Karnataka High Court
P G Prabhuprasad vs Cauvery Neeravari Nigama Ltd. on 21 January, 2014
Author: A.S.Bopanna
Bench: A.S.Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21st DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE A.S.BOPANNA
WRIT PETITION NO.41050 OF 2013 (GM-TEN)
BETWEEN:
P.G.PRABHUPRASAD
S/O V.GURUMALLAPPA
AGE: 46 YEARS
CLASS I CONTRACTOR
R/A PURA, NITTUR HOBLI
GUBBI TALUK
TUMKUR DIST.-572 216 ... PETITIONER
(BY SRI.A.V.GANGADHARAPPA, ADV.)
AND:
1. CAUVERY NEERAVARI NIGAMA LTD.
REP BY ITS MANAGING DIRECTOR
SURFACE WATER DATA CENTRE
III AND IV FLOOR, ANANDARAO
CIRCLE, BANGALORE-560 009
2. MANAGING DIRECTOR
CAUVERY NEERAVARI NIGAMA LTD.
SURFACE WATER DATA CENTRE
III AND IV FLOOR, ANANDARAO
CIRCLE, BANGALORE-560 009
3. CHIEF ENGINEER
CAUVERY NEERAVARI NIGAMA LTD.
HEMAVATHI CANAL ZONE
KUNIGAL ROAD
TUMKUR CITY - 572 101
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4. EXECUTIVE ENGINEER
CAUVERY NEERAVARI NIGAMA LTD.
HEMAVATHI CANAL ZONE
KUNIGAL ROAD
TUMKUR CITY - 572 101 ... RESPONDENTS
(BY SRI.M.R.C.RAVI, ADV.)
---
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India, praying to issue a writ in the
nature of certiorari quashing the circular dated 28.6.13
issued by the R2 vide Ann-F and etc.
This Petition coming on for Preliminary Hearing this
day, the Court made the following:-
ORDER
The petitioner is before this Court assailing the Circular dated 28.6.2013 impugned at Annexure-F to the petition. The petitioner is also assailing a communication dated 4.9.2013 impugned at Annexure-E to the petition.
2. The petitioner is a registered Class I civil contractor and claims to have executed civil works offered by the 1st respondent for the last 20 years. Presently, when the respondents issued the tender notification dated 12.3.2013 calling for tender in respect of the works indicated therein, the petitioner had responded to the 3 same. Subsequent to the last date for application, it was noticed that the petitioner was the only contractor who had responded for the works indicated in the tender notification. When this was the position, the 2nd respondent is stated to have issued a Circular dated 28.6.2013 Annexure-F whereby a direction is issued to all the concerned in the 1st respondent to re-tender the single tender in respect of emergent works, special repairs, improvement works and in the SCP / TSP works in order to encourage healthy competition among bidders. In view of the Circular, the tender submitted by the petitioner was rejected by the communication dated 4.9.2013 placed at Annexure-E. It is in that circumstance, the petitioner is before this Court.
3. The learned counsel for the petitioner, while assailing the action of the respondents contend that the Board of the 1st respondent Cauvery Neeravari Nigama Ltd. had taken a decision to delegate the powers of KBJNL to the Chief Engineers of CNNL and in that regard a Circular dated 8.10.2003 has been issued. It is therefore 4 contended that when such a delegation of power is made to the Chief Engineers and tender notice has been issued calling tenders for the said work, the authority having the powers under delegation is required to complete the entire process and as such, the Managing Director did not have the authority to issue such Circular. It is further contended that such Circular issued by the authority is contrary to the decision of the Board whereby delegation of power was made. In such circumstances, it is contended that the tender notification did not disclose that the tender submitted is likely to be rejected if it is a single tender. The present action is initiated based on the Circular and such direction is not sustainable and therefore, is liable to be quashed.
4. The learned counsel for the respondent contends that the Managing Director is having power to regulate the affairs of the 1st respondent and when it is in the public interest, the direction issued is justified. It is contended that when tender is called for large number of works and when several contractors have received the tender 5 documents, but the submission of the tender has been made by the contractors only to one work each, it was noticed that there was a pattern in forming carter. Hence, in order to increase competition among themselves, the Managing Director has taken a decision to re-tender the process wherever single tenders have been received. It is contended that when public interest is involved and further when no right had been created in favour of the petitioner, the petitioner cannot find fault with the action. Learned counsel also relied on a decision of this Court in the case of 'SRI.VEERANARAYANA TRADERS & ORS. v. THE STATE OF KARNATAKA, DEPT. OF FOOD AND CIVIL SUPPLIES AND ANOTHER' (ILR 2011 KAR 3981). He has also relied on the judgment of this Court reported in 2008 (5) KLJ 521 in the case of 'SPANCO TELESYSTEMS AND SOLUTIONS LTD. v. THE STATE OF KARNATAKA, DPAR & ORS. In that view, it is contended that neither the circular nor the communication issued to the petitioner calls for interference.
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5. In the light of the contentions put forth, it is no doubt seen that based on the resolution of the Board, the manner in which the authorities are to exercise the delegated powers as provided. The delegation therefore has been made in respect of the Chief Engineers in CNNL and the same has been conveyed by the circular dated 8.10.2013. The tender notification has been issued by the Executive Engineer, Hemavathi Canal, Tumkur. The question therefore is as to whether in such circumstance, the Circular issued by the Managing Director is to be held as bad in law?
6. Having noticed these aspects of the matter, what is also necessary to be noted is that the tender notification (Annexure-B) dated 12.3.2013 makes reference to the fact that the tender notification is being issued on behalf of the Managing Director of CNNL and the conditions have been incorporated therein. Though no specific reference is made to the rejection of single tenders, the Managing Director, on whose behalf the tender notification has been issued, on taking note of the subsequent circumstances in 7 respect of several different works that have been notified under different notifications and since in all cases there were single tender, has taken a policy decision by issuing circular that there would be re-tender. In that regard, though the powers had been delegated to the Chief Engineer, certainly it cannot be said that the Managing Director cannot exercise his powers, more particularly when he has administrative and supervisory powers is exercised, particularly keeping in view the public interest. The reason for which such circular has been issued cannot be considered as malafide since no particular contractor has been chosen for such treatment by discrimination but a general view as a policy has been taken that in all cases where there are single tenders, the process of re-tender shall be made. The very decision itself indicates that there is re-tender in order to increase the competition if there are more than one bidders. In such circumstance, circular has been issued. If the decisions relied on by the learned counsel for the respondents is also kept in view, the action in the instant case would have to be considered as being in public 8 interest and such discretion certainly should be allowed to the respondents when they intend to be more transparent in the tender process by seeking more competition, thus reducing the costs to be incurred in the work that is taken up by the respondents. Therefore, if these aspects are kept in view, I am of the opinion that the circular dated 28.6.2013 does not call for interference. Accordingly, the subsequent action of issuing communication to the petitioner cancelling the tender also cannot be found fault with.
Hence, the petition being de void of merits, stands disposed of.
7. Learned counsel for the petitioner submits that in view of the present decision taken by this Court, the respondents may be directed to refund the EMD which has been deposited by them. Certainly in a circumstance where the respondents themselves have cancelled the tender, the petitioner would be entitled to refund and such refund shall be done as expeditiously as possible but not 9 later than two weeks from the date on which copy of this order is furnished to the respondents.
Sd/-
JUDGE RV