P R Ramesh vs The State Of Karnataka on 11 March, 2011

[Cites 32, Cited by 2]

Karnataka High Court

P R Ramesh vs The State Of Karnataka on 11 March, 2011

Bench: Manjula Chellur

r"J:',J\\A/vVVVVVVV|».(H_%.\1(w

IN THE HEGH COURT OF EQTKRNATAKA AT BANGALQRE
DATED THIS THE 11*' DAY OF MARCH 2011"

PRESENT

THE E~ION'BLE MR. J.S. KHEHAR, CHIEF ,ﬁ}s'15&'1T'L':§3L.T'  _

AND

',,_<«»-MW



Between:

1.P.R.Rarr1esh,

Aged about 49 years, V
S/0 late P.Rudramurth~y;v» . f V
Former Mayo1f~,'I:"3MP,  _ 
No.144, 1:'afE'?ithiiiQ 1_1fa;"r§',_ 2  
Lalbagh Fort Ej<bac'1,'Lv--- J    4--
Baﬂg9~3i0ree5V5~Q"'3'3f'i'r-.. -»  "

2. M.R;:1maC11.andi"app»a';,_'""---- '
Aged ab011t'S9'ycé1{s~,  
S / 0 late Ma1.1Mia.,h,' .  " 
No.2,, '-13' Main, 4th7'Cross',
 V. «_ 1\/I1.j.»:'1E;:sh*<Nara B"i'oc}s_;__,___A ,
 V"Pai.ébr:e :'Gu.t"taha11i,
 'Ba11.ga§Qfe~{5,6'O._O03.

3 .. T";Prabiiaj}<é::r,
_ Aged ai;'0ut763 years,
V S / o latefhimmarayappa,
 =  11,, Thirumala Rae Garden,
 1'\;Fari'didurga Road, Jayamahal,

MM  'Bé;n'galore~560 O46. PETITIONERS

  Sri Madhusudhan R.Naik, Sr. counsei for Sri L.Vijay
Ksumar, Advocate for petitioners 1 and 2 and Sri
\I.L:3.k$hmEnarayana, Advocate for patitioner no.3}

 THE HONBLE MRS. JUSTICE §;£A:\% gmLAj~CH£'gVL:;ﬁR.:A%*{A

WRIT PETITION No.35639 tb'$5641/.2OO9--{ALi3-'§§§1V1'P1:'i3IL) " L'



 

I'-J

.f}x_;I'1_§.l;.

l.The State of Karnataka,
Rep. by its Secretary,

Dept. of Urban Development.
Vikasa Seuciha,
Dr.B.R.Ambedkar Read,
Bangaiore--560 001.

2. Brtihath Bangalore Mahanaga7L'aiPa1il;e-..,   '.
R613. by its Commissioner,   . 3  0 V
N.R.Square,

Bar1gal«:::re~5t30 002

3. Speeia1Cornmissio:_1e (lE'roj_ee"ts),*

B.B.M.P. M 

N.R.Square,  '

Banga1o:re--560 002 

4. EI1giI1€€f~i3I"1--Ci2£*;i't3f,      

BBMP,   ..   " ' V  *

N.R.Square._,.  '   ._   '

Ba1igalor'e.--.560      RESPONDENTS

(By Sri_gA's:ho1:: Advocate General along with Sri B.Veerappa;.AG.A_io.r"R--1, Sri D.N.Nanjunda Reddy, Sr. counsel. a'.'to1ig_w~i,_tha..Sri R.Sul:)raI.rianya, Advocate for R--2_;to R4). "

Petitions are filed under Articles 226 of Cioiietitjution of India praying to quash the ~neti§icatieri'~,dated 23.09.2009 issued by R-2 as at Aiiriexttreéifligi quash the notification dated 01.10.2009 isstieciyby' 'R~»2 as at AI11'1€XL1I'€~B, quash the notiﬁcation ggdatedi.Qt1.20.2009 issued by R-2 as at ArmeXure~C, etc. In these Writ Petitions arguments having been reserved for judgment and coming for " V. ._..proriounce:ner1t today, the Court passed the following order:

3

.3 C) R D E R J.S. KI-IEHAR, CJ.

The instant writ petition has been preferred by three Pvt . Paarnaehanétagifpa ' _ arid:

petitioners, PR. Ratnesh, 'I'.PrabhaI<ar. It is a petition filed in Petitioner nos. 1 and 2 are former ».MAayorsvV'oi'--iI,thé .]3arigaiore' Mahanagara Palike (hereinafter it BM? has now been renanfiiedp as" Bangaiiore Mahanagara Palike v(he.reina'fterve_:'ireferretiiAto the BBMP).

The erstwhile BM? an area of 227 sq.1~:ms., area of about 800 sqmns. additionat city Municipal Couneilsiiv and 111 viiiages which were not included in the EMF.' " Theii thircit petitioner is a former Chairman of the State Road Transport Corporation. All the three p_e'titioneifsi___are'"fiermanent residents of the city of Bangaiore. Ailiuiof t'neriL"own immovable properties in the city, and are tax it C' ' - paizersf "Through the instant Writ petition, the petitioners seek to "highlight, that the BBMP is not carrying out its statutory obiigations, as are ordained under the provisions of the Karnataka Municipal Corporations Act, 1976: (hereinafter referred to as the Municipal Corporation Act). It is also the case of the petitioners that the contractual obiigations of the BBMP are being executed in utter defiance anei'tii.rii't.fiagrant violation of the provisions of the Karnataks__Trartsp:srevncy in Public Procurements Act, 1999 (h§§t'€iI1aft€£"vI*:€f:ff3t'f'tSC1- to es Transparency Act) as also the ruies fgfazneti.theretindergti

3. The express case bfif is,iithat vested interests oft" the BBMP are achieving process of hoiding elections to pointed out, that on the expiryiigf theitifvonncillors of the BBMP, the State einiiedministrator to carry on the functiorisend the BBMP. The position projected is, ».tlti£:tt..veste'd..Viriterests controiling the affairs of the BBMP, iihaxtje bveen.4e>;p1oiting the situation through the Administrator, 1" 'the State government.

4. the issue of holding elections, it is submitted, that iii'?-hpetijttioner No.1 herein (P.R.Ramesh) under the apprehension, ..._that the State government may not hoid elections to the BBMP, approached this Court by fiiing W.P.No.15482/2006, requiring this Court to direct the State government to hold 5 elections, for the BBMP in terms of the mandate centained in the Constitution of India. In this behalf, it is pointed out, that under Articie 2432A of the Constitution vofﬂinltiia, the superintendence, direction, control and con_cj'x"1:1;ct.',,'of eieotions to, Municipalities, including the preparation electoral' rolls, is vested in the State Election 'itiiis':si;h:V1'iitted,A if that for holding elections, 1'1a'v.ei the State government, has also to determine, the numherziiof. sea:,s;Htio"«'ﬁ:fei:al,located to each Ward.

The State Elee'ti.on vested with the responsibilitiy holding elections.

under Article 2431} of the Consti-tutionVofii-»ndia',t'the'term of a Municipality has been fixed as five y"ea:,si(fi;o'ni the date of its first meeting), which extendedbeyond the said period of five years. The 41"lo:lt_§ing fresh elections to constitute a Municipality, t}i.erefore,i'jinecessarily has to be initiated, so as to be xcomioieted, before the expiry of the term of existing ii --..iV£.u_nicipality. in this behalf, our attention was invited to i = - .i'~\rtiCle 243U of the Constitution of India.

5. it is pointed out, that even under Seetien 8 of the Municipal Corporations Act, it is provided, that the term of 6 efiice of Councillors of iVIunicipaIi.ties in the State of Karnataka, has been laid down as five years. it is submitted, that holding of timely elections to Municipalities is imperative for their efficient and smooth functioning, in as"-much as, even Standing Comrmttees to be constituted out different activities of Municipalities eai1no_t""b_e cj_oinstit"ti.teel...in their absence. In so far as tiiiéiiiieeiméejis -coi1i.cer1idied','« it submitted, that there are: to be~_eight ,E§}§ieieiﬁ:ed"'.iStertding Committees. Section 1l(1--A}"ei_°'ithe Act, which provides for S_t'a:_1ding"'Coii:1iI1ittees7_ BBMP, i.s being extracted __ "_(a}..thie.,Sta;iiding_'Coiriinittee for taxation and finance; ;(b) the?;S,tan1din.g'Comrriittee for public heaith;

(d) Vthei Standing Qemmittee for public works; »(e) the Staricling Committee for accounts; the Stan.d_i_ng Committee for education and social _ j'ttstlc~e._;

C' _ (g)"tii'e,VSt._anding committee for appeals; . (tt}'~«.,,,the'-~"Ste:nding Committee for horticulture and marketing."

Appointment of Commissioners in Municipalities, C 'according to learned counsel, is regulated by Section 14 of the "Municipal Corporation Act. A Commissioner is to be appointed by the Government, in consultation with the Mayor of the concerned Municipaiity. A Commissioner is to 7 ordinarily hold office for tenure of two years. in the absence of the Commissioner, it is open to the Government to appoint an acting Commissioner under Section of the Municipalities Act. T he constitution (including the BBMP) has been laid down'_uridVerA_SVe_cti'oi§ the Municipal Corporation Act. Asya:,rriat'ter._':of.V pointed out, that the RM?' 10th)" Councilio! of the existing members I and 2) expired on onli constitution comprises of 198vCouncil.lors'.C._ﬂ' C C

7. 11:? 15482 /2006 ﬂied by he had placed reiiance on the»cle.ciareid'jlegai._::p.o's:ition enunciated by the Supreme Cotgrt in Tornar vs. Municipal Corporation of the dolor Ahrriedabad 81. others, AIR 2005 scw 5044, held, that it was incumbent upon the State Ele--ctio'n' -Commission, to carry out the mandate of the nCo.nstitution of India, so as to ensure that a new Municipality 'constituted within the time frame speciﬁed in Article 2431i it "of the Constitution of India. It was sought to be emphasized, that the electoral process resulting in the constitution of a new Municipality, shouid be completed before the expiry of the tenure of five years, of the preceeding Municipality. While disposing of the W.P.No.15482/2006 (filed by petitioner no.1 herein), this Court intereiia directed as undet:iﬂ"»..

" . . . . .. The State government ought t<;>;"'1'1aVe.i__:'i%ii_t1sted steps to conduct the elections H the. in Bangalore Mahanagara ¥'a.ii'14ie'*ir:. Aa*.:co.rid2i1'1ce Without there being any j't;st:ification,_"' oi' "

elections is deferre-'cii'«--.._Vand"~.. the continued. Such a sittiation_ caririot'bve giermitted as it violate the pro'iz'is_ion_."i'ico'ntaine.d und§1...~* fart. 243~U. Therefore, in ouri'vii.ew,i' airiicionecessary to direct the State" governinenti elections to the Bruhath Paiike initiating steps in this r-e_igz3Id"'et Ae'ar1ies*;;"§"

Having made ""i1he4i"afo'resa_id observations, this Court in its order A d_attevdi"' H Whiie disposing of w.r>;i%;'i54s: /{.?i006la1so directed, that elections to the BBMP ' sVho_uEd:_v't:econducted within three months (from 20.07.2008). Despite' '~€i"}€VA.,1' aforesaid direction issued by this Court in W.I5.?5io.--..1E.3?i82/2006, it is sought to be pointed out, at the A Ioehest of the petitioners that the State government faiied to eonduct the eiections within the time frame expressed by this Court. Accerding to the petitioners, on one pretext or another, on a number of occasions, extension of time was sought by the State government for conducting eiections to 1%, * if} ﬁw '0 gm, the BBM13'. According to the petitioners, having seen the delaying tactics adopted by the respondents, this Court passed another order dated 17.09 . 2009 (in W.P.l\?o.l5-482/2006) giving time bound directions to the State government, to hold elections to 3 The operative part of the order dated attention was drawn by the learned for petitioners, is being extracted hereunder: " 0' "2. ﬂaking note of the pende~nciy* -in conducting the election to Bangalore lVl'aii*a:tiaﬁ§ara Palike, wife are of the Considered opinion 'direct that:

(i) the State 'issue corrigendurn notiiicatioirijes in the affidavit dated 17.09;'2'0_£)§:i-filled 'ij}?__:.t'h¢'CrCiY€If1'ZInEfnt, within seven days, ie__.,__V 1i;;;_£g;s§_,_'2§§r'éi 'Seioteriiber 2009 and thereafter, to zpublishiithe i9eser$}'ation_ notification within two weeks, ie., on or hefore' 031 Clctober, 2009.

{ii}. tlie State Government shall release entire balance funds 0' " 1 ii{)4Vi'l'i"1:vC"'~.S:al'§&3lZ€ Election Commission in two equal installments ie.:,ii"_'ithe~i.,,"iirst installment shall be made on or before 731 2009 and the second shall be made by the 1531 'Qcitober, 2009 for the conduct of BM? election; A0 (iii) the Election Commissioner is directed to announce the it events of the election on or before 23"' October, 2009; and

(iv) the above directions shall be strictly adhered to by all the respondents and no further extension of time shall be granted on any count", ' ~§:~«'tx'i«"e@5;:m 10

8. At the point of time when the aforesaid order came. to be passed by this Court, one F'.Rainakrishna Pai approached this Court, by filing Writ petition No.287'19/20,09. in the aforesaid writ petition, he assailed a dated 21.07.2009, whereupon, this Court videliritsiteiorderﬂtdiated 01.10.2009 stayed the operaticiriiiiof'«s_aid .;nofc'iﬁ¢atiioni'mated'-. 21.07.2009). Consequent bit this Court, the electoral for the BBMP could not iinuch as, the authorities were 'ii'i~:i1§:il.e--ntifying Wards for reservation, made in the instant writ eieotions to the BBMP cameito be iistall.,e'd.%as.,_a.consequence to the aforesaid interim order (dated Accordingly, it is asserted, that P,.1§§'Riaiiiesh,.i(Aii'e'titioner no.1 herein), moved an application to a party respondent in W'.P.No.28719/2009 aforestated P.Ramakrishna Pai). When the Aafore's,a§'d application came to be allowed, he sought vacation interim order dated 01.10.2009 (referred to above). It ., pointed. out, that on account of the efforts of petitioner no.1 herein, Writ petition No.15482/2006 came to be dismissed on 28.10.2009. It is submitted, that this Court having 11 realized, that the process of holding elections to the BBMP was being delayed, pointedly directed the authorities to comply with the order dated 17.09.2009 (passed Court in W.P.No.15482/2006), wherein this Court bound direction for holding Municipal It iis"noiE".5ct matter of dispute, that electionsgto the 'w4e'ree.rte{re:ntuai1y held on 28.03.2010. It eit._tteeeieee:e'1y titetjthe Administrator nominated goiéternrnent has continued to function';--ttfteii the previous tenure of the eivic on_:?.2.11i;2'0'{.)5t,: elected Counciilors of the BBZ§'Ii="'i; theficfirst-._riteeitin§hon 28.03.2010.

