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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF APRIL 2017
BEFORE
THE HON’BLE MR. JUSTICE A S BOPANNA
WRIT PETITION No.7881/2017 (GM-TEN) C/W
W.P.No.60402/2016, W.P.No.62068/2016, W.P.No.6293/2017, W.P.No.9569/2017,
W.P.No.12735/2017 AND W.P.No.12736/2017 (GM-TEN)
W.P.No.7881/2017
BETWEEN: M/S. AISHWARYA INFRASTRUCTURES AND DEVELOPERS REP. BY ITS PROPRIETOR SRI R. CHANDRU AUJA CHAMBERS FLAT NO.204, 2ND FLOOR NO.1, KUMARAKRUPA ROAD BENGALURU-560 001 ... PETITIONER (BY SRI. RAVI VERMA KUMAR, SR.COUNSEL FOR SRI. VIJAYA KUMAR, ADV.) AND: 1. STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY URBAN DEVELOPMENT DEPARTMENT BRUHATH BENGALURU MAHANAGARA PALIKE VIKASASOUDHA BANGALORE-560 001
2. THE COMMISSIONER BRUHATH BENGALURU MAHANAGARA PALIKE N R SQUARE BENGALURU-560 002
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3. THE CHIEF ENGINEER (WEST) BRUHATH BENGALURU MAHANAGARA PALIKE BASHYAM PARK (SOUTH) CENTRAL STREET BENGALURU-560 001
4. THE EXECUTIVE ENGINEER AND
A TENDER ACCEPTING AUTHORITY BRUHATH BENGALURU MAHANAGARA PALIKE MALLESHWARAM DIVISION 2ND CROSS, JAGADARSHINI LAYOUT M S R NAGAR BENGALURU-560 003
... RESPONDENTS
(BY SRI. K N PUTTE GOWDA, ADV. FOR C/R2 & R3 & 4 SRI. LAKSHMINARAYANA, AGA. & SMT. PRATHIMA HONNAPURA, HCGP. FOR R1 SRI. S.S. RAMDAS, SR. COUNSEL FOR SRI. S.R. KAMALACHARAN, ADV. FOR IMPLEADING APPLICANT ON IA2/17)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO CALL FOR THE RECORDS RELATING TO ISSUE OF THE IMPUGNED ORDER DTD:16.2.2017 [ANNEXURE-P] OF THE R-1 AND AFTER PERUSAL SET ASIDE THE SAME AND DECLARE THE PETITIONER'S TENDER APPLICATION AS MOST RESPONSIVE AND TO ISSUE WORK ORDER IN RESPECT OF THE NOTIFICATION DTD:25.2.2016 VIDE ANNEXURE-C TO EXECUTE THE WORK RELATING "COMPREHENSIVE DEVELOPMENT OF WARD ROADS INCLUDING DRAIN, FOOTPATH AND ASPHALTING IN WARD NO.35, 36 & 45 WITHIN A TIME FRAME SPECIFIED BY THIS COURT.
W.P.No.60402/2016 BETWEEN: M/S. AISHWARYA INFRASTRUCTURES AND DEVELOPERS REP. BY ITS PROPRIETOR SRI R. CHANDRU AHUJA CHAMBERS FLAT NO.204, 2ND FLOOR
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NO.1, KUMARAKRUPA ROAD BENGALURU-560 001 ... PETITIONER (BY SRI. RAVI VERMA KUMAR, SR.COUNSEL FOR SRI. VIJAYA KUMAR, ADV.)
AND:
1. THE STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY URBAN DEVELOPMENT DEPARTMENT VIKASASOUDHA BANGALORE-560 001
2. THE COMMISSIONER BRUHATH BENGALURU
MAHANAGARA PALIKE N R SQUARE BENGALURU-560 002
3. THE CHIEF ENGINEER (WEST) BRUHATH BENGALURU
MAHANAGARA PALIKE SOUTH CENTRAL STREET BENGALURU-560 001
4. THE EXECUTIVE ENGINEER AND BRUHATH BENGALURU MAHANAGARA PALIKE GANDHI NAGAR BENGALURU-560 009
... RESPONDENTS
(BY SRI. LAKSHMINARAYANA, AGA. & SMT. PRATHIMA HONNAPURA, HCGP. FOR R1 SRI. K.N.PUTTEGOWDA, ADV. FOR R2-4 SRI. M. NARAYANA BHAT, ADV. FOR IMPLEADING APPLICANT ON IA4/17)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, WITH A PRAYER TO CALL FOR THE RECORDS RELATING TO ISSUE OF THE IMPUGNED PROCEEDINGS OF THE MEETING OF THE TENDER SCRUTINY COMMITTEE DTD:11.11.2016 UNDER THE CHAIRMANSHIP OF THE R2 (ANNEXURES M & M1) RELATING TO AWARDING OF THE WORKS PURSUANT TO THE TENDER NOTIFICATION DATED 22.01.2016 AND AFTER PERUSAL SET ASIDE THE SAME AND ETC.
