Karnataka High Court
Industrial Plants And Waste Treatment ... vs The Chairman on 5 February, 2013
Author: A.S.Bopanna
Bench: A.S. Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.S. BOPANNA
WRIT PETITION NO.5859/2013 (LB-RES)
BETWEEN:
INDUSTRIAL PLANTS AND WASTE
TREATMENT CORPORATION,
A PARTNERSHIP FIRM,
HAVING ITS REGISTERED OFFICE
AT 72, SHALIMAR APARTEMNT,
3 D'SOUZA ROAD,
BEHIND DEVATHA PLAZA,
BENGALURU 560009.
REP. BY ITS MANAGER
(MARKETING AND SALES),
SRI. MANOJ VICTOR
... PETITIONER
(BY SRI.A.MOHAMMED, ADV. FOR JAYAKUMAR.S.PATIL
ASSTS.)
AND:
1. THE CHAIRMAN,
BANGALORE WATER SUPPLY
& SEWERAGE BOARD,
CAUVERY BHAVAN,
BANGALORE-560 009.
2
2. THE CHIEF ENGINEER (P),
BANGALORE WATER SUPPLY
& SEWERAGE BOARD,
CAUVERY BHAVAN,
BANGALORE-560 009.
3. THE ADDL. CHIEF
ENGINEER (CP & WWM),
BANGALORE WATER SUPPLY
& SEWERAGE BOARD,
CAUVERY BHAVAN,
BANGALORE-560 009.
4. TEAM LEADER,
NJS-MM-TCE,
9TH FLOOR, BANGALORE WATER
SUPPLY & SEWERAGE BOARD,
CAUVERY BHAVAN,
BANGALORE-560 009.
5. M/S KAM-AVIDA ENVIRO
ENGINEERS PVT. LTD,
H.P. PLOT NO.2, SY.NO.255/1,
VILLAGE HINJAWADI,
TALUK MULSHI,
DISTRICT PUNE-411 057.
6. M/S. TPS INFRASTRUCTURE
PRIVATE LIMITED,
84 M, PART 2, COMMERCIAL COMPLEX,
GREATER KAILASH,
NEW DELHI-110 048.
7. THE STATE OF KARNATAKA,
URBAN DEVELOPMENT AUTHORITY,
VIKAS SOUDHA,
3
BANGALORE-560 001.
REPRESENTED BY ITS
PRINCIPAL SECRETARY.
... RESPONDENTS
(BY SRI. B.L. SANJEEV, ADV. FOR C/R1-4
SRI. VIJAYAKUMAR A. PATIL, HCGP FOR R7
NOTICE TO R5 & R6 NOT NECESSARY)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO
SET ASIDE THE ORDER ANNX-X DT.5.12.2012 IN
APPEAL NO.UDD/272/MINI/2012 AND QUASH THE
WORK ORDER DT.17.7.2012 VIDE ANNX-W.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT
PASSED THE FOLLOWING:
ORDER
Learned Government Advocate to accept notice for respondent No.7 and file memo of appearance in four weeks. Respondents No. 1 to 4 have entered caveat. At this stage, I see no reason to issue notice to respondents No. 5 and 6.
2. The petitioner is before this Court praying that the order dated 05.12.2012 which is impugned at Annexure-X passed by the Appellate Authority be set 4 aside. Consequently, the work order issued by the respondents No. 1 to 4 is also assailed.
3. The learned counsel for the petitioner would strenuously contend that entire tender process conducted by the respondents No.1 to 4 is contrary to the established position. In that regard, the petitioner being aggrieved had filed an appeal before the Appellate Authority as contemplated under Section 16 of the Karnataka Transparency in Public Procurement Act, 1990. The Appellate Authority has dismissed the appeal on the ground that the appeal filed by the petitioner herein is not maintainable as the petitioner was not a tenderer. It is contended that the Act does not define a tenderer. In that context, the learned counsel would submit, when the petitioner has taken part in the pre-bid meeting and certain clarifications were sought, the said process also should be included as a part of the tender process and in such circumstance, the grievance putforth 5 by the petitioner should have been addressed by the Appellate Authority referring to the pre-bid meeting.
4. The learned counsel would further point out that the tender in fact was called from manufacturers of the machines and the petitioner was the only manufacturer. Despite the same, the respondents No. 1 to 4 have entertained the bid of the respondents No. 5 and 6 and have ultimately awarded the contract to respondent No.6. It is therefore contended that both on merits as well as on the question of maintainability, the Appellate Authority was not justified.
5. Though the learned counsel for the caveator and the learned Government advocate seek to sustain the action of the respondents No. 1 to 4, insofar as the acceptance of the tender of respondent No.6, I am of the opinion that the said aspect of the matter need not be gone into at this stage, since the Appellate Authority has dismissed the appeal as not maintainable and that 6 aspect alone requires to be addressed by this Court. In the event of this Court finding that the appeal was maintainable, the question would have to be left open to the Appellate Authority for consideration. On the other hand, if the Appellate Authority was justified on the ground of maintainability, no other issue need be gone into in the instant petition. In that light, having noticed the contention putforth by the learned counsel for the petitioner, I have perused the document at Annexure-Q referred to by the learned counsel, where the petitioner having participated in the pre-bid meeting has sought for certain clarifications with regard to the requirements of the respondents regarding the supply of the machineries. It would also indicate that respondents No. 1 to 4 have clarified the position about their requirements.
6. Pursuant thereto, there is absolutely no material to indicate that the respondents No. 1 to 4 have intimated the petitioner that from the discussion, it is 7 seen that the petitioner is not qualified. If this aspect of the matter is kept in view and the notification at Annexures-A and B, from which the process of the tender has begun is perused, it would be seen that the E-tender notification would prescribe that the requisitions for blank tender document would be received from 29.12.2009 to 06.02.2010 and the same would be issued on 06.02.2010. The date for submission of the tender was 08.02.2010 and the pre-bid meeting was dated 20.01.2010. Similarly, the tender notification at Annexure-A also provides dates by the subsequent notification dated 08.09.2011. Keeping in view the said notification, what is noticed is that though the submission of the tender is on a subsequent date i.e. in the first notification as 08.02.2010 and in the subsequent notification as 29.10.2011, the pre-bid meeting is prior in both the said notifications i.e. on 20.01.2010 and 28.09.2011 respectively. This would indicate that the pre-bid meeting itself is not final and on 8 such clarifications being obtained, it would still be open for the interested tenderers to submit the tender documents in reply to the notification.
7. If that aspect is kept in view, it is not in dispute that the petitioner though had participated in the pre-bid meeting and had sought for clarification has not subsequently submitted the completed tender document for consideration by the respondents No.1 to 4. Therefore, if the petitioner on his own has not participated in the tender process, he cannot be considered to be a tenderer in the instant proceedings and therefore the Appellate Authority was justified in its conclusion. Hence, I see no reason to interfere with the said order and entertain the instant petition. Further, though the learned counsel for the petitioner would strenuously contend that the tender of the respondents No. 5 and 6 is also not in order, the same cannot be 9 agitated in the instant proceedings and the petitioner could avail their remedies in accordance with law.
8. In terms of the above, the petition stands disposed of.
Sd/-
JUDGE ST*