Karnataka High Court
Sri D Ganesh Shankar vs The State Of Karnataka on 21 May, 2013
Equivalent citations: 2013 (4) AKR 272
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21st DAY OF MAY 2013
BEFORE:
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.19717-19722 OF 2013 (GM-TEN)
BETWEEN:
1. Sri. D. Ganesh Shankar,
Son of Late D. Chinnavenkanna,
Aged about 57 years,
No.37, Srihari Nilayam,
8th Cross, KGE Layout,
RMV II Stage,
Bangalore - 560 094.
2. Sri. P. Vikramdev Reddy,
Son of Late Duravasulu Reddy,
Aged about 39 years,
Service Provider for Package No.10,
No.8, behind Sandhya Tent,
Old Madiwala,
Bangalore - 560 068.
3. Sri. P. Vidya Nath Reddy,
Son of P. Chenga Reddy,
Aged about 33 years,
Service Provider for Package
No.03, No.1951,
Jayanagar 9th Block,
Bangalore - 560 069.
2
4. R. Damodar,
Son of Rajappa,
Aged about 43 years,
Resident of 12/1,
New Binnamangala,
Old Madras Road,
Bangalore - 560 038.
5. S. Raju,
Son of Late Srinivasalu Naidu,
Aged about 41 years,
No.7, 1st Cross,
24th Cross,
Puttenahalli, J.P.Nagar,
Bangalore - 560 078.
6. Gopinath Reddy,
Son of Chinnathambi Reddy,
Aged about 50 years,
Resident of Near Sandya Theater,
Old Madiwala,
Bangalore - 560 68. ...PETITIONERS
(By Shri. V. Lakshminarayana, Advocate )
AND:
1. The State of Karnataka,
Represented by the Principal Secretary,
Housing and Urban Development
Department, Vidhana Soudha,
Bangalore - 560 001.
2. The Bruhat Bangalore Mahanagara Palike,
3
N.R.Square,
Bangalore - 560 002,
By its Commissioner.
3. The Commissioner,
Bruhat Bangalore Mahanagara Palike,
N.R.Square,
Bangalore - 560 002.
4. The Chief Election Commissioner,
Karnataka State Election Commission,
Palace Road,
Bangalore - 560 001.
5. Sri. Manjunath,
Major,
Alleged successful Bidder
Package No.W1,
C/o. Executive Engineer,
West Zone, BBMP,
Bangalore - 560 053.
6. Sri. T. Sridhar,
Major,
Alleged Successful Bidder
Package No.W6,
C/o. Executive Engineer,
West Zone, BBMP,
Bangalore - 560 002.
7. M/s. V.R. Enterprises,
Represented by Proprietor,
Alleged Successful Bidder
Package No.W7,
C/o. Executive Engineer,
4
West Zone, BBMP,
Bangalore - 560 002.
8. Sri. B.S. Suresh Chandranath,
Major,
Alleged Successful Bidder
Package No.W10, S16 and 18
C/o. Superintendent Engineer
West and South Zone,
BBMP, Bangalore - 560 002.
9. Sri. Gautam Raj.M,
Major,
Alleged Successful Bidder
Package No.W12,
C/o. Executive Engineer,
West Zone, BBMP,
Bangalore - 560 002.
10. Sri. L. Kumar,
Major,
Alleged Successful Bidder
Package NO.E05,
C/o. Superintendent Engineer,
East Zone, BBMP,
Bangalore - 560 053.
11. Sri. Suresh Kumar.N,
Major,
Alleged Successful Bidder
Package No.E06,
C/o. Superintendent Engineer,
East Zone, BBMP,
Bangalore - 560 053.
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12. Sri. Dhanraj,
Major,
Alleged Successful Bidder
Package No.E07,
C/o. Superintendent Engineer,
East Zone, BBMP,
Bangalore - 560 053.
13. Sri. T. Vajrappa,
Major,
Alleged Successful Bidder
Package No.M03,
Mahadevapura,
C/o. Executive Engineer,
Mahadevapura Zone,
BBMP,
Bangalore - 560 048.
