Karnataka High Court
Sri K Nagaraju vs The State Of Karnataka on 9 August, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO.6517 OF 2017 (GM-TEN)
BETWEEN:
SRI K. NAGARAJU
AGED 47 YEARS,
CLASS I CIVIL CONTRACTOR,
S/O. LATE KEMPEGOWDA,
R/AT NO.148, HOSAHUNDI VILLAGE,
KASABA HOBLI, ASHRAM POST,
MYSORE TALUK AND DISTRICT.
... PETITIONER
(BY SRI B. S. NAGARAJ, ADV.)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT,
VIKASA SOUDHA,
DR. AMBEDKAR VEEDI,
BANGALORE-560 001.
2. THE MYSORE URBAN DEVELOPMENT AUTHORITY
REPRESENTED BY ITS COMMISSIONER,
MYSORE-570 001.
3. THE SUPERINTENDENT ENGINEER
THE MYSORE URBAN DEVELOPMENT AUTHORITY,
MYSORE-570 001.
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4. THE EXECUTIVE ENGINEER
THE MYSORE URBAN DEVELOPMENT
AUTHORITY (SOUTH)
MYSORE-570 001.
5. THE DEPUTY COMMISSIONER
MYSORE DISTRICT,
MYSORE-570 001.
6. THE DIRECTOR OF PLANNING
DISTRICT URBAN DEVELOPMENT CELL,
OFFICE OF THE DEPUTY COMMISSIONER,
MYSORE DISTRICT,
MYSORE-570 001.
... RESPONDENTS
(BY SRI VIJAY KUMAR A. PATIL, AGA FOR R-1, R-4 & R-5;
SRI T. P. VIVEKANANDA, ADV. FOR R-2 AND R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
LETTER DATED 16.12.2016 ISSUED BY RESPONDENT NO.4 IN
MUNISI(4)MUDA/CR 62/2016-17 AT ANNEXURE-H AND THE
NOTIFICATION DATED 02.02.2017 ISSUED BY R3 IN
MUDA/AGED ABOUT/PB/TN/17/2016-17 AT ANNEXURE-C AND
ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. B. S. Nagaraj, learned counsel appearing for the petitioner, learned Government Advocate appearing for respondent Nos.1, 4 & 5 and Sri. T. P. Vivekananda, learned counsel appearing for respondent Nos.2 and 3. Perused the records. -3-
2. For carrying out various civil works at Yeligehundi Village within the area of Mysuru Urban Development Authority, a tender came to be invited and published on 30.03.2016 (Annexure-A). Petitioner offered his bid and there was one more bid submitted by one Sri. N. Srikanta. Since tender in question was two cover bids, namely, technical bid and financial bid, technical bids were opened at the first instance and Tender Inviting Authority found that technical bid offered by Sri. L. Srikanta does not meet the eligibility criteria and accordingly rejected the technical bid. Thus, petitioner's bid alone remained in the fray for being considered. On account of extant circulars issued by the appropriate Government disclosing that where the value of the work exceeds Rs.25,00,000/- and less than Rs.1,00,00,000/- it was required to be approved by the jurisdictional Deputy Commissioner. The tender inviting authority forwarded the technical bid submitted -4- by the petitioner to 4th respondent with a prayer to grant permission to open the financial bid of the petitioner and approve the same for being issued with the work order, by communication dated 16.11.2016 (Annexure-B). Said proposal came to be examined by the Deputy Commissioner ie., respondent No.4 herein and by communication dated 16.12.2016, rejected the proposal and directed the tender inviting Authority to call for fresh tender process through E-Portal. Said order/communication dated 16.12.2016 (Annexure-H) is under challenge.
3. Subsequently, Tender Inviting Authority has invited fresh tender on 02.02.2017 (Annexure-C) which is also sought for quashing. It is the contention of Mr. B. S. Nagaraj, learned counsel appearing for the petitioner that respondent-authority erred in calling for fresh tender and when there was only one valid bid available, namely, that of the petitioner, Tender Inviting -5- Authority ought to have issued the work order in favour of the petitioner and respondent No.4 could not have directed the Tender Inviting Authority to call for fresh tender under the impugned communication dated 16.12.2016 (Annexure-H) and thereafter fresh tender ought not to have been called for. He would rely upon the various work orders of the earlier years including the one which was issued to the petitioner himself where it was a case of single bid being accepted by the Tender Inviting Authority to buttress his argument that State or the Tender Inviting Authority has no other option in the instant tender except to accept the single valid financial bid submitted by petitioner available.
4. Per contra, Sri. T. P. Vivekananda and learned Government Advocate would support the impugned tender notification dated 02.02.2017 (Annexure-C) contending inter alia that Deputy Commissioner being vested with the power to reject the single bid proposal -6- which was also on the ground that there should be a larger participation, fresh tender had been called for and petitioner having participated in the said tender process by offering his bid, same is not processed. In view of interim order granted by this Court they have not only prayed for vacating the interim order, but have also sought for rejection of the writ petition.
