Karnataka High Court
Centre For Urban And Rural vs State Of Karnataka on 5 February, 2014
Author: A.S.Bopanna
Bench: A S Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
WRIT PETITION Nos.1136-1137/2014 (GM-TEN)
BETWEEN:
1. CENTRE FOR URBAN & RURAL
INFRASTRUCTURE PLANNING ENTERPRISES
REP. BY ITS MANAGING DIRECTOR
SRI RAMACHANDRA NAIDU
AGED ABOUT 68 YEARS
NO.12, 1ST FLOOR, 21ST MAIN ROAD,
BSK 2ND STAGE
BANGALORE-560 070
2. M/S SKY GROUP
REP. BY ITS EXECUTIVE DIRECTOR
SRI AKASH M
AGED ABOUT 31 YEARS
NO. 21/2, 1ST MAIN ROAD
GANDHINAGAR
BANGALORE-560 009 ... PETITIONERS
(BY SRI L M CHIDANANDAYYA, ADV.)
AND:
1. STATE OF KARNATAKA
REP. BY ITS PRINCIAPAL SECRETARY
URBAN DEVELOPMENT DEPARTMENT
BANGALORE-560001
2. BANGALORE DEVELOPMENT AUTHORITY
REP. BY ITS COMMISSIONER
KUMARA PARK WEST
BANGALORE-20
3. TOWN PLANNING MEMBER
BANGALORE DEVELOPMENT AUTHORITY
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KUMARA PARK WEST
BANGALORE-20 ... RESPONDENTS
(BY SRI H V MANJUNATHA, AGA. FOR R1
SRI K M NATARAJ, SR. COUNSEL FOR
SRI K. KRISHNA, ADV. FOR R2 & 3)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER
TO CALL FOR THE RECORDS FROM THE RESPONDENTS WHICH
RESULTED IN NOT OPENING THE FINANCIAL PROPOSAL
SUBMITTED BY THE PETITIONERS
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING :
ORDER
The petitioners are before this Court seeking for issue of mandamus to direct the second respondent to open the financial proposal submitted by the petitioners on 10.12.2012 treating the submission of 1+5 hard copies of the bid document including the financial proposal in compliance of the bid document and consequently, direct to consider the bid of the petitioners for preparation of Master Plan for Bangalore- 2031. The petitioners are also seeking for a declaration that the non-opening of the financial proposal submitted by the petitioners is arbitrary, capricious and illegal.
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2. The brief facts are that the second respondent which is the Planning Authority under the Karnataka Town and Country Planning Act ('the KTCP Act' for short) invited the request for proposal for preparing the Master Plan of Bangalore -2031 (hereinafter referred to as 'RFP'). The petitioner is also one of the organizations which is stated to have responded to the same. As per the requirement, the proposals were to be submitted before 5.30 p.m. on 16.11.2012. Since the process was also by e-procurement through e-portal of the Government, in addition to the interested persons uploading the details in the e-portal, they were also required to submit the hard copies along with the EMD before the said time and date indicated. The petitioners claim that though the attempts were made to upload the documents at 5.27 p.m. and 5.28 p.m., on the last date due to certain technical error in the Website, the same could not be uploaded. However, the hard copies according to the petitioners had been submitted to the respondents within the time prescribed. The endorsements made in Annexure-A, a letter addressed 4 by the petitioners is relied on to indicate that the same had been submitted within the time prescribed. The petitioners therefore contend that though they were entitled to be considered for the purpose of technical as well as the financial evaluation, they have been excluded without any justification and therefore, they also be permitted to take part in the tender process.
3. The respondents have filed their objection statement and in view of the rejoinder thereto, an additional statement was filed. Further, due to certain clarifications sought on the last date of hearing, the respondents have filed second additional objections as also an affidavit sworn to by the First Division Assistant, who is working under the respondents. The case of the respondents is that the hard copies of the documents stated to have been filed by the petitioners in a box was received beyond 5.30 p.m. and since the respondents are required to receive the documents or materials submitted to it as a general procedure, the same was received and it was subsequently opened to find out whether the five sets of the documents as 5 required were enclosed thereto. In the meanwhile, keeping in view the representation made by the petitioners that attempts were made by them to upload the documents on the e-portal, the necessary clarification was sought from the e-procurement agency. Pending receipt of the reply, the further progress of the documents submitted by the petitioners were taken into consideration. In that view, it is their case that the petitioners in such event having submitted the hard copies after the time prescribed, would not be entitled for consideration, even if the case of the petitioners that there were attempts to upload the documents in the e- portal, but the same could not be uploaded due to technical error is accepted. The fact that the documents of the petitioners cannot be considered was made known to the representative of the petitioners who was present in the proceedings held on 30.08.2013 when the documents were opened. In such circumstance, it is the case of the respondents that the prayer made in these petitions at this juncture, more particularly when the process has been carried forward 6 and the respondent-authority has also concluded the evaluation process on 22.10.2013, cannot be considered and the benefit cannot be granted to the petitioners, is their contention.