9. tioupiedviwitlrgtw.t1:tede1ay in the electoral process, reference (whereofjiaes been--fm. adeiherein above), it is the contention of theiiearneid'-» acotinsyel for the petitioners, that the very of an Administrator was statutoriiy .titiaccef§'tahiev.e"" in this behalf, it is pointed out, that the a]o"poiivitir1e'nt of the Administrator, to look after the affairs of "the_BiVB"'1\/ii', after the expiry of the term of the Municipality on i"'2i2.h1it.2006, was in clear violation of Section 100 of the it ""I\/itinicipai Corporation Act. Section 100 of the Municipal Corporation Act is; being extracted hereunder:

.a....m-..,_»...u 'hi n\veI>r¢/'Wvmwv 1'?

"IOO. Power to appoint Administrator in certain cases: {3} Whenever ---~

(a) the ordinary elections to the Corporation under this Act or any proceeding consequent thereon have beerllsltayed by an order of a competent Court or authorit_y;_...._ll"

(b) the election of all the Councillors third of the Councillors has been declarediby la=:cornp,eteintW. Court or authority to be voidj, (cl) all the Councillors ._or.,,mor'e of the Councillors have resignedv,fi*.,i C Government shall, t':lj,n:oti.f1cationl,A appoint an Administrator, forllsuch'peried_:as"rna3r be speciﬁed in the notiﬁcation" V_ar1d,A"may,'p b'y_f,l_il<:e'_ notification, curtail (or extend, .or"lre'trospectively) the period of suchiappoiiitrizentsfj-{.,slo Vhoviieyeri, the total period of such appointments shall not exceed six months). (:2) "anything contained in this Act, on the apppoinptmcnt -ifof "a.n""'A"dministrator under this Section, during thep.erio_d"o'f such appointment, the Corporation, Standing_____C,ommittees of the Corporation and the __the Deputy Mayor and other authorities other than "Co_m_'_rnissioner, charged with carrying out the provisioeris of this Act or any other law, shall cease to ' exercise any powers and perform and discharge any duties or-"functions conferred or imposed on them by or under this Act or any other law, and all such powers shall be exercised and all such duties and functions shall be performed and discharged by the Administrator. (3) The provisions sf subsections (3), (4) and (S) of Section 99 shall mutatis mutcmdis be applicable in respect of the 2'} Administrator appointed under subsection (2) 133

10. it is submitted, that none of the eventuaiities referred to in Section 100, were availabie (in _ the facts and circumstances of this ease} to the State government to exercise the power vested in it under Section of the Municipai Corporation Act (to appoint an In this behalf, it is aiso the contention of the petitioners, that in Writ Petit;ion::l$lo;. '$5-'~l the petitioner no.1), the opet.itiori'e_rr"}'1ad ,the appointment of the Administrator. rnade to the order dated o2.o7.2eeie'jieefe /2006 was disposed of. Our pointevd::atteritioln' to paragraph is of the reproduced herein.

V ____ declared by the Apex Court in the ..aforenien~t_iloneld judgment, the contentions urged by respondentse____i___.and 2 stating that due to merger or araalgamation of different urban local bodies and into the Mahanagara Palike to establish what is kno'\e%c';_ Bruhat Bangalore Mahanagara Palike, it had pbeciornle necessary to appoint an Administrator and defer 'the. elections, cannot be accepted as a legal and justifiable H ground to postpone the elections and continue the affairs of the local body by appointing an Administrator". Having invited the Court's attention to the observations reproduced above, it is submitted, that the Administrator §'i;%;"a%,aMZri ..mu=m.,.« 14 came to be appointed on 123.1 1.2006, to run the affairs of the BBMP, merely on account of the fact, that there was a merger/amalgamation of the erstwhile BMI" and Urban Local Bodies and Panchayats, to form The explanation to the aforestated factual po.s_i§t_i_on,' "on behalf of the respondents, how:ever..irv;as.,,p merger had made it imperative for 'r*.i:nr,the affairs of the BBMP According to the petitioners, the :'exipi'anation Hiwas obviotisiy tendered by the the delay in the electoral of the Administrator beyond. of six months. The Court emerging from paragraph 15 (extracted-..herein._a'bo'V*e_i.'i'revea1, that the explanation tendered V. _ b3f:,_:1i?he' State .igt5V€1TIl_1'1'1€I'1t was found to be Iegaliy unreasonable " both for the purpose of postponement of for the continuation of the Administrator. It iessential to extract herein, the ultimate conciusions A by this Court while disposing of W.F'.No.15482/2006, it fevhich were brought to our notice by the Eearned counsel for the petitioners, the same are accordingly being reproduced herein:

i% 13 "E7. Having said so, the present reaiities and the developments that have taken piace are also required to be looked into. Revision of electoral rolls has taken place as elections to the Legislative Assembly were in the State during the month of "May 20{}$..*..,_"' government ought to have initiated stepsitoithe elections to the Bruhat Bangaiore l\/1aha:if¢':gali*a ??a1il{e"

accordance with law. l;WithAo'u;tthe1~e: liian-32___ justification, the process of elections _deferred,:l'andi.the Administrator is COI1lZl1l'il1_t§'d..,V Siich a _sittiat_ion.,,cannot.i)e permitted as it violatesliiiitne i9rovisioii"'contained under Article 243--U. .'::'}?~h_ereforeli vieirlgii is just and necessary to direct'the.i1"S,i'tatetcvl:i_goifernment to conduct elections theg"Brtih.at" l.Maha.nagara Palike initiating earliest.

18. ljaetitions are partly allowed.

3_ are-v.(ii:'iecte<:l to conduct elections to tile Mahanagara Palike within a period of' three' today. The writ petitions are _ accoirdingly of".

l ll." souiglhtito be suggested, that what ought to have I to the authorities, when petitioner no.1 aioproacliedlthis court by filing W.P.i\io.l5482/2006, was .so1:2gh'I;~ to be ignored only for the pointed purpose of violating l ._th'enorins laid down for execution of contracts, as according l V' "to the petitioners, this could have been the only way for vested interests controlling the affairs of the BBMP, to exploit the situation. it is subrnittecl, that prior to the promulgation 3.6:

of the Transparency Act, the procedure for execution of contracts was contained in various provisions of the Municipalities Act. However, after the Transparencyﬂact came into force with effect from 04.10.2000, the mandate contained in Section 22 of the the provisions of the Tran.spareney ,!-'act; 4] execution of contracts, hachan io_vier-Vriding:effect ion' the provisions of the Karnatai<_:a"-.,:Mirnicipa1i_1'Corporation Act. Section 22 of the ._is being reproduced herein:

"22. otbeziifiarvsiiiiiihe provisions of this Act shaﬂi ._}]13;:s;¢i:;f_Vefiectinotiiiithstantiing anything inconsistent ariyiiother law for the time being in i'orce:oi~' :o'r__iusage agreement, decree or order of a court or 'a Trihunai or other authority".

it si_iibrnitteid,«vtha't on account of the inipropreity of the

---in performing the functions of the BBMP from jito 27.03.2010 (in the absence of elected Couneiiiors), aii acts performed by the Administrator must be treated as void. According to the petitioners, the _LiiI1éEt11thOriS€d appointment of the Administrator should be viewed as a covert process adopted by vested interest, expressly aimed at executing contractual obligations with an 17 ulterior motive. This submission advanced on behalf of the petitioners has been examined at a later state in this order, as the first contention advanced on behalf of the petitreiiaoers.

12. it is submitted by learned counsel that the controversy, in respect oi"*irmgu-laritiiesjcorrirnitted' the BBMP, while inviting teridersiigiiwiasiir3oiri't_e.diy foLi'1seid._everi during the Course of 3 or *3Nj;vP.i\3oI3O"417/2009 (connected with .i_/2009), wherein the foilowing order came to viiQi.i_Q.2.2010:

"Srii'}Q;i's§.NacnjL11tda'Redd3I,_.___l:eariied Sr.Counsel for R2 to"4'm 'ae{it"i>¢tt:ian No's,'35639--35641/2009 submits that is not available to give gliurthielri theirhiatter till 23.2.2010. Further, rirayer, he submits that he has got insti'1ic'tioiis_to:sI;tI:iriiit that till the interim prayer in these ' ' gretitions Aiscorisideired and an appropriate order is passed V on the ne>§:t""'date of hearing, the matter will not be 1 precipitated. His submission is placed on record. §I_e_mlW;wa_s . the resolution com/' of the erstwhile Ciorooration authorizing its Commissioner to appoint 'tender inviting Authority and accepting authoritv under a the Drovisiori of Section 9 of KTTP Act of 1999 as directed by this Court: on 39.1.2010 in Writ Petition 30417/o9.

2. Sri P.R.Ramesh, learned Counsel for the petitioners in Writ Petition 1\¥os.35639--3564»1 /O9 submits that matter is before the State goverrirnent, his submission is disputed by the iearned Advocate General Mrﬁshok 1.8 Haranahaiii stating that no matter pertaining to the tenders in question in these cases is pending before the Government, his submission is placed on record_._'f {emphasiVsiisi'ours) Learned counsel for the petitioners, then drew.'_ou'i*'attention to the next motion bench order passed same Writ petitions), wherein this Court cbser*Ve<'i1.. a.siu_ridter:'~.._. 4_j "Sri }i).N.Nanjunda Reddy, ieameei ceueeel appearing for respondef'1t'$~./.i,3 that ion instructions given i'i-nnstruciting ﬂilotinsel Mr. Subrarnanya, tI'i6'-_zi:i1if€'C€i(?§I1»s by this Court on 22.1.2010 in w.P.1s;ee.3se's'9fg4 respondent Nos.3 and 4 the IBBMP to produce the g resoiut*io'n__ __'_th.e' erstvwhileuiiBangalore Mahanagara Q: g .. i:C'ii:ornrniissioner to appoint tender inviting» _accepting authority under the "§ provisions of KTTP Act of 1999 the said E direction iii'ss.ued.-- not be applicable in the 3 fr' .

5'W.P.Nois.i$5639--€i4/i009 though directions was issued in A A. petitions' and it is in connection with '\l...f_.vP;N4...3'04_17/2009' He submits that the document of to have passed by erstwhiie BMP A procurement of entity is at present not avaiiable, when it is traced, the same will be produced as A' directed by this Court in these writ petitions for perusai of this Court.

His submissions are piaced on record.

Learned Senior counsel and learned Government Advocate i'vir.Basavaraj Ka1'ed.d}»' on behalf of teamed Advocate General supmits that the undertaking given by 19 both of them on the previous date of hearing not to precipitate the matter in so far as awarding the contract in respect of the works challenged in these writ petitions may be continued till the next date of hearing and matter may he heard on merits and disposed of on the stage of hearing of Interlocutory applications.ii 4' "= V' ' 0' Their submissions are placed o.n----»re:cord.:and itli€irV.__ undertaking that the rnatteri will not be --;r:)_'r<3ci.}_;3itateti them is accepted and recorded, List these matters if-=,§.20l;0';. V The last motion lsench _."ordeif, Viiwhich 'deserves gointed attention, was the same is also E g relevant to" e..c_l_eli'oerations which were g 5 l subject ind W.P,No.30417/2009, (as "ta also, Though extensive, the said 3"? order being extracteduhereunder in its er1ti;r'e'ty:

"The learned Advocate General Mr. Ashok Haranahalli, and "learned senior counsel appearing on behalf of resnondeents 3 and 4 Sri D.N.Nanjunda Reddy, both of thernvxfould submit that the Contract awarded in favour of the present contractors for clearing the Solid Material "Waste come to an end on 31.3.2010. But, according to the learned Senior Counsel for the BBMP it has already expired on 15.03.2010. According to the learned counsel ' Mri Vlakshrninarayan for the respondents 6 to 31, submits that contract awarded in favour of contractors would be expiring on 31.03.2010. Their submission is placed on record.

2. For the reasons stated supra they have requested this Court to permit the BBM? for removal of Solid Material Waste. in View of expiry of the term contract awarded as an alternative arrangements till the contract is awarded 2} Unless the same is answered, no steps can be taken by the State Government for processing the papers and placing the same before the elected body of the BBIVEP as requested by the learned Advocate General for the State Government that would be a futile exercise. Therefore, they submit that further process can not be made in respect of the fiies which are already submitte'd._ by the Commissioner of BBMP to the State government-.'and this court such relief in favour of the State goverrimer:t,at.. this stage. ' " ' *

5. With reference to the aboveﬂthe'=.ri\ra1-- contentions We have carefully exami--ncd._:fLhe"~.sa«mewith regard to the two aspects of 'the-matter. alt-vthisstage in this Writ petition, ie., ---- V

(i) The period of contract "awarded in favou;"~.gf"vthe respondents 6 to 31 ,in,_ the Writ PetitionVV3O-417/A2009 must have expired on l«Si3,V20lO accoVrding~,to"the BBMP Counsel. In this regard, iwe lea'-Jeiiit tot the BBIVEP Commissioner to exercise' his power keeping in view the Public Interest'to"=.eXt.end.Vthegperiod in favour of the existing contractors'-till new 'tenders are invited and contracts are awarderi for --'c-lrearance of solid waste managenteilt in the 'E?e§3MP...'areai; Having regard to the legal content-ions:-.raised in' thesevwrit petitions with regard to the' avp_poin;tmentg_ or the Aodmi.nistrator his continuance in this ofﬁce 'beyond 6~--.mon;th's. Prima--facie in View of S.ec,10l of the l{MC__Ac"t«i.sVbad in law. It is an undisputed that ielejctioniﬁto th'ep'BBIvlP"is not conducted and its term has come'.:/Lo.» .g1'11,_€l'}.gi"fOUr' years back. It is an undisputed fact thatprese.nt'--I?ldministrator is appointed in the place of elected "body =fo"r-. the purpose of administration and V. _manage_ment- oi'v_BBMP. He is in the office beyond six months 'is_an undisputed fact. In View of the deletion of Section lOl'"'a'nd keeping in view of the Section 100 of _VKM.C4'Act, the term of the office of administration shall not exceedrinore than 6 months. Prima facie, the contentions raised by the learned counsel for the petitioners and the ~ above respondents No.6 to 31 are tenable in law. The said legal contentions are required to be examined and V considered by this Court and answer the same such being the position further allowing the State Government to the tender process, during the pendency of this writ petition legal contentions raised in the public interest litigation may not be correct particularly having regard to the allegation that volume of Work, which is proposed to be entrusted to the contractors of various works for a period of 30 years and according to BBMP 5+2 years. The submission is placed on record.

