ORDER
S. Parvatha Rao, J.
1. Notice before admission was ordered in this Writ Petition on 17-10-1994 and respondents were directed not to finalise the tenders and not to award the works covered by the impugned tender notice dated 7-10-1994 to any one, pending further orders. The 1st respondent herein filed his counter affidavit dated 24-10-1994 and sought vacation of the interim directions granted on 17-10-1994. On behalf of the petitioners, the 1st petitioner gave his replay affidavit dated 24-10-1994.
2. Heard the learned counsel for the petitioners and the learned counsel for the 1st respondent. It is agreed by them that the Writ Petition itself should be disposed of at the admission stage itself.
3. The petitioners question the short tender notice dated 7-10-1994 bearing Roc. No. E3-9449-94 issued by the 1st respondent herein i.e., the Commissioner, Rajahmundry Municipality, for certain road works within Rajahmundry Municipality area; firstly, on the ground that condition No. 12 introduced therein to the effect that for the works for which tenders were called, only contractors owing hot mix and paver and the related tools and the plant are eligible to submit tenders, is arbitrary and bad; and secondly, on the ground that proper publicity was not given to the said tender notice and sufficient time was not granted for submitting tenders as required by the relevant Rules applicable for the issue of the said tender notice.
4. In respect of the first ground, the main attack of the petitioners is that the said condition No. 12 was introduced only to favour two contractors who only own a hot mix plant and paver etc., in the East Godavari district and who are close relations of the local Congress (I) M.L.A., and to exclude all others like the petitioners. They also allege that the said condition was introduced under pressure from, and influence of the local Congress (I) M.L.A. They state that in respect of some of the works covered by the tender notice dated 7-10-1994, two tender notices were earlier issued, one on 11-7-1994 and another on 8-9-1994. They allege that they are all registered contractors and that they purchased tender schedules and applied for some of the works covered by the said earlier tender notices dated 11-7-1994 and 8-9-1994. However, those tenders were cancelled and the present third tender notice dated 7-10-1994 was issued introducing the said condition No. 12 which was not there in the two earlier tender notices dated 11-7-1994 and 8-9-1994. It is under those circumstances, the petitioners contend that the said tender condition is arbitrary and bad and is introduced only to favour the two contractors who only own jointly a hot mix plant and paver, etc., in the district. They state that they are refused tender schedules only because of condition No. 12 as none of them own a hot mix plant and paver etc.
5. This is countered by the 1st respondent stating that the first two tender notices dated 11-7-1994 and 8-9-1994 covered not merely road works, but also other works like repairs to public latrines and drains and maintenance of certain buildings, etc. He states that for the four road works covered by the first tender notice dated 11-7-1994, none of the petitioners submitted tenders. However, in respect of the works covered by the second tender notice dated 8-9-1994, he states that the 1st petitioner had applied for 20 items of works out of 33 and that the 2nd petitioner applied for only one work i.e. item No. 29 i.e., maintenance of school building and not for any road work. He states that fresh tender notice dated 7-10-1994 was not issued under the pressure of the local M.L.A. and that condition No. 12 in the said tender notice was not introduced to favour any contractor or anybody but only in the interest of the speedy execution of the works as the roads covered by the said tender notice require urgent repair. He states that for qualitative, uniform, and speedy work of repairing roads, the road works were separated from the earlier tenders and the said fresh tender notice dated 7-10-1994 was issued. In regards the reason for introducing condition No. 12 regarding hot mix plant and paver, it is stated by him as follows :
“Previously the municipality has invited tenders for certain road works with specification by using hot mix plant and mechanical paver (tender notice Roc. No. E3/13693/92 dated 18-12-1993 item Nos. 28, 29, 30). The municipality had bitter experience with the contractors who filed tenders without having required tools and plants of their own. It so happened that these contractors after awarding the works to them they could not-procure the hot mix and other tools and plants from the owners of these plants and subsequently the municipality has to go in for the conventional method only i.e., laying of B.T. renewal cost with ordinary tools and plants. Also these works are badly delayed for more than 6 months i.e., work orders issued on 9-2-1994 and works completed in the month of September 1994. To avoid repetition of this sort of delay for these hot mix works and in the interest of public convenience the 12th clause has been incorporated in the tender notice dated 7-10-1994. For these road works schedules have been issued to two contractors who are having their own tools and plants as per clause 12 of the tender notice and two tenders are received on 18-10-1994, out of which Sri Sathi Chandra Reddy, Contractor is the lowest and they are not finalised in view of the orders of this Hon’ble High Court.”
It is also alleged that petitioners 1 and 4 were only purchasing schedules but not executing works in the municipality for the past 7 years and petitioners 2 and 3 were not even purchasing schedules for the road works earlier, for which tenders were called for, earlier.
