Karnataka High Court
Emri Green Health Services vs The State Of Karnataka on 10 March, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 3836 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 3836 OF 2023 (GM-TEN)
BETWEEN:
EMRI GREEN HEALTH SERVICES,
A SOCIETY REGISTERED UNDER
THE PROVISIONS OF ANDHRA PRADESH
SOCIETIES REGISTERED ACT, 2001,
HAVING ITS REGISTERED OFFICE AT
DEVAR YAMZAL, MEDCHAL ROAD,
SECUNDERABAD - 500 078,
TELANGANA.
REPRESENTED BY ITS AUTHORISED
REPRESENTATIVE / STATE HEAD - KARNATAKA,
SHRI. HANUMANTHAPPA R.G,
S/O. SHRI. RANGAPPA,
AGED ABOUT 43 YEARS,
Digitally signed R/O DEVAR YAMZAL,
by PADMAVATHI
BK MEDCHAL ROAD,
Location: HIGH SECUNDERABAD - 500 078,
COURT OF
KARNATAKA TELANGANA, INDIA.
ALSO AT: S.T.D.C. HOUSING BOARD COLONY,
BASAVESHWARANAGAR ENTRANCE,
OPP. GOVERNMENT UNANI MEDICAL COLLEGE,
G.M.S COMPOUND, MAGADI ROAD,
BENGALURU - 560 079.
...PETITIONER
(BY SRI. BRIAN D'SILVA, SENIOR COUNSEL FOR
SRI. PARASHURAM A.L, ADVOCATE)
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WP No. 3836 of 2023
AND:
1. THE STATE OF KARNATAKA,
DEPARTMENT OF ANIMAL HUSBANDRY
AND FISHERIES,
ANIMAL HUSBANDRY DEPARTMENT,
4TH FLOOR, VIKASA SOUDHA,
BENGALURU - 560 001.
THROUGH ITS SECRETARY.
2. THE COMMISSIONER,
ANIMAL HUSBANDRY AND
VETERINARY SERVICES,
PASHUPALANA BHAVANA,
BELLARY ROAD, HEBBALA,
BENGALURU - 560 024.
3. THE DIRECTOR,
ANIMAL HUSBANDRY AND
VETERINARY SERVICES,
PASHUPALANA BHAVANA,
BELLARY ROAD, HEBBALA,
BENGALURU - 560 024.
4. THE ADDITIONAL DIRECTOR,
ANIMAL HUSBANDRY AND
VETERINARY SERVICES,
PASHUPALANA BHAVANA,
BELLARY ROAD, HEBBALA,
BENGALURU - 560 024.
5. THE JOINT DIRECTOR,
ANIMAL HUSBANDRY AND
VETERINARY SERVICES,
PASHUPALANA BHAVANA,
BELLARY ROAD, HEBBALA,
BENGALURU - 560 024.
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WP No. 3836 of 2023
6. EDUSPARK INTERNATIONAL PRIVATE LIMITED,
REGISTERED UNDER THE PROVISIONS OF THE
COMPANIES ACT, 1956,
MOTILAL NAGAR -1,
SHRIRANG SADBE MARG OFF LINK ROAD,
GOREGAON (WEST) MUMBAI,
MAHARASHTRA - 400 104 INDIA.
REPRESENTED BY ITS
AUTHORISED SIGNATORY.
...RESPONDENTS
(BY SRI. R. SUBRAMANYA, AAG FOR
SRI. VINOD KUMAR M, AGA FOR R1 TO R5,
SMT. T.S. RAJARAJESHWARI, ADVOCATE FOR R6)
THIS W.P IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE REJECTION
OF THE BID OF THE PETITIONER REFLECTED IN THE E-
PROCUREMENT PORTAL OF THE RESPONDENT (ANNEXURE-A)
AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question his rejection of bid as reflected in the e-procurement portal insofar as it concerns the technical evaluation.
2. Heard learned Senior Counsel Sri. Brian D'Silva appearing for the petitioner, Sri. R. Subramanya, learned -4- WP No. 3836 of 2023 Additional Advocate General for Sri. Vinod Kumar M., learned Additional Government Advocate appearing for respondent Nos.1 to 5 and Smt. T.S. Rajarajeshwari, learned counsel appearing for respondent No.6.
