JBS) and after execution of necessary documents and paying security deposit, he took over the possession of the scooter parking on 10.7.2013.
On 19.7.2013 when the appeals were taken up for hearing after restoration, learned standing counsel for the respondents- Corporation wanted time to argue the matter and hence while adjourning the cases to 24.7.2013, this Court directed the parties to maintain status quo obtaining as on the date of the interim order dated 10.10.2012.
Consequently, therefore, the appellants contended that in view of the order of status quo dated 19.7.2013, the respondents- Corporation violated the interim order dated 10.10.2012 by issuing a fresh tender notification and finalizing the tenders and alleging disobedience of the interim order, dated 10.10.2012 of this Court, the appellants filed contempt cases.
We have heard Mr. C. Ramachandra Raju, learned counsel for the appellants and the learned Advocate General appearing for the respondents-Corporation.
The learned counsel for the appellants contended that the impugned directions (b), (c) and (d) issued by the learned Single Judge go beyond the scope of the writ petitions and the conditions imposed therein are so onerous that the enhancement directed by the learned Single Judge was much more than the price offered. He also contended that the learned Single Judge had declared the highest bidder ineligible and consequently quashed the acceptance of highest offers by the respondents-Corporation. The appellants being the second or third highest bidders ought to have been called for negotiations and could have been considered for awarding the contracts after ascertaining if the appellants would match highest offer received by the Corporation. In support of these conditions, the learned counsel for the appellants placed reliance upon the circulars issued by the respondents-Corporation on the guidelines and procedures to be adopted while calling for and finalizing the tenders. Circular No. 14 of 2012, dated 3.4.2012 is relied upon which is in the nature of guidelines issued by the Office of VC & MD, RTC Bhavan, Musheerabad, Hyderabad to its subordinates to follow the guidelines and procedures laid down therein with respect to fixation of EMD amount, negotiating with the 1st and 2nd highest bidders, collection of security deposit, entering into agreement, licence period of the contract etc. Placing strong reliance upon the said circular, the learned counsel for the appellants states that clause (d) thereof provides that even the 3rd highest bidder can be negotiated for matching his offer to that of the 1st highest bidder. Then the learned counsel for the appellants placed reliance upon another circular No. 3 of 2008, dated 5.2.2008 issued by the office of VC & MD, Mushirabad, Hyderabad which provides for policy and guidelines to continue the existing licencees in occupation of their respective allotted premises till finalization of the tenders and their occupation by the new allottees. Placing reliance upon the latter circular also, the learned counsel for the appellants submits that the concerned appellant being the existing contractor ought to have been allowed to continue without interruption, and as the impugned directions were subject matter of these writ appeals and in view of the stay granted by this Court on 10.10.2012, the respondents-Corporation could not have proceeded with the fresh tender notification and its finalization so as to disturb the appellant No.1 who is the existing contractor.
On the other hand, the learned Advocate General appearing for the respondents-Corporation submits that when the writ appeals were dismissed in default, the interim order dated 10.10.2012 automatically ceased to operate and since the writ appeals were restored after a gap of almost three months after their dismissal, in the interregnum the respondents-Corporation was fully justified in calling for fresh tenders, considering the offers received and finalizing the contracts. The learned Advocate General, therefore, submits that the action of the respondents-Corporation, which was otherwise lawful within the said three months period when the writ appeals stood dismissed, cannot be nullified merely on account of the restoration of the appeals and the subsequent interim order after restoration of the writ appeal whereby status quo was directed to be maintained by the parties as on 10.10.2012. The learned Advocate General states that as mentioned in the counter-affidavit, a new allottee was the highest bidder in terms of the fresh tender and he was required to be put in possession of the premises and accordingly entered into an agreement and since the actions of the respondents-Corporation are justified, there is no question of any disobedience as alleged in the contempt cases filed by the appellants. So far as the claim of the learned counsel for the appellants based upon the circulars of the respondents-Corporation as referred to above are concerned, the learned Advocate General states that they are only internal guidelines issued by the VC and MD to their subordinates and no rights as such can be claimed by the appellants based on the said circulars.
