Karnataka High Court
M/S. Scania Commercial Vehicles India ... vs Government Of Karnataka on 11 January, 2017
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION No.921/2017 (GM-TEN)
BETWEEN:
M/s Scania Commercial Vehicles India Private Ltd,
CIN U35999KA2011FTC056984
Plot No.64-66, 88-97,
Narasapura KIADB Industrial Area,
Achhatanahalli Village, Narasapura Hobli,
Kolar District - 563 133
Represented by Mr.V.Sivakumar,
Director - Sales ...Petitioner
(By Sri Uday Holla, Senior Advocate for
Smt.Shwetha Ravi Shankar, Advocate)
AND:
1. Government of Karnataka,
Vidhana Soudha,
B.R. Ambedkar Veedi,
Bengaluru - 560 001.
Represented by its Chief Secretary.
2. Department of Transport,
M S Building,
B R Ambedkar Veedi,
Bengaluru - 560 001.
Represented by its Principal Secretary
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3. Bengaluru Metropolitan Transport Corporation
A Government of Karnataka undertaking
Central Office, Shanti Nagar,
Bengaluru - 560 027,
Represented by its Managing Director.
4. The e-procurement Cell,
Centre for E-Governance,
Department of Personnel and administrative Reforms,
Government of Karnataka,
Room No.141, Gate No.2,
M S Building, Dr. Ambedkar Veedhi,
Bengaluru - 560 001.
Represented by its Chief Executive Officer.
5. Volvo India Private Limited,
Yalachanahally village,
Tavarekere Post, Hoskote Taluk,
Bengaluru Rural District - 560 122
Represented by its Managing Director ... Respondents
(By Smt. Prathima Honnapura, HCGP for R-1 and R-2;
Sri P.D. Surana, Advocate for C/R-3;
Sri S. Vijay Shankar, Senior Advocate for
Smt. Nalina Mayegowda, Advocate for C/R-5)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to call for the entire records
pertaining to the case of the petitioners and direct or a writ by
appointing an independent forensic science expert having expert
knowledge in software applications and technologies to investigate
the illegalities, if any, which are taken place due to deviation from
the R3 and 4 while impleading the direction of this Hon'ble court as
per Annexure-D in retrieving/downloading/extracting the
documents information from the server of the e-portal for the
purpose of tender invitation as in Annexure - B and etc.
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This writ petition coming on for preliminary hearing this day,
the Court made the following:
ORDER
Smt. Prathima Honnapura, the learned Government Pleader is directed to take notice for the respondent Nos.1 and 2.
2. The facts of the case in brief are that the respondent No.3 issued the request for proposal on 20.7.2016 for design, manufacture, supply and commissioning of the buses. The uploading of the bid could not be completed on account of the display of the message 'unexpected error'. It is the assertion of the petitioner that it has also submitted the hard copy of the bid to the respondent No.3. On the ground that the price bid was not uploaded, the respondent No.3 was not considering the petitioner's case. This made the petitioner to file W.P.No.48493/2016. This Court, by its order, dated 10.11.2016 (Annexure-D) disposed of the said petition with a direction to the respondent No.4 to make the provision for the respondent No.3 to access the bid submitted by the petitioner. The respondent No.3 was directed to consider the 4 petitioner's bid on e-tender mode without permitting any other additions or alterations and evaluate the same as per the terms and conditions of the tender in comparison with the other bids received.
3. Sri Uday Holla, the learned Senior Counsel appearing on behalf of Smt. Shwetha Ravishankar for the petitioner submits that the respondent No.3 has violated the order, dated 10.11.2016 passed by this Court in W.P.No.48493/2016. He submits that the respondent No.3 by not acting in compliance with the said order has undermined the rule of law. He submits that the presence of atleast two bidders would made the tender arena competitive. He submits that the public would be benefited, if the petitioner's bid is considered and accepted. He would assert that by accepting the bid of the respondent No.5, the loss of `75 Crores is caused to the respondent No.3. He submits that the petitioner's price bid is in the PDF format. If it is only ordered to be retrieved, it would establish that the petitioner's uploading its bid online is completed before the deadline.
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4. Sri P.D.Surana, the learned counsel appearing for the caveator-respondent No.3 submits that the determination of the lowest evaluated price has taken place as per Rule 25 of the Karnataka Transparency in Public Procurements Rules, 2000 ('Transparency Rules' for short). He places on record the letter, dated 22.11.2016 (Annexure-E) issued by the Centre for e-Governance, which states that the data pertaining to any particular bidder, who has not submitted its formal offer against any notice inviting the tender, should not be visible for the Tender Inviting Authority. He submits that a decision is already taken to award the contract in question to the respondent No.5 on 6.l.2017 vide CPC resolution No.7340.
5. Sri S. Vijay Shankar, the learned Senior Advocate appearing for the Smt. Nalina Mayagowda for the respondent No.5 submits that this petition is filed in gross abuse of the process of law. He submits that even now the petitioner's price is not disclosed. The information downloaded from the e-platform does not contain the price offered by the petitioner. He submits that till 6 5.30 p.m. on 25.8.2016, the petitioner had not given the digital signature. Thus, as the petitioner's bid was incomplete, it is liable to be rejected.
6. The learned Senior Counsel submits that the petitioner's main prayer itself is for holding a roving enquiry, which is not permissible in the proceedings under Article 226 of the Constitution of India. He brings to my notice the averments made in paragraph Nos.17 and 18 of the memorandum of writ petition. It reads as follows:-
"17. ............ Though the Petitioner has uploaded the Price Bid document to e-portal, the same has been deliberately made to be missing in the price bid CD. ........