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W.P.No.62068/2016 BETWEEN: M/S. AISHWARYA INFRASTRUCTURES AND DEVELOPERS REP. BY ITS PROPRIETOR SRI R. CHANDRU
AHUJA CHAMBERS FLAT NO.204, 2ND FLOOR NO.1, KUMARAKRUPA ROAD BENGALURU-560 001 ... PETITIONER
(BY SRI. RAVI VERMA KUMAR, SR.COUNSEL FOR SRI. VIJAYA KUMAR, ADV.)
AND:
1. THE STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY URBAN DEVELOPMENT DEPARTMENT VIKASASOUDHA BANGALORE-560 001
2. THE COMMISSIONER BRUHATH BENGALURU
MAHANAGARA PALIKE N R SQUARE BENGALURU-560 002
3. THE CHIEF ENGINEER (WEST) BRUHATH BENGALURU MAHANAGARA PALIKE BASHYAM PARK SOUTH CENTRAL STREET BENGALURU-560 001
4. THE EXECUTIVE ENGINEER BRUHATH BENGALURU
MAHANAGARA PALIKE CHAMARAJPET DIVISION BBMP COMMERCIAL COMPLEX 2ND FLOOR, BENGALURU-02
... RESPONDENTS
(BY SRI. LAKSHMINARAYANA, AGA. & SMT. PRATHIMA HONNAPURA, HCGP. FOR R1 SRI. K N PUTTE GOWDA, ADV. FOR R2-4)
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THIS PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO CALL FOR THE RECORDS RELATING TO THE DECISION TAKEN BY THE RESPONDENTS ON THE FILE VIDE ANNEX-P TO FOLLOW THE INSTRUCTIONS OF THE R2 DATED 11.11.2016 RELATING TO THE AWARDING OF THE WORKS PURSUANT TO THE TENDER
NOTIFICATION DATED 25.01.2016 AND 22.02.2016 OF CHAMARAJPET SUB-DIVISION VIDE ANNEX-A & B AND AFTER PERUSAL SET ASIDE THE SAME AND ETC.
W.P.No.6293/2017
BETWEEN: M.S. VENKATESH S/O MARAPPA NAIDU,
AGED 53 YEARS, CLASS I-A CONTRACTOR, R/AT NO.163, 5TH CROSS, 2ND MAIN ROAD, PRAKASH NAGAR, BENGALURU-560021.
... PETITIONER
(BY SRI. NARAYANA BHAT M, ADV.)
AND: 1. STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY, URBAN DEVELOPMENT DEPARTMENT, VIKASA SOUDHA, BENGALURU-560001.
2. THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE, N.R. SQUARE, BENGALURU-560002.
3. THE CHIEF ENGINEER (WEST) BRUHAT BENGALURU MAHANAGARA PALIKE, SOUTH CENTRAL STREET, BENGALURU-560003.
6
4. THE EXECUTIVE ENGINEER BRUHAT BENGALURU MAHANAGARA PALIKE, GANDHI NAGAR, BENGALURU-560009.
5. AISHWARYA INFRASTRUCTURE & DEVELOPERS, REP. BY ITS PROPRIETOR R.CHANDRU, AHUJA CHAMBERS, FLAT NO.204, 2ND FLOOR, NO.1, KUMARA KRUPA ROAD, BENGALURU-560001.