2.3 thereunder}. For estabiishing the aforesaid procedural irregularities, according to the petitioners, it is necessary to refer to the admitted transactions (extracted from the statement of objections, jointly filed on of respondent nos. 2 to 4). The same reproduced hereunder:

S1.No. Date

1. 23.09.2009 The BBMP "~issueci_ {_1'11»vitation -ffor prequaiifieation in"res'pe'ct Sec} 81. 2 ie., pertaining. constr.ucti,0n of road, wi__d"e.nin_ig a_sph--alting and signal free corridors. 9 _

2. 01.10.2009 Addpenolurri ; --n~otifi_'ca.tion was issued irLc1uding_'S.ecV_.3 -in addition to the works sp-ecifi'ed ' .in*"-the notification dated ,ie._,_ in respect of construction of "~d_'cdicate'o1 transportation corridor, «vvi-dening;'strengthening of arterial roads "old. BM? area, improvements to ju.riC-tiébpns, construction of ﬂyover and frern-odeiing of vaiieys (Storm Water ._ ._ . ..... .1?>raiI1S) .3. '~0'1.'i0_.2009 Invitation for prequalification was issued ' ~ for 12 packages in respect of InuIti--Ieve1 car parking and markets. The prequaiification notification has been published in leading papers ie., Prajavani, Times of India, The Hindu, and also the 2 * A. State Tender Bulletin on 20.10.2009.

4%. 21.10.2009 The State Government approved the various projects regarding infrastructural facilities submitted by the BBMP to the tune of Rs.22,000 crores.

5. 07.12.2009 The State Government issued Government Order approving 12 road infrastructural work notiﬁed under the prequaiifioation under Section 1 and 2.

6. 07.12.2009 Prequalification has been finalized and the list of qualified persons/ agencies was published.

The tender was floated in respect of section 1 and 2 (19 packages) through e~ procurement.

The tender notiﬁcation was published in Tender Bulletin.

Last date for receipt of _3:1i_fs.."tli_rot1,gh em

7. 07.12.2009

8. 15.12.2009

9. 08.01.2010 procurement by the 'pife.+c§'u.ali.fied tenderers. é

10. 12.01.2010 Opening of tenders of te"*li;iaical_'_Abic{at .1l_v

11. 12.01.2010 The financiaI1«.biid_ of the_vpersons/agencies qualified nnder .technical3 bid 'we:-re 'opened. The co--rn'parative_p 'stateitnieiitsi of the ﬁnancial 'c=v..pb§d snbniitted by the personsji'-again-ciies are"-..being prepared. \)\«'--Q_r}: order ,n'o.t'»issued in View of Code of Cond_t.ict;~--.7' " " --

The case set_..up_ the _pe'tition~e'_rsx i's,7"tl'1at all the aforestated transactions %.iVeVre'3ainie(:l- contractors for executing to l3iBlMP approximately Rs.22,000 crorgeso narrated the factual background of the deliberati.o11s transacted by the Administrator of the BBMP, after dwell on the pointed factual position briougltgti our notice on behalf of the petitioners for 3 projeciting the various legal submissions advanced by them. In the instant writ petition, the petitioners have "irnpugneci the action of the BBMP in having 'issued an advertisement dated 23.09.2009 ("AnneXure«wA") inviting I $ 25 appiications for pre-qttaiification of contractors, through e- procurerrient. The aforesaid advertisement limited the invitation to contracting firms in India. It was in the advertisement, that only such of the ﬁrmsprec qualiﬁed (under the procedure ir1i_tia..ed,"t.hrough~..t1<ie advertisement dated 23.09.2009) for':

contracts for the eXecutio1';7o'f._ jvorikc.-hand of goods, for the BBMP. Those interestie'd:vv*e_re submit their appiications enciosigtgj. on or before 22.10.2009. 14'gi'perusai"of::thVe iafoi:esaizd'»"advertisement reveais that the being "undertaken in respectof 'as:7'VSeiction i and 2". As a matter of comprised in "Section 1" included Widening;>.st1cenghen'irié'; asphaiting of selected arterial/subm ar,te*r.ia1_ii' roads,""~a_n_d' providing electrification utility lines, ' inc13.iAding:V':niaintenance of roads for a period of 10 years (corapripsiiig 12 packages) involving an estimated vaiue of between. Rs.152 crores to RS230 crores. "Section 2"

cobrtiprised of converting 9 high density corridors into signal free corridors for unmintermpted ﬂow of traffic. "Section 2"

comprised of 9 packages invoiving an expenditure ranging between Rs.32 crores to RS800 crores. A copy of the a% _..mmma.

W #9 26 advertisement dated 23.09.2009 was annexed to the writ petition as "Anriexure-A".

15. Another adeertiserrierit dated 01.10.2009 2-ff'L»%.;ri:-ie':;t1re-B") was issued by the BBMP, the instant adve:r'tiseii§.ent:."_Was_ in the nature of an addendum, toﬁthepreceding'40.dvei7tis--ernente~..' dated 23.09.2009. Through 'C1'1i0gi_'1'1iLA"a'A_'tv¢'i§"{i.;{'1iZieiL":ii€'17iiSéiiti€tit:(;iat€tiJ 01.10.2009, the BBMP spe:ciﬁed,i.i.that'V..i?§2or1%ts"'inr'hichiivirere specified in "Section '€.'~'..'V_," wotildi coinisideied aiong with the works advertised works incorporated by the addﬁiitfiiilfkl, nature as the works specified hotification dated 23.09.2009. Throttgghiiiv (as in the earlier advertiiseiment} sought to be achieved was to shortlist coint,rac't'orsi-b3} way of pre-qualification. "Section 3"

was 5 parts ie., (a) to (e). Part (a) of "Section construction of a dedicated transportation corrido_r' -for Vehicular and non--motorised transportation 3 includiiniig the provision for design, built, maintain and transfer arrangement. Part (a) was comprised of two "'"eaci<ageS, the expected expenditure whereof was in the range of R3300 crores to RS600 crores. Part (13) of Section 3 related to widening and strengthening of arteriai roads in the 27 old EMF' area. The instant part included one package with an estimated cost of Rs.'2:5S crores. Part (c) of "Section 3"

involved improvements to urban road junctions in»"'t.he White-- field area in the Mahadevapnra zone. part comprised of one package with an estixtopatfed. crores. Part (d) of "Section 3"} rei»ated"t_o* oi4".__ai.'j ﬂyover from Hebbai junctionto Hign'"Groi_iiitiVsvi:Police"'Station.

Part (d) comprised of one    estimated
cost of Rs.550 croreVs".--..iV:." _    (e) of "Section

3" pertained to».remo:de1in'g water drains) in the new construction of other appurta..ricesf:fo;i+.; of suitabie capacity, and defect iiabiiity for a period of 10 years. Pa:'t (egiii of 12 packages, wherein the cos't"-ranged from RS390 crores to Rs.600 crores. ' ;T'iie1 .._notification/advertisement dated 01.10.2009 'which Was_a5ppended to the Writ petition as "AnneXure-B"', has aiso impugned by the petitioners.

0 The BBMP issued a third notificationf advertisement, "also dated 01.10.2009 ("Annexure-C"). This was aiso (just iike in the preceding two notifications (dated 23.09.2009 and 01.10.2009) an invitation for pre-qualification of contractors, 28 through eqorocurement. The instant notification / advertisement dated 01.10.2009 comprised of two different kinds of works. The first of the works related to construction of smaii, mediurn_-.1a%ge"AMsca1e markets, numbering 200 at different «.the:i'ci't§/~of Bangalore, including maintenancer-offmark-et"-bui};c1_ir'igs for"~a--' period of 10 years. Theviiist the of 10 packages with a totat 1§;e;.1,3oo crores.

The second set of of construction of muiti level 40, within the limits of rnaintenance thereof for a peri0d __o_fv iwork was divided into two packages_ cost of RS600 crores. The last dat"e,__ofV reeei;§t»* responses for prequalification of V. C0,_1'1t1,' 9';C..TtCr'.._S 0 AA 31.10.2009. The instant ' adVertiseni'en't--fnotiﬁcation dated 01.10.2009 which was ap;idendedV'rito..e:the writ petition as "AnneXure--C", has aiso been assaiiedby the petitioners.

A writ in the nature of certiorari was sought by the jjetitioners, to quash "AnneXures»A. to C" referred to in the preceeding three paragraphs. As a matter of interim reiief, the petitioners prayed for restraint on further proceedings 29 based on the notifications dated 23.09.2009, 01.10.2009 and 01.10.2009 ("AnneXures--«A to C", with the writ petition).

18. Learned counsel for the respondents also brought certain factual details to our notice, the facts have been brought to our notice at the hands oi".__:'lea1*ned i'cot1in--_sel representing respondent nos. are formallyi recorded. It is sought to toe asseirtied at counsel representing respondetit rzosf lithe BVVBI\/IP had prepared a detaﬁae.g1 infrastructural development works expenditure of Rs.22,000 he aforesaid proposed capital with expenditure towards infras:tructu'I0e_~tQV_ created within the limits of BBMP, within a three ye.ars ie., between 20092012. The aforesaid ' pVro--posa1'prepared by the Commissioner of the BBMP placed ljefoire tneiﬂadministrator of BBMP, who accorded his approval to theproposed capital investment plan on 16.07.2009. The pifﬁosal having been approved by the Administrator BBMP, according to learned counsel representing respondent nos.2 to 4, was deemed to have been approved by the concerned Standing Committee (nominated for the particular subject 30 invoived), as aiso, the Corporation {Whenever required). The matter was then forwarded for the consideration of the State government. The proposal came to be submitted to the State government by the Commissioner of the BBMP 1982 (Annexure R-2). The State government in __a:p:prpoved the propose} on 21.10.2009 (Annexnre~R'--'7}.i apptoV'aiii'Of the State government, it is pio4inte'd..:'wasi ":re'q1i'iifed;ii::Vas the --:

proposed expenditure was Rs

19. Having conipiied 'the "aforesaid procedural requirements, the fii"st'i_oi' notifications dated 23.09.2009 appiications for pre--qua1ii7ieatpio1§i;" --of'iworks'coVered under "Sections 1 and 2" refe;f:1ed"i%:o'*herein above. The aforesaid notification inviting 'tor pre--qualifications was published tithe eapirocurement platform, at the very first Tfhereafter on 26.09.2009, an advertisement was piiblishiedii a national English daily ie., the Times of india, 3 a_is'o",¢ in a Kannada daily newspaper ie., Prajavani (which the largest circuiation amongst Kannada newspapers 2 ""pub1isheci in the State of Karnataka) inviting desirous parties for pre--qua1ification. On 01.10.2009 the impugned addendum notification "AnneXure~B" and the third impugned 4 3}.

notification dated 01.10.2009 "Annexure--C" were issued, including works comprised in "Section 3" referred to above. On 20.10.2010, an invitation for pre--qua1ifica1:;ion was pubiished in the tender bulletin, wherein the date for receipt of pre--qualification applications was: as 22.10.2009.

20. It is a matter of record that applications seeking consideration it . pp of the aforesaid 27 applicants, lei-1pp'apg5t;:§étfi£§/rirmsi'iaad submitted their tlrie stipulated in the advertisements the aforesaid 21 applicatiormg eligible. All those found eligiihiejﬁhad0suhrn'ittte'd:ttheir"applications on time, were approved uar:d"'short "listed, during the process of pre- These 20 pre--qualified firms were notiﬁed on 12.2009. The BBMP requested the Director Gen ereiliof i'Con1mercial Intelligence and Statistics to publish a 3 ter1.der"'r1otification (for the execution of works) in the Indian "Trades Journal, Calcutta. All the events narrated in the it "foregoing paragraph and hereinabove, occurred prior to the receipt, by the BBMP, of the Court notice of the instant writ petition (by the BBMF'). The BBMP received summons for 32 f appearing in the instant writ petition on 11.12.2009. None of those, whose applications were not considered, be it fer reasons of having been received beyond the 1astV,'da.te, or on account of ineligibility, assaiied the action in not having included them in the approved:"prei{qna1ifi'cati'on list. The fact that there is no ag_g1*ie.Veti the decision of the BBMP a_p'p.roving.V_ii'2OV .i"or::':pre- qualification, to our mind significance. Accordingly, we iiccunsei for the petitioners with the Suffice it to notice, that petitioners, could not dispute .:hpe*~ s_aid.._fact'u" 1..po_sition.

21. Cabinet accorded its approval for indijaidigai estimated to cost Rs.3,248 crores in respect ofitié ipaciiages tifigier "Sections 1 and 2". On 07.12.2009 ;.ij'---'?--)", the State government expressly conveyed the apiproxsai the Cabinet to the BBMI5'. Thereafter, bids were inxzitectby the BBMF', from the 20 pre--qua1ified firms. In the invitation, the iast date of receipt of tenders was depicted 1 it "as 18.12.2009. The last date for receipt of tenders was, however, extended in the first instance to 24.12.2009, and thereafter to 08.01.2010. The main tender was again mwanvawvm 33 published in the Karnataka State Tender bulletin on 15.12.2009. A31 tenders received 'oefere the last date (08.01.2010) of submission of tenders, were opened for the evaluation of technical and financial bids 10. A comparative statement of the __an_d financia}. bids came to be 13.01.2010 itself negotiations weii'ev."h-eld Eteritijerers.

On 15.01.2010, the came into operation, on aceounztief 21.01.2010 an assurance was ':o.t1'i'.beha1f of the BBMP, that the iioreicipitated. On 10.02.2010, the rieciordeci by this Court in a motion -herich.f._:o1'd»eri,ii'vv---whereupon, the matter has not proceetie'd:_i_'an}if if it 22.3 " ._Wei nowendeavour to deiineate the primary statutlory _t5r.ovisions which were brought to our notice during .the_Vec0ur'se oftiearing. In so far as the present controversy is coiriee1*netl';'V' it is necessary to highiight the various statutory "pro_Visioi:3.s, with reference to dates of their incorporation. 'A".fXccording1y, even though it may seem to be repetitive in "nature, the amendment 0f the reievant statutory provisions, 34 with reference to the date of amendments is being highlighted herein sequetatiaiiy, thereto (when reievant to the present controversy) so as to avoid any confusion in the matter. Al} the pleas raised by the petitioners4',»V.ii:a.ijsofai" as the procedure contemplated under Vﬁof Municipal Corporations Act, as also,' gthe *Efr"ainsparencj* have to be evaluated within the' parameters foi' tijieifactual matrix prevailing at the reievalat jtinctii'reL

23. As has be€:f1~ the controversy raised 44 p pertains to three same have been assailed primarily that they are viotative of the provisiotisipé Municipal Corporations Act, 19'F'i6,:__ii'ais Karnataka Transparency in Public ' Act, 1999. Reference has been made to to 183 of the Municipal Corporation Act by pointing out that the aforesaid provisions prescribe the .pro~oedure for execution of works by way of contracts 'including the sanction of estimates and Works, which were vioiated by the respondents. The aforesaid provisions are being extracts hereunder:

"180. Power of Corporation to determine whether works shall be executed by contract:-- The Corporation may determine either generally for any ciass of cases or specially for any particular case whether the Commissioner shall execute works by contract or otherwise. i "

181. Powers of several authorities__;"'to--fj~s_anetinn estimates: The powers of the several. "an.thori'tieS*r to sanction estimates shall be as prescribed. __ i832. General provisions relating to *:;ontr--acts:V_p A

(l)'I'he Corporation may en'ter':__in"to any ..contrar;t"v.and perform such contracts» as it may. consider "necessaryor expedient for carrying into effecirthe provyisionsi of this Act. " = (2) Subject to the rules' made --«in,Vth.i,s behalf, the following provisions shall ap;a1y'- respect_Vt0 the making of contract for any ofV_the..purp{3se"s.cofthe Act, namely M

(a) everypciontract shall bejnade «by or on behalf of the Corporatioialéy the C3o'InmisAsior'lef.;..v:

{b} no contractfor"any'performance which, in accordance with the 'pi~1oyiVsio,nee_of this Act, the commissioner may not carry' wif€hou€;'the sanction of one or other Municipal Autl1oriti'e$"'r-Or'iof "the--Government shall be made by him unless su.chts'a,nc«t.ion_bas been given; _ _(c) any contract--.'in'volving any expenditure exceeding such ﬁgnits asmay be speciﬁed in the rules shall he made by the Cornmissiener unless the requirement regarding: the 'Droc_eClure to be followed has been followed, and unless _ 'the authority which is competent to accord sanction has i 'accord.ed.--"'such sanction and where the sanction to be acc'orj_de'd is by the Government unless such sanction has been «accorded by the Government.