14. Sri. C. Manjunath,
Major,
Alleged Successful Bidder
Package No.D03,
C/o. Superintendent Engineer,
Dasarahalli,
BBMP,
Bangalore - 560 057. ...RESPONDENTS
(By Shri. Rajeshwara P.N., Advocate for Respondent
Nos. 5, 6, 8, 10 and 14
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Shri. B.V. Shankara Narayana, Advocate for Respondent
Nos. 2 and 3
Shri. N.B. Vishwanath, A.G.A., for Respondent No.1 )
*****
These Writ Petitions are filed under Articles 226 and 227 of
the Constitution of India, praying to quash the Government order
dated 20.3.2013 vide Annexure-A passed by first respondent and
the circular dated 19.4.2013 vide Annexure-B passed by
respondent no.3 as arbitrary, and abuse of the process of the court
and amounts to interference with the course of justice and
violative of Article 14 of the Constitution of India and etc;
These petitions, having been heard and reserved on
16.5.2013 and coming on for Pronouncement of Orders this day,
the Court delivered the following:-
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ABJ: W.P. No.19717/2013
21.05.2013
ORDER ON IA 2/2013 and IA 3/2013
Heard the learned counsel for the parties on Interlocutory
Application nos.2 and 3 of 2013, filed by the respondents for
vacating the ex-parte order of stay granted as on 26.4.2013.
2. The petitioners are said to be service providers engaged
in collection and disposal of solid waste material in the city of
Bangalore, on behalf of the Bruhath Bangalore Mahanagara
Palike (Hereinafter referred to as the 'BBMP', for brevity), at land
fill sites designated by the BBMP. The petitioners are said to
have been so engaged by the BBMP for the past 10 years, and
some of them for the past 20 years.
The petitioners had approached this court earlier in writ
petitions in WP 47597-47611/2012, WP 39337-39354/2012 and
WP 44763-44777/2012, challenging the government order dated
18.9.2012, cancelling the earlier bid and a proposal made by the
Commissioner, BBMP on the same day and duly approved by the
8
Government also on the same day. Those writ petitions were
disposed of by a common order dated 26.4.2013, however, the
petitioners did not have the benefit of a copy of the order as on the
date that the present writ petition was filed and were unaware of
the order passed therein.
The petitioners have sought the following reliefs :
" (i) Issue a writ in the nature of certiorari to quash
the Government order dated 20.3.2013 bearing
No.UDD 793 MNY 2012 as per Annexure-A passed
by the first respondent and the Circular dated
19.4.2013 bearing No.
Commissioner/P.S.R.(4)/544/13-14 produced as
Annexure-B passed by the respondent no.3 as
arbitrary and abuse of the process of the Court and
amounts to interference with the course of justice
and violative of Article 14 of the Constitution of
India.
9
(ii) Forebear the respondents from proceeding
with fresh tender process till the election process is
over and the entire decision for fresh tender process
is taken up only after the newly constituted
Government and after the disposal of the various
petitions pending before this court?"
3. The petitioners have called in question two sets of
tenders, the BBMP had issued eight tender notices for the purpose
of collection and disposal of solid waste within the city of
Bangalore. The said tender notices dated 18.9.2012 were issued in
respect of 89 packages. It transpires the BBMP had received
responses in respect of 81 packages and had not received any
response in respect of 8 packages. Of the 81 bids received, four
were excluded as the same did not qualify. The BBMP had
sought approval of the State Government in respect of 77
packages, by its letter dated 31.10.2012. The State Government
is said to have accorded its approval in respect of 76 packages, as
10
per its order dated 21.11.2012. The government took note of the
fact that in respect of one particular package - its approval was
not warranted.
In so far as the remaining 12 packages, out of the total of 89
packages, the re-tendering process is said to have been approved
by the State Government by its letter dated 3.11.2012.
4. The BBMP is said to have issued a tender notification
dated 3.11.2012 in respect of the said 12 packages. The BBMP,
however, sent a proposal dated 2.3.2013 to the State Government,
seeking approval of the tenders since the bid amount in respect of
each contract exceeded Rs.5 crore. The government granted
approval to proceed with the tender in respect of 12 packages,
vide government order dated 20.3.2013, pursuant to which a
circular dated 19.4.2013 was issued. It is the said government
order and circular that are under challenge in this petition.
