Karnataka High Court
Traco Cable Company Limited vs Bangalore Electricity Supply Company ... on 8 September, 2009
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA AT BANOA:c._OTRfE..((T'~T--((A
DATED THIS THE 8" DAY OF SEPTEMBER,..A4"iO'CJA§}"'T'
BEFORE
THE HON'BLE MR. JUSTICE A.N. vET\+.uO;OT-'MAT.O'O$kvOA[f=;_.__f'?1O
WRIT PETITION NO.259t3_7-OF 2009 (OwTt§T<E,o}--.T
BETWEEN: .' L
Traco Cabfe Company LirT~.ivte.d,'.c { ' j,
(A Kerafa Government COmpa_n3k'}', 1
IV Fioor, KSHB Office Comfjiex, "
Panamplfy Nag,3r;P,'.B.NO'.4289, "
Cochin 68203-6;' = .
Represented by_.-i'ts_ Ma--nag'injjg, D§rect'or.*'
V 1111 _ ...PETITIONER
(By STi.:'tRam'esiT;*.._Ana%'fnth_ar1_Adv.,)
AND:
1. Bangaiore'-'Electricity.Suopiy
C,0_§mDa.ny t_ttfi,~ (BESCOM)
K._R'.C;§-rcie, ----- T
'BarTgaIToreA?..V56OO01,
To BaTzga'lore - 560 oo1.
V Rep.re's_ented_ its Managing Director.
2. "C¢3_eneraE'E:§'!?§s:1:;ager (Electricity) Procurement,
COrpo..rat'o"Office, IV Floor,
BESCOM, K.R. Circfe,
...RESPONDENTS
V.Y.Kumar and Sri.B.Rudragowda Ac£vs.,_) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE TENDER PROCESS IN PURSUANCE OF TENDER ENQUIRY MARKED AS ANNEX--G, AS UNCONSTITUTIONAL AND NOT PROPER UNDER THE KAR. TRANSPARENCY DIRECT THE RESPONDENTS IN PLACING THE __(;)'R'D«Ei_Fi..__ii\i.V PURSUANCE OF THE FINALISATION OF "n~-22E' TiE.N'DER_"
PROCESS IN PURSUANCE OF TENDER ENQ.UIR,Yf~.MA.RKED_" ' AS ANNEX--A. This petition coming on for piieliirniniaryifhearing"
day, the Court made the foiiowing:
ORpERI_ Petitioner participated.in.Lagtenderipirocess cailed by the respondents -for the"'»procEsre»nje.nvt TACSR Rabbit Conductors foh. project _IHNiran~t,haVra'""Yojana Scheme". The pet:i:tioner"p';oyitied--.the__necesVsary EMD and also bank guarantee' 'and o'n.V_.op.eni_TigT:"the tender, the petitioner was found {to _be "t'heV"l'ovIiest- bidder. Respondent 1 calied the "TV."petitiToneT"* f'o.r__ nedotiation on 27.6.2009 and after thEe:.i.~petitioner agreed for a basic price of Rs.23,77v5}~--:VTp.er K.M. Again one nnore meeting was cailed on 24.7'.2_i}i09, in which the petitioner participated and took I stafnd that it cannot reduce the price any further on the that raw materiai costs is quite high. According to \/ the petitioner, it was waiting for finaiisation of the tender. However, it received an Official Memorandum ..'o.f:"««t_heV respondent, wherein it was mentioned that, the . the basis of enquiry has been finalised or disposed f"
EMD was returned along with bahk c_:lua'rantee.::"
learnt that, on 6.8.2009 the"re:s-pzond"e'ntVs -5for fresh tender in respect =s_ame " and requirement as that of e.ai~_I§.¢V;j'tle'n'd§t,«'this writ petition has been filed, q_uestioni'ng'».th¥eV.fres_h'&tVen:d.erenquiry as at the respondents to finalise__,the..,t:eri«d:erTV:'i:n'VVVpVr.%rsuance of the tender enquiry,:,,_whie:h,is"'»at._,Anne>§:éire--*.A§
2. Learned' cou_nse'i-.for.t~he respondents produced the file relating to _t'he_"t'ender"'"encguiry as per Annexure--A and 'f V" the deécisi-on taken thereon.
