Karnataka High Court
M/S. Jayashree Electron Pvt. Ltd., vs The Bangalore Water Supply And Sewerage ... on 16 April, 2018
Author: Raghvendra S.Chauhan
Bench: Raghvendra S. Chauhan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL 2018
BEFORE
THE HON'BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN
WRIT PETITION Nos.13757-13758/2018 (GM-TEN)
BETWEEN:
M/S. JAYASHREE ELECTRON PVT. LTD.,
(A PRIVATE LIMITED COMPANY REGISTERED
UNDER THE COMPANIES ACT, 1956),
HAVING ITS REGISTERED OFFICE AT NO.EL-12/13,
'J' BLOCK, MIDC, BHOSARI,
PUNE-411 026, MAHARASHTRA STATE,
REPRESENTED BY ITS ASST. GENERAL MANAGER (MARKETING),
SRI PRASHANT KULKARNI,
AGED ABOUT 54 YEARS,
S/O. SRI MANOHAR. ... PETITIONER
(BY SRI N. G. SREEDHAR, ADVOCATE)
AND:
1. THE BANGALORE WATER SUPPLY AND SEWERAGE BOARD,
(A STATUTORY BODY CONSTITUTED UNDER THE
BANGALORE WATER SUPPLY AND SEWERAGE ACT, 1964),
HAVING ITS OFFICE AT 5TH FLOOR,
CAUVERY BHAVAN, K. G. ROAD,
BANGALORE-560 009,
REPRESENTED BY ITS CHAIRMAN.
2. THE CHIEF ENGINEER (K),
BANGALORE WATER SUPPLY AND SEWERAGE BOARD,
5TH FLOOR, CAUVERY BHAVAN,
K. G. ROAD, BANGALORE-560 009.
3. M/S. SBM PROJECTS AND ENGINEERS,
(A PARTNERSHIP CONCERN),
HAVING ITS OFFICE AT "JANKI", S.NO. 135/12B,
5TH FLOOR, PRABHA CO-OP HOUSING SOCIETY,
2
PAUD ROAD, KOTHRUD,
PUNE-411 038,
REPRESENTED BY ITS PARTNERS - RESPONDENT Nos.4 AND 5
DESCRIBED HEREINBELOW.
4. MR. DILIP KUMAR VYCHAL-
PARTNER OF M/S. SBM PROJECTS & ENGINEERS,
ADDRESSED AT JANKI,
S.NO.135/12B, 5TH FLOOR,
PRABHA CO-OP HOUSING SOCIETY,
PAUD ROAD, KOTHRUD,
PUNE-411 038.
5. MRS. SHYLAJA D. VYCHAL,
W/O. SRI DILIP KUMAR VYCHAL,
PARTNER OF M/S. SBM PROJECTS & ENGINEERS,
ADDRESSED AT JANKI',
S.NO.135/12B, 5TH FLOOR,
PRABHA CO-OP HOUSING SOCIETY,
PAUD ROAD, KOTHRUD,
PUNE-411 038.
6. THE STATE OF KARNATAKA,
REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY
& APPELLATE AUTHORITY,
DEPARTMENT OF URBAN DEVELOPMENT,
VIKASA SOUDHA, DR. AMBEDKAR VEEDHI,
BANGALORE-560 001.
... RESPONDENTS
(BY SRI VIJAYAKUMAR A. PATIL, AGA FOR R-6)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE FINAL ORDER
DATEDM 28.12.2017 PASED BY THE LEARNED 6TH RESPONDENT IN
APPEAL NO.UDD 4 MNI 2017 (WRONGLY TYPED AS 2014)
ANNEXURE-CC AS ARBITRARY, ILLEGAL, UNJUST AND
UNCONSTITUTIONAL AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
M/s. Jayashree Electron Pvt. Ltd., the petitioner, has challenged the legality of the order, dated 28.12.2017, passed by the Appellate Authority and Additional Chief Secretary to Government, Urban Development Department, whereby the learned Appellate Authority has dismissed the appeal filed by the petitioner, under Section 16 of the Karnataka Transparency in Public Procurements Act, 1999, read with Rule 29 of the Karnataka Transparency in Public Procurements Rules, 2000 ('Act' and 'Rules', respectively for short).
2. Briefly the facts of the case are that on 2.11.2016, the Bangalore Water Supply and Sewerage Board, the respondent No.2 ('Board' for short), had invited tenders for the work of supply, erection, and commissioning of soft starters of NGEF and ABB make HT induction motors 6.6 KV, 1600 KW of CWSS III stage pump houses at T. K. Halli and Tataguni. The last date for submission of tender was 18.11.2016. The tenders were opened on 21.11.2016; by work order dated 10.1.2017, the work was assigned to M/s. SBM Projects and Engineers, the respondent No.3. According to the work order, the work had to be completed within a period of ninety days, i.e., it had to be completed by 4 25.3.2017. Admittedly, the work was completed by the said date. However, as the petitioner was aggrieved by the rejection of his bid by the respondent No.2, it filed its appeal before the learned Appellate Authority. By the impugned order, the appeal has been dismissed. Hence, the present writ petitions before this Court.
3. Mr. N. G. Sreedhar, the learned counsel for the petitioner, has strenuously raised the following contentions before this Court:-
Firstly, the tender notification was an illegal one. For, by prescribing the eligibility criteria, only contractors of Class-I were eligible to apply for the said tender, those contractors who were not Class-I contractors, such as the petitioner, would be denied an equal opportunity to participate in the tender. Therefore, the notification, as challenged by the petitioner, should have been set aside by the learned Appellate Authority.
