Karnataka High Court
Sri P Anand Vardhan Reddy vs The Director on 29 January, 2020
Author: P.S.Dinesh Kumar
Bench: P.S. Dinesh Kumar
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W.P. No.52252/2019
C/W W.P. No.52188/2019
W.P. No.52253/2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
WRIT PETITION No.52252 OF 2019
C/W
WRIT PETITION No.52188 OF 2019
WRIT PETITION No.52253 OF 2019 (GM-TEN)
IN W.P. No.52252/2019
BETWEEN :
SRI. P. ANAND VARDHAN REDDY
AGED ABOUT 43 YEARS
PROPRIETOR
M/S OM SAI VENTURES
R/AT NO.10, 14TH MAIN ROAD
VENKATESHWARA LAYOUT
MADIWALA
BENGALURU-560 068 ... PETITIONER
(BY SHRI. R.S. RAVI, ADVOCATE)
AND :
1. THE DIRECTOR
KARNATAKA STATE AGRICULTURAL
MARKETING BOARD
NO.16, 1ST FLOOR
RAJ BHAVAN ROAD
NEAR INCOME-TAX OFFICE
BENGALURU-560 001
2. THE SPECIAL AGRICULTURAL PRODUCERS'
MARKETING COMMITTEE FOR
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W.P. No.52252/2019
C/W W.P. No.52188/2019
W.P. No.52253/2019
FRUITS AND VEGETABLES
AGRAHARA, TANK BUND ROAD
BINNEYPETE
BENGALURU-560 023
REP. BY ITS SECRETARY
3. THE SPECIAL AGRICULTURAL PRODUCERS'
MARKETING COMMITTEE FOR
FRUITS AND VEGETABLES
AGRAHARA, TANK BUND ROAD
BINNEYPETE
BENGALURU-560 023
REP. BY ITS CHAIRMAN
4. M/S. MSGP INFRA TECH PRIVATE LIMITED
REP. BY ITS PROPRIETOR
SRI. K.P.PRAVEEN
NO.10.10/4/1, KUMARA KRUPA ROAD
OPP. CHITRAKALA PARISHAD
BENGALURU-560 001 ... RESPONDENTS
(BY SHRI. VIJAYKUMAR A. PATIL, AGA FOR R1;
DR. NANDA KISHORE, ADVOCATE FOR R2 & R3;
SHRI. C.K. NANDA KUMAR, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS AND QUASH THE RESOLUTION DATED 7.11.2019 IN
SUBJECT NO.10, ACCEPTING THE BID OF THE R-4 VIDE
ANNEXURE-J.
IN W.P. No.52188/2019
BETWEEN :
SRI. P. VIDYANATH REDDY
S/O P. CHENGA REDDY
AGED ABOUT 40 YEARS
R/AT NO.10, 32ND MAIN
5TH CROSS, BTM 1ST STAGE
BENGALURU-560 068 ... PETITIONER
(BY SHRI. R.S. RAVI, ADVOCATE)
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W.P. No.52252/2019
C/W W.P. No.52188/2019
W.P. No.52253/2019
AND :
1. THE DIRECTOR
KARNATAKA STATE AGRICULTURAL
MARKETING BOARD
NO.16, 1ST FLOOR
RAJ BHAVAN ROAD
NEAR INCOME-TAX OFFICE
BENGALURU-560 001
2. THE SPECIAL AGRICULTURAL PRODUCERS'
MARKETING COMMITTEE FOR
FRUITS AND VEGETABLES
AGRAHARA, TANK BUND ROAD
BINNEYPETE
BENGALURU-560 023
REP. BY ITS SECRETARY
3. THE SPECIAL AGRICULTURAL PRODUCERS'
MARKETING COMMITTEE FOR
FRUITS AND VEGETABLES
AGRAHARA, TANK BUND ROAD
BINNEYPETE
BENGALURU-560 023
REP. BY ITS CHAIRMAN
4. M/S. MSGP INFRA TECH PRIVATE LIMITED
REP. BY ITS PROPRIETOR
SRI. K.P.PRAVEEN
NO.10.10/4/1, KUMARA KRUPA ROAD
OPP. CHITRAKALA PARISHAD
BENGALURU-560 001 ... RESPONDENTS
(BY SHRI. VIJAYKUMAR A. PATIL, AGA FOR R1;
DR. NANDA KISHORE, ADVOCATE FOR R2 & R3;
SHRI. C.K. NANDA KUMAR, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS AND QUASH THE RESOLUTION DATED 7.11.2019 IN
SUBJECT NO.10, ACCEPTING THE BID OF THE R-4 IN RESPECT OF
BINNEY PETE BANANA MARKET AND YESHWANTHAPURA BDA
BLOCK-II VEGETABLE MARKET RESPECTIVELY VIDE ANNEXURE-F.