"-T"-3.""i7"_nave"'perused the records. It could be seen V . there"'fro7rn.,"aVfter noticing the difference in the price, the Vt.'fl.resp0nde'nts have decided to float a fresh tender. It is on account of the said decision, the tender document at Annex:,.:re---G has been issued.'
4. Sri Ramesh Ananthan, learned cou_n.~se|'"'w§,.n:Id-..___T'. submit that, the petitioner has sutbmitted Annexure--G, however with a rider :';hat', it wit:hou"ti;_' prejudice to the rights of the p'eti~t_i.one'r'.',.
5. Since the decision of fiioat the new tender enciuirv as on account of canceiiation of the Annexure--
A, it is deemed,' in response to Annexur-e-A,~h,as'V.noit'|aeen'~---accepted and that there is a rejection. 'The Vrespon'den'ts' have also caiied upon the petitiojner',. to ré'ce_iye the refund of the EMD and the bank g'u'a.r_aratee~,_ ._ decviision of the respondents in the rnatter, is A . appea'!ab'!e. under S.16 of the Karnataka Transparency in Procurement Act, 1999 ('the Act' for short). Since ripetitioner has an alternate statutory remedy, which is also an effi<:acious- remedy, the writ petition without exhausting alternate remedy is not maintainabie. In the case of Thansingh Nathmal & V. The Superintendent of Taxes, Dhubri 8: M 1964 so 1419, the Constitutional igenchor i:i1.e_"HoI_i'hie Supreme Court, with regard to': byepassiiigkhiofvii statutory remedy, has held as'i'e:1:i'oWs 2 V The jurisdvioction 'Vithe.V.iviH.igh under Article 2263' bi" C1oflf3f.tiVtLi.tion is couched in xxridc:"VV'teiriris_:' =a[n_d exercise thereof subject _t-of anyfwrestrictions restricions which are exfiressly proi'fided..:iin.1:he Articles. But the exercisexiof the jurisdiction is discretionary: it " his not exercised merely because it is lawful to "do veijiiiamplitude of the jurisdiction i it will ordinarily be exercised certain self imposed limitations.
uukesertxto that jurisdiction is not intended .. has alternative remedy for relief which it * iiiay be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226. where the petitioner has an alternative remedy, which without being unduly onerousff-~:.f"f"' provides an equally efficacious rem.-edvf Again the High Court does not .
enter upon a determination of «.q1«1esti--or1's.eV~.__'"'V which demand an elaborate"'exaniination" of. V' K evidence to establish V which the writ is_c1ain1ed§"'-..:_'l"he l_ does not therefo1*e'act {as}. coLi'rt.pof appeal against the decision ai'Vc'oLirt.-or vt;rinl_3'_1.1nal, to correct errors of do'-zztsl not by as,suming i jilirisdictidni "under Article 226 trenc-.h' up'on*-an _alt_er-nati've remedy provided by statute for"«.obtaini1ig relief. Where it is open to _:the,'.agi'grieved petitioner to move 'anotiier tribur.y..ai. or even itself in another jurisdiction for obtaining redress in the "5",_emaxii1er~iV."provided by a statute, the High i'---..__Court;f= normally will not permit by entertaining a petition under Article 226 it ii"-of the Constitution the machinery "created under the statute to be bypassed. and will leave the party applying to it to seek resort to the machinery so set up.
[Emphasis suppiied by me)
7. The petitioner, if is aggrieved by meai'é¢iisir5¢;. the respondents with regard» tc__...the canc'e.i:l'ationV'_',of_.l Annexure--A and issuance of Annexiire-:G,r.i't is._at~ _ii'be'rty..At"o1.r_:
avail the remedy of appeal asiV_proxvided. i:Ji1der'7yS{~~:1fi€a«v..oVf the Act.
8. Since the impijg'nied"-a_cii§icv~n."of:i_the»» respondents is appeilabie, it is qurinecessary record any finding on the g'hro"onds:rV5raise%d' petitioiner in the writ petition.
Suffice to--.s--a«y,V it Vis*"for'i't'h:e"appellate authority to consider the same, in"~r.a'se,VanA'appea| is preferred and record the smerein. '"Hei"i'ce ail the contentions are Eeft open the appellate authority.
AS'Ubj'€}__Ct tothe above, this writ petition stands rejected.
Sd/-
JUDGE ' Kail-