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2019 DIGILAW 1314 (KAR)

Prabhu Trading Corporation v. State of Karnataka, Department of Backward Classes Welfare

2019-06-17

S.G.PANDIT

body2019
JUDGMENT : S.G. PANDIT, J. 1. The petitioner is before this Court under Article 226 of the Constitution of India challenging the tender notification dated 31.05.2019 bearing No.Ji.Hi.KaEi.Ba/AaharTender/CR-01/2019-20 issued by respondent No.3 in respect of Bagalkot Taluk, Badami Taluk and Jamakhandi Taluk for supply of food articles and other products to the Pre-metric and Post-metric hostels coming under Backward Class Welfare Department of Bagalkot District. 2. Respondent No.3 under short term tender notification dated 31.05.2019 invited tenders for the year 2019 for supply of food articles and other products to the Pre-metric and Post-metric hostels coming under Backward Class Welfare Department of Bagalkot District. The tender amount was Rs.2,79,20,000/- and the last date for uploading of the tender form was 14.06.2019 and opening of the technical bid was on 18.06.2019. The EMD amount to be submitted along with tender was Rs.4,18,800/-. The petitioner was successful bidder for the year 2018-19 for supply of food articles and other products to the Pre-metric and Post-metric hostels of Bagalkot District. The petitioner is before this Court challenging the tender notification. 3. The petitioner is before this Court challenging the tender notification only on the ground that the tender notification is violative of Rule 17 of the Karnataka Transparency in Public Procurement Rules, 2000 (for short 'the Rules') . He submits that wherever the tender is for rupees two crores in value, 30 days time is to be provided and if the tender in excess of rupees two crores, 60 days time is to be provided for submitting the tenders. In the case on hand, it is submitted that the amount involved in the tender process is more than rupees two crores and the tender inviting authority ought to have provided minimum of 60 days time for submitting the tender. As the tender notification is in violation of Rule 17 of the Rules, he prays that the same is liable to be quashed. 4. The learned AGA accepted notice on behalf of respondent Nos.1 to 3 on 13.06.2019 and made available the original tender file of respondent No.3 before this Court. The learned AGA submits that the petitioner has no right to challenge the tender notification. The only intention and purpose of the petitioner in filing this writ petition is to see that he continues to supply food articles as he was the successful tenderer for the previous year. 5. The learned AGA submits that the petitioner has no right to challenge the tender notification. The only intention and purpose of the petitioner in filing this writ petition is to see that he continues to supply food articles as he was the successful tenderer for the previous year. 5. On hearing the learned counsel for the parties and on perusal of the writ papers along with the original records, the only question that arises for consideration is, whether the tender invited by respondent No.3 at Annexures-A, B and C are in violation of Rule 17 of the Rules. 6. Respondent No.3 invited short term tender dated 31.05.2019 at Annexures-A, B and C for supply of food articles for the year 2019-20 to Pre-metric and Post-metric hostels of Bagalkot District. On perusal of the tender notification, it is seen that the last date to upload the tender was 14.06.2019 and the amount involved was Rs.2,79,20,000/-. Admittedly, the tender provides 15 days time for tenderers to submit/upload their tenders. Rule 17 of the Rules reads as follows: "17. Minimum time for submission of tenders. - (1) The Tender Inviting Authority shall ensure that adequate time is provided for the submission of tenders and a minimum time is allowed between date of publication of the Notice Inviting Tenders in the relevant Tender Bulletin the last date for submission of tenders. This minimum period shall be as follows. - (a) for tenders upto rupees two crores in value, thirty days, and (b) for tenders in excess of rupees two crores in value, [sixty days] . (2) Any reduction in the time stipulated under sub-rule(1) has to be specifically authorized by an authority superior to the Tender Inviting Authority for reasons to be recorded in writing." 7. A careful reading of Rule 17 would make it clear that, the tender inviting authority for tenders up to rupees two crores in value, has to provide 30 days time and tenders in excess of rupees two crores in value, the tender inviting authority has to provide 60 days time for submission of tenders. Sub-rule (2) of Rule 17 provides for relaxation or reduction in the time stipulated under sub-rule(1) by an authority superior to the tender inviting authority for reasons to be recorded in writing. 