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5. It is contended that the Government having permitted the
BBMP to issue tender notifications for 38 packages and the
financial approval granted for 12 packages, is violative of the
Code of conduct. The Code of Conduct was issued by the Chief
Election commission of India, on 20.3.2013, in view of the
ensuing assembly elections in the State. The State Government's
decision therefore was contrary to the code of conduct and ab
initio void.
It is also pointed out that the pendency of the matters in the
aforesaid proceedings, was not brought to the attention of the
Chief Election Commissioner, which in itself evidenced mala fide
exercise of power.
It is contended that the minimum prices and the minimum
norms of three notifications differs regarding the price fixation,
the percentage quoted by each of the bidders is more than 15%
less than the minimum price fixed by the BBMP which is not in
public interest.
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It is also contended that the BBMP and the State
Government had proceeded on the footing that there is no
objection to the tender process by the Chief Election Commission.
It is asserted that the Election Commission would have no
jurisdiction to grant any such permission in respect of a
transaction with a commercial flavour.
The petitioners have raised other incidental grounds. This
court has granted an ex-parte order of stay of the impugned order
and circular, aforesaid.
On service of notice, the private respondents 5, 6, 8 to 11
and 14 as well as respondents 2 and 3 have filed separate
statement of objections and have filed IA no.2 & IA no.3/2013
seeking that the order of stay be vacated.
It is urged on behalf of the BBMP in IA no.3/2013 that the
petitioners had raised the very contentions raised in this writ
petition in the earlier batch of writ petitions in WP 39337-
39354/2012 (excepting the aspect touching on the election
process). The Division Bench of this court, which decided those
13
petitions, has dealt with all the contentions and has declined to
grant the reliefs sought for by the petitioners.
It is elaborated in the statement of objections by the BBMP
that the Government Order dated 20.3.2013 and the Official
Memorandum dated 19.4.2013 are nothing but proceedings in
continuation of the tender process initiated earlier. It is stated that
pursuant to the Government Order dated 20.3.2013, the BBMP
had issued letters of acceptance to the successful bidders. The
tender process having reached a final stage, the petitioners cannot
be allowed to stall or subvert the same on baseless grounds.
It is stated that out of the 76 packages for which, the
tenders were approved by the State Government, the bidders in
respect of 34 packages did not adhere to the time schedule
resulting in cancellation of tenders in respect of 34 packages and
forfeiture of Earnest Money Deposit (EMD). Thus a need arose
for re-tendering in respect of these 34 packages. In addition, in
the absence of any interim order in respect of 2 packages
14
forming the subject matter of WP 47510/2012, it became
necessary to re-tender these 2 packages also. Further, a need
arfose in respect of 2 more packages wherein the contract was
awarded to one Shri M.N.Sreeramulu in view of the order dated
4.4.2013 passed by the division bench of this court . Thus, in all,
re-tendering process became necessary in respect of 38
packages. Under the circumstances, after obtaining the approval
from the State Government/Election Commission, the BBMP
issued an Official Memorandum bearing No.Commissioner.PSR
(4) 544/13-14 dated 19.4.2013 fixing a calendar of events for re-
tendering in respect of 12 packages. However, for reasons beyond
control, the process of re-tender could not be started. The BBMP
has not issued any Tender Notification on 20.4.2013 a first step as
enunciated in the Official Memorandum dated 19.4.2013.
6. It is stated that the petitioners, having the full knowledge
of the tender process and the developments taking place on a day-
to-day basis, have approached this court with ulterior motives.
15
As stated earlier, the tender process in respect of 12 packages has
reached an advanced stage and it is not open for the petitioners to
seek to challenge the tender process on the grounds alleged in the
writ petition or otherwise. The questions raised by the petitioners
in the present proceedings have been suitably dealt with by the
division bench of this court in its order dated 26.4.2013 passed in
WP 39337-39354/2012 (GM-TENDER). The petitioners being
parties to the said proceedings, cannot be allowed to re-agitate the
very same questions again and again. The petitioners are
indulging in abuse of the process of court. The writ petitions are
liable to be dismissed with exemplary costs. It is stated that
successful bidders, who have been awarded with the contract, are
not allowed to take up the work by the petitioners. This has
resulted in great hardship to the citizens of Bangalore in as much
as the smooth disposal of solid waste generated day-by-day is
affected by the conduct of the petitioners, who are habituated in
stalling the tender process and the same is contrary to public
interest.