'{3} These provisions shall apply to any variation of the contract involving an increase of such percentage over the expenditure involved in the original contract as may be prescribed.

(4) Subject to such rules as may be made in this behalf every contract to be entered into by the Commissioner on behalf of the Corporation shall be entered into in such manner and form as would bind him if it were made on 36 his own behalf and may in like manner and form be varied or discharged:

Provided that. -

(a) the cornrnen seal of the Corporation shall be affixed to every contract, which, if made between private.-. persons, would require to be under seal; and 7 =

(b) every contract for the execution of ar;*i'j.'r'vs;rVor_i:i<»1'~.)__ri «the supply of any materials or goods which will._in.volv'e: an expenditure exceeding one thousand .rfd_pees=.shall be writing and shall be sealed withthe C conirnon seal ofthe.

Corporation and shall specify.-- A ll " * ° ' ' i

(i) the work to be done or't.hie~ rnaterials' or goodsibe supplied, as the caseniay be; i

(ii) the price to be pa.id"»for=i.._Vsuch "v.rorkq/materials or goods, and ._ V

(iii) in case or a -T-cp1:itréét the time within vvhi_e'h_ the;v§=o'r'l:."&or" speciﬁed A portions thereof shall be 'c'en'.*ipleted.g ' "

(5) T'he isealiiofV.:t--he=_Corporation shall remain in theppvcustodyiivof the Vcerrirnissiriner and shall not be affixed to any}, con;'tract'~,o'r other instrument except in the ¥prescnce'.of_p the"-tlommissioner and the Commissioner shall. sign thepcontract or instrument in token that the same was sealed. in his presence.

_(t3V)..1\«lo"'~eontract executed otherwise than as provided in as sectiion shall be binding on the Corporation. 1v83i.l'ii§t:aivitation of tenders.-- (l) At least seven days before entering into any contract or the execution of any work or " the supply of any materials or goods which will involve an expenditure exceeding five thousand rupees, the Commissioner shall give notice by advertisement inviting tenders for such contract:

Provided that such advertisement shall be published only in such newspapers having such circulation as may be prescribed;

Provided further that the standing committee may, at the instance of the Commissioner and for reasons which shall be recorded in its proceedings, authorize the commissioner to enter into a contract without inviting renders.

(2) On receipt of the tenders made in pursuance of the notice given under sub-section (1), the Commissioner may, subject to the provisions of section 182, accept any tender which appears to him, upon a View of all the circurnpstances, to be the most advantageous, 'out he shall not". all the tenders without the sanction of the standingcorrirnitteel"

The provisions extracted hereinabove are» their incorporation at the time of ncftification. or tiiet.__Mantnicipa.1 I Corporation Act (notified on 7, recsi_»ved the assent of the President On the issue of grant of cor'n:racts"'(includirigl of estimates and contracts). l\7/iunicipal Corporation Act was amend-eel. i._iirami,_,1.e.oe.2oo3. The amended provision is "nerng..,repi'o_d"ncled hereunder:

"18l3._ Invitatioxi of' tenders.-- (1) At least seven days before y entering into any contract or the execution of any work or the supp1'y*.o_f___a11y materials or goods which will involve an eixpeinditure exceeding such amount as may be notiﬁed by the 'C':ove_rnrnent from time to time, the Commissioner shall ' gji*z_e" notice by advertisement inviting tenders for such con'_tr.ac;t':' A. " ''';Provided that such advertisement shall be published " only in such newspapers having such circulation as may be prescribed.

Provided further that the Standing Committee may, at the instance of the Commissioner and for reasons which shall he recorded in its proceedings, authorize the Commissioner to enter into a contract without inviting tenders.

(2) in respect of the tenders made in pursuance of the notice given under sub-section (1), the Commissioner may accept or 38 reject any tender in accordance with the provisions of the Karnataka Transparency in Public Proeurements act, 199 {Karnataléa Act '.29 of 2090)."

24$ Et would be relevant to mention that unde_1"'~tihei_i:nandate of Section 421 of the Municipal Corporation is vested with the State governmenteto. ca_.rryinlg,_ out the purpose of the ,th;§ it Corporation Act. In exerciseoéfof the "power 'vjeste'ci"in the State government, to frarne rju'l'es,Vr_f the Karnataka Municipai Corporations Rules, 19.77"--{riere_iriait.er=__ referred to as the Municipal (§o1'}i3lQ:i'atio_n notified on 03.11.1977. vmvn.

Rule 6(1) :"74"*.é§{fe'r'e~._reeeatedly referred to during the H«t,»'5v:Qu wgxvvtéfﬁmi coursellolf rules as they were originally W-J framee1~.(at "their notification on 03.11.1977) are aim bei;7_g., extracted .hereu.neler:

' Powers' """ "of the several authorities of the _V .Cc-ifpgaimtion to [accord Administrative Approval]- . ='E'he_ "_.powers of the several authorities of the 'i_"_v»Co~rf;>oration of the City of Bangalore to sanction . testirnates shall be as follows namely --

"(i) The Commissioner may sanction any estimates the amount of which does not exceed Rupees 30 lakhs;

(ii) When the amount of an estimate exceeds Rupees 130 lakhs but does not exceed Rupees 50 lakhs, sanction of the Standing Committee shall be required;

(iii) Any estimate the amount of which exceeds Rupees $0 lakhs but does not exceed Rupees 100 lakhs, shall require sanction of Corporation;

(iv) Any estimate the amount of which exceeds Rupees 100 lakhs shall require sanction of the Governrnent.

7. Applicability; of certain rules for the proeess of tender- [(1)] The Karnataka T I'aY1S}3Elr€I1(3"ji~.V"l3T}r' [Public Procurements Rules, 2000 made under the__prov£.siioi2s of Karnataka Transparency in Public Proonrementsi--.___Aet, 1999 as amended from time to time and vnotiiticationsu made thereon shall apply for the process' of:'teriders] "

[(2) In respect of Bruhath lisangsaloreliivlahanalgara I the tenders in respect of estirnates exceeding Rupe*es"'E'_en Lakhs and above, shalhbe asper the"'E=ProcjtIrer0.en.t system as provided in'~vthe_Karna.taE:a "Transparency in Public Procurements Act;«_19_99 (Karnataka Act 29 of 2000) and the rules mad'e"therei;inder.]" ' V In conjunction with -the provisions of the Municipal Q.oz'porati0_n lgovernment amended the proviislilons Corporation Rules. The a1nende'd'Ri;if}e Jxijwas'~zji'otifie_d"on 30.05.2000. The aforesaid amendmentl with effect from 02.06.2009.

Arne--ndediiR11le":3'.is reproduced hereunder:

' ':56. Powers 6'f'the severai authorities of the Corporations . _ _tcu,a<;e'e,rd Administrative Approval.- (1) The powers of the vs'eye~ral_at;thorities of the Corporation of City of Bangalore to « Vsarivctionestimates shall be as follows, namely.-

-'1' he Commissioner may approval any estimates the ~ amount of which does not exceed Rupees 300 lakhs;

(ii) When the amount of an estimate exceeds Rupees 300 iakhs but does not exceed Rupees 400 lakhs approval of the Standing Committee shall be required;

(iii) An}; estimate the amount of which exceeds Rupees 400 lakhs but does not exceed Rupees 500 lakhs, shall require approval of Corporation;

40

(iv) Any estimate the amount of which exceeds Rupees 500 lakhs shall require approval of the Goveirnment;

('22) The powers of the several authorities of the Corporations of cities other than Bangaiore to accord Aciofiinistrative Approval shalt be as follows, r1amely.~ 7 *

(i) The Commissioner may approve any estiraa't:e.__i_t1i'e amount of which does not exceed Rupees 130 lakh.s.'*-- V " *

(ii) When the amount of a;71....e,s_tirriateiiiexi?:eed's'Rupee'sSQ lakhs but does not exceed Rupees ..5l3_ lakhs,'-approve'.of Standing Committee shall be":req.:uired;tt»._

(iii) Any estimate the iarnountitofCiavhiolrie:;ceeds_:§Rupees 50 lakhs but does not exceed'i-Rupees.1QQ_"lal«:hs,'"shail require approval of the Corporation. . " .

(V) Any estirnatei--.._tlﬁ1--e a--rnog.irit"..ofVViiWhich eytceeds Rupees 100 lakhs but does r1ot_i_eXceei:l:: Rupees "200 lakhs shall require approval of the Director of E-(IunieipalAdministration. E (V) ar13z?"osi;i.ti;iate:3._the exceeds Rupees 200 lakhs-,i shall_V.requi_re the appfroval of the Government. Vide Saree as carried out for Rule 6, the Rule 6(A) to the Municipal Corporation 'Rule 6(A) added with effect from being extracted hereunder:

VV"'6'-'A, Efrsévious approval. when necessary.~ (1) No contract for 't'§3_C'VpI'OCuI'€n1€I1t of services, supply of materials or goods or for the execution of any works shall be entered into by the * Commissioner, Corporation of the City of Bangalore except with the previous approval of M

(i) the Government in alt cases where the estimated value of the contract in each case exceeds RS500 lakhs;

(ii) the Corporation in all cases where the estimated value of the contract in each case does not exceed Rupees 500 lakhs and the rates of the aeceptable tender is not more than fifteen per cent of the CSR;

(iv) the Standirig Committee in all cases where the estimated value of contract in each case does not exceed Rupees 400 lakhs and the rates of the acceptable tender is not more than twelve per cent of the CSR:

Provided the Commissioner may make a contract only in case Where the estimated value of contract in"ea'ch~.case does not exceed Rupees 300 lakhs and the rate_s'"of' the.__ac::-ceptable tender is not more than eight per cent of the C-S_R.~ . 1 V' (2) No contract for the procurement.'_:of materials or goods or for thC:;pCX€p(3'_LJ.tl:!DI'1._Of _'¢':'.ti'-1:$7'1'SiO;aI'kS';{__S1A'l£11l'~l.Q€ _j entered into by the Commissioner, "City'C_or.pora'tio:3 "of cities other than Bangalore except with the previous approval'-of ~

(i) the Government in"'eal.l"icases lwherejhtheiiestimated value of the contract in each Case. does not exceed Rupees 200 lakhs; . " '

(ii) the Birector ofMuniciipal"Adtriinistration in all cases where the estimate-d v.alt1e'o'f conti*act in each case does not 'exceed Rupees. 200"-i.lakh.a and the rates of the acce_ptahlehtenderp is not.Vmo1*c----t»han ﬁfteen per cent of the [iii)"the 'C3;or_po.rat_ion"inuallcases where the estimated value Of"'C(3I1tI'a;L'§t' iireach case does not exceed Rupees 100 l_al:hs°an.d"the-.rates~ of the applicable tender is not more tliari twelvoper cent of the CSR;

L (iv) their Standing Committee in all cases where the V 0' estimated..__V§1oiue of contract in each case does not exceed * Rupees 50 lakhs and the rates of the acceptable tender is '«.n'o.ti'I:1ore than eight per cent of the CSR:

K "Provided Commissioner may make a contract only in ' r?:a.seh:=vvhere the estimated value of contract i.n each case .- ~C_i€§es not exceed Rupees 30 lakhs and the rates of the h acceptable tender is not more than eight per cent of the . CSR]."

The Transparency Act was notified on 13.12.2000 .-(after having received the assent of the Governor on 10.12.2000). In the narration recorded hereinbefere, reference has already been made to Section 22 of the wvvmmm.

"tin.

Transparency Act. So far as the controversy in hand is concerned, the other relevant provisions of the Transparency Act are Section 2 (h) (i) 8:, (i) as also Sections 5, 8. The aforesaid provisions are being reproduced A' "2(h) "Tender" means the formal offer,V_rriavde.l.::fo.r suppiyiof goods or services in response -to an invitation__ior'._tende'r_V published in a Tender Buiietin;

(1) "Tender Accepting: Autho--rit§r" means "an officervor a Committee appointed toﬁaccept V tend'e.rs'=,_and. 'a "1"e.:g1der Inviting Authority" m'eans an "o_fii'eei'* or a Committee appointed to invite tende_r_s;'iind_er Section 9:}

(l) "Tender Document?' i'~:.Ip1¢E11."i$:"'i;AAi"1'f.'._S€i'. of papers detailing the schedule of Works,"caien_d.ar._'e.f 'events, requirement of goods and services.,. technicallpspieciﬁcations, procurement criteria_ "suclli other partici1lars=,' as may be prescribed for evaluation ;'an_d cornp.arisonfof' tenders:

Provid.ed..t;hat piirpose of e«~procurement, the 'tender vpap'crS'lj;meaifis- s"e--'€,po--f docurnevnts in electronic form." 5, Procurernerxtppotiier than by tender pro11ibited.«- On and from" the dateof rﬁomriienceinent of this Act no Procurement Entity shal1_p;:*_oc1,1r'e goods or services except by inviting ' =t_enders.,for"s'uppiy.

6.' Procurement Entities to follow procedure.- No tender "shall'be"--invited, processed or accepted by a Procurement "E$nt.ity».after the commencement of this Ordinance except in accordance with the procedure laid down in this Act or the :jiiles«"'made thereunder.

Publication of Tender Bulletin.- (1) The State Tender Bulletin Officer, or as the case may be, the District Tender Bulletin Officer shall on receipt of intimation relating to notice of invitation of tender from tender inviting authority or information relating to detaits of acceptance of tender under Section 13 or rejection of tender under Section 14 from the tender Accepting Authority, pubiish Within the prescribed time, the 'State Tender Buiietin or as the case may be District Tender Buiietiri.

(2) The Tender Bulletin shall be made avaitable for sale in the office of the Tender Bulletin Officer and in such other piaces as the Tender Bulletin Officer deerns fit to make availabie."