18. ......... The Petitioner apprehends that the insiders in the e-procurement portal have meddled with the tender data to ensure safe passage to Respondent No.5 ........"
7. Such being the nature of averments, the petitioner has to initiate appropriate proceedings invoking Section 43(e and i) of the Information Technology Act, 2000 ('I.T. Act' for short) for claiming the damages. He also read out the provisions contained in 7 Sections 46, 48, 57 and 62 of the I.T. Act, which contain the complete mechanism for adjudicating such disputes. He would therefore contend that the petitioner has to avail of the remedies under the said provisions.
8. He submits that if the petitioner has any grievance over the acceptance of tender of the respondent No.5, its remedy would be to file an appeal invoking Section 16(1) of the Karnataka Transparency in Public Procurements Act, 1999 ('Transparency Act' for short).
9. The submissions of the learned counsel have received my thoughtful consideration. The prayers made by the petitioner in the writ petition are as follows:-
"(i) Issue an order or direction or a writ by appointing an independent forensic science expert having expert knowledge in software applications and technologies to investigate the illegalities, if any, which are taken place due to deviation from the Respondent No.3 and 4 while implementing the direction of this Hon'ble Court as Per Annexure D in retrieving /downloading /extracting the documents/ 8 information from the server of the e-portal for the purpose of tender invitation as in Annexure B.
(ii) Consequently, issue a writ of mandamus or any other writ, order or direction directing the Respondent No.3 to consider the price bid as extracted/downloaded afresh from the uploaded documents of the Petitioner from the e-portal which are available in the e-portal in the form of "DRAFTS"
and to consider the said document for tender evaluation in accordance with the terms and conditions of the tender bearing No.BMTC/ME(P)/03/2016, dated 20.07.2016 produced as per Annexure B and also to consider the representation made by the Petitioner vide letter dated 05.01.2017 produced as per Annexure L.
(iii) Issue a further order or writ or direction to Respondent No.3 to ensure that the terms and conditions relating to the time within which buses required to be supplied is remained equal to the duration which would have been available to the Petitioner, if the Petitioner has not gone through the litigation processes as in this Petition as well as in the previous writ petition bearing WP No.48493/2016.
(iv) Pass such other order or orders as this Hon'ble Court deems fit to grant in the circumstances of the case in the interest of justice and equity."
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10. To examine as to whether prayer (i) can be acceded to, an advertence may have to be made to what the Apex Court has said in the case of STATE OF KERALA AND OTHERS v. M.K.JOSE reported in (2015) 9 SCC 433. It is held therein that the writ petition under Article 226 of the Constitution of India is not the proper remedy for adjudication of contractual disputes. Para 21 of the said decision reads as follows:-
"21. The procedure adopted by the High Court, if we permit ourselves to say so, is quite unknown to exercise of powers under Article 226 in a contractual matter. We can well appreciate a Committee being appointed in a public interest litigation to assist the Court or to find out certain facts. Such an exercise is meant for public good and in public interest. For example, when an issue arises whether in a particular State there are toilets for school children and there is an assertion by the State that there are good toilets, definitely the Court can appoint a Committee to verify the same. It is because the lis is not adversarial in nature. The same principle cannot be taken recourse to in respect of a contractual controversy. It is also surprising that the High Court has been entertaining series of writ petitions at the instance of the respondent, which is nothing but abuse of the process of extraordinary jurisdiction of the High Court. ......."10
11. The prayer (i), if acceded to, would virtually result in the holding of a roving enquiry, which practice has been deprecated by the Apex Court. Prayer (ii) is not grantable, because no one can ask for a mandamus without a judicially enforceable right as well as a legally protected right. In saying so, I am fortified by the Apex Court's judgment in the case of MANI SUBRAT JAIN AND OTHERS v. STATE OF HARYANA AND OTHERS reported in (1977) 1 SCC 486. In the cases of CHINGLEPUT BOTTLERS v. MAJESTIC BOTTLING COMPANY reported in (1984) 3 SCC 258 and ORIENTAL BANK OF COMMERCE v. SUNDER LAL JAIN AND ANOTHER reported in (2008) 2 SCC 280, it is held that the mandamus will not lie where the duty is clearly discretionary. The existence of a right is the foundation of a petition for mandamus. The Apex Court in the case of RAJASTHAN STATE INDUSTRIAL DEVELOPMENT AND INVESTMENT CORPORATION AND ANOTHER v. DIAMOND & GEM DEVELOPMENT CORPORATION LIMITED AND ANOTHER reported in 11 (2013) 5 SCC 470 has held that the writ cannot be granted unless it is established that there is an existing legal right of the applicant or an existing duty of the respondent.
12. Whether the petitioner has uploaded the price bid, whether any insiders have meddled with the tender data, whether the vital tender data has been deliberately made to be missing, etc. are all seriously disputed questions of facts.
13. Thus, the prayers made by the petitioner cannot be acceded to. The petitioner has to avail of the remedy of seeking the adjudication under the Information Technology Act, 2000 and/or prefer an appeal invoking Section 16(1) of the Transparency Act. If the petitioner files the appeal under Section 16(1) of the Transparency Act and makes an I.A. for stay, etc. within one week from today, the Appellate Authority is directed to dispose of the I.A. for stay, etc. within three days from the date of their filing. Further, the Appellate Authority is also directed to dispose of the main matter (appeal) itself within two weeks from the date of its filing and after affording an opportunity of hearing to all the parties. 12
14. All the contentions are left open to be urged before the appropriate forums.
15. No order as to costs.
Sd/-
JUDGE MD/VGR