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It is stated that as regards 38 packages for which the BBMP
issued Official Memorandum bearing No.Commissioner/PSR (4)
544/13-14 dated 19.4.2013, the BBMP has re-examined the
entire issue with reference to the order dated 26.4.2013 passed by
the division bench of this court, the Commissioner, BBMP, has
withdrawn the said Official Memorandum dated 19.4.2013 by
issuing another Official Memorandum bearing
No.Commr/PSR(4)/1300/13-14 dated 10.5.2013. A copy of the
Official Memorandum dated 10.5.2013 is produced as Annexure
R.5. Hence, the challenge to Official Memorandum dated
19.4.2013 no longer survives for consideration in the present
writ proceedings. In view of the withdrawal of the Official
Memorandum dated 19.4.2013, these respondents are not
elaborating on the merits of the case. In any view of the matter,
since the time schedule provided in Official Memorandum dated
19.4.2013 could not be adhered to for reasons beyond the control
of the BBMP, the tender process enunciated in the Official
Memorandum dated 19.4.2013 requires a revision in the light of
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the order dated 26.4.2013 passed by the division bench in WP
39337-39354/2012 (GM-TENDER). Therefore, the contention in
relation to the election process and other grounds stated in the writ
petition also do not survive for consideration.
It is contended that the petitioners cannot be permitted to
challenge the tender or re-tender process without participating in
the tender process. It is contended that the petitioners cannot be
said to belong to a class of "aggrieved persons" and hence the writ
petition is not maintainable.
It is contended that in view of the conclusion of the tender
process in respect of 12 packages by issuance of Letters of
Acceptance to successful bidders and in view of the order dated
26.4.2013 passed by the division bench, the said tender processs
cannot be interfered with at the instance of the writ petitioners
who are indulging in an abuse of the process of court. The
BBMP will be put to irreparable loss and hardship if they are not
allowed to take further steps in respect of 12 packages pursuant to
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issuance of Letters of Acceptance in favour of the successful
bidders.
It is contended that in so far as 38 packages are concerned,
the BBMP has withdrawn the Official Memorandum dated
19.4.2013. hence, the prayer in relation to this Official
Memorandum has become infructuous.
7. The private respondents have in their pleadings
questioned the bona fides of the petitioners. As it is evident,
according to the said respondents, that the petitioners' only
intention is to stall the tender process as they admittedly have a
strangle hold on the garbage removal contracts in Bangalore City
for over a decade and would not like the cartel, which they
constitute, being dislodged at any cost.
It is pointed out that a tenderer aggrieved by the tender
process is armed with a remedy of challenging the same by way of
an appeal under the provisions of the Karnataka Transparency in
Public Procurements Act, 1999. The petitioners not being
19
tenderers are not entitled to challenge the same. When that is the
position the petitioners being permitted to stall the legitimate
process by recourse to this petition results in an abuse of process.
It is also pointed out by the respondents that the petitioners have
already approached the Election Commission alleging that the
tender process is in violation of the Election Code of Conduct.
The Commission has negated the complaint, as it would not be
applicable to Solid Waste Management.
Hence the respondents have sought that the ex-parte order
of stay granted by this court be vacated.
8. Shri V. Lakshminarayan, would by way of a vehement
reply, reiterate the grounds urged and place reliance on a large
number of authorities on the scope and ambit of Article 324 of the
Constitution of India .
9. In the light of the above contentions - it is to be noticed
that the present writ petition is filed without reference to the Order
passed in the earlier batch of Writ Petitions in WP 39337-
20
354/2012 and connected petitions. As the several grounds raised
in the present petition are found to overlap with contentions raised
therein it is necessary to take note of the findings and observations
of the Division Bench in its order dated 26.4.2013.
It is to be noticed that the petitioners had filed the earlier
writ petition aforesaid on the following grounds :
"(a) The relaxation/reservation to SC/ST is totally
bad in law and ultra vires the powers conferred under the
Karnataka Transparency in Public Procurement Act, 1999
and the Rules 2000made therein under.
(b) The tender document and the procedure should
be only in accordance with the Government Order dated
6.8.2005 and 14.10.2008.