26k in addition to the aforesaid, it Wou1d_.b':'{'rei~evant to mention, that the State government has to make rules necessary for carrying out the envisazediu under Transparency Act tile 3 Transparency Act). The State governrnent'~.;'i'rr~ exercise of powers vested in it, :--'framed"'tb:e-- iK'a.rnatak'aA 'Fransparency in Public Procurernents (iicreinafter referred to as the Q33) and 27 of the * Transparency"lRuIes, b'tiot1--gt1ti to our notice during the or at courseof Rules are accordingly being if extracted 'hereunderi ' ' --~ ._ ~ .

_"2[b)""Pre«qua1'£ﬁéation" means the process by which the tendererslare first screened for their capability and resources ' ir'nplernent"'the contract before they are permitted to offer _f1'if.3i31~'.4U:'Z~~.1"v1(Zi(iI'S; A V':2'i?;,fftifeiqualification Procedure.- (1) The tender inviting authority shall for reasons to be recorded in writing provide for pre--quaIificati0n of tenderers on the basis of.- '{a) experience and past performance in execution of similar contracts;

(is) capabilities of the tenderer with respect to personnei, equipment and construction or manufacturing facilities;

(2) Only the tenders of prequaiiﬁed tencierers shall be considered for evatnation.

":Idé»i%e«txti] ei Mam 44 Provided that notwithstanding anything contrary contained in these rules the tender inviting authority may adopt list of pre--quaEiiied tenders ernpanelled by the Direction of Information Technologz, Government of Karnataka in respect of computer peripherals and related services and call for price bids from at} such pre--quetiﬁed tenderers and the price bids received from the pre-qualified tenderers shall be considered for evaluation b_i,r"*the tender accepting authority, so far as may be in a.coordance with these rules." it

28. The first contention advanced learned counsel for the petitioners in Tthelir eri'dea*izo.1,ir.t_o:'assai1V'_j "Annexures--A to C" was, -.__ that' 'the {the Administrator beyond the contetnidlatedfgunder Section 109 of the Municipat __must be deemed to be without the authority.~of.:l3(w_'f~.l submitted, that the approvdi. for execution of works and/or r.sL1_}op'_l"y (extracted in paragraph 9 abo{Ve);ieave's.. room for any doubt, that the same was '1:eiitiie'r':i.leg'alnor legitimate. In this behalf, according to the functioning of the Administrator must be deerned tofhave come to an end, at the most, after the expiry months, from the date of appointment of the Ailﬁdininistrator. Details in this behalf were pointedly brought l to our notice by the iearned counsei for the petitioners. These detaiis have been recorded in paragraphs 3 to 10 hereinabove. The same are not being repeated again for 45 reasons of brevity. According to the petitioners, the continuation of the Administrator in excess of 6 months was neither legal nor legitimate. As such, it is asser't'ed,.. that all actions taken by the Administrator are liable as null and void. The impugned advertisernerit.sf"*Anne:s<ures.A["to C", having been issued well of thelf valid / legal tenure of theiiAdrniriis_trator;'V"ace,ordii§igvi tomthe petitioners must be set aside_i,:"as the sa1n.e:iwer§'e issued when the Administrator, hadiieeased' any legal authority to run the a1"fairs_oof_the i i

29. submission advanced on behalf of for the petitioners, it was asserted' on respondents, that neither Article 24ago donor.' Article 24$ Z?' of the Constitution of India is r.e_levarrt to'Rrietermine the tenure of the Administrator, since aforesaid provisions relate to the subject of apipoi11.'trne'nt of an Administrator or the duration of tenure of "such appointment. Therefore, according to the learned iii'-counsel for the respondents, the determination of the first iiiusubmission advanced by the learned counsel for the petitioners cannot emerge from the provisions of the Constitution of India even though reliance was placed 46 thereon, by the learned counsel for the petitioners, during the course of hearing. It is further sought to be ascertained, that the duration of the tenure of the Administrator, was;--originaily provided for in Section 101 of the Municipal Act. Section 101 of the Municipal Corpotatio:12.Vv'ncti._1s"loeing extracted hereunder:

"101. Maximum period-of sup-ersessio'n etc» No order of supersession or appointment of 1'»xdArn.ini'str"a'to'r under section 99 or section 100 shall r_emain-- in 'force for a period exceeding one Yea_rr.,, i Provided that iiorireasons 'to: be? recorded in writing Government may cporitinue snc}'i~.order._ for a further period not exceedingsix ;monrh;s:_' 1- }?£'0V3_1.VC1€Ci;pwi.»i1i..11"lZli'::13£'itllélt "suchiordtcr shall continue for a period""oc.yond;i-- o'i1e._p_3%ear--..a1i'd six months if for reasons beyond t'n_e,control of_C}o'vernn1ent, which shall be recorded in----wri_ting,i if5is..necessary' towdrsi so".

It is also Section 101 came to be omitted with effectfrorrii The implication of the omission of':S«ectionp_ 101 "o«f..thr:: Municipal Corporation Act, according to V counsel for the respondents, clearly depicts the .iintentio;nif'i__oi' the legislature. Simultaneously, with the omission of Section 101 of the Municipal Corporation Act, the woitds, "... so however the total period of such appointments ___5shal1 not exceed six months ..." came to be incorporated in Section 100 of the Municipal Corporation Act. The amended Section 100 of the Municipal Corporation Act, has been 48 100 aforernentiened eaters to an extigency separate and distinct from the one in hand, and therefere, would not have been the source of power, invoked by the Statve","g;o\.7.Vernrnent for the appointment of the Administrator . For exactly the same reasons as have--»bteen-..::reeerdeddin respect of Section 100, it is aS::3€I't;f3di3:i'ti;Ii7:1£ of the; Municipal Corporation Ace'-'i:_c«aan atlas-oiiiilot be appiieabie, to the V

30. In addition to contentions, it is also sought_.toLbe_ of the respondents, that the? "of appointment of the te'1"in"§ of six months, was assaiied before".tt1i's vs. State of Karnataka 85 others _ (\iV'.P:iNo..v'1548§')2006) and in M.Nagaraj vs. State of i igsgi-iiaiisigiis otiisis (W.P.No.16886/2006). It is also sought 1 that petitioner no.1 Sri P.R.Ramesh was aiso sisisi the petitioners in W.P.No.15482/2006. It is howexier pointed out, that after both the aforesaid Writ "'.p"eI:iitions were dismissed, it is not open to the petitioners V' " "herein, to assail the appointment of the Administrator, merely on the ground, that the Administrator had continued to function for a period of more than six months. 49

31. We have given our thoughtful consideration to the first contention advanced at the hands of the learnedpounsel for the petitienets. it is necessary ts R{3¥2§.C€":'. that th}e'appia.intment of an Administrator is contemplated, not .tinder..V_'Se'ction 99 of the Municipal Corporations"'Act, butalso'_tir1deri'Section 100 thereof. Section 99 aforernentioned'beingeittracted hereunder:

"99. Power of .e¢va}a§agnt (dissolve) Corporaticm " I a (1) If in. theV.A'o~pinion_yof 'Government the Corpora'tio.n_'--is inot coznpeitent to perform or make defau..Et'~.,e inf"_t.:1e. 'pe§forrnan,ce of any of the duties irnpdssedoni 'it. orﬁtindeiftalten by it, by or under this Actyvor..Vai"13g__oVthe'r_iaw.for the time being in force or exceeds. or abLise»s"its povvers or fails to carry out the directions"e.r"order's~given by Government to it under this 'Act or any'-.other law or is acting in a manner prejt_1dicial_to. the_; interest of the Corporation, the .Government may; by an order published, together with a ist.aternent of the reasons therefore, in the ' Gtfficiai Gaiétte deciare the Corporation to be ivnco1npe_tent or in default or to have exceeded or ' a.l:3~t.tSeCi.Vii:~S powers, or to have faiied to carry out the A directions given to it, or to have acted in a manner pre_i.ufdicial to the interests of the Corporation, as the a case may be, and may (dissolve it):

Provided that before making an order of 5 (dissolution) as aforesaid reasonable opportunity shall be given to the Corporation to show cause why such order should not be made.

(2) When the Corporation is (dissolved) by an order under subsection (1), the foiiowing consequences shall ensue-

(a) all the Councillors of the Corporation shall, on such date as may be speciﬁed in the order, cease to hold office as such Councillors without prejudice to their eligibility for election under subsection (8); lb; during the period of idissolutiozai"~of~~. the Corporation, all powers and duties c,o;nferr'edyVVa.nd imposed upon the Corporation andjthe, "€»ta.n'd--ing Committees of the Corporation by thisacpt or any other law shall be exerrcised.' *p1erforn1ed._Vby _ ' an Administrator appointed by,'§}ovei"nn:ent..,_,in___tIf:,at'~__ behalf;

(C) all property veste"d.__ in the VCorpor_'atVioni shall, until it is reconstituted, 'vest in o'ove'rnme:a. (3) Governrnent '1~nay_'direct that the "Administrator shall be a whole--tirr;e 1-.offi"ce'"1'.. and when such a direction is issued, he' shal1"vbe_'_'.paid out of the Corporati_o'n_ funds stich rnonthly salary and allowancesgas G'ove1'nment' rnayfrom time to time, by order," 'tZ3§3tl§"i;ITIIilI1(if._'8Ii*1,d --..the Corporation shall make such _ coj_n_trib'utio'n.fj.tovv<ard,s" the leave allowances, pension .pro_vident---funcd of the officer as may be ':fequired,., byi, the°~..conditions of service under the G.overnrnenft,,4'to °be""pai'd by him or for him, as the caseiinayrbe.--.,"-- h' _;'(£~3\}, the period of (dissolution) of the (T,;orp.oration,*--references in any enactment or law for the _,tirne being, in force to the Mayor of the a. shall be construed as references to the C' Adrnini~strator appointed under clause (b) of sub-- se.ctio--n C (2).

During the period of (dissolution) of the Corporation, the Administrator shall in the discharge of his functions be guided by such directions in matter of policy involving public interest as the Government may by order specify; and if any question arises whether a direction relates to a matter of policy involving public interest the decision of the Government shall be final.

'ii (6) Government may, by notification, appoint an advisory committee consisting of not less than fifteen and not more than twenty--five persons who shall be qualiﬁed to become Councillors under this, Act to assist the Administrator. ' (7) XXXXX (8) When a Corporation is disspoiyed i,:t"~shaii'-«be reconstituted in the manne,r..»pr_ovicied "under t_liVis=-Act» _ before the end of six months frorn*_tl'ie' clate._o'fVs1.i'ch*.__ dissolution: ' ' Provided that whe.re~..the r'ernajnder "o'f«~tbe' period for which the dissolvledllliCorporation would have continued is less than....si};_ 'm,onths'--i.tA shall not be necessary to hold~._anj'elect:io_n_under this section for constituting a Co1'pora1",io3n}for' period. (9) A Corporation""co'nstitu_ted'. upon the dissolution before ,the«._expir_ati.on~' of i'ts_"-durfation shall continue only for ti'ie_--_i_rer:r1a1nedtheperiod for which the dissolved'.Co1=porati.oi1.__Would» have continued had it not been-s'o,gdissolv'eci} ("lO)" o'r§der"~of' (dislsofution) of the Corporation u_nd_~cr vls'i:£b:~sec'tioiivv{_1'}- -[ ] together With a statement "of,_ti*1e"'..reasons therefore shall be iaid _before.lb'oth'V._Irlouse's of the State Legislature as soon asniay "b.eHafter it is made".

Section 99 of the Municipal Corporation Act _1ea_yes' for any doubt in our mind that it caters to three ispescified exigencies. Firstly, when the elected iﬁounclillors cannot effectively and efficiently carry out the 'functions of the Municipal Corporation in question. Secondly, when the elected Councillors have exceeded and abused the power vested in them. Stated differently, the second exigency would arise when the Councillors act in a Q}-W ' eagm xii ﬁleii-Ziix eta n::1ann.er prejudicial to the interest of the Corporation. And thirdly, when the Municipal Corporation in question, fails to carry out directions issued to it, by the State government. in any one (ore more) of the three exigencies referred"-t_o above, it is open to the State government to dissoltfe_'l4th:si)).:i1i?lL1nicipa1 Corporation. On such dissolution, the Co'upnci'1l.oCrsi ec.ease_, to hold office, and therefore, thepétandirzg Municipal Corporation are, autornatically:,d.is,soEve(;ii"Cecption 99 of the Munieipai Corperatien' referred to above, the authority to appoint an the affairs of the Municipal aforesaid period of dissolution, 'T.oiij__ the Corporation. When a Corporation is d_isisoiilve7d for the reasons indicated above, it recoi*1sté.tu'ted (under Section 99(8) of the Municipal 1 :;'--'-tct) within an outer limit of six months. Based it is nature} to infer that the tenure of an Administrator appointed under Section 99 of the Municipal 'Corporation Act, would net exceed six months. This period V___5specified in Section 99(8) of the Municipal Corporation Act is the basis of the first contention advanced on behalf of the petitioners.

Wm Wattage All "Maw 53

32. Likewise, a perusal of Section 100 of the Municipal Corporation Act leaves no room for any doubt, that it caters to three specific exigencies. Firstly, when the of the existing Municipal Corporation having corne;t'o new Municipal Corporation cannot be c~on.stituted, b'ec.ause elections of Councillors has been a lC'o;u_rtw:.,{or blyaalf competent authority). Secondly, tlrl-itch atileast 'tWo--third of the Councillorsl;l_i:o'l7.the A/lunicivpal:Corporation in question, have been--..l:5:,e.t _ Court of competent jurisdiction (o_:;f'b_y And thirdly, when at least of have resigned. During any to above, the Standing Cornlrn.itte'es stand automatically dissolved, and as are preve-nted from carrying out the duties and vveeted in them. Likewise, all other authorities C 'Cornnnssioner of the Corporation, are also performing their functions. Section 100 of the l\/It1ni.<,l3lpal Corporation Act in the circumstances referred to 'lahove, vests in the State governrnent, the authority to appoint Administrator, to run the affairs of the Municipal Corporation, for a period not exceeding six months. The 54 aforesaid out limit prescribed in Section 100 is also the basis of the first contention advanced on behalf of the petitioners.