We have considered the aforesaid submissions. So far as the impugned directions (b) (c) and (d) are concerned, in our view, the learned counsel for the appellants is justified in contending that the said directions go beyond the scope of the writ petitions. It is not in controversy among the parties that after the learned Single Judge, by direction (a), set aside the action of the respondents-Corporation in accepting the tenders by the contesting private respondents in both the writ petitions, neither of the said contesting private respondents who were highest bidders, challenged the said direction, consequently therefore, the position existing prior to the issuance of the tender stood restored on account of finality attained with respect to the said direction (a). In our view, therefore, keeping in view the policy adopted by the respondents-Corporation as reflected from the circular No. 3l of 2008, dated 5.2.2008, referred to above, pending finalization of the fresh tenders, the existing licencees were required to be continued till finalization of the tenders and occupation of the premises by the new allottees. It is, therefore, apparent that the acceptance of tenders having been set aside by the learned single Judge, the respondents-Corporation were required to issue fresh tenders and in the interregnum continue the existing licencees. The impugned directions given by the learned single Judge particularly under directions (c) and (d) imposing enhanced rents on the existing licencees, (which amounts to penalizing them) in order to continue them in the premises beyond 30.9.2012 and till finalization of the fresh tenders, in our view, are clearly onerous and contrary to the policy of the respondents-Corporation as reflected in the circulars referred to above.
It is also evident from the record that the respondents- Corporation issued a fresh tender notification after the writ appeals were dismissed in default and as such pending finalization of the fresh tenders, the existing contractors ought to have been allowed to continue in terms of the circular No. 3 of 2008, dated 5.2.2008, referred to above, without any pre-condition as to payment of enhanced rents as directed under the impugned directions (c) and (d). The impugned directions are, therefore, liable to be set aside and both the appeals deserve to be allowed.
The situation which is now obtaining on the date of hearing of the appeals, however, is required to be taken note while giving further consequential directions. The offers given by the appellants which was subject matter of writ appeals were in pursuance of the tender notification issued in March, 2012 and almost 2 ½ years has since lapsed, and thereby the offers given in March, 2012 cannot any more be said to be realistic for consideration after 2 ½ years. Further the contention of the learned counsel for the appellants that as per the circular No.14 of 2012, dated 3.4.2012 the appellants being the second or third highest bidders ought to have been called for negotiations and allowed to match their offers with that of the first highest bidders, does not reflect the realistic values which have gone up in the interregnum after 2 ½ years. We are, therefore, not able to subscribe to the said contention of the learned counsel for the appellants that even after setting aside the highest offers accepted by the respondents-Corporation, the learned single Judge ought to have directed consideration of the offers by the appellants in terms of the said circular No.14 of 2012, dated 3.4.2012, referred to above.
It is also required to notice that there are subsequent circumstances which emerged during the hearing. Space for scooter parking for which the appellant No.2 had filed his tender was freshly notified as per the subsequent tender notification dated 30.5.2013 and the counter affidavit of the respondents states that one G. Rajkumar emerged as highest bidder and he was given possession of the scooter parking on 10.7.2013.
However, even that situation did not exist as on the date of hearing of the writ appeals. It is also asserted by the learned counsel for the appellants and accepted by the learned Advocate General, on instructions from the respondents-Corporation, that the highest bidder G. Rajkumar had also left and the scooter parking is presently managed by making a temporary arrangement. Evidently, therefore, as on the date of hearing of these appeals, in view of the subsequent events, even the scooter parking space is required to be notified afresh. Further on account of the interim directions granted by this Court to maintain status quo existing as on 10.10.2012 under order dated 19.7.2013, the departmental stores and fast food centre are continued to be run by the appellants as existing contractors on negotiated enhanced rentals. Thus no successful bidder is in place with regard to the fast food centre and departmental stores as well as scooter parking even after the subsequent tender notification dated 30.5.2013. In our view, therefore, the interest of justice would be served by directing the respondents-Corporation to call for fresh tenders with regard to all the three spaces, referred to above and any other spaces required to be notified and finalise the same in accordance with law. The appellants shall also be at liberty to offer their competitive bids as and when such tender is called for. In the meanwhile, the concerned appellants shall be allowed to continue in the fast food store and departmental stores till finalization of the tenders and till the new allottees take possession of the respective spaces.
So far as the scooter parking is concerned, the existing temporary arrangement shall be continued. However, the respondents-Corporation shall consider the offer of the concerned appellant, if any, on competitive basis and complete the contract of scooter parking also in accordance with law.
With the above directions, both the appeals are allowed. Miscellaneous applications, if any, shall stand closed. No order as to costs.
C.C.NOs. 1225 and 1226 of 2013:
As far as contempt cases are concerned, we do not find any justification to entertain them any further, in view of the fact that the action of the respondents-Corporation in calling for tenders during the interregnum period when the appeals stood dismissed in default and consequently the interim order remained inoperative, cannot be said to be contemptuous. We are also not prepared to accept the contention of the learned counsel for the appellants that acceptance and finalisation of the tenders by the respondents-Corporation after the writ appeals were restored also, cannot also be said to be contemptuous.
The contempt cases are, therefore, dismissed. Miscellaneous applications, if any, in all the cases, shall stand closed. No order as to costs.
VILAS V. AFZULPURKAR, J T. SUNIL CHOWDARY, J Dt. 14.11.2014 KR