Secondly, the petitioner had a particular contention that one of the conditions mentioned in the tender notification dealing with the model qualification criteria, is illegal. Although the petitioner had raised the said contention, the said contention 5 was not dealt with by learned Appellate Authority. Therefore, the impugned order suffers from being a non-speaking order.
Thirdly, under Section 15 of the Act, the Government has ample powers to give appropriate directions to the procurement entity, or the authorities under the Act, in order to ensure that transparency is maintained at every stage of the procurement process. Moreover, the said provision imposes a duty upon the procurement entity, or authority to comply with such a direction issued by the Government. Thus, the learned Appellate Authority had ample power under Section 15 of the Act to atleast issue directions to the procurement entity. But it has failed to do so. Therefore, the impugned order deserves to be set aside by this Court.
4. Heard the learned counsel for the petitioner, and perused the impugned order.
5. Before this Court deals with the specific contentions raised by the learned counsel, it is imperative to note that according to the learned Appellate Authority, the petitioner is not registered as a Class-I contractor. Therefore, the petitioner does not fulfill the criteria prescribed by the tender notification. 6 Secondly, admittedly the work order issued in favour of the respondent No.3 has been implemented, and the work is completed. In fact, the respondent No.3 has been paid the entire amount by the respondent No.2.
6. The learned counsel for the petitioner has pleaded that limiting the tenders to merely contractors registered as Class-I, violates Article 14 of the Constitution of India. However, the said contention is highly misplaced. For, Article 14 of the Constitution of India does not prohibit classification. It merely prescribes that classification needs to meet two tests, namely an intelligible differentia for the classification, and the intelligible differentia must have nexus to the objective to be achieved. Therefore, merely because the tender notification restricts the eligibility criteria to Class-I contractors, such a classification is not violative of Article 14 of the Constitution of India, especially when the said classification does meet both the tests prescribed.
7. As noted by the learned Appellate Authority, the tender is not only limited to the procurement of soft starters, but also deals with installation, testing, and commissioning of the project. Therefore, an expertise in electrical work would be required. Rule 7 11(4) of the Karnataka (Licensing of Electrical Contractors, Special Wiring Permit and Grant of Certificates and Permits to Electrical Supervisors and Wiremen) Rules, 2012, clearly prescribe that a person holding Class-I license shall be eligible to undertake electrical installation works of low, medium and high voltage installation (i.e., upto and including 33KV). Considering the fact that expertise is required, considering the fact that those who are registered as Class-I contractors would have the necessary expertise, considering the fact that the tender notification requires installation, testing, and commissioning of the project, the limitation put on the eligibility requirement, as those who are only Class-I contractors, answers both the tests applicable to a valid classification. Therefore, the first contention raised by the learned counsel is unacceptable.
8. The learned counsel has also pleaded that the contention raised by the petitioner has not been dealt with by the learned Appellate Authority. However, the said contention is equally bellied by the impugned order. The learned Appellate Authority has clearly noted that the petitioner is not registered as Class-I contractor, hence he does not fulfill the eligibility requirement. Moreover, even if the contention raised by the 8 petitioner were to be accepted by the learned Appellate Authority, the learned Appellate Authority would not be in a position to grant any relief to the petitioner. After all, neither the learned Appellate Authority, nor this Court can direct the respondent No.2 to violate the law. Therefore, considering the peculiar fact that the petitioner was not even eligible, the learned Appellate Authority was justified in rejecting the plea raised by the petitioner. Therefore, the second contention raised by the learned counsel for the petitioner is bellied by the impugned order itself.
9. The petitioner had made the following prayers in the appeal as under:
"i) To call for records and to set aside the Tender Invitation, vide notification bearing IFT No.BWSSB/ EECH/PB/2672/2016-17 dated 02/11/2016 issued by the Respondent Nos.1 & 2, further to set aside the award of tender to the 3rd respondent which is said to be on 22-12-2016 (or on any other date as it may appear when the records are called for before this Hon'ble Court), as arbitrary, illegal and unjust.
ii) To award the Tender to the Appellant, by holding that the appellant duly qualifies, both technically and commercially, in terms of the Tender 9 notification bearing IFT No.BWSSB/EECH/PB/2672-
2016-17 dated 02/11/2016, and further be pleased to direct the Respondents 1 & 2 to pass order accepting the Tender of the Appellant and to communicate the same to the Appellant so as to enable the Appellant to execute the contract agreement in the specified format with the 1st and 2nd respondents under the said tender notification.
iii) To grant such other order or direction as this Hon'ble Authority would deem fit and expedient in the circumstances of the case.
iv) To award the cost of this Appeal.
IN THE INTERST OF JUSTICE AND EQUITY."
10. A bare perusal of the prayer clause produced above clearly reveals that prayer (iii) is what is termed as residuary prayer made before the learned Appellate Authority. Thus, it is a general direction which can be issued as deemed appropriate in the facts and circumstances. However, there is no such specific prayer in terms of Section 15 of the Act. Undoubtedly, the prayers have to be specific, and not general, or vague. Therefore, the learned counsel for the petitioner is unjustified in claiming that direction could have been issued by the learned Appellate Authority in guise of prayer (iii) made by the petitioner. Hence, the said contention is also unsustainable. 10
11. Since the petitioner is neither eligible for participating in the tender, since the work order has already been carried out, these writ petitions merely raises question of academic interest. This Court would not like to invoke its writ jurisdiction only to answer academic issues. Moreover, no relief can be granted to the petitioner at this belated stage, as it is a case of fait accompli. These writ petitions are clearly devoid of any merit.
12. For the reasons stated above, the writ petitions, are hereby, dismissed.
Sd/-
JUDGE MD