33. it is apparent, that the exigencies in w%§ic_h;e..Seetions 99 and 100 of the Municipal Corporation f_j%'§!fpked for the appointment of an Administra_toi~',--» predetermined, by the said provisio_ns --1'the.rn~seives;f..__ itis only -~ when the appointment of in exercise of the power vested}_iin:__th_e $t.a'te_:aoyjernment under Section 99 of the Act, that the duration of sLiCh__ beyond the period dtl1"i't'1g§:T§,§?ifiiCh:._"t11§: --.M'ti11icipai Corporation remains » 'ztoﬂﬁiag 54m.%€w?v if dissoi_ve--d.._Ai:" ':°;dm'inistrator has been appointed "mm Niunicipai Corporation Act, the period tpofapgoointment cannot however exceed six "the appointment of the Administrator has been government in exercise of power ﬂowing ot;i't-- of 100 aforementioned. It is apparent, from our of Section 99 (in paragraph 31) and of Section 100 'paragraph 32), that specific exigencies lead to the it "iinvitation of action at the hands of the State government under the aforesaid provision. in our considered View, therefore, the tenure of a maximum of six months suggested 55 in the contention advanced by the learned counsel for the petitioners will only be applicable if the Administrator can be shown to have been appointed, in the present in the exigencies postulated under Sections 99_ the Municipal Corporation Act, and not others-?i.se,,V V

34. From the admitted, seqi:ie.nce_iof facts'*narr:ited"herein above, it is apparent, the existing Councillors of the EMF (includeing.petitioner'i nos. 1 and 2 hereinabove) naturally e-xlpireti.'ion«._the'V~.c_o_mpietion of the term of the said Corporation In compliance of the tee eamzgti directionsppis-s__iied ivy _t'n'i's 'Court? the process of elections to the :.EBMP"iviwasiiicondaiictediinduring 2009/2010. On the «lime cornpletionof eiection process, 198 Councillors canie' to ithiei new BBMP. In our considered view, nor Section 100 of the Municipal had been invoked for the dissolution of the ee:~1ieef'ieiii'§ on 22.11.2006. In this behalf, reference may be 'niapdeiito the three contingencies recorded by us in paragraph wherein Section 99 of the Municipal Corporation Act can imibe invoked for the dissolution of the existing Corporation, paving the Way for the appointment ef the Administrator' We have also recorded in paragraph 32 above, the three specific lit 3 er, \7NMvvv4"

mi S6 circumstances wherein an existing Corporation can be dissolved under Section 100 of the Municipal Corperation Act, which would also require an Aciministratvoifiptop'Vrun the affairs of the Corporation. Neither the in Section 99 nor the contingencies~eontem;-pilatedll under Section 100 of the Municipal C:orporat'ion2-Xct;- weire basis I for the conclusion of the Ol:iQfl;1CE; of the BM?' on 22.Ltl.2__OO6. of the elected Councillors of the on 22.11.2006. In the aforesaicij/'ie_W possible for us to conclude? Administrator in the presen-t----v.ca's:e have emerged from the authority" State government either under Sections'i'---.99 Cor Section 100 of the Municipal contingency in which the Administrator after the expiry of the tenure of the existing the EM? on 22.11.2006 has not been expressly providgeidifor under any express provision of the Municipal 'Cor:poration Act. The period, during which eiected Councilors ___;were not functioning, te run the affairs of the BEMP, an Administrator had. necessarily to be appointed. For the situation in hand since recourse couid not be made to Aggy *f3;tx""nt"t..%'EQ"

meauw\w~AmNW W "t ﬂange Sections 99 and 100 of the Municipal Corporation Act (for the appointment of an Administrator) the State government, had necessarily to take recourse to Section 509 of the Municipal Corporation Act, as has been suggested by the learned counsel for the respondents. If the at the hands of the learned counsel for the to..,be accepted by literaliy applying the petitioners, the functioning ofthheicorporationi stop after the Administrator in period of six months. It is difficult this. A valid interpretation of a never lead to an u_naCCeptap;_j:¢iid};.,iiﬁpivgoticableicioncltision. We are satisfied, that in the ieleicted Councillors, the oniy manneriiin -it affairs of the BBMP could be iiwasby the appointment of an Administrator. done during the course of the period during v_icirt;t£instances were beyond anybody's control, the sametiisiiould ﬂow from a statutory provision. Since We have "ii concluded, that Sections 99 and 100 of the Municipal ___Corporations Act are inapplicabie to the facts and circumstances of this case, and since, no other provision, which can be stated to be applicable has been brought to out 58 notice, we are satisfied, that reference made to Section 509 of the Municipal Corporations Act, has to be accepted as the only source of refuge in the facts of the present case. We therefore, hereby, accept the contention advanced at the hands of the learned counsel representing nos. 2 to 4. In the aforesaid View of the matter examine the remaining contentionsiad:Janced.__o'nVIoiehwalfof 't_h.e'« learned counsel for the rival (inv,is.orfar first contention is concerned). the herein above, we find no submitted at the hands of the learned' petitioners.

35. advanced at the hands of the learned .,V_coun'seli 'petitioners also emerges from the projvisions of.the'iM1.inioipa1 Corporations Act. For the present eonteri'tion;~i_iearned counsel for the petitioners placed reliance on to 168 of the Municipal Corporations Act. rite eaeeae Sections 166 to 168 are being extracted herein "I66. Estimates of expenditure and tneome to be prepared annually by the Commissioner:- The Commissioner shall, on or before the fifteenth day of January each year prepare and submit to the Standing Committee a budget containing a detailed estimate of income and expenditure for the ensuing year, and, if it is in his opinion necessary or expedient to vary taxation 59 or to raise loans shall submit his proposals in regard thereto.

16?'. Budget estimates to be prepared by the Standing Committee for (taxation, ﬁnaﬂce and appeals {or as the case may be, standing "e,em'mittee for taxation and finance]) - (1) ..T§.he.,'_'Stan.ding Committee for (taxation, fiarmce and_."appe'ais--,{iatfrie case of Corporations other than the ,,[Bf't1.hat'~ B4anga__,Ior'e. Mahangara Palike} and the~~Star1ding"'Corrmitttee for taxation arid finance in the case jof'_p[E?.ruhatr.Ban_galoi*e_ Mahangara Paiikeﬂ shall, ori'-or?ais'soon_aspiriay'-~b'e',[after'* "

the fifteenth day of January consider ,the.estirri:ates'ar1d proposals of the CorI_i'r1::,_issioi1er' _and"'.._faftrer' having obtained proposals, iif~.._i'any, "ofpV"'other Standing Co_mrr1ittees and»such,i-further»rdetailed. information, if any, as it shali'; thin}.: require from the Commissioner and'ha*Jing§regat'dr»to" all the requirements of this Act, shaIl....p_repa_re., therefrom subject to such 1nodifica_tions_a11{§i addi;tio4n'si"thereirr or thereto as it shall think fit, ;:a_ budget e_stirr1?ite~*' of the income and exper:;diti;.ge"~of.,_the.jCorpo'ration for the next year. (2)in._s'uch'3ibudge't_estimate, the Standing Committee sha11-:»"vi'._--v

(a)"proyide,_.'for.iithe"'p'ayment, as they fall due of all instalments ._of_ prjricipal and interest for which the ; Corporation' may be liable, on account of loans; (lo) :prov_ide for the payment as it falls due, of any 'towards contributions, fees or such other _ "--._V,«arno'_unts"as may be payable by the Corporation to the Goizerrgunent;

to} allow for a cash balance at the end of the year of not less than one lakh of rupees under General Account --~ if V. _ "Revenue.

(3) The Commissioner shall cause the budget estimate as finally approved by Standing Committee, to be printed and shall, not later than the first day of February, forward a printed copy thereof to each councillor.

168. Consideration of budget estimate by the Corporation-- At a meeting of the Corporation which shall be called for some day in the first week of February the budget estimate prepared by the Standing Committee shall be laid before the Corporation_";.e Based on the provisions extracted herein aboxrefiﬁcelilsigasgserted at the hands of the learned counsel for the procedure for preparing -1 income at the hands of 'the different lltigionilrriittees (contemplated under sectieii-5155 1'1OtVb€€I'1 followed, the appended to the writ Petition as to be set aside. It is the for the petitioners, that the place any material on the record oi'.ptoﬁcienionstrate, that the Commissioner of the the annual budget of income and e_Xf.;enclitt1rei "or material to demonstrate, that the X.irnpugne'(}t. advertisements "Annexures--A to C" had been ilissiiedl 'ozitiiin the parameters of the budget estimates prepared by the Commissioner of the BBMP. it is also .Vas's«erted, that the respondents have failed to place any material on the record of the case to demonstrate, that the Standing Committee for "Taxation and Finance" of the BBMP had prepared the annual budget of the Corporation. C?

' "".-m,,,§v W % ~mmM--...

61 Accordingly it is contended, that it is difficult to understand how the Administrator of the BBMP initiated the process of execution of works to the tune of Rs.22,O0O/5" on its own. It is the assertion of the learned the petitioners, that the provisions referred--to:i"here:inahoVe.,, are not mereiy in the natuire of, decisions.' 4t'iic,..__VEBM?'-orlf communication.s issued bgfthe State stated that they are part orovisions of the Municipal Corporations Act,' the same cannot be 0Ver--looi<ed under "

36. ____ as have been noticed white dealing st"'cloln-tenltion advanced at the hands of the 1earn.edVico}1r1sel .iotatl*i§"oetitioners, we are satisﬁed that there is_~'i:ta_:r__iciilyVv "--m.eritv in the instant contention as well. As ' .V.already'n'oticed hereinabove, the tenure of the Councillors of 'the Mahanagar Palike ie., BMI3' expired on

26.i~t.20t)6, the question of constitution of Standing .,:Co'tnmittees thereafter, would arise only after fresh eiections Eof Counciiiors to the re-constituted Bruhat Bangaiore Mahanagar Paiike ie., the BBMP were held. At the cost of repetition, it may be stated, that after the expiry of the tenure '*ﬁt»"i./ »m..m.m,w 62 of the elected Councillors in November, 2006 the newly elected Councillors held their first meeting on 28.02.2010. it is only thereafter, that Standing Committees would come into existence. During the absence of duly elected Cofdneiilors, all the Standing Committees are automatically an Administrator is vested with the respon_sil:$:il-i.:ty of idiisciéiarg--ing the duties of the Standing the':

Corporation. Reference behaif to Section 99(2)(b) of the Municipai c§i*;i§@ra.:;oii" '"izv'hiehVireveals,i that during the period dissolved ali powers and duties conferred'ontheétandingtfoirnmittees, as also, on the the Administrator. A similar_" in Section 100(2) of the Municipal».Cor}ooration...iii¥\ct, which also provides, that after the of Administrator the entire responsibility Standing Committees, as also, with the 'would be discharged by the Administrator. In the "aforesaid View of the matter, based on the analog' out of Sections 99 and 100 of the Municipal ___§Corporation Act, we are of the view, that herein also, during the period when the BBMP was not functioning through elected Couneiilers, ie., when no Standing Committees were 63 in existence, all functions ordinarily required to be discharged by the Standing Committees and/or by the Corporation could legitimately be discharged only and soielji,I:':ii'e.]3y the Administrator. The faetuai narration of fact_s;'_"reoo1idec.i..V_ii:_this order based on the submissions advariceidron 4-behialf, respondent nos. 2 to 4 the if procedure contemplated under difierent s.tati,;t.Qry _iprovi.sions were duly followed. That being so, intiae 'absence of elected Councillors, we are io{i:r'th,e'--_Vici:w iithpatiﬁie Administrator had validly discharged the"ci't1ti'es"andre.spo'nsibi1ities, of not only «mwm».

the Standi.:a,g_ or if,'t}iei"Bi}3I\/IP, but also of the ﬁirmérgy 5% Corpora.ti0_n".itse1i£,_ ,_'i'-herefore,'sanction and approval granted by validly be treated as sanction and Wit appropvaliof Committees and / or the Corporation itsvejlif. For "the-------reasons recorded herein above, we are contention advanced at the hands of the for the petitioners, based on Sections 166 to l68 o'f.,the Municipal Corporations Act, is wholly rnisconceived liable to be rejected.

The third contention advanced at the hands of the iearned counsei for the petitioners was, that the authorities were liable to follow the prescribed procedure, not only with reﬁt Wig uunwvavnvw thefi':'e:;pen_diture ~es.tin:1atec:i to be incurred.

reference to sanction of estimates reiating to execution of works to be undertaken by the BBIVIP, but aiso in respect of approval of contracts to be entered into by the BBMP for the execution of contracts. Referring to Section of the Municipal Corporations Act, it is the the learned counsel for the petitioners, that in to approval of contracts (to be,"entered'l-.,into:iiVbf;r_ Eiai?>1\»'IiT.§~'.),i different parameters have been down, iA'prior':.4appr*oval.

It is submitted that xvhenllkéiection ivlunieipal Corporation Act is rea'cii~._in withliilénies 6 and 6A of the Municipal' Corporati.on.l'_§1;iie-'s,Titlfetrierges that the prior approval for been staggered for approval 1 .,Ioeti§}€?eenV" ' i"C'ornniissioner, the Standing Comrnitteieis, the Coifperegtion and the Government, based on The three irnp'e.gn.edinotifications were issued on 23.09.2009 (A:iﬁléxurei¥;i3ii,:i 01.10.2009 (Annexure--B) and 01.102009 (Anne:tjtire~C), as such, the amended provisions of Ruies 6 of the Municipal Corporation Rules, which were _,v'e5nforced with effect from 02.06.2009, would be applicable to the facts and circumstances of this case. Rule 6 aforementioned, reiates to approva} of estimates, for 65 procurement of services, suppiy of materials/' goods, or for execution of works. Where the estimate is in respect of the contemplated consideration is less than Rs.3 'oferes, the Commissioner of the BBMP is the Competent_ai1*t'Ifio.1fit5giwhere the Consideration is less than RSJ4 Cro~res,i"..th--e: concerned Standing Committee is the corn.pete~n.t? the i:

consideration is less than croires, isithe competent authority;and the is more than RS6 crores, th'e~xv:"S.tat.e' is the competent authority. of contracts, for pI'0CuI'6IE1€€.T1't§7 Vofiiiiinaterials / goods, or for execution '-::EiA_.}postulates the parameters. Where"*.th'e"' ijiespect of consideration less than Rs/3 crofesgiitheiiCoi*nn:;«i.ssioner of the BBMP is the competent an-thoijitiy;.__whefe~t.h.e' consideration is less than Rs.-4 crores, Standing Committee is the competent au,thority;'e:'Where the consideration is iess than Rs.5 crores, the Corporation itself is the competent authority; and where Vﬂithpeffgconsideration is in excess of RS6 ctrores, the State government is the competent authority.

38. It is the vehement contention ef the learned counsel for the petitioners, that the aforestated procedure was not 66 followed when the tenders for execution of contracts contemplated by the impugned advertisements at "Annexures A to C" came to be issued. It is submitted, at the relevant juncture, the reins of authority injtiiej,v'3lf3l3.§l5.,xvere heid by the Administrator, and that, thee-stirnate:s/<:on'traot.s emerging out of "Annexures 'were*- Seitiglgl-lj-:::,1L0 he f sanctioned/ approved at the.___ hands" of uniiaterally, without followingothe.,3-mandateit of the provisions of law referred to here't--nabAo'a_re.:j_' 1 ii

39. In so of the controversy is concerned.,jVll1enarneti. ,l'::lre:p:re--senting the BBMP invited this "toﬂ'thei laifertnents made in paragraph 10 of jointly fiied on behalf of respondents it-'-1», so as to contend that, the State had aoeorded its approval to the proposed capital in'irest'1'ne_n_t and only thereupon, applications for prew q_tialifi~oati~o'n were invited. It is submitted, that the proposal respect was made by the Commissioner of the BBMP "l8.0"i'.2009 (Annexure R-2). The aforesaid proposal after it it "being approved by the Administrator of the BBMP was sent to the State government for its consideration. It is sought to be asserted, that the State government, through the Cabinet of 6'7 Ministers; first approved the execution of the construction work, and only thereafter, the Commissioner of the BBB/{P took the decision to invite appiications for preqtiialiﬁcation.