(c) The Minimum normative standards have to be
followed to fix the value of the bid amount.
(d) Without the administrative approval by the
Standing Committee and the BBMP and also approval of the
Government in terms of Rule 6 of the Karnataka Municipal
Corporation Rules, 1977 the issuance of notification dated
3.11.212 is totally bad in law.
(e) The relaxation/concessions which was intended
by the Government and extended to the SC/ST societies in
terms of the orders passed by the Directorate of Municipal
Administration dated 15.1.2005 has been misused and
21
misinterpreted and the contents of the said letter has been
wrongly incorporated in the tender as one of the conditions
showing relaxation and concessions to SC/ST which is
without the authority of law.
(f) The rates fixed in terms of the notifications dated
18.9.2012 and 26.9.2012 would not tally with Appendix I
and II of the notifications dated 18.9.2012, 26.9.2012 and
3.11.2012, therefore, the same is without the authority of
law."
On a detailed consideration of the several circumstances
and the issues sought to be canvassed the writ petitions have been
partly allowed in the following terms :
"CONCLUSION
88.Now from the facts set out above, there are several
irregularities in the tender document as well as the tender
process. Equality clause is breached. One person is shown
concessions which enabled him to corner 50 out of 81
packages. But to break the cartel, the authorities seem to
have made such changes and shown concession. It appears
they were successful in their attempt. They are
experimenting or trying what one may call trial and error
method. Their action should be viewed with greater latitude.
22
89. The concession shown to persons belonging to
SC/ST has resulted in 10 packages going to persons
belonging to the said community. On that score, the valid
contracts entered into with others cannot be annulled by
quashing the tender document. The fact that 10 persons
belonging to SC/ST were able to get the contract by
competing with the others shows that they are economically
sound. The termination of those contracts may hurt public
interest. Therefore, instead of setting aside the said contract,
the proper thing to do in the circumstances is to validate the
said contract by withdrawing the concession and directing
them to pay the remaining 90% of the EMD amount and also
furnish a fresh solvency certificate for Rs.25 lakhs. That
would meet the ends of justice.
90. The beneficiary of 50 packages was unable to
take advantage of the largesse conferred on him. He wants
to surrender 30 packages to the authorities which can be
again tendered giving an opportunity to the unsuccessful
tenderers including the petitioners who did not participate in
the tender process to participate and be successful in getting
the contracts.
91. Garbage though it is stinking, has a market value
and is in great demand. It can be converted into fertilizer,
used in tarring the roads, producing electricity and could be
recycled. After the waste is collected from house hold it is
segregated into dry waster and wet waste. Dry waste is also
recycled. Therefore, in the tender document before
addendum, the entire Municipal waste belonged to the
23
Corporation. However, in the addendum a right is conferred
on the contractors to dispose of the dry waste to benefit them.
That is objected to as it results in loss of revenue to the
corporation. It is estimated that 1/3 of the waste generated
is dry waste. If the cost of dry waste is evaluated and is
taken into consideration in deciding the commercial terms of
the contract, there cannot be any objection. Otherwise, it
results in loss to the Corporation. It has to be avoided.
92. The Municipal Solid Waste (Management and
Handling)Rules, 2000, casts an obligation on the Municipal
authority the responsibility for the implementation of the
provision of the said rules and for instructure, development
for collection, storage, segregation, transportation,
processing and disposal of municipal solid wastes. The
Secretary incharge of the Department of Urban
Development in the State having overall responsibility for the
enforcement of the provisions of these rules in the
metropolitan cities. State Pollution Control Board shall
monitor the compliance of the standards regarding ground
water, ambient air leachate quality and the compost quality
including incineration standards as specified in schedules II,
III and IV. The rules provide for the management of
Municipal solid waste generated in the city. In spite of these
rules which came into force more than a decade back, all
the authorities have not bestowed sufficient attention and
importance in the management and handling of municipal
solid waste in the city in terms of the rules. Roughly in
about 1/3 of the wards in the city of Bangalore, the municipal
24
solid waste is handled by the Corporation directly and only
in the remaining tenders are called for the management and
handling of the waste. A competition between the
Governmental agency and private agency, should have
enured to the benefit of the public at large. But it has not
happened. On the contrary, it has resulted in cartel and
vested interests. From the material on record, the
submissions made at the bar and the material on record in
the connected public interest litigation, what emerges is the
unholy alliance between the contractors, corporators,
elected representatives and the Corporation officials. The
Government seems to be helpless. Judicial intervention by
way of interim orders has added to the misery. In the result,
the Bangalore "the Garden City of India" has become a
"Garbage City". Roughly, about Rs.1,200 crores is spent
annually towards collection, segregation and transportation
of this municipal solid waste. Therefore, it is a big business.