6. The learned counsel for the 1st respondent Mr. M. Prabhakara Rao also produced the relevant records. The record discloses, and it is not in dispute, that only two tenders were received on 18-10-1994 pursuant to the tender notice dated 7-10-1994 in question in the present Writ Petition; one from Sri M. Sitarama Reddy, and another from Sri S. Chandra Reddy, and that both of them jointly own one hot mix plant and paver etc. No other fender was received. Though the petitioners have specifically alleged that these two are related to the local M.L.A. Sri A. C. Y. Reddy, the alleged relationship has not been denied by the 1st respondent. However, I am not inclined to go into the mala fides part of the allegations and contentions raised by the learned counsel for the petitioners because none of them have been impleaded in this Writ Petition. It is not necessary for me to enquire into the same because I am inclined to set aside the tender notice dated 7-10-1994 on the other ground raised by the learned counsel for the petitioners. However, so far as condition No. 12 is concerned, I have to notice the decision of this Court in M. Sivaramaiah v. Superintending Engineer ((1993) 1 Andh. L.T. 137), wherein a learned Single Judge of this court held in respect of the works relating to National Highway No. 9 entrusted by the Central Government to the State Government, as follows :
“The improvement, construction, maintenance and repairs and the execution of actual work are all entrusted to the State Government and the works are to be carried out as per the guidelines of the Government of India with specified machinery, such as hot-mix plant, paver finisher on all National Highways. The requirement of the proof of ownership of such plant by the contractor cannot be considered to be arbitrary. If the contractor does not own the machinery and the plant, there is ever possibility of the work not being completed in time, which would cause undue hardship and inconvenience to the heavy traffic playing on the National Highways. The assertion in the counter to the effect that experience of the Department in the past was that the contractors, who did not possess the necessary machinery failed to complete the works in time, has to be taken into consideration.”
I will leave this aspect of the matter at this.
7. The second ground raised by the learned counsel for the petitioners, which finds my favour, is that the tender notice dated 7-10-1994 in question was not properly advertised and that sufficient time was not given for submitting tenders as required by the relevant Rules. The first fact to be noticed in this connection is that the said tender notice was published only in the Telugu Daily ‘Andhra Bhoomi’ dated 9-10-1994 in its edition intended for East Godavari, Mr. M. Prabhakara Rao, the learned counsel appearing for the 1st respondent has stated this on the basis of instructions received by him and has also placed before me a copy of that daily.
8. The second fact to be noticed is that the said tender notice dated 7-10-1994 states that tenders would be received till 3.00 p.m. on 18-10-1994 and that they would be opened at 3.30 p.m. on the same day in the presence of the tenderers or their agents present. It also gives the last date for payment of tender schedule application money as 15-10-1994 at 4.00 p.m. and the last date for making applications for tender schedules as 17-10-1994. Five road works have been mentioned in the said tender notice and the estimated value of four of them is Rs. 3.40 lakhs or more, and of the remaining one is Rs. 1.08 lakhs. It is obvious from the above that Rule 4 of the Andhra Pradesh Municipalities Tender Rules, 1987 (‘Tender Rules’ for short) has been violated. Sub-rule (1) of Rules 4 is as follows :
“4. (1) Tenders shall be invited by the Commissioner in sealed covers in the most open and public manner possible :
(a) in all cases by a notice in the language or the languages of the district pasted at the office of the council and such other places as the Commissioner may deem fit; and
(b) when the cost exceeds (rupees one lakh) by advertisement in at least one news paper circulating in the district and in the State.”
The note under Clause (iii) of sub-rule (2) of Rule 4 provides as follows :
“Note : A minimum period of at least 15 days from the date of publication of the notice at the office of the council, or in cases falling under clause (b) of sub-rule (1) of the first advertisement in a newspaper shall be allowed for the submission of tenders. If the fifteenth day happens to be a holiday the tenders received on the next working day shall be treated as having been received in time.”
In the present case, though the value of each of the works covered by the tender notice in question dated 7-10-1994 exceeds Rs. 1 lakh, it was not advertised in at least one newspaper circulating in the State, and a minimum period of at least 15 days from the date of the first advertisement in a newspaper was not allowed for submission of tenders. Even though the tender notice in question was published in the district edition of ‘Andhra Bhoomi’ of 9-10-1994, the last date for receiving tenders has been mentioned as 18-10-1994 at 3.00 p.m. i.e., hardly 9 days in fact the last date for payment of tender schedule price had been mentioned as 15-10-1994, i.e., hardly 6 days from the date of such publication. It is therefore obvious that in the present case tenders have not been invited “in the most open and public manner possible” as required by sub-rule (1) of Rule 4 of the Tender Rules. In this connection, sub-rule (2) of Rule 5 also has to be noticed. It provides as follows :
“5. (2) Tenders from the registered contractors only shall be considered. In the case of contracts the value of which exceeds rupees twenty thousand tenders from the engineering firms of repute and from contractors registered in or outside the district may be considered, provided that they get themselves registered as contractors of the municipality prior to the submission of the tenders. Tender schedules may be sold to unregistered contractors also.”
Thus, in respect of contracts the value of which exceeds Rs. 20,000/- tenders have to be accepted from contractors in or outside the district even though they have not already been included in the register of contractors to be maintained under the Andhra Pradesh Municipalities (Registration of Contractors) Rules 1978. The only requirement is that they have to get themselves registered as contractors of the municipality prior to the submission of tenders, though it is made clear that they can purchase tender schedule even before registration.
9. The tender notice dated 7-10-1994, therefore has to go and it is set aside for the reasons stated above, I make it clear that it is open to the 1st respondent to issue a fresh tender notice in accordance with the Tender Rules and invite tenders complying with the requirements relating to advertisement etc. The Writ Petition is accordingly allowed. No costs.
10. Petitioner allowed.