It is therefore sought to be asserted, that the_.c:oir;tention raised by the learned counsel for the petitioneirg support from the ground realities.

40. We have considered conteif;ti'ori"adiIai1ced at the hands of the learned counse_1:to'ri._the petitivoiriers. At this juncture, it is relevant the expiry of the tenure of of the BBMP, an the State government to handlieuthye' We havegwhile considering the on behalf of the petitioners, affirmed the VaZidity."ofi.the appointment of the Administrator, enﬁi Chips continuation til} the newly elected Councillors imee-ting on 28.03.2010. in the absence of Co'unci,_i'lors"' of the BBMI3' as also the Standing Committees of t.'r1e"BB"NiP, the responsibility of the Councillors, as also, the iﬁitiaiiding Committees has to be shouldered by the 'Administrator. The instant conclusion has been drawn by us While examining the second contention advanced on behalf of the petitioners. On account of the approval at the hands of 68 the Administrator, it is natural to infer, that the concerned Standing Committee, and/or the Corporation whenever required, had actually granted the sanction/approivai for the contemplated estimate / contract. Accord at the hands of the Cabinet of Ministers, in our. the requirement of approval at "--.c4)"f..'~._p4;_:}ir1ie:ci:_Stat.e government, irrespective of'iiti:ae namre of which are subject rnatter The highest sanctioning authority'-stiptiihateduuVniier.c the provisions relied upon by the is the State government_§"~» tiia;tiiti'ieiiiapprovai at the hands of the Cabinet' sanction at the hands of the higiiest Thus viewed, in the facts and circt1£r_istances*._of.this case, it is not possible for us to iis'an.ction/approval of the concerned authorities mandate of the provisions of the Municipal and / or the Municipai Corporation Rules 'had been obtained, prior to the issuance of the impugned 'a:di%Crtisements, "Annexures A to C". In View of the above, We ___i"ind no merit even in the petitioners third contention. Wm gektei W ﬂtwﬁigt «tie, 69 41, The fourth contention advanced at the hands of the learned counsel for the petitioners was to the effect, that the Transparency Act being a special provision had an over--r:iciing effect on other general Iegislations, including the"'~--Municipal Corporation Act. Additionaiiy, in view of ciause contained in Section 22 of the Trans}:s.are_ncy sought to be reiterated, that the Transparency Act would -«effect ovejrgthe provisions of the MunicipaliC'éirpo_ratiion herefore, it is sought to be asserteii_,":A-thettn provisions of Municipal Corporations.iﬁctfarep with the provisions. the provisions of the o:'?»rer~riding effect. Likewise, it is asserted, th'atV..thep'provisions of the Municipal Corporation ai'e....at.'variance with the Transparency Rules, C the pr'ovis_io1jis----.of the Transparency Rules will have an over- Under the mandate of Section 22 of the Transparency Act, it seems that the provision of the "'i-ﬂ'£'.ran_spareney Act would have an overriding effect on the provisions of the Municipal Corporation Act with effect from 04.10.2000. Under Section 1(2) of the Transparency Act, the Transparency Act was made operational with effect from 70 04.10.20{)O (even though it received the assent of the Governor on 10.12.2000 and was notified en 13.12.2000). In so far as the instant aspect of the matter is concerned, the submissions advanced on behalf of the 1earnedcp<':o_}.1nse1 for respondent nos. 2 to -4 were divided into two it was sought to be asserted, that none of Transparency Act (or the rules «th«ereun_iderihave« been contravened, and as such, the isn.hmissionsi:v'oased."thereon were untenabie. The that ah' the provisions of the rules framed thereunder) did not_..hs3,ve effect over the provisions 'of: Act (and the rules that none of the provisions (of the -appiicabie to Municipai activities ha._d'3'i:bee'n ._vio1ated.......«£n the aforesaid view of the matter our be to consider the first of the two suifarnissionsesil noticed hereinabove, to test the contentions advanced on behaif of the petitioners on the basis of the V"iiii_AApro"vi'sions of the Transparency Act (and the rules framed thereunder). Only if the conclusions which emerge, are in favour of the petitioners, the necessity to consider the second submission advanced on behaif sf respondent nos? to 4 ».m..wm mi N 3;; $4/zxvwg mwmm.

7E vmuid arise. For the tenor of the second. contention advanced on behalf of respendent nos' 2 to 4, reference may be made to paragraph 47.

42. Since it is the case of the resgzaoncieri'-;o'si:,"'»othat the provisions of the Transparency Act have not in any manner whatsoever, we consider it _ju.s_t:"and.:'appro'p:riat.e to first deaf with the different issuesfailegiiigxzioiatiionoof the if provisions of the Transpa3:'en__cy thereunder) which have us, and to determine the veracitgiiiiith'e'reo;fi therefore, in the first instance sake) that the fourth contention. the petitioners, as conolucletl "in""fa.:;,Qur.,_heft"the.__pe£itioners. The necessity to record a firiiiing etherieoxi will arise only if respondent nos. 2 to ii"4,V Vto fsuﬂbstantiate their first contention (noticed in the that none of the provisions of the Transp.aren'ei3r Act (or the rules framed thereunder) have been 'Jio1_ateCt... All the submissions examined hereafter, are based '=?_)ﬁ"the alleged vioiation of the provisions of the Transparency if "net.

7?.

43. The fifth contention of the learned counsel for the petitioners was, that tender not:ification(s) had to be published in the Endian Trade Journai, in t€I'1"I1Svv.()ii"..:lR1,tl<':* 10 of the Transparency Rules. This requirement isf"'inaindat:;iry,_ in all cases where the value exceeds Rs.10--'cro.1i{e.s.i"*».i In ag:iciitio'n to the publication in the Indi:an:1"'Tt'adie_i'Jo'Li.1*ti:sJ__.{'notices. ~ inviting tenders, according the"v.1earnedi' icounpsel ifo;-Fthe petitioners, have also to be pgiblisiied different newspapers in different languagesliipbashepdi } total consideration tttaitiiitii simét involved, and the,__gove'1'nine13ti'ofders the subject. Besides the aforesaidft .¢ont:ended,'-."thatV_it is also necessary for the Directori~of_ to pt1bl.isl:1 notices inviting tenders as per the 'tendering department. It is $3 subniitteid;-.that publications though mandatory, been iis'hown' as having been made in this case. The of inviting tenders, according to Eearned deserves to be set aside. The sixth i"..,contenltioni of the iearned counsel for the petitioners Was that ifappointinent of the Tender Inviting and Accepting _...ijfifuthority by the procuring entity in terms of Section 9 of the Transparency Act, though mandatory, had also not been complied with. Besides the aforesaid, it is submitted, that E ~ W WWW 1 E' de% ii/W29 43 "*3 N "M_>.wmw-w Section 10 of the Transparency Act requires the appointment of a Tender Scrutiny Committee for scrutiny of tenders above Rs.5 crores, in case of certain departments (Public Works, irrigation and Minor irrigation Departrnents,) ancig-"aloove Rs.1 crore, generally. It is submitted, that even '4""i73 contemplated through the impugned , were to the tune of Rs.22,000 did choose to nominate either theﬂithe Tender Accepting Authority.llvlld'c'i:tis the entire action Was processed;::4_iii_ inllaslrnuch as, even the Tender Scrutiny In this behalf, it 'that'; thetaC5on1niissioner/ Administrator having not as Tender inviting/ Accepting Authoritylliiindeig of the Transparency Act; and the Teffldeijﬁicrutiny-,_Cr:>InI:nittee, having not been nominated 210 of the Transparency Act, the action of the resgoondentls in issuing the impugned advertisements/notifications "AnneXu.res-- A to C" unilaterally, "_at'el clearly unsustainable, and are liable to be set aside. By tray? of the petitioners seventh contention, it was sought to be asserted, that the notification by the Tender Inviting Cmnrnittee ought to have necessariiy been in CO}C1SO}f18.1'1C6 with 74 the provisions of Rule 17 of the Transparency Rules, which coaritemjolates, that where the estimate of works is in excess of Rs.2 orores, the minimum notice period shouid days (unless the aforesaid has been exempted the Transparency Rules). Rule 17 otthe being extracted hereunder:

"17. Minimum time rm» submission of 1te':§1deJ_;s:~_.3 _ ' (1) The Tender 1I'1VitiI1g._.VP.U/EhOI'i$YV 'shaii "aerisiure that adequate time is provided "ibr the submissiori of tenders and 61 I13iI1iII11lffi~.. timrsmisfaiiowed betweeri date of publication of the.._N"otice ir1viti~n_'g,T"enders in the relevant Tender Buiietin the giasts-date for-. submission of tenders.

This minimum per.i_n._d'sVha1E be as ,£o':~1.ows:

(a) for tenders 1iptoLri1pees 'twoerores in Value, thirty days;-anc1.. 'V ' '2. .

(b)t..fori"vterider_s ir1"e:g<Vt;e'ss._.vQVf_ rupees two crores in value, f'sixty'd9<:"r$) i .' .

(2) Arty "r.e'duCtior.1_ the time stipulated under sub-

rule (.1) h--as"to~..speciﬁcaiiy authorized by an authority superior toV'theT1"ender Inviting Authority for reasons to be _ recordediri jﬁ;ritii1g,"";"

«..,It iisiisoiugiit. to beasiserteci in this behalf, that for any of the 4Vth_e'_j.magnitude contemplated under "Annexures A to rriinimum period prescribed for the receipt of teIiders__ishou1d not be reduced, as the same would not be in ii interest. Referring to Rule 17 extracted above, it is ..._submitted that adequate time has to be afforded to ailow tenderers to make up their mind before they respond to the notice inviting tenders, failing which, it is naturai to infer that ?5 the process adopted was a total farce. In the instant case inviting the Court's attention to the impugned notifications "Annexures-A to C", it is submitted, that whollyalinadequate time was afforded to interested parties their tenders. Details of the time schedule ad;-spteid. case,' having been fully expressed 16 -:

hereinabove, is not been detai.lediil of brevity. We shall i_ contention advanced on behalf io'§il:ilt}.':ieli--. _' The most forcefut contention basedhon Transparency Act projected :..at*».._of.." thehlelarned counsel for the petitions-rs_,T'stas*leased a....c.oilective reading; of Section 2

(h) (i) swear Act, along with, Sections 5, 6 as 7 thereotfso asrt-r__J cointend, that a complete go--by was given

-'".__tojthei__rnandatory...procedural requirements in the case of grialnti by adopting a process, which suited the fancies of the Administrator. It is therefore contended, that the respondents have given a complete go by provisions of the Transparency Act (and the ruies thereunder).

44. Each one of the submissions collectively noticed in the foregoing paragraph {as the fifth, sixth, seventh and eighth ':3WéAe@ei3o°e,ﬁ2iﬁ\: i.-§~V"""§a£' 76 contentions) have been clubbed together for reasons which will foilow hereafter. For each one of the aforesaid submissions, iearned counsel for the petitioners, had adverted to one or the other statutory provision"-ezrider the Transparency Act (or the Rules framed Reference was made to some govierrimeem or_dersVaiso,"*;whi1eV advocating the aforesaid contentions. Re_§eren'ce':.'W.as~.also made to forms KW4 and for ofiithe submissions noticed. 'La~b.ove';i"'"\\ Vthieé submissions advanced on the basisdeovfi and the forms referred to heen recorded. We are noticing xiearned counsel for the that their contentions have not been itakeni"into"'*«..oodsideration, despite having been Th'e'vre.ason for all this will emerge from the <:o«ncv3i1si:or::v{s}V:which we have drawn, to all the aforesaid four cozfitentions, 'r__45. " According to iearned counsei for the respondents, i.:d:"_the""2_~,ction of the respondents, sought to be assailed by the petitioners through the instant writ petition, being merely an invitation to prewqualificationg none of the provisions relied upon by the learned counsel for the petitioners in ﬁt; ~f% Wit' 77 propounding the fifth, sixth, seventh and eighth contentions were required to be complied with. T he distinction sought to be pointed out is, that the provisions referredito. by the learned counsel for the petitioners relate to thge""'ten.der;_stage", which had not yet arisen. According to'1caifried::coun:sel. the res ondents, the ini u ned advertisernen.t's ";'1.nr1e§:.ires42'iA .~ 53 :9 g .4 1 ._ _ _ ._ to C" merely solicited applicati_onsv"froﬁri:Vinterejsted riartiesttfor preoualification. Those jorocess of pre-- qualification will tenders for specified works. It process of "pre--

qiialificatici'1';"'f3:?i1;d: being separate and distinct,----wthVeir.' tzrocevdures have been separately provided 'for,' the procedure stipulated for one cannot beiigtsso factonlade applicable to the other. :,.".Ve~»i.gre of "t'n'ei view, that it is not necessary for us to e>;trae.f_"'«all»» tlzelgzzrovisions relied upon by the learned counsel for-__thc_petitiioners, While dealing with any of the contentions noticedvhereinabove as the fifth, sixth, seventh and eighth i' --..contentioris advanced on behalf of the petitioners, if we have accept the contention advanced on behalf of the respondents, The provisions relied upon by the petitioners would be relevant, according to the respondents, only if they '?8 were applieabke to the stage for which the impugned advertisements "Anne:<:ures«~A to C" came to be issued. All the provisions reiied upon, by the iearned counsel for the petitioners, pertain to the "tender process", the impugned orders clearly pertaining to the process". None of the provisions igééiiaats, i3y'ithe~ petitioners, according to thei';1e:arriedi"~.¢'o%.;rrse*}i_i:'*~..forp the J respondents, is relevant impugned orders. According to, se'paz'ate-iprovisions are provided under the the Transparency Rules), to ,processes (the "pre-

qualifieaticiri V._t}f1e:"'-:,f'tender process"). This is sought that oriiy when the process of "pre?qua1ifieatio_n7{ii'eem.es to an end, the "tender process"

~"'~..,_cor§},i=:1en.ce.s. i'nv....et}1er words, it is submitted, the latter part of the former process, but the Iatter to1},_eavs T he provisions reiied upon by the learned counsefifor the petitioners, according to the learned counsel V~.f"_'forﬁrespenderat 1103.2 to 4, are applicable only at the stage _,,_'5i}1en tenders are irzvited, and net at the stage of invitation of applications for "preenaiification". As against the assertion of the respondents, it is the eententien of the iearned counsel 79 for the petitioners, that the "pre~qua1ification process" is aiso a part and parcei of the "tender process", and as such, the procedurai requirements for one would also to the other. The aforesaid submissions (the fift1f;';"'siij5g;_t.}fi:,VV1'gevcgnth and eighth contentions) canvassed at_-~'the::j~..h'aiad.s learned counsel for the petitionierisii-.vVot1i§i.___ '<1f£:-quireA.-

adjudication only if, We concur the petitioners counsei, that process is a part of the "tender it .