8. The learned AGA made available the original file relating to inviting tenders at Annexures-A, B and C dated 31.05.2019. Sub-rule (2) of Rule 17 provides for relaxation or reduction in the time stipulated under sub-rule(1) by an authority superior to the tender inviting authority for reasons to be recorded in writing. 8. The learned AGA made available the original file relating to inviting tenders at Annexures-A, B and C dated 31.05.2019. The file noting would indicate that, the tender inviting authority had invited E-Procurement by notification dated 07.03.2019 and last date for uploading the tender was 07.05.2019. In the meanwhile, code of conduct for ensuing Lok Sabha election was issued on 10.03.2019. Therefore, the said tender could not go through. As required under Rule, if the tender is more than rupees one crore, the tender bulletin is to be published in the State Tender Bulletin. As the tender notification dated 07.03.2019 could not be published in the State Tender Bulletin. In view of code of conduct, the Chief Secretary had issued Circular dated 08.04.2019 to submit proposal after 23.04.2019 to call for tenders wherever tenders are for developmental works and purchase of articles. In accordance with the Circular, the proposal for issuance of tender notification is taken up. The proposal for inviting short term tender giving 15 days time for submission of tender was proposed and the same was approved by the Additional Deputy Commissioner as well as the Deputy Commissioner. 9. The learned counsel for the petitioner relied upon the decision of this Court in the case of B.R.Ganesh and Others Vs State of Karnataka and Others, (2014) 1 KarLJ 386 (DB) wherein, the Division Bench on considering Rule 17 of the Rules has held that the time could be reduced by recording reasons in writing. 10. In the tender process the Courts should not lightly interfere with decision taken by the Authorities. Exercise of jurisdiction under Article 226 of the Constitution of India in the matter of tender process is very limited. The Hon'ble Apex Court in a case Michigan Rubber (India) Limited. Vs State of Karnataka and Others, (2012) 8 SCC 216 at 23(c), it is held as follows. "23. From the above decisions, the following principles emerge: (a) .......... (b) .......... The Hon'ble Apex Court in a case Michigan Rubber (India) Limited. Vs State of Karnataka and Others, (2012) 8 SCC 216 at 23(c), it is held as follows. "23. From the above decisions, the following principles emerge: (a) .......... (b) .......... (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted." 11. In the case on hand, along with recorded reasons, the purpose for inviting tender is also to be taken note off. The purpose for issuance of tender is for supply of food articles and other products to the Pre-metric and Postmetric hostels for the year 2019-20. The academic year would commence from June of every year. The reasons recorded by the authorities are that, in view of the code of conduct for Lok Sabha elections, they could not publish the tender notification dated 07.03.2019 in State Tender Bulletin. It is noticed from the note sheet that the tender notification was issued on 07.03.2019 and the last date for submission of the tender was 07.05.2019. The said tender notification provided 60 days time for submitting the tenders. It is noted that the tender process could not be finalized in view of the code of conduct for the Lok Sabha elections. The Chief Secretary, Government of Karnataka had issued Circular dated 08.04.2019 granting certain relaxation for inviting tenders for developmental work and supply of materials, which could begin after 23.04.2019. Taking note of the said Circular dated 08.04.2019, the note was put up for approval. Accordingly, the Additional Deputy Commissioner and the Deputy Commissioner have approved for issuance of 15 days short term tender. The need for supply of food articles to Pre-metric and Post-metric hostel would be of utmost necessity since the academic year has already commenced and students would get admitted to hostels. If supply of food articles is not commenced immediately, the inmates of the hostel would suffer. The need for supply of food articles to Pre-metric and Post-metric hostel would be of utmost necessity since the academic year has already commenced and students would get admitted to hostels. If supply of food articles is not commenced immediately, the inmates of the hostel would suffer. Looking into the nature and purpose of tender called for, i.e., for supply of food articles to the Pre-metric and Post-metric hostels, the reduction of time in the tender notification dated 31.05.2019 is neither arbitrary nor unreasonable and the same is in accordance with Rule 17(2) of the Rules. Hence, I do not find any merit in the writ petition. Accordingly, the writ petition is rejected.