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W.P. No.52252/2019
C/W W.P. No.52188/2019
W.P. No.52253/2019
IN W.P. No.52253/2019
BETWEEN :
SRI. P. PURANDHARA REDDY
AGED ABOUT 72 YEARS
PROPRIETOR
M/S SRI. SIDDHI VINAYAKA PRASANNA
R/AT NO.57/52, COMFORT ENCLAVE
7TH MAIN, 17TH CROSS
BTM LAYOUT 2ND STAGE
BENGALURU-560 076 ... PETITIONER
(BY SHRI. R.S. RAVI, ADVOCATE)
AND :
1. THE DIRECTOR
KARNATAKA STATE AGRICULTURAL
MARKETING BOARD
NO.16, 1ST FLOOR
RAJ BHAVAN ROAD
NEAR INCOME-TAX OFFICE
BENGALURU-560 001
2. THE SPECIAL AGRICULTURAL PRODUCERS'
MARKETING COMMITTEE FOR
FRUITS AND VEGETABLES
AGRAHARA, TANK BUND ROAD
BINNEYPETE
BENGALURU-560 023
REP. BY ITS SECRETARY
3. THE SPECIAL AGRICULTURAL PRODUCERS'
MARKETING COMMITTEE FOR
FRUITS AND VEGETABLES
AGRAHARA, TANK BUND ROAD
BINNEYPETE
BENGALURU-560 023
REP. BY ITS CHAIRMAN
4. M/S. MSGP INFRA TECH PRIVATE LIMITED
REP. BY ITS PROPRIETOR
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W.P. No.52252/2019
C/W W.P. No.52188/2019
W.P. No.52253/2019
SRI. K.P.PRAVEEN
NO.10.10/4/1, KUMARA KRUPA ROAD
OPP. CHITRAKALA PARISHAD
BENGALURU-560 001 ... RESPONDENTS
(BY SHRI. VIJAYKUMAR A. PATIL, AGA FOR R1;
DR. NANDA KISHORE, ADVOCATE FOR R2 & R3;
SHRI. C.K. NANDA KUMAR, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS AND QUASH THE RESOLUTION DATED 7.11.2019 IN
SUBJECT NO.10, ACCEPTING THE BID OF THE R-4 VIDE
ANNEXURE-G.
THESE WRIT PETITIONS, HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 24.01.2020, COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:-
ORDER
These three writ petitions have been filed by three different Contractors, who have submitted their respective bids in response to e-tenders invited by the Agricultural Producers Marketing Committee ('APMC' for short) for cleaning and transportation of municipal solid waste including cleaning of office building and toilets in respect of:
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• Kalasipalya Wholesale vegetable market; • Binnypete Banana Market and Yeshwantpura, BDA Block-II Vegetable Market; and • Singena Agrahara - Sub-Market Area.
2. Brief facts of the case are, petitioners submitted their tenders for transportation of municipal solid waste including cleaning of office building, toilets etc. APMC has awarded tender works to M/s. MSGP Infra Tech Private Limited (respondent No.4 herein - 'M/s. MSGP' for short). Feeling aggrieved, petitioners have challenged the same by filing appeals under section 16 of the Karnataka Transparency in Public Procurements Act, 1999 ('Act' for short) before the Director of APMC and the said appeals are pending. In the meanwhile, petitioners have presented these petitions on the ground that there was no sitting of the Director namely the Appellate Authority.