47. We ithoigghvtiuiiconsideration to the rival sixth, seventh and eighth contentioris t}"ie petitioners. The term "pre- C1i1a1ificatio.n"" . defined in Section 2(b) of the Traii.spa1'er1cyi iR*a1_es.v(extracted above). In our considered wz_iie'w,_ 1"t._i's iiraperative to coliectiveiy read Rule 200) along with Transparency Rules (which has also already been ~~e§§tracted above). On a coilective perusal of the "'."_afor'e_«said provisions, there is no room for any doubt in our rriinci, that the process of "pre-qualification" is a matter separate and distinct from the process of invitation of "ten(:iers". Pre--quaiification in our considered View is a 80 process whereby prior to invitation of tenders, parties desirous of executing contracts are invited, and are screened. Parties are short listed on the basis of their experience and past performance, and also, on the basis of _their,,'_~c'a;aa..hi1ities and ﬁnancial status and capacity. Thus. pviroceiss of "pre~--qua1iﬁcation" contemplates;_-short--_lis'ti'ng"of e::1titie's,, Q from out of which alone, teindersiiareii to the execution of any worlc or --.st1prjlyi: material or goods, based on emerge from time to time. The object is to short list {B persons/ So that, when "tende,rs~'-'--, fito, for execution of speciﬁc works/-goods, possessing acceptable credentials '*::iwo.%aizo:s»Q»v fﬁfsmimgﬁii are invitedﬁtvo "tenders". T ender bids are on of offers of those who compete for the in the pre-qualification process, none of the /entities have had an occasion to submit a tenderﬂnid. The "pre»~quaiification process" and the "tender in our View do not overlap one another. Only when former concludes, the latter begins. in our considered View therefore, the two processes via, the "pre-qualiﬁcation process", as also, the "tender process", being separate and W

-»..,.....»-4 We vnmnivxﬂrzvntxwnzeww €51 distinct from one another, the conditions stipulated for eornpliance under the provisions of the Transparency Act (and of Transparency Rules) for the "tender process", cannot be ipso facto applicable to the "pre~qualification" process. The impugned advertisements having been issued of short listing, as a part of the process of.preqliaiific_atio_n, (contemplated under the provisionis"of the as also, the Rules made Ttheret:znd'e_r) oni3f"'the eo'n_clit.ions stipulated for Compliance atl""i:}?:i"el.stage"of"preqt:alificationVVw'ill be applicable. We are'~~.of that if ltvheflegislature, as also, the :jL1;i~e" had" so desired, they would have pro-vidliedl .v_sar.ne_i'ter*msvfand conditions for the pre-- qualification been provided for the tender process -E_tii11eetl7s to be emphasized that Rule 2(1)) of .__the':L_:'i3ransp_arencyéliules defines the term prewqualification as the '*pI*o.cess._:by which tenclerers are screened, before the intelrestediparties ".... are permitted to offer their tenders ....", l"..,whereasA;- Section 2(h) of the Transparency Act distinctly the term 'tender', as the formal offer made in response an invitation for a tender. The statutory definition of the two terms affirm the inferences drawn hereinabove. Therefore, it would not be incorrect to conclude that the Nmmmvnnvl *-ti0a%i;:i»§xa§u ﬁvvxiiarrrta mom' 8?, statutory" provisions of the enactments relied upon, aiso affirm the submissions advanced on behaif of respondent nos. 2 to 4. Likewise, Rule 27 of the Transparent}; Ruies deiineates the "pre»quaiification procedure_'f';""wi1ere;g$;rthe "tender procedure" is separately provide'-:3» "(in«.eXte1*1»s»i§*eA detail} under the Transparency:1_Ac_taa'nde_thie'- --:

Rules. This also, would 1ead 'to__thei'sarr:e'co:nCrit1sion, narnely, that the "pre~quaEificationV__:firo'c'e_dure'; the "tender procedure" are separate' one another. We are therefore vi4nc1ined:~"to" czoriitiention advanced by the learned :f.'vr-esboindents, that the pre- ii titiegivtender process, have been sepa_ra't.e1y tinder the provisions of the 'E'ranspare1:.oy'Acit~_{ainvd'tiie rules framed thereunder) and that, governe'dvVo.niy by such of the provisions as have been ind1'Vid"aa11iy'iwggirofvided for them. In other words the provisions appilicablebéoecthe "tender process" cannot per--se be deemed to iﬁbe applieabie to the "pre--qL::a1ification process". What the i"~ii_;3et_it'i'oners contend would iead to the enforcement of terms __ari'1d conditions which are sought to be made applicable only to the "terider process" even to the "pre--q1Iaiification process", inspite of the fact that, neither the provisions of the Act nor ~::i the provisions of the Rules framed thereunder, so envisage.

it is therefore not possibie for us, to accept the loundie of contentions advanced at the hands of the learned counsel for the petitioners as their fifth, sixth, seventh and eighth contentions, simply for the reason, that the relied upon by the learned cottnsei for the petition-ers;V'_ireilaiteiltiolthe "tender process", whereas the chia11enge"'rai:sed:' irivthe ir§.stanti"«.

writ petition relates to the "pre--qua.1iﬁcation.stage".

48. In paragraphfll of alternative submissions learned counsel representing r¢_Spo'ndenti'no¥s 'sheen noticed. The necessity the aforesaid two submis-sions',g_ Wotild have arisen if we were to accept the advanced at the hands of the petitioners, and at the conciusion, that the respondents were o_f,'lorVeach of the provisions of the Transparency Act (and Ruies framed thereunder). Since while examining contentions advanced at the hands of the learned _,Vp5ounsel for the petitioners based on the provisions of the Transparency Act, (as also, the rules framed thereunder) We have not accepted any of the contentions advanced at the 35 would be applicable, and would have an overriding effect, over the provisions of the Municipal Corporation Act. All other provisions of the Transparency Act must becleetned to have been exempted from such application; simple reason, that the legislature had indicatedits:~inten«tion"

to make speciﬁed provisions appli_cal5le;t...iV"-A'ccordi;ng -i learned counsel, the legis-'la;t:uzre Vlzad lithe general effect of Section 22 from an overall overriding of the Municipal Corporation to extent. Likewise reference Corporation Rules 4\lﬁe.reinabove) so as to contend, that of the Transparency Rules were made applicable -_to'..Vthei~7contingencies contemplated under I\/1Iu1licipali""Corporation Rules. For the instant sub rules (1) and (2) of Rule 7 of the l\/£'.:lnicipalie:Eijolrpotation Rules were sought to be invoked by the learned counsel representing respondent nos. 2 to 4?. i.''Vi.A'FQ:frthe provisions of the Transparency Rules also, learned A Wclounsel for the respondents canvassed the same logic as was advanced by him while advancing his plea in respect of the Transparency Act. The instant contention advanced at the hands of the learned counsel for respondent nos. 2 to 4} is left open to be decided as and when an appropriate occasion arises.

49. The last submission (the ninth in the "series of contentions) advanced at the hands of the 1e.3i'Tiedc:"co'ti.nsel for the petitioners, was based on an bundle; of_'_i:£actsl; The said facts commenced with whereby, this Court had directedthiew..conc,e':,'ne'df' aLith'oi}itiLes to conclude the election of l:li$I'Octoher, 2009. Despite ivvigioreoualification notification was issueednonw On 16.11.2009 a statement fixing the calendar of events jaxlfailable on 07.12.2009.

Accovrdinghf" calendar of events was issued on the manner in which the elections to if to be held. On the same date, on which the caiendai' events was issued, a notification (dated

07._l2.*2{iO9) was issued on ewportai identifying 20 firms short for award of works, during the process of '"pi'equalification. On 08.12.2009, a Division Bench of this Court directed that elections to the BBMP should be held within two Weeks (from O7.l2.2009')i Despite the same, the 87 State government did not cowoperate with the State Election Commission, to hold the elections in terms of the directions issued by this Court. The narration of the aforesaid facts, according to the learned counsel for the petitioners, is sufficient to conclude, that extraneous were the basis of inviting tenders and issuing orde_rs't'ori'aW'a,rdingf contracts. It is submitted, that th:e"*.§Jir2ole vitiated on account of legal,V1:ialaiifides i'oriTtl*1eVface of record. It is the case for the petitioners, that in contracts where the magnitude of to the tune of Rs.22,ooo,¢t§ftsi of the BBMP should a final decision in the matter. ,ld.etfiatio~n from the aforesaid procedure, to the 'le-arched counsel for the petitioners, is liable to as being vitiated, on account of legal mala fides, and':-.,.heing arbitrariness, and as such, for being ViOl8.t.i"J¢t'Of the provisions of Articie 14 of the Constitution of

50. During the course of hearing, learned counsel for respondents 2 to 4 informed us, that each and every 88 applicant, who had responded to the pre--qualification advertisements, witiiin the time prescribed, was approved in the process of pre-qualification, except for one-,T of the applicants who Was ineiigibie. It is the the iearned counsel for the respondents, tha_t;__the. sai'din.eiigihEe firm had not assailed the action th:eAijBj§3}VIP;A'in::

its prequaliﬁcation offer. It' cate§2;«;ric'i.asiseirtioiz' of learned counsel for responderi'ts.i2 to Bil3I\/iP is not in receipt of even a at hands of any other individual] V' besides the 20 prequaiified desire to execute the tifieiiiimpugned advertisements £'}XI1I1e:}v{Vl.1reSii' fa single concern, according to learned CounVsei,_ iilieastiiiexpiressed its dis--satisfaction of the adoptedfoy the BBMP for the prequalification raised a chalienge thereto. It is submitted, ti1at'iino_i}:ia'1ft}jiwhatsoever, had approach the BBMP alleging denialof consideration. it is therefore the contention of the lea,rfAé.ed counsei for the respondents, that there is not a single dissatisfied individual, in the procedure followed by the BBMP, to short list contractors for execution of works in terms of the advertisements at "Annexures A to C", for the 89 prequaiiﬁcation stage. T has viewed, it is the assertion of the Iearned counsel for the respcsndents, that all those who were / are desireus of executing works for the terms of advertisements referred to herein above, an opportunity to do so, when tenders are invited: _

51. It is aiso the contentionof"'t11e'--;1ee::1'?71¢Ci_ counsel fort':

respondents 2 to 4, that anoffer was'-rnadeidurirtgithercourse of hearing of the instant thati"the"aprocedure aiready undertaken by the egteicution contracts under reference, can be piacied ._i--i-newly elected 198 Counciikorsﬂ satisfaction of the {J petitioners,._3iid;§tba1.; would proceed further, in awardingcvoriﬂtractis execution of works or for supply of ifithevv--procedure undertaken by respondents 2 to to be approved by the newly elected It is further submitted, that the aforesaid offer rnade the petitioners was not accepted by the petitioners, on account of the fact, that they desired to press their on the basis of technicalities of law, rather than, Eegitimacy and good conscious. Even though according to the Eearned counsei for respondents, there was no viotation of any ewéigii 90 statutory provisions, the aforesaid offer had been made, to obviate allegations of kind which have now been levelled by the petitioners.

52. We have given our tho11ghtfu1"th"e last/ninth contention advanced ;"on1'behalf~_of f>fetitioners;e "

H The factual position depicte:d~w..at the learned counsel representing Jresponctelnt-. noﬁ- i/¢o-.4 ieimerges partly from the pleadings onlllltbe' and partly from the deliberations:-_ "f.di,1ring the course of hearing. is clear from the factuai positio'n,mti1at;riioitfieggf-31 /entity who had applied the works contemplated under "Anne_Xure4s"to_CJ");'v.ai*1d was eligible for the same, has been o'f..gconsid*e'ration. All the applicants who responded stibfulated time, and were eligible, have succeeded atthe 33I'e.f'qnaliﬁcation stage, and have been duly short listed for participation in all the works expressed in "Annexures A it Merely because certain orders came to be passed by wars Court, finding fauit with the State Election Commission and] or the State government, in not holding elections to the BBMP, cannot be the basis ef inferences in the nature of

9.':

extraneous consideration, Inala ﬁdes or arbitrariness, suggested by the learned counsel for the petitioners. The erstwhile BMC had 100 Councillors, the present'.T_Bui3l\rlP has 198 Councillors. During the course of hearing;'so'_~as5t.oii avoid allegations of the kind leveled by the petitien_ri§iiég:3"--i.g;:;;~. Qfif§:\--.

F':

made at the hands of respondent riogl i,i:.e_t<:>.' -i entire matter for re--consic¥e'I'ation--i"before 198 Councillors, so as to seel;<_t:tl§ie_ii*». ratification.

The proposal was by the petitioners.

Learned counselforrthe' conveyed the instructions' bpviiirequested this Court to adjudicatie_Aithe iinerits, based on the issues canvaiVS*~s¢d.4" nothing unfair in the stance adopted behalfi'..Voi"...'the petitioners. But then, having the offer,-----«it no longer lies in the month of the _ p'etitioi1verls,i"lto' "Eevei allegations of extraneous consideration, obl.i<i1uev_rnotive, Inala titles or arbitrariness. The process Hwhiclri subject matter of challenge at the hands of the V."Vi.'petitioners is the "first stage". There is no dissatisfied hjtsileziividual, with the first stage. The important of the stages would be that, when tenders for specified works are invited, whereupon Contracts would be awarded. That stage is still to ciaaaae saws 92 commence. The competing tenderers wouid stand to gain or ioose, when tenderers are screened, and one of them is chosen to execute the work(s) for which tenders 'i;ir'e,.Vinx7ited. We find no infirmity in the de1iberations__;"cai<rie_di5 by respondents 2 to 4 upto the stage of * respondents thernseives agreed, s'thati'=.,tIae'y Wfvouidr not, -- precipitate the matter further-.__. This to this Court on 21.oi,2o1o.,_ ,ii,"on--trio.o2.«eoiio,,?the aforesaid assurance was a motion bench order, whereiipon, proceeded further.

Thus viewed," to conciude, that the respondents;~theinise1've,s,,iof free wiil did not aliow the iiriiportant stage, wherein contracts for execution of would be awarded, and actual ﬁnancial ,.,_,impii~cations wotild----emerge. It is therefore not possible for us 'ted chaiienge can be raised on behalf of the piet_iti0nverS:,i:--__ on pleas of the nature of extraneous consideration, obiique motive, maia fides or arbitrariness. .,AFeor_the reasons recorded hereinafter, we find no merit in any the aforesaid allegations Ieveied on behaif of the petitieners.

For the reasons recorded, on the different pleas raised on behalf of the petitioners, we find no merit in their ehailenge to "Antiexures A to C". The instant '§.'fg?'IV"?':..'fT.§"'§§).vE3I:iiii()1'1S being devoid of merit, are accordingly _ va e '' ;}"-¥lIEé;'§E inde);:YesVx/"'N\o'v V' A J V' _ A A' ««««« ~ "

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Karnataka High Court