Back
2012 Supreme(AP) 278
High Court of Andhra Pradesh
NOOTY RAMAMOHANA RAO
M/s. Lavanya Enterprises, West Godavari District Durgamalleswara
Versus
Swamyvaarla Devasthanam & Others
Writ Petition No. 7108 OF 2012
Decided On : 15-03-2012
For the Petitioner:N. Guru Gopal, Advocate.
For the Respondents:R1, V.T.M. Prasad, Advocate, R2, G.P. For Endowments.
Headnote:
Andhra Pradesh Charitable Hindu and Religious Endowments Immovable Properties and Other Rights Leases and Licenses Rules, 2003 – Rule 3 - Tender – Procedure to be followed – Writ petition challenges the validity of the method adopted by first respondent herein by floating e-procurement, sealed tenders and public auction notice as contrary to Rule 3 of Andhra Pradesh Charitable Hindu and Religious Endowments Immovable Properties and Other Rights Leases and Licenses Rules, 2003 – Respondent has floated on procurement sealed tenders and public auction notification proposing approximately eight different licenses to be conferred upon highest bidders – One of them is right to collect human hair – By floating this complex tendering process first respondent has adopted procurement method through tendering process and also invited sealed tenders to be filed latest Again public auctions were slated to be conducted onwards it has been made clear that after conducting public auction only sealed tenders as well as tenders would be opened – Validity of this notification is under attack in this writ petition – Held, If tenders and e-tenders are not opened before the public auctions, the bidders at the public auction will not be knowing as to the highest bid received earlier. When the element of speculation is present of situations as to which one would be far more suitable and proper method for granting leases or licenses should at best be left to the grantor. So long as fair, reasonable and transparent methods and procedures are adopted for granting the licenses or leasehold rights of highest bidders, one can only expect that a realistically true bidding or offering can be procured fact as to which method could have fetched a better result than the other is difficult to be predicted – This is discretion to adopt the fair procedure should be left to the grantor – So long as procedure adopted is not arbitrary or totally unjust and it is based upon sound principles of exercise of discretion Courts should not seek to substitute their discretion to that of administrator is best is not always wisdom of any choice may be disputed or condemned – But that by itself does not provide scope for judicial review – Instance let us test sealed tendering process – Secures tender form by paying up necessary fee prescribed there for and satisfying eligibility criteria can fill it up and offer it – Perhaps any number of tenders can be offered by a single individual or entity but requirement is there can only be one price that can be offered per tender – In other words best price offered by will be basis for consideration – Same is case with tender system – Any number of bids proposed can be lodged but each bid will contain one single quotation of a price or offer – Consequently sealed tendering process or tendering process also retain same features of transparency and competitive edge and a fair and equal opportunity to everyone as in case of public auctions – Only feature that will be missing in such cases is after knowing each price or offer there will not be a further opportunity to bid for the bidders to match offers of others – Writ petition stands dismissed.
1. This writ petition challenges the validity of the method adopted by Sri Durga Malleswaraswamy Vari Devasthanam, the first respondent herein, by floating e-procurement, sealed tenders and public auction notice on 01.03.2012 as contrary to Rule 3 of the Andhra Pradesh Charitable Hindu and Religious Endowments Immovable Properties and Other Rights (Other than Agricultural Lands) Leases and Licenses Rules, 2003 (henceforth referred as 'Rules'), and consequently to set-aside the same.
2. The first respondent/Devasthanam has floated on 01.03.2012 e-procurement, sealed tenders and public auction notification proposing approximately eight different licenses to be conferred upon the highest bidders. One of them is the right to collect 'human hair'. By floating this complex tendering process, the first respondent/Devasthanam has adopted e-procurement method through e-tendering process and also invited sealed tenders to be filed latest by 16.03.2012 up to 2.00 P.M. Again the public auctions were slated to be conducted at 3.00 P.M onwards on 16.03.2012. However, it has been made clear that, after conducting the public auction only the sealed tenders as well as e-tenders would be opened. Validity of this notification is under attack in this writ petition.
3. Sri Guru Gopal, learned counsel for the writ petitioner has rested his contentions on essentially two grounds. One, Rule 3 mandatorily requires a lease and license to be granted by way of public auction only whereas, the impugned notification makes a departure there from and by not confirming the highest bid secured at the public auction, the first respondent/Devasthanam is resorting to opening tenders and e-tenders thereafter, and if in that process any bid is received which is higher than the highest bid received at the public auction, the same is likely to be accepted and finalized. Thus, a lease or a license is likely to be conferred upon a bidder whose tender or e-bid may have been the highest offer. This, according to the learned counsel, amounts to granting leases or licenses in a manner other than the one contemplated by the rules. The second contention urged by the learned counsel is that, by opening the sealed tenders and e-tenders after the public auction is over, the first respondent is risking and jeopardizing the prospect of securing a competitively higher price. It is very likely that the person who has filed his tender or e-tender would turn up for participating at the public auctions and so long as the tender or e-tender is not opened, excepting the bidder, the others may not have the knowledge of the bid offered by him. If such a person were to participate in the public auction, he may purposefully not bid for anything higher than what he has already quoted in his bid document or e-bid. On the other hand, if the public auctions are conducted after opening of the tenders and e-tenders, bids of all the competitors will become known and the highest bid so secured can be made the upset price at the open auction. Thus, at the open auction, the competitive edge amongst the rival bidders can be retained and the best offer that comes for consideration at that public auction can be accepted.
4. Per contra, Sri V.T.M. Prasad, learned counsel who has taken notice on behalf of the first respondent would submit that, by opening the tenders and e-tenders subsequent to the public auction, the bidders at the public auction would not be knowing about the offers of the other competitors made in their tender forms and consequently the public auctions will retain the edge of competitiveness amongst the bidders. If the tenders and e-tenders were to be opened before conducting the public auction, the bidders would be reluctant to increase their offers at the public auction appreciably.
5. The rules have been framed in exercise of the power available to the Governor under Section 153 read with Section 82 of the Endowments Act and hence, they have enforceability. Rule 3(1) undou