5. As could be seen from the records for the civil works which were to be carried out during the year 2016 (03.03.2016), a tender notification came to be issued and this Court by order dated 16.02.2017, had permitted the petitioner also to participate in the said tender dated 02.02.2017, without prejudice to the contentions urged in the writ petition and respondent Nos.1 and 2 were directed not to finalize the tender. In other words, tender dated 02.02.2017 which has been processed, has not reached its logical end on account of interim order operating against respondent Nos. 1 and -7-
2. As could be seen from the grounds urged in the writ petition and in the contentions raised by Mr. B. S. Nagaraj, learned counsel appearing for the petitioner, the thrust of the arguments is on the single bid submitted by the petitioner in respect of the tender notification dated 03.03.2016, ought to have been accepted by the Deputy Commissioner, is a submission loaded with fallacy in as much as, even the extant of circulars governing the circumstances where only one person or one bid is in the fray has been explained as a circumstance, where the authority superior to the Tender Inviting Authority would be empowered to take a decision as to whether to process further with such single bid or to approve the single bid or to order for calling fresh tender and this would depend upon the facts and circumstances of each case. In fact, the circular produced by learned counsel for the petitioner dated 22.05.2018, would throw some light on this factual scenario and perusal of same would clearly -8- disclose that Tender Inviting Authority have been informed by the appropriate Government that where single bid has been received or is available after other technical bids having been rejected, in such circumstances, the normal course to be adopted is to call for fresh tender and only in special circumstances or extraordinary circumstances, Tender Inviting Authority can call for negotiation of the bid offered which has remained in the fray, namely the single bidder for price negotiation.
6. In the instant case, the Deputy Commissioner even before the financial bid of petitioner could be opened, has opined that since there is only one person remaining in the fray, namely, petitioner, has directed the Tender Inviting Authority to call for fresh tenders. This process adopted by the respondent No.4, Deputy Commissioner, cannot be found fault with as said decision of 4th respondent is in consonance with the -9- letter and spirit of extant circulars. Merely because under certain circumstances the authorities, either the Tender Inviting Authority or authority superior to the Tender Inviting Authority had earlier exercised their discretion to accept single bid or assuming for a moment that such irregularity or illegality committed by said authorities on earlier occasions, would not give any right to the petitioner to contend that similar irregularity or illegality is required to perpetrated or examined in his favour. There cannot be any concept of negative equality and for this proposition, the judgment of the Hon'ble Apex Court in the case of UNION OF INDIA & ANR. VS. INTERNATIONAL TRADING CO. & ANR. reported in AIR 2003 SC 3983, can be looked up. The Hon'ble Apex Court has held that a party cannot strengthen its case on the concept of negative equality. It has further held as under:
"14. What remains now to be considered, is the effect of permission granted
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to the 32 vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as 32 vessels are concerned. But it cannot come to the aid of respondents. It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case; direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India, 1950 (in short 'the Constitution') cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs or par. Even if hypothetically it is accepted that wrong has been committed on some other cases by introducing a concept of
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negative equality respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality."
7. Further the Hon'ble Apex Court in the case of COROMANDEL FERTILISERS LTD. VS. UNION OF INDIA & ORS. reported in AIR 1984 SC 1772, has held that a wrong decision in favour of any particular party would not entitle any other party to claim the benefit on the basis of a wrong decision. This Court being a constitutional Court cannot call upon the authority performing a duty to continue to commit irregularity or illegality which, if at all has been committed by it earlier. It would not give scope for a party like petitioner to contend such equality to be extended to him also. In that view of the matter, the contention raised by Mr. B. S. Nagaraj cannot be accepted and it stands rejected.
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8. At this juncture it requires to be observed that even according to the circular dated 22.05.2018, acceptance of single bid should be in exceptional circumstances as indicated therein and such exception should not become a rule. This requires to be followed in spirit and intent and not to be flouted by the tender inviting authorities. In that view of the matter, the State should also ensure that compliance of the circular is adhered to all as had been done by 4th respondent in the instant case. A circular shall be issued in this regard by 1st respondent to all the authorities in the State. Let a copy of the order be forwarded by Registry to the 1st respondent for taking effective steps in this regard.
9. Yet another factor which cannot go unnoticed in this case is civil work which was required to be carried out in the year 2016 has got stalled for more than two years on account of pendency of this writ
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petition. Naturally the cost of civil work would have increased and for such delay, the entire fault is to be laid at the doors of the petitioner alone and as such, the petitioner requires to be mulcted with costs. It is also to be noticed that civil work which is the subject-matter of this writ petition relates to providing drainage which is a necessity for decent human living which had been deprived to the residents of Yeligehundi Village and which civil work was required to be carried out at a cost of Rs.90,00,000/-.
10. For the reasons aforementioned, I proceed to pass the following:
ORDER
1. Writ petition is hereby dismissed with costs.
2. Petitioner shall pay cost of Rs.20,000/- to 2nd respondent-authority within four weeks from today.
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3. In the event of such cost not being deposited by the petitioner with the respondent No.2, an affidavit shall be filed by the respondent No.2 before the Registry with regard to non-payment of cost as ordered and in such an event, the Registry on verification shall issue a certificate to the 2nd respondent for enabling it to recover the same from the petitioner as arrears of land revenue by initiating appropriate proceedings before 4th respondent.
4. Ordered accordingly.
A copy of this order shall be forwarded to the Chief Secretary (not party to the proceedings) for being implemented in the light of the observations made hereinabove.
SD/-
JUDGE RD