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3. Shri.R.S.Ravi, learned Advocate appearing for the petitioners made following submissions:
• that petitioners' tenders have been rejected on the ground that they have not uploaded authorization issued by the State Pollution Control Board in Form-II. As per Clause 9 of the Tender conditions, a bidder can upload the Form-II issued under Municipal Solid Waste Management Rules, 2016 or in the alternative, a valid contract between tenderer and such authorized individual or Company to whom the solid waste shall be supplied. Petitioners have uploaded agreement dated 30th August 2019 with M/s. Terra Firma Bio-Technologies Ltd., ('M/s. TFBT' for short) and Form-A2 issued to the said firm. Petitioners have also uploaded consent letter granted by the Karnataka State Pollution Control Board to M/s. TFBT and it permits 'Solid Waste 8 W.P. No.52252/2019 C/W W.P. No.52188/2019 W.P. No.52253/2019 Disposal'. Therefore, rejection of tenders is bad in law;
• the tenders were required to be opened on 11th September 2019. But in the proceedings dated 31st October 2019 it is recorded that tenders were opened on 12th September 2019. As per Rule 18(2) of Karnataka Transparency in Public Procurements Rules, 2000 ('Rules' for short), tenders have to be opened in presence of tenderers. No notice was given to the tenderers. Therefore, there is violation of the said provision;
• as per Rule 19(f) of the Rules, minutes of the tender opening proceedings shall be recorded and signatures of tenderers obtained. This Rule has also been violated.
4. Shri.Ravi, urged following contentions assailing the award of tenders in favour of M/s. MSGP: 9 W.P. No.52252/2019 C/W W.P. No.52188/2019 W.P. No.52253/2019
• M/s. MSGP has not complied with condition No.4, of the tender document which requires uploading ESI, EPF, PT, IT and other relevant returns for the year 2016-17, 2017-18 and 2018-19;
• M/s. MSGP has not complied with condition No.7, of the tender document which requires uploading latest cleaning experience certificates for three years in Government or Semi-Government Departments;
5. Shri.Nanda Kishore, learned Advocate for the APMC (respondents No. 1 to 3), Shri.Nanda Kumar for the contesting respondent M/s. MSGP argued opposing the petitions.
6. According to both Shri.Ravi and also Shri.Nanda Kishore, petitioners' bids have been rejected mainly on the ground that they do not have authorization 10 W.P. No.52252/2019 C/W W.P. No.52188/2019 W.P. No.52253/2019 from the State Pollution Control Board to handle 'Municipal Solid Waste'.
7. Shri.Nanda Kumar, submitted that under the Municipal Solid Waste Management Rules, State Pollution Control Board issues a Certificate in Form-II. This is a mandatory requirement. Tender condition No.9 prescribed that a bidder shall upload Form-II issued by the Pollution Control Board or a valid contract between an authorized waste management individual or Company. Admittedly, petitioners have uploaded agreements with M/s. TFBT. It is not in dispute that Form-II issued in favour of M/s. TFBT has not been uploaded.
8. Shri.Ravi, placed reliance on consent letter dated 24th September 2016 issued by the Pollution Control Board to M/s. TFBT. The consent letter permits the holder to discharge effluent and emissions confirming to stipulated standards from the premises mentioned in 11 W.P. No.52252/2019 C/W W.P. No.52188/2019 W.P. No.52253/2019 the said consent letter. He strongly relied upon clause (E) of the schedule to the consent letter and sought to contend that the consent letter authorized M/s. TFBT to manage 'Municipal Solid Waste'. Clause (E) reads as follows:
"E. SOLID WASTE (OTHER THAN HAZARDOUS WASTE) DISPOSAL:
1. The applicant shall segregate solid waste from Hazardous Waste, Municipal Solid Waste and store it properly till treatment/disposal without causing pollution to the surrounding Environment.