3. Facts in brief, germane are as follows:
The Department of Animal Husbandry and Veterinary Services, Government of Karnataka issues a Notice Inviting Tender for "Selection of a Service Provider for Operation and Maintenance of Emergency Veterinary Services in Karnataka for a period of three years". The petitioner submits his bid finding himself eligible to be considered for the said work in terms of what was notified in the tender, so that respondent No.6. The result of scrutiny of the document by the Tender Scrutiny Committee leads to rejection of the technical bid of the petitioner. Against the rejection of the technical bid, the petitioner prefers an appeal before the Competent Authority, i.e., the Commissioner of Animal Husbandry and Veterinary Services, which comes to be rejected by an -5- WP No. 3836 of 2023 order dated 25.01.2023. It is calling in question the order of rejection and all the subsequent action of finding respondent No.6 to be responsive to the tender, the petitioner is before this Court.
4. Learned Senior counsel, Sri. Brian D'Silva, appearing for the petitioner taking this Court to the documents appended to the petition, would seek to demonstrate that there is procedural aberration by the State insofar it concerns the timeline with which the technical evaluation has to be opened and proceeded for financial evaluation. He would take this Court to Clause 5 of the tender document to particular reference to Clause 5.4 and would further contend that the appeal so filed contained several grounds and all of which are rejected by a perfunctory order without considering any of the contentions in the appeal.
5. On the other hand, the learned Additional Advocate General would seek to refute the submissions of -6- WP No. 3836 of 2023 the learned Senior counsel again by taking this Court to the documents appended to the statement of objections to contend that the tenderer whose technical bid stands rejected, the clock of the said tenderer stops there and what should be proceeded further is only opening of the financial bid of the eligible tenderers, who have been held technically qualified and therefore, the procedure adopted by the State cannot be found fault with.
6. He would further submit that the appeal filed by the petitioner was rejected on 02.02.2023 and a letter of intent was issued in favour of the responsive tenderer i.e., the respondent No.6 on 02.02.2023, who has furnished his Bank Guarantee in terms of the conditions in tender on 14.02.2023 and the award of contract is also notified in favour of respondent No.6. He would submit that the remedy for the petitioner in these facts would lie only before the Appellate Authority under Section 16 of the Karnataka Transparency in Public Procurements Act, 1999 ('the Act' for short).
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7. I have given my anxious consideration to the submissions made by the respective learned Senior Counsel and respective learned counsel appearing for the parties and I have perused the available material on record.
8. The afore-narrated facts are not in dispute and therefore are not reiterated. Submissions are made both by the petitioner and the respondents by way of allegations and its defense alleging non-compliance with the procedure that is stipulated under the Clauses of the tender, insofar as the rejection of the technical bid, the uploading of the said rejection of the technical bid and several other nuances of the tender being violated by the petitioner. The State has also come up with the defense contending that none of those clauses have been violated and the petitioner's tender has been held to be non-responsive for several reasons as is indicated by the Tender Scrutiny Committee. All these submissions and contra submissions would be in the realm of the disputed -8- WP No. 3836 of 2023 questions of fact, which should necessarily be thrashed out before the Appellate Authority by filing an appeal under Section 16 of the Act. Section 16 of the Act reads as follows:
"16. Appeal.- (1) Any tenderer aggrieved by an order passed by the Tender Accepting Authority other than the Government under Section 13 may appeal to the prescribed authority within thirty days from the date of receipt of the order:
Provided that the prescribed authority may, in its discretion allow further time not exceeding thirty days for preferring any such appeal, if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time.
(2) The prescribed authority may after giving opportunity of being heard to both the parties pass such order thereon as it deems fit and such order shall be final.
(3) The prescribed authority shall as far as possible dispose of the appeal within thirty days from the date of filing thereof."
In terms of Section 16 of the Act, a contract that is awarded to the successful tenderer under Section 13 of the Act becomes appealable under Section 16 before the Appellate Authority.
9. Therefore, in the light of the contract work being awarded by respondent No.6 and consequent contract, I deem it appropriate to dispose the petition -9- WP No. 3836 of 2023 reserving liberty to the petitioner to approach the Appellate Authority under Section 16 of the Act. The petitioner is at liberty to urge all the contentions as urged in the present petition before the Appellate Authority, who would consider the same and pass appropriate orders in accordance with law.
10. Since the contract is already awarded, I further deem it appropriate to direct the Appellate Authority to decide the appeal within a particular timeframe. For the aforesaid reasons, the following:
ORDER i. The petition stands disposed.
ii. The petitioner is at liberty to prefer an appeal before the Appellate Authority under Section 16 of the Act.
iii. In the peculiar facts of the case and the impending urgency in the matter, the Appellate Authority shall decide the appeal within four
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weeks from the date of filing of the appeal by the petitioners.
All contentions of both the parties are left open.
Sd/-
JUDGE rv List No.: 1 Sl No.: 41