Karnataka High Court
M. Eshwappa S/O M. Eranna vs Karnataka Road Development on 19 February, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 19 T H DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MRS . J USTICE K.S .MUDAGAL
WRIT PETITION N OS.110150-110151/2017(GM-TEN)
BETWEEN:
1. M.ESHAPPA S/O.M.ERANNA,
AGE-42 Y EARS, OCC-BUSINESS ,
R/O.D OOR NO.1482,
SHRI.VEERABHAD RESHWARA NILAY A,
24 T H WARD , 3 R D CROSS,
HLC EXTENSION A REA,
BALLARI ROAD , KRISHNA NAGAR,
HOSAPETE 583 201, TQ-HOSAPETE,
DIST-BALLARI.
2. B.MANJUNATH S/ O.B.HANUMANTHAPPA,
AGE-28 Y EARS, OCC-BUSINESS ,
R/O.2 N D WARD, HOUSE N O.77/A,
TARA NAGAR POST, SAND UR TALUK,
BALLARI-583 119, TQ AND DIST-BA LLARI.
... PETITIONERS
(BY SRI.F .V .PATIL, ADVOCATE)
AND:
1. KARNATAKA ROAD DEVELOPMENT
CORPORATION LIM ITED,
(GOVERNMENT OF KARNATAKA ENTERPRISE)
REP.BY ITS MANA GING DIRECTOR,
FIRST FLOOR, 16/ J, MILLER TANK BED AREA ,
BENGALURU- 560 052.
2
WP.Nos.110150-151/17
2. THE CHI EF ENGIN EER,
KARNATAKA ROAD DEVELOPMENT
CORPORATION LIM ITED,
FIRST FLOOR, 16/ J,
MILLER TANK BED AREA,
BENGALURU- 560 052.
3. SHRI VINAY LAD S /O.EKNATH LAD ,
AGE-MAJOR, OCC- BUSINESS,
KRISHNA NAGAR, SANDUR TALUK,
BALLARI DISTRI CT.
... RES PONDENTS
(BY SRI.MANU K.A ND SMT.POOJA UPADHYA,
ADVOCATES FOR R-1 AND R-2;
SRI.RAJASHEKHAR BURJI , ADV OCATE FOR R-3)
THESE WRIT PETI TIONS ARE FI LED UNDER ARTICLES
226 AND 227 OF T HE CONSTITUTION OF INDIA, PRAYIN G TO
DECLARE THAT IMPUGNED TENDER NOTIFICATION DATED:11.08.2017
BRG.NO.KRDCL/IFB/2017-18/21 ISSUED BY RESPONDENT NO.1 VIDE
ANNEXURE-A PERTAINING TO CLAUSE 1.1. SUB CLAUSE 1.1.1. IN
REGARD TO THE FIXATION OF ANNUAL POTENTIAL COLLECTION IS
CONCERNED AND ALSO IV PERTAINING TO THE SCHEDULE DATES OF
VARIOUS ACTIVITIES MAY KINDLY BE STRUCK DOWN AS IT
VILOLATIVE OF ARTICLE 14 OF THE CONSTITUTION OF INDIA AND
ISSUE WRIT IN THE NATURE OF CERTIORARI TO QUASH THE
IMPUGNED NOTIFICATION DATED:11.08.2017 BRG.NO.KRDCL/IFB/
2017-18/21 ISSUED BY RESPONDNET NO.1 VIDE ANNEXURE-A.
THESE WRIT PETITIONS ARE COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP, THIS DAY , THE
COURT MADE THE FOLLOWING:
3
WP.Nos.110150-151/17
ORDER
Heard.
2. The 1 s t respondent is a company owned by Government of Karnataka and engaged in the business of promoting surfaces infrastructure, road works, bridges etc. With an intention to develop the road between Kudligi-Sandur-Torangal Road(SH 40) as approved by the State Government, the 1st respondent took up the development project for the said purpose. The 1 s t respondent intended to install a toll plaza near Yashwanth Nagar and near Bannihatti Village on Kudligi-Sandur-Torangal Road-(SH-40) in Bellary District for collection of user fee. The person/Company which develops the road had to collect that toll for the said purpose.
