Karnataka High Court
Sri Ajjappanahally Giriyappa ... vs The Director Of Municipal ... on 10 February, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 22233 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 22233 OF 2022 (GM-TEN)
BETWEEN:
SRI. AJJAPPANAHALLY GIRIYAPPA
NARAYANASWAMY,
S/O LATE GIRIYAPPA,
AGED ABOUT 54 YEARS,
R/AT NO. 13, VENKATESHWARA LAYOUT,
NEAR BHARATH GAS GODOWN,
HORAMAVU
BANGALORE-560 043.
...PETITIONER
(BY SRI. NANJA REDDY P. N., ADVOCATE)
AND:
Digitally signed
by PADMAVATHI 1. THE DIRECTOR OF MUNICIPAL ADMINISTRATION,
BK V. V. TOWERS,
Location: HIGH
COURT OF BENGALURU - 560 001.
KARNATAKA
2. THE DEPUTY COMMISSIONER,
KOLAR DISTRICT,
KOLAR - 563 131.
3. THE CHIEF ENGINEER,
O/O THE DIRECTOR OF MUNICIPAL
ADMINISTRATION,
V.V. TOWERS,
BENGALURU - 560 001.
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WP No. 22233 of 2022
4. THE EXECUTIVE ENGINEER,
DISTRICT URBAN DEVELOPMENT CELL,
O/O THE DEPUTY COMMISSIONER,
KOLAR DISTRICT,
KOLAR-563 131.
...RESPONDENTS
(BY SRI. DHYAN CHINNAPPA, AAG A/W
SRI M. VINOD KUMAR, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
RESOLUTION / PROCEEDINGS OF THE TENDER EVALUATION
COMMITTEE DATED 28.10.2022 IN RESPECT OF SUBJECT NO.3
AND 4 E-PROCUREMENT TENDER NOTIFICATION
NO.DMA/2022-23/RU/WORK-INDENT-134387 FOR
CONSTRUCTION OF ROADS, DRAINS AND OTHER
INFRASTRUCTURE WORKS IN MULBAGAL CMC UNDER
AMRUTHA NAGAROTHANA (MUNICIPALITY PHASE-4) AND E-
PROCUREMENT TENDER NOTIFICATION NO.DMA/2022-
23/OW/WORK-INDENT-133168 FOR CONSTRUCTION OF
ROADS, (ASPHALTING, CC PAVEMENT, INTERLOCK PAVERS)
AND DRAINS, CONSTRUCTIONS OF COMMUNITY CENTRE AND
OTHER INFRASTRUCTURE WORKS TO ROBERTSONPET KGF
CMC LIMITS UNDER AMRUTHA NAGAROTHANA-4
(MUNICIPALITY) SCHEME HEADED AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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WP No. 22233 of 2022
ORDER
The petitioner is before this Court seeking the following prayer:
"a) Issue a writ of certiorari or any other appropriate writ, order quashing the Resolution/proceedings of the Tender Evaluation Committee dated 28.10.2022 in respect of Subject No.3 and 4 e-Procurement Tender Notification No.DMA/2022-23/RU/WORK-
INDENT-134387 for Construction of Roads, Drains and other infrastructure Works in Mulbagal CMC under Amrutha Nagarothana (Municipality Phase-4) and e-Procurement Tender Notification No.DMA/2022-23/OW/WORK-INDENT-133168 for Construction of Roads, (Asphalting, CC Pavement, Interlock Pavers) and Drains, constructions of Community Centre and other infrastructure Works to Robertsonpet KGF CMC Limits under Amrutha Nagarothana-4 (Municipality) Scheme headed by the 2nd respondent (Annexure-C) as it is contrary to the terms and conditions prescribed in the Tender Notifications dated 20.8.2022 at Annexures A & B and it is contrary to the provisions of the KTTP Act.
b) Issue a writ of Certiorari or any other appropriate writ, order quashing the Tender Notification No.DUDC/Technical (Mulbagal) Nagarothan-4/CR/3(3)/2021-22 dated 5.11.2022 th (Annexure-F) issued by the 4 respondent as it is contrary to the terms and conditions prescribed in the Earlier tender Notifications dated 20.8.2022 at Annexures A & B and it is contrary to the provisions of the KTTP Act.
c) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to consider the case of the petitioner's Tender submitted/quoted Technical and Financial Bids in respect of Tender Notification No.DMA/2022- 23/RU/WORK-INDENT-134387 for Construction of Roads, Drains and other infrastructure Works in Mulbagal CMC under Amrutha Nagarothana -4- WP No. 22233 of 2022 (Municipality Phase-4) as per Annexure C and Tender Notification No.DMA/2022-23/OW/WORK INDENT- 133168 for Construction of Roads, (Asphalting, CC Pavement, Interlock Pavers) and Drains, constructions of Community Centre and other infrastructure Works to Robertsonpet KGF CMC Limits under Amrutha Nagarothana-4 (Municipality) Scheme as per Annexure D and award the above Tenders to the petitioner as he is fully qualified as per the decision of the committee itself as per Annexure-D."
2. Heard Sri. P.N. Nanjareddy, learned counsel appearing for the petitioner and Sri. Dhyan Chinnappa, learned Additional Advocate General appearing for the respondents.
3. A Notice Inviting Tender was issued by the respondents on 29.07.2022 for construction of roads, drains and other infrastructure works in Mulbagal City Municipal Council under the Amrutha Nagorathana (Municipality Phase-4) and another tender of the kind was issued for Robertson KGF City Municipal Council.
The petitioner along with others submitted their bids and the bids were found to be successful in the Technical evaluation on 12.10.2022. Later, another committee was constituted and all the bids were held to be unsuccessful on the technical scrutiny, except the petitioner's, which resulted in the -5- WP No. 22233 of 2022 petitioner becoming a single tenderer. Therefore, the tender is recalled and a fresh Tender Notification is issued.
The petitioner has knocked at the doors of this Court calling in question the said action of issuance of re-tender/fresh tender on the aforesaid grounds.
4. The learned counsel appearing for the petitioner would submit that the action of the State at the outset declaring all the tenderers to be technically qualified was correct and there was no warrant for a second committee to assess the tender and disqualify all the tenderers except the petitioner, which resulted in a single tenderer becoming eligible. He would submit that the entire action is malafide.
5. On the other hand, learned AAG would submit that the power of the State to withdraw, cancel the tender before it is awarded by anybody, is a power that is available under Section 14 of the Karnataka Transparency in Public Procurements Act, 1999 ('Act' for short). Therefore, would submit that the power is exercised as the tender would have resulted in no competition, as the petitioner was the only tenderer, who was qualified on the technical evaluation. He -6- WP No. 22233 of 2022 would submit that the petition be dismissed, the petitioner is always entitled to participate in the impugned notice inviting tender.
6. I have given my anxious consideration to the respective submissions made by the learned counsel and have perused the material on record.
7. The afore-narrated facts, link in the chain of events and dates are not in dispute and are therefore not reiterated. The only issue that falls for consideration is;
"Whether the a fresh tender could be called notwithstanding the earlier notification."
8. Section 14 of the Act empowers the Tender Inviting Authority to alter the conditions of tender prior to issuance of the work order or execution of the agreement. That stage had not yet come about. The reason for issuance of a re-tender in the case at hand stands justified, as all the tenderers were disqualified on a technical scrutiny except the petitioner. In the light of the petitioner emerging as the sole tenderer which kills competition, the issuance of fresh tender was the only course open to the respondent-State. It would always be open to the -7- WP No. 22233 of 2022 petitioner to participate in the said tender now issued afresh. The action of the State cannot be said to be contrary to law.
9. The learned counsel appearing for the petitioner at this juncture would submit that during the subsistence of the petition, last date for submission of bids is over.
10. The learned AAG would submit that, if the petitioner submits his bid, his bid is also would be assessed in accordance with law and appropriate action would be taken. The submission is placed on record.
11. For the aforesaid reasons, I deem it appropriate to dispose the petition reserving liberty to the petitioner to submit his bid in terms of the Tender Notification dated 05.11.2022 within 1 week from the date of receipt of a copy of this order.
12. In the event the petitioner submits his bid, the respondents shall consider the same and take appropriate action in accordance with law.
SD/-
JUDGE rv