Karnataka High Court
Vedhamurthy M D vs Dr.B.R.Ambedkar Development on 14 February, 2013
Author: Mohan .M. Shantanagoudar
Bench: Mohan .M. Shantanagoudar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14th DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
WRIT PETITION No.3907 OF 2013 (GM-TEN)
BETWEEN:
Vedhamurthy M.D
S/o Devegowda
Aged about 34 years
Class-I Electrical Contractor
& Proprietor
Shri Vinayaka Electricals
No.356, Maruthi Nilaya
6th Cross, 2nd Block
HMT Layout, Nagasandra Post
Bangalore-73. ..Petitioner
(By Sri I. Tharanath Poojary, Adv.,)
AND :
1. Dr. B.R. Ambedkar Development
Corporation Limited
Rep by it's Managing Director
9th & 10th Floor
Vishveshwaraiah Mini Tower
Ambedkar Veedhi, Bangalore-01.
2. State of Karnataka
Rep by Principal Secretary
2
Department of Energy
M.S. Building, Bangalore-1. ..Respondents
(By Sri C. Shivakumar, Adv., for R1;
Sri E.S Indiresh, HCGP., for R2)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash the notification
dated 29.12.2012 issued by R1 vide Annexure-A and a
consequential writ of mandamus directing the R1 to re-
notify and call for fresh tenders separately for supply of
submersible pumpsets and for erection and electrification of
submersible pumpsets under Ganga Kalyana Scheme
considering the representation vide Annexure-L by following
the procedure as contemplated under the Karnataka
Transparency in Public Procurements Act 1999, installation
work, the Indian Electricity Rules and the relevant
Government orders.
This Writ Petition coming on for preliminary hearing in
'B' group this day, the Court made the following :
ORDER
Petitioner is an Electrical Contractor. Being aggrieved by the Notification dated 29.12.2012 issued by the 1st respondent by which the e.tenders are invited for supply & delivery of submersible pumpsets and accessories, erection & electrification for the borewells drilled under 3 Gangakalyana Scheme, petitioner has approached this Court by filing this writ petition.
2. Notification dated 29.12.2012 is issued by the 1st respondent inviting e.tenders for supply & delivery of submersible pumpsets and accessories, erection & electrification for the borewells drilled under Gangakalyana Scheme. The notification invites united tenders for two works viz., (a) supply & delivery of submersible pumpsets & accessories and (b) erection & electrification for the borewells drilled under Gangakalyana Scheme. The petitioner is aggrieved by such unification of two works under the same tender notification.
3. Shri Tharanath Poojary, learned advocate for the petitioner submits that such a notification is issued only with a view to exclude electrical contractors; in the previous years from 2009 to 2012, separate tender notifications were issued for supply of submersible pumpsets and for 4 erection & electrification of the borewells; by the said process, both the electrical contractors as well as suppliers of submersible pumpsets used to get work; in order to avoid electrical contractors, united Tender Notification is issued, that too prescribing the qualification that the tenderer should be a submersible pumpset manufacturing company having ISO 9001, which means only submersible pumpset manufacturing companies are entitled to participate in the tender process.
Shri Shivakumar, learned advocate appearing for Respondent No.1 submits that such tender notification is issued based on its experience of previous years; though separate tender notifications were issued for the years 2009-2012, the progress of the works was very slow because of the non-cooperation between the manufacturers of submersible pumpsets and electrical contractors and consequently poor public are suffering; that the Government Order Annexure-H relied upon by the 5 petitioner dated 10.8.2006 is not applicable to the facts of the case inasmuch as the said order was issued by the State Government only in respect of works to be carried out by the PWD.
Learned Government Advocate supports the contentions of Sri Shivakumar by contending that it is a prerogative of the Tender Inviting Authority to impose appropriate conditions. Unless and until such conditions are arbitrary and illegal, this Court may not interfere in tender conditions.
4. Learned counsel for the petitioner relying heavily on the Government Order Annexure-H dated 10.8.2006 contends that the action of the 1st respondent in calling united tender for two works including erection and electrification work runs contrary to the order Annexure-H and therefore the entire process is bad in the eye of law. 6
Such a contention cannot be accepted. The order Annexure-H dated 10.8.2006 is issued by the State Government only in respect of the works to be carried out by PWD. The civil contractor generally will not be expert in the electrical work; Under such circumstances, the State Government has clarified that wherever the works are to be carried out by PWD, the electrification should be assigned to the electrical contractors who are the experts in the field. But in the matter on hand, the united tender is not only for the supply and delivery of submersible pumpsets & accessories, but also for erection & electrification for the borewells drilled under Gangakalyan scheme. The manufacturers of the pumpsets would have electrical engineers as their employees. Both the works go hand in hand. Thus the 1st respondent has taken decision to call for united tenders.
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5. In this connection, it is relevant to refer the decision of the Apex Court in the case of DIRECTORATE OF EDUCATION .vs. EDUCOMP DATAMATICS LIMITED reported in AIR 2004 SC 1962 wherein at paragraph-12 it is observed as under:
"12. It has clearly been held in these decisions that the terms of the invitation to tender are not open judicial scrutiny the same being in the realm of contract. That the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere.
The Courts would interfere with the
administrative policy decision only if it is
arbitrary, discriminatory, malafide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The Courts cannot strike down the terms of tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser 8 or logical. The Courts can interfere only if the policy decision is arbitrary, discriminatory or malafide."
(Emphasis Supplied)
6. In addition to the above, the records clearly reveal that the impugned tender notification is issued based on the previous experience of Respondent No.1. As aforementioned, separate tenders were called for the years 2009 to 2012 in respect of delivery of submersible pumpsets and electrification for the borewells drilled. In all the 30 districts of the State, the borewells were to be drilled and pumpsets were to be installed apart from the electrification. The successful tenderers who were assigned the work of supply of submersible pumpsets have supplied 13,173 pumpsets, whereas the electrical contractors who were assigned the work of electrification had completed their part of the work only with regard to 2,932 pumpsets, which means now approximately more than 10,000 pumpsets supplied by the suppliers are lying 9 idle without they being utilised. The Court can take judicial notice of the fact that if the electrical goods remain unused for a long period, then they will deteriorate. In addition to the same, the public at large will suffer inasmuch as they would be without water since the pumpsets were not installed by the electrical contractors. In this view of the matter, State Government has issued a notification dated 30.10.2012 cancelling the earlier tender notification w.e.f. 2012 onwards. Thereafter the present notification is issued combining both the works. Thus it is clear that there should be coordination between the two agencies i.e. between the electrical contractors and the manufacturers of the pumpsets. Unless there is coordination between the two, the work will not progress. As aforementioned, with the previous experience of the 1st respondent, it is justified in calling for united tender.
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In view of the above, this Court does not find any ground to interfere in the impugned notification.
Petition fails and the same stands dismissed.
Sd/-
JUDGE Gss/-