3. The 2 n d respondent - the Tender Bulletin Officer issued tender notification Annexure-A on 23.06.2017 (PB-page No.35). As per Annexure-A the 4 WP.Nos.110150-151/17 last date fixed for submission of tenders was 17-07- 2017 (PB-page No.36). Vide notification dated 11.08.2017 (PB page No.33). The last date for submission of bids was rescheduled vide Annexure-A (PB page No.41) fixing the last date for submission of the bids on 01.09.2017.
4. The 1 s t petitioner also submitted his bid in the tender process. Bid of the 3rd respondent was accepted vide Annexure-R1 dated 03.10.2017. The petitioners seek quashing of the tender notification Annexure-A in the above petitions.
5. Sri.F.V.Patil, the learned counsel for the petitioners reiterating the grounds urged in the writ petitions seeks to assail Annexure-A on the following grounds :
(1) The road in question between Yashwanth Nagar and Bannihatti in all measures 39.60 KM. The offset price fixed at 5 WP.Nos.110150-151/17 Rs.2,00,00,000/- in tender notification is unconscionably low as compared to the annual potential collection fixed for the similar projects in other parts of the State;
(2) Annexure-A is issued in violation of Rule-17 of the Karnataka Transparency in Public Procurements Rules 2000, as time fixed for submission of the bids is inadequate;
(3) Such inadequate time is provided to the bidders, to enable only the 3 r d respondent to grab the bid and to benefit him;
(4) The tender was published when it was still at a draft stage for approval.
6. In support his contentions Sri F.V.Patil, the learned counsel for petitioners, relies upon the judgment of this Court Jayaraj Vs. The State of Karnataka and Others, ILR 2005 KAR 4159.
7. Sri.Manu K., the learned counsel for respondent Nos.1 and 2 and Sri.Rajashekhar Burji, 6 WP.Nos.110150-151/17 the learned counsel representing respondent No.3, justify the tender notification Annexure-A and the proceedings thereunder and oppose the petitions on the following grounds :
(1) No right of petitioner No.2 is affected by the tender notification, therefore he has no locus-standi to question the said notification or to maintain his writ petition.
(2) The 1st petitioner participated in the tender process under the same tender notification Annexure-A, without raising any demur and when he was unsuccessful, he has filed writ petition challenging the wisdom of the notification. Therefore he is estopped from challenging the notification Annexure-A. (3) The notification Annexure-A was initially issued on 23.06.2017 and that was being extended from time to time and finally on 31.08.2017 with the approval of the competent authority, invoking of Rule 17(2), the last date was fixed on 01.09.2017 as the project was being delayed and the 1st 7 WP.Nos.110150-151/17 respondent had already invested huge money by borrowing from HUDCO.
(4) Even otherwise, the bidders were aware since 23.06.2017 till 11.08.2017, the proceedings in the matter was web-hosted on the website maintaining total transparency. (5) In the writ petitions the question of facts, whether the potential collection, rate fixed is scientific or not cannot be gone into. (6) The petitioners' have alternate remedy by way of appeal before the Government under Section 16 read with Rule 29(A) of the Karnataka Transparency in Public Procurements Rules, 2000.
8. In support of his arguments he relies upon the following judgments :
(1) Kirloskar Brothers Limited, Pune Vs. Karnataka Niravari Nigam Limited, Bangalore and others, (2009) 5 Kant LJ
608. 8
WP.Nos.110150-151/17 (2) Maruthi Sales Corporation, Honnali, Davanagere District Vs. The Zilla Panchayat, Tumkur and another, (2006) 6 Kant LJ 248.
(3) K.Tirupati Reddy Vs. The Managing Director, Karnataka Niravari Nigama Limited, Bangalore and Another, (2008) 6 Kant LJ 677.
(4) Tafcon Projects (I) (P) Ltd., Vs. Union of India and Others, (2004) 13 SCC 788.
I. REG. LOCUS STANDI OF THE 2 N D PETITIONER.
9. The 2 n d petitioner is not a party to the tender process. It is not his contention that he was excluded from participating in the tender process. Therefore none of his right is infringed by the impugned notification Annexure-A. If he contends that, he is challenging it in the larger public interest, then he has to maintain public interest litigation and 9 WP.Nos.110150-151/17 not by way of the individual interest. In this case, he has no locus-standi to maintain this petition. II REG. MAINTAINABILITY OF THE PETITIONS.