Naturally every one concerned would like to have their share
of cake. Even after having their share, the city is not clean
and the public are at the receiving end. This money is
squandered, cartels are thriving. It has become an
additional source of income to others who are partners in
this enterprise. In fact this situation has led to the
connected public interest litigation. Therefore, this case
cannot be viewed in isolation, and it is not a simple case of
enquiring into the legality of tender documents and its
conditions. On the touch stone of the law laid down by the
Apex Court, the Court also has to take note of the effort made
25
by the authorities to break the cartel, and the consequences
flowing therefrom and the mistakes which have occurred in
the process. The Court ahs to uphold the rule of law and
keep in mind the public interest and balance the competing
interests.
93. We make it clear that this Court is not approving
the terms and conditions modified by way of addendum.
Now the subsequent events have shown that the modification
requires reconsideration in the light of the experience
gained. The authorities are at liberty to adopt such form and
such conditions which in their opinion is suitable in
executing the contract keeping in mind the requirements
stipulated in the Municipal Solid Wastes (Management and
Handling) rules, 2000.
94. The petitioners herein in spite of opportunities
being given they have not submitted their bid. They have
chosen to remain outside the tender process and went on
challenging the tender process. In the facts of this case, the
problem which the City of Bangalore is facing is because of
their conduct. Their conduct is not bona fide and, at their
instance, the tender process cannot be interfered by this
Court. In view of the peculiar facts and circumstances of the
present case, we do not think it would be a sound exercise of
discretion on our part to upset the decision and void the
contract. Therefore this is not a fit case in which we should
interfere and grant relief to the petitioners in the exercise of
our discretion under Article 226 of the Constitution of India.
26
However, in order to see that in future such mistakes do not
occur, it is appropriate to issue the following directions :-
(i) The tender notification should specify the exact
area, showing the area by means of a sketch of each package.
(ii) A person is entitled to bid for all the packages.
But, he shall not be awarded more than five packages of his
choice.
(iii) Benami contracts and name lending should be
strictly prohibited. If a person to whom a contract is
awarded is found to be a benamidar, or name lender of the
officials of the Corporation or the Corporators, including
nominated members, or other elected members, the said
contract is liable to be terminated.
(iv) there shall be no sub-contract or introduction of
a new agency or clandestine arrangement for providing
service. If the contract is assigned in any such manner, the
contract is liable to termination.
(v) Specifications of the vehicles must be strictly in
accordance with schedule II SL.No.4 of the Municipal Solid
Wastes (Management and Handling Rules), 2000. Vehicles
used for transportation of wastes shall be covered. Waste
should not be visible to public, nor exposed to open
environment preventing their scattering.
(vi) The technical evaluation must be strictly
through e-portal and not through department/officials so
that intervention of the authorities or outside agencies can be
curbed.
27
(vii) The mobilization of men and material as
stipulated in clause 15.9.3 of the tender document should be
done in the presence of RTO, the BBMP, vehicle supervisor,
representatives of "Residents Welfare Association" and
"Suchi Mitra".
(viii) No objection certificate from representatives of
"Residents Welfare Association" and "Suchi Mitra" is to be
obtained before release of payment on the monthly bills.
(ix) Once the contract is entered into, the particulars
such as the name of the contractor with father's name, the
address, the phone numbers, the number of vehicles
employed with registration numbers and the make, number of
persons employed shall be displayed in the website of the
Corporation for the information of the general public.
(x) The tender notification shall be issued at least
120 days before the existing contract expires so that new
contract can be awarded immediately after the expiry of the
previous contract.
95. In the light of the above discussion, we
pass the following :-
ORDER
(a) Writ Petitions are partly allowed.
