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2013 DIGILAW 1312 (KAR)

S. R. Ganesh v. State of Karnataka

2013-11-18

A.S.BOPANNA

body2013
Judgment : 1. The petitioner is before this Court assailing the tender notification dated 17.11.2012 (Annexure-D). On amendment of the petition, the petitioner has also sought to quash the acceptance of the tender by respondents No.2 and 3 which was approved on 22.02.2013. Consequently, direction is also sought for issue of fresh tenders, to notify the work as individual piece work instead of the package. 2. The petitioner claims to be a Class-I contractor registered with respondent No.2-Bruhat Bangalore Mahanagara Palike. The case of the petitioner is that in respect of certain road and bridge work to be carried out by respondent No.2, the proposal had been put to the Government and the Principal Secretary, Urban Development Department has approved the projects of the several works on 10.07.2012 vide Annexure-B to the petition. Subsequent thereto, the tender notification has been issued clubbing the work as a package. It is in that regard, the petitioner has a grievance that as per the approval of the Government at Annexure-B, different items of work has been taken note of and the amount incurred thereto has also been noticed and the approval has been made. 3. According to the petitioner, if the work is notified for individual items as approved by the Government, there would be more participation and the competitive bids would be offered, but on the other hand, the present procedure of inviting tenders on package as made by respondent No.2 is not only contrary to the approval granted by respondent No.1, but is also to avoid certain contractors like the petitioner and to prefer such of those contractors desired by respondent No.2 and allegations have been made that respondent No.4 has been chosen in that regard. It is also the case of the petitioner that despite such notification and the respondent No.4 having participated in the tender process, he has not satisfied the qualification indicated therein and therefore the respondents were not justified. 4. The respondent No.2 as well as respondent No.4 have filed their objection statement. Since, the respondent No.2 is undertaking the said work and at whose instance the tender notification has been issued, the objection filed by them would be relevant for the instant purpose. The fact that the Government having approved the work as sought for by the petitioner on 10.07.2012 is not disputed. Since, the respondent No.2 is undertaking the said work and at whose instance the tender notification has been issued, the objection filed by them would be relevant for the instant purpose. The fact that the Government having approved the work as sought for by the petitioner on 10.07.2012 is not disputed. It is contended that respondent No.2 based on such approval has taken into consideration the nature of work that has been approved and the cumulative effect of the said work and accordingly, the Commissioner has approved the calling of the work on package basis. It is in that regard, the notification impugned herein was issued. Thereafter, the process has been completed and the work has also been assigned to respondent No.4. It is therefore contended that apart from the procedure being followed by respondent No.2, the contention is also that the petitioner cannot assail the same having not participated in the tender process and in any event when such disputed questions are to be decided in the writ petition, this Court should not interfere in such matters. The petitioner has also filed rejoinder to the said objection statement, once again raising certain contentions with regard to the manner in which the tender was floated and the manner in which the work was assigned to respondent No.4. 5. In the light of the rival contentions, according to me, two aspects would arise for consideration. Firstly, as to whether the impugned tender notification should be faulted only due to the fact that the same has been floated inviting bids in the nature of package, though the Government at the first instance has approved the work on individual basis on 10.07.2012. It is only thereafter, the subsequent question as to whether the petitioner can also assail the qualifications of respondent No.4 would arise for consideration. 6. In that view, if the first aspect is taken into consideration, there is absolutely no dispute to the fact that the respondent No.1 has approved the work which was to be undertaken by respondent No.2 by its order dated 10.07.2012. There is also no dispute to the fact that Annexure-D i.e. the invitation for tender dated 17.11.2012 has been issued by clubbing the works which were part of the approval of the Government as one package and bids were invited. There is also no dispute to the fact that Annexure-D i.e. the invitation for tender dated 17.11.2012 has been issued by clubbing the works which were part of the approval of the Government as one package and bids were invited. In that regard, the document (Annexure-R1) referred by both the learned counsel for the petitioner and the respondent would indicate the nature of consideration as made by respondent No.2 before taking a decision to invite the work on the package basis. The proposal has been put forth by the Chief Engineer, on taking note of the different works that were to be taken up. Though it is noticed that separate tenders would have to be called, the Commissioner has taken a decision to award the work on package basis. 7. The learned counsel for the petitioner lays emphasis on the proposal that had been putforth to point out that the Officer putting up the note for approval of the Commissioner had indicated that to complete the work expeditiously, it would be appropriate to call for separate tenders. Though such order is depicted in the order sheet at Annexure-R1, ultimately, it is for the Commissioner to take a decision and a decision has been taken. It is no doubt true that the order sheet itself does not spell out the reasons for such decision. The explanation therefore is in the objection statement where interlinking of the work has been referred to under the different items which have been explained that the same would be feasible, if a single tender is floated and would not be possible, if individual work is assigned to different contractors. 8. Be that as it may, what is also to be noticed is that the contention of the petitioner is that the approval granted by respondent No.1 is for individual work and not for package work. Even if this aspect is kept in view, in my opinion, the same should not make any difference in the instant facts inasmuch after the tender process was completed, the respondent No.1 has again approved the process in awarding the work to respondent No.4 by the order dated 22.02.2013, though it was on package basis. Even if this aspect is kept in view, in my opinion, the same should not make any difference in the instant facts inasmuch after the tender process was completed, the respondent No.1 has again approved the process in awarding the work to respondent No.4 by the order dated 22.02.2013, though it was on package basis. If that be the position, it cannot be assumed that the Government has issued any specific instructions to call for individual tenders and that can be deduced from the order dated 10.07.2012 for the different works and the budget allocated for the same was approved by the Government, no specific indication has been made with regard to the manner in which the tender is to be floated. In any event, when the respondent No.1 has approved the tender process, it would indicate that all procedures adopted by respondent No.2 has been ratified by the Government. If that be the position, the challenge to the tender notification on the grounds as indicated above cannot be sustained. 9. Having arrived at the said conclusion and when the tender notification as at Annexure-D was issued and when the petitioner has not participated nor has produced material to show that in respect of the package he was also qualified to take part in the tender process, the other contentions urged in the petition with regard to qualification of respondent No.4 need not be gone into, more particularly in a circumstance when the respondents have prima facie referred to the documents along with the objection statement relating to the manner in which the proceedings were conducted and the approval of respondent No.1 had been obtained. Hence, in my opinion, the prayer as made in the instant petition cannot be granted. Accordingly, the petition is disposed of.