10. Sri.F.V.Patil, the learned counsel for the petitioners contends that though the appeal is provided under Section 16 read with Section 29(A) of the of the Karnataka Transparency in Public Procurements Rules, 2000, since the larger interest of the public revenue is involved, the petitioners can maintain these petitions. He further contends that since the government action itself is challenged, the appeal before the government itself is not an equally efficacious alternate remedy.
11. In support of his contentions, he relies upon the judgment of the Hon'ble Supreme Court in B.S.N.Joshi and Sons Ltd., Vs.Nair Coal Services 10 WP.Nos.110150-151/17 Ltd., and Others (2006) 11 SCC 548. He relies upon the said judgment to contend that the writ petitions can be maintained to challenge the tender notification and the case cited involved the same issue and was entertained by the Hon'ble Supreme Court.
12. Whether the 1 s t petitioner can question the tender notification under writ petition is one thing and whether after participating in the tender process, on being unsuccessful, he can maintain the writ petition is the second question. Admittedly, the petitioner submitted his bid in response to the same tender notification Annexure-A. Till the bid was processed and bid of the 3 r d respondent is accepted on 03.10.2017, the 1 s t petitioner did not raise his little finger contending that the fixation of the annual potential collection rate is prejudicial to the interest of the revenue of the State.
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WP.Nos.110150-151/17
13. He could have done that all along from 23.06.2017 till 03.10.2017. After the acceptance of the bid on 03.10.2017, the writ petitions are filed on 13.10.2017. That goes to show that, the 1st petitioner had no grievance about the rates fixed till he became unsuccessful in the tender process. Having participated in tender process accepting the same rules, it is not open to him to question subsequently the wisdom of the notification Annexure-A.
14. The Hon'ble Supreme Court in Tafcon Projects (I) (P) Ltd. Vs. Union of India and others, (2004) 13 SCC 788 in the similar circumstances held as follows :
"16. We need express no view on this matter because in any event Respondent 3's offer of an upfront payment of Rs 2.50 lakhs per year, which was much lower than that offered by the appellant M/s Tafcon. Therefore, whichever meaning is accepted, 12 WP.Nos.110150-151/17 ultimately M/s Tafcon's offer was much better than that of Respondent 3 and its selection cannot be faulted. Besides Respondent 3 had bid pursuant to the tender notice and participated in the proceedings before the Selection Committee. It cannot now take advantage of any alleged vagueness in the tender notice."
(Emphasis supplied)
15. Having regard to facts and circumstances of the case and the above judgment, the petitions of the petitioners are not maintainable. No bonafide found in the same.
16. Further the petitioners' relying on Annexure- D, E and F contend that, in the similar projects for a shorter distance than the project on hand, the 1 s t respondent has fixed the higher rate of annual potential collection. They contend that, the vehicles movement on the road in question is comparatively 13 WP.Nos.110150-151/17 high and therefore the fixation of the annual potential collection is unscientific and unconscionable.
17. Firstly, as already stated, accepting the said rate of annual potential collection under Annexure-A, the petitioner participated in the tender process. Secondly, analysis of all the material relied upon by the 1 s t petitioner amounts to investigation into the factual aspects of the matter which cannot be done in the writ jurisdiction. This Court in Kirloskar Brothers' case referred supra held that question of fact cannot be investigated invoking the writ jurisdiction. Therefore that contention of the petitioner also does not deserve any consideration in these petitions.
18. Regarding malafides, the records produced by the respondents show that the 3 r d respondent was the highest bidder. Except the bald statement of malafides to favour of respondent No.3, no material is 14 WP.Nos.110150-151/17 placed to show that anybody else had quoted the higher bid and that was not accepted or anything was done to facilitate respondent No.3 to quote the highest bid. There is no merit in the writ petitions, therefore, dismissed accordingly with costs.
19. In view of dismissal of the writ petitions, IA Nos.2/2017 and 1 and 3 of 2018 do not survive for consideration and disposed of accordingly.
Sd/-
JUDGE ckk/-