4. In the light of the rival pleadings, I have heard Sri L.M. Chidanandayya, learned counsel for the petitioners, the learned Government Advocate for respondent No.1 and Sri K.M. Nataraj, learned senior counsel on behalf of Sri K. Krishna, learned counsel for the respondents No.2 and 3 and perused the petition papers.
5. At the outset, it is necessary to state that with regard to the contention put forth on behalf of the respondents that the hard copies submitted by the petitioners were received by the respondents after 5.30 p.m. and therefore, the said documents were not considered by them, would have to be noticed by this Court without a pinch of salt. I am of the said opinion for the reason that if that was the stand of the respondents from the beginning, there was no need 7 whatsoever for the respondents to open the box even to confirm as to whether the five sets of documents have been furnished or not. The requirement as noticed was to upload in the e-portal as well as to submit the hard copies and both the said exercises were to be completed before 5.30 p.m. on 16.11.2012. Presently to contend that it was received beyond 5.30 p.m., an affidavit sworn to by Sri B.S. Byya Reddy, First Division Assistant has been filed to state that it was received around 5.40 p.m. which appears to be an afterthought
6. Notwithstanding the above conclusion, what is also necessary to be considered is as to whether this Court should exercise its discretion at this point in time when this Court is examining this aspect of the matter in a writ proceedings since the manner in which the petitioners have conducted themselves also would arise for consideration as to whether the process which has been carried forward by the respondents need to be upset at this stage.
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7. In order to take note of this aspect, the original file relating to the proceedings were also perused by me at the time of hearing. From the records, it is seen that in the Evaluation Committee Meeting which was held on 30.08.2013, one of the consortium members of the petitioners viz., M/s Burt-Hill Design Private Limited was present through its representative. Notwithstanding the fact that the respondents had opened the documents of the petitioners, it was made known to the said representative that the case of the petitioners cannot be considered. Pursuant thereto, the technical proposals of the remaining three organizations which had responded to the invitation were taken up for consideration.
8. From the writ petition papers, it is seen that pursuant to such information that was given to the representative of the petitioners' consortium, the petitioners have also made a representation dated 31.08.2013 seeking consideration of their case. A copy of the said representation is available at Annexure-B to the petition. From the same, it is seen that the 9 petitioners had knowledge of the fact that their documents would not be considered for the purpose of evaluation and for further progress, as early as on 30.08.2013. Despite the same, the petitioners have approached this Court as late as on 08.01.2014. The intervening progress made in the present process would also have to be taken into consideration. From the objection statement filed to the writ petition, it is seen that after the said Meeting on 30.08.2013, the subsequent evaluation of the remaining three tenderers viz., AECOM India Private Limited, L & T Ramboll Consulting Engineers Limited and DHV India Private Limited were proceeded further on 31.08.2013 and on evaluation of the technical bids as well as the financial bids, the respondents through their resolution in Subject No. 168/2013 in its meeting held on 22.10.2013 have already resolved to entrust the work to M/s DHV India Private Limited. The petitioners being one of the interested tenderers, should have approached this Court immediately on being informed that their documents cannot be considered for technical 10 evaluation or atleast within a reasonable time after their representation dated 31.08.2013 did not evoke any response from the respondents.
9. Furthermore, the respondents had already taken a decision on 22.10.2013 after completing the process of evaluation. Even from the said date, the petitioners have approached this Court only after the lapse more than two months. In a matter of the present nature, where the evaluation of the entire process including the presentation of the plans and the technical evaluation as well as the financial evaluation have taken place and when the petitioners have approached this Court belatedly, certainly this Court would not be justified in interfering and reversing the entire process when the financial proposals of all the parties have also been opened and it is known to the other parties and when third party right to the said extent is also created. In that view, I am of the opinion that the exercise of discretion in the instant facts would not arise and the prayer as sought in these petitions cannot be granted.
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10. At this stage, learned counsel for the petitioners submits that despite the rejection of the case of the petitioners, the EMD deposited by the petitioners has not yet been returned. Learned senior counsel for the respondents would refer the document at Annexure- R15 to submit that the same has been returned to the Procurement Portal which is under the control of the Government of Karnataka.
11. In that view, the petitioners are granted liberty to seek for refund of the EMD along with a copy of this order by filing representation with the first respondent. The first respondent shall take steps for refund of the said amount within two weeks from the date on which the request is submitted.
In terms of the above, these petitions stand dismissed.
Sd/-
JUDGE hrp/bms