(b) The tender condition prescribing concession to SC/ST individual both in respect of E.M.D. amount and solvency is hereby quashed. However, those SC/ST individuals who have secured the contract, in the event of their making 28 good the shortfall namely 90% within two months from today, their contracts shall not be cancelled.
(c) The BBMP shall initiate steps to award contracts in respect of 30 packages which is awarded to B.V.G. India which they have offered to surrender.
(d) The contract awarded to B.V.G India in respect of (9+3) 12 packages, where they are functioning shall not be disturbed.
(e) in respect of 8 packages awarded to B.V.G.India where breach is alleged, the BBMP shall take steps immediately to resolve the dispute, and in the event the said contracts are terminated, in respect of the same also the tender process shall begin immediately.
f) While framing the tender conditions the Corporation shall bear in mind the observations and directions issued in this order supra and also the orders passed from time to time in the connected public interest litigation and the steps taken and commitment, received by the Corporation from the bulk generators of garbage, as well as industrial houses and group housing associations.
g) The terms and conditions of tender shall be in conformity with the municipal Solid Waste (Management and Handling) Rules, 2000.
h) Parties to bear their own costs. "
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But the division bench has taken a dim view of the bona fides of the petitioners as seen from the following observations :
"77. In the instant case, the petitioners have not submitted their bids at all. These petitioners are the existing contractors for several years. They are fully aware of the terms of the tender. In fact, even before the expiry of the period of deadline and even before the issue of addendum they were before this Court by filing a Writ Petition. After the addendum was issued when so many terms and conditions were relaxed they still had the time of submit their tenders. They also had the opportunity to seek clarification. They did not attempt at any of these things. The benefit of all the changes which were effected was available to them also. Their contention that these changes were brought about to benefit one tenderer even if true the said benefit was available to all of them. Inspite of the same, they did not choose to offer their bids. But, chose to file one more Writ Petition challenging the addendum and after the approval of the said bids they chose to file one more set of Writ Petitions challenging the approval and after award of contracts they filed one more batch of Writ Petitions challenging the award of contracts. Therefore, it is clear as existing contractors their term having come to an end in 2010, by filing Writ Petitions after Writ Petitions challenging the tender process at every stage they have managed to continue to work 30 under the contracts which had come to an end in 2000 itself. The petitioners who did not take advantage of the relaxed terms, did not participate in the tender process, who are lest content in obstructing the tender process, cannot complain of discrimination or arbitrariness."
The above observation is reiterated at paragraph 94 above.
7. In the above back ground the present petition having been filed on the further allegations that the respondents have acted in further violation of the law in having committed a breach of the election Code of Conduct - when the earlier writ petition was reserved for orders, is no longer a tenable contention , in so far as the grounds and circumstances already considered and decided upon by the Division Bench.
10. The learned counsel Shri Lakshminarayan has seriously disputed the contention of the respondents that there is prior approval of the Chief Election Commission. The correspondence issued by the Deputy Chief Electoral Officer , it is contended 31 could not be construed as an order of approval of the tender process by the Chief Election Commission. It is also disputed that Annexure R-2 dated 15-4-2013 is a government order . Or that it could be treated as concurrence of approval by the Chief Election Commission of India.
As already pointed out the challenge in the present writ petition now stands reduced to marginal issues with reference to the acts of the respondents vis-à-vis the election Code of Conduct. Notice having been ordered to respondent no. 4, service of the same is awaited. Having regard to the timing of the filing of the writ petition- this court having readily granted an ex parte order of stay no longer seems warranted given the changed circumstances and expecially at the instance of the petitioners , whose bona fides have come in for scathing observations by the Division Bench of this court. In any event , the semblance of a ground that is sought to be canvassed can be considered after the appearance and after hearing Respondent no. 4.
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11. In the result the interim order of stay granted by this court would further delay the much required fillip and expedition in addressing the major crisis of solid waste management that the city of Bangalore is facing.
Ironically, it is to be noticed that the petitioners are even now at liberty to participate in the tender process , no prejudice whatsoever would be caused to the petitioners if the ex-parte order of stay granted by this court is vacated. Ordered accordingly.
IA 2/2013 and IA 3/2013 are allowed.
Issue Rule. Post for hearing in the usual course.
Sd/-
JUDGE nv*