6. THE SUPERINTENDING ENGINEER (WEST) DIVISION BRUHAT BENGALURU MAHANAGARA PALIKE BANGALORE-01
7. EXECUTIVE ENGINEER
BRUHAT BENGALURU MAHANAGARA PALIKE CHAMARAJAPET DIVISION BANGALORE-560 018
8. SRI SADANAND
RETIRED EXECUTIVE ENGINEER NO.373, 19TH G MAIN, 1ST N BLOCK RAJAJINAGAR, BENGALURU-10
... RESPONDENTS
(BY SRI. LAKSHMINARAYANA, AGA. & SMT. PRATHIMA HONNAPURA, HCGP. FOR R1 SRI. K.N. PUTTEGOWDA, ADV. FOR R2-4, 6 & 7 SRI. RAVIVERMA KUMAR, SR.COUNSEL FOR SRI. VIJAYAKUMAR, ADV. FOR R5)
THIS PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO CALL FOR RECORDS PERTAINING TO THE ENDORSEMENT DATED 07.05.2016 AT ANNEX-F-10 FROM THE FILE OF BBMP (R-2 & 4) AND ALSO PAPERS IN W.P.NO.28986/2016 FROM THE REGISTRY AND GRANT THE PETITIONER THE FOLLOWING RELIEFS; REVIEW/RECALL THE ORDER DATED 04.08.2016 MADE IN W.P.28986/2016 AT ANNEX-H AS THERE ARE ERRORS APPARENT ON THE FACE OF RECORDS AND ETC.
7
W.P.No.9569/2017 BETWEEN: M S VENKATESKH S/O MARAPPA NAIDU AGED ABOUT 53 YEARS CLASS 1-A CONTRACTOR
R/A NO.163, 5TH CROSS 2ND MAIN ROAD PRAKASH NAGAR BENGALURU-560021
... PETITIONER
(BY SRI. NARAYANA BHAT M, ADV. SRI. K.N. PUTTE GOWDA, ADV. FOR C/R2 & R6) AND: 1. STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY URBAN DEVELOPMENT DEPARTMENT VIKASA SOUDHA BENGALURU-560001
2. BRUHAT BENGALURU MAHANAGARA PALIKE REP. BY ITS COMMISSIONER N R SQUARE BENGALURU-560002
3. AISHWARYA INFRASTRUCTURE & DEVELOPERS REP. BY ITS PROPRIETOR R CHANDRU AHUJA CHAMBER, FLAT NO.204 2ND FLOOR, NO.1, KUMARA KRUPA ROAD BENGALURU-560001
4. G N RAMESH NO.1, 3RD MAIN ROAD 7TH CROSS, MARUTHI EXTN., GANDHI GRAMA BENGALURU-560094
5. G CHANDRASHEKAR
NO.124, 16TH CROSS, FIRST FLOOR ADUGODI, LAKKASANDRA BENGALURU-560030
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6. EXECUTIVE ENGINEER BBMP, MALLESHWARAM DIVISION 2ND CROSS, JALADARSHINI LAYOUT M S R NAGAR, MATHIKERE BENGALURU-560054
7. SRI SADANAND RETIRED EXECUTIVE ENGINEER NO.373, 19TH G MAIN,
1ST N BLOCK, RAJAJINAGAR, BENGALURU-560010
... RESPONDENTS
(BY SMT. PRATHIMA HONNAPURA, HCGP. & SRI. LAKSHMINARAYANA, AGA. FOR R1 SRI. RAVIVERMA KUMAR, SR.COUNSEL FOR SRI. VIJAYA KUMAR, ADV. FOR R3)
THIS PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO CALL FOR RECORDS PERTAINING TO THE CASE OF THE PETITIONER; QUASH THE NOTIFICATION DATED 16.02.2017 AT ANNEX-J AND THE NOTIFICATION DATED 21.02.2017 AT ANNEX-K AS THE SAME ARE ILLEGAL AND VIOLATIVE OF ART 14 AND 21 OF THE CONSTITUTION AND THE PROVISIONS OF THE KTPP ACT 1999 AND THE RULES FRAMED THERE UNDER AND ETC.
W.P.No.12735/2017
BETWEEN: M. S. VENKATESH S/O. MARAPPA NAIDU, AGED ABOUT 53 YEARS, CLASS 1-A CONTRACTOR, R/AT NO.163, 5TH CROSS, 2ND MAIN ROAD, PRAKASH NAGAR, BENGALURU-560 021. ... PETITIONER
(BY SRI. NARAYANA BHAT M, ADV.) AND: 1. STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY, URBAN DEVELOPMENT DEPARTMENT,
9
VIKASA SOUDHA, BENGALURU-560 001.
2. THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE,
N.R. SQUARE, BENGALURU-560 002.