2. The solid waste generated shall be handled & disposed by scientific method without causing eye sore to the general public and to the surrounding environment."
9. Shri.Ravi's argument on this point is noted only to be rejected because, clause (E) in the schedule is a condition for the holder of letter to segregate the solid waste till it is treated without causing pollution to surrounding environment. It does not in any way authorize M/s. TFBT to deal with 'Municipal Solid Waste'. 12 W.P. No.52252/2019 C/W W.P. No.52188/2019 W.P. No.52253/2019
10. Therefore, the main ground urged by Shri.Ravi, fails.
11. Shri.Ravi also placed reliance on a Certificate issued by the Joint Director of Agriculture (Fertilizer and Plant Protection). This Certificate is also of no avail to the petitioners.
12. The next ground urged is violation of Rule 18(2) of the Rules with regard to presence of tenderers. Shri. Nanda Kumar, is right in his submission that the said Rule only states that tenders will be opened in presence of tenderer 'who chooses to be present'.
13. The next ground urged is with regard to notice of date of opening the tender. Shri. Nanda Kishore, submitted that petitioner and his brothers had requested to postpone the date of opening the tender. Accordingly, a Notification was issued on 20th August 2018 intimating the date of opening the Technical bid on 11th September 13 W.P. No.52252/2019 C/W W.P. No.52188/2019 W.P. No.52253/2019 2019. Shri.Ravi, in his usual fairness, did not dispute issuance of said Notification. Therefore, the contention with regard to the notice intimating the date of opening the tender does not survive for consideration.
14. The next ground is with regard to recording of minutes and taking signature of tenderers. Admittedly, the date of opening the Technical bid as 11th September 2019 was notified and the same is not disputed by petitioners. Having had notice, petitioners did not choose to be present on that date. Therefore, the ground urged in this behalf is untenable.
15. In view of the above, no exception can be taken to the rejection of petitioners' bids.
16. Re: Award of tender works to M/s. MSGP:
Though it was argued by Shri. Ravi, that M/s. MSGP has not complied with Clauses 4 and 7, Shri.Nanda Kishore, rightly pointed out that petitioners have not 14 W.P. No.52252/2019 C/W W.P. No.52188/2019 W.P. No.52253/2019 pleaded non-compliance of condition No.4. So far as compliance of condition No.7, concerning experience Certificate, Shri. Nanda Kishore, placed reliance on documents produced as Annexure - R4 series. They are Certificates issued by BBMP, HAL and Bangalore International Airport. Shri. Ravi, urged that in the Certificates issued by BBMP, it is not specifically stated that M/s. MSGP has collected, handled and transported solid waste. It is stated in the said Certificates that, • M/s. MSGP has received 7,12,48,757 MT of solid waste between October 2014 and August 2016; • 3,29,12,909 MT between October 2014 to September 2017;
• 2,01,554.36 MT between October 2014 to November 2018; and • 56,664.62 MT between October 2014 and April 2019.15
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17. The Certificates show that M/s.MSGP has received aforementioned quantities of solid waste. It would be incongruous to construe that having received such huge quantity, it has not disposed of the said solid waste. So far as Certificates issued by HAL and Bangalore International Airport, there is no objection by the petitioners.
18. Having carefully considered the Experience Certificates in favour of M/s. MSGP, I am of the view that the ground with regard to the Experience Certificates is also untenable.
19. Learned Advocates for the respondents, also urged that petitioners are prosecuting parallel remedies namely, appeals before the first respondent as also these writ petitions, though appeals ought to have filed before the Government. Be that as it may. Having considered 16 W.P. No.52252/2019 C/W W.P. No.52188/2019 W.P. No.52253/2019 these petitions on merit, in view of discussion recorded above, I find no ground to interfere.
20. Resultantly, these petitions fail and they are accordingly dismissed.
No costs.
Sd/-
JUDGE SPS