3. THE CHIEF ENGINEER (WEST) BRUHAT BENGALURU MAHANAGARA PALIKE, SOUTH CENTRAL STREET, BENGALURU-560 003.
4. THE EXECUTIVE ENGINEER BRUHAT BENGALURU MAHANAGARA PALIKE, MALLESHWARAM, BENGALURU-560 003.
5. AISHWARYA INFRASTRUCTURE & DEVELOPERS REP. BY ITS PROPRIETOR, R. CHANDRU, AHUJA CHAMBER, FLAT NO.204, 2ND FLOOR, NO.1, KUMARA KRUPA ROAD, BENGALURU-560 001.
6. THE SUPERINTENDING ENGINEER (WEST) DIVISION BRUHAT BENGALURU MAHANAGARA PALIKE, BANGALORE-01.
7. SRI. SADANAND RETIRED EXECUTIVE ENGINEER, NO.373, 19TH G MAIN, 1ST N BLOCK, RAJAJINAGAR, BENGALURU-560 010.
... RESPONDENTS
(BY SMT. PRATHIMA HONNAPURA, HCGP. FOR R1 SRI. K N PUTTEGOWDA, ADV. FOR R2-4 & 6 SRI. RAVIVERMA KUMAR, SR.COUNSEL FOR SRI. VIJAYAKUMAR, ADV. FOR R5 NOTICE TO R7 IS H/S V/O DT.28.03.2017)
10
THIS PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO CALL FOR RECORDS PERTAINING TO THE W.P.NO.30635/16 FROM THE REGISTRY; ISSUE A WRIT OF MANDAMUS OR ANY OTHER APPROPRIATE WRIT OR ORDER OR DIRECTION BY REVIEWING /RECALLING THE ORDER DTD.4.8.2016 MADE IN
W.P.NO.30635/2016 VIDE ANNEX-G AS THERE ARE ERRORS APPARENT ON THE FACE OF RECORD AND ETC.
W.P.No.12736/2017
BETWEEN: M. S. VENKATESH S/O. MARAPPA NAIDU, AGED ABOUT 53 YEARS, CLASS 1-A CONTRACTOR, R/AT NO.163, 5TH CROSS, 2ND MAIN ROAD, PRAKASH NAGAR,
BENGALURU-560 021. ... PETITIONER
(BY SRI. NARAYANA BHAT M, ADV.) AND: 1. STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY, URBAN DEVELOPMENT DEPARTMENT, VIKASA SOUDHA, BENGALURU-560 001.
2. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE, N.R. SQUARE, BENGALURU-560 002.
3. THE CHIEF ENGINEER (WEST) BRUHAT BENGALURU MAHANAGARA PALIKE,
SOUTH CENTRAL STREET, BENGALURU-560 003.
4. THE EXECUTIVE ENGINEER BRUHAT BENGALURU
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MAHANAGARA PALIKE, CHAMARAJAPET BENGALURU-560 003.
5. AISHWARYA INFRASTRUCTURE & DEVELOPERS
REP. BY ITS PROPRIETOR, R. CHANDRU, AHUJA CHAMBER, FLAT NO.204, 2ND FLOOR, NO.1, KUMARA KRUPA ROAD, BENGALURU-560 001.
6. THE SUPERINTENDING ENGINEER (WEST) DIVISION BRUHAT BENGALURU MAHANAGARA PALIKE, BANGALORE-01.
6. SRI. SADANAND RETIRED EXECUTIVE ENGINEER, NO.373, 19TH G MAIN,
7. 1ST N BLOCK, RAJAJINAGAR, BENGALURU-560 010.
... RESPONDENTS
(BY SMT. PRATHIMA HONNAPURA, HCGP. FOR R1 SRI. K N PUTTEGOWDA, ADV. FOR R2-4 & 6 SRI. RAVIVERMA KUMAR, SR.COUNSEL FOR SRI. VIJAYAKUMAR, ADV. FOR R5 NOTICE TO R7 IS H/S V/O DT.28.03.2017)
THIS PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, WITH A PRAYER TO CALL FOR RECORDS PERTAINING TO THE W.P.NO.30635/16 FROM THE REGISTRY; ISSUE A WRIT OF MANDAMUS OR ANY OTHER APPROPRIATE WRIT OR ORDER OR DIRECTION BY REVIEWING /RECALLING THE ORDER DTD.04.08.2016 MADE IN W.P.NO.30127/2016 VIDE ANNEX-H AS THERE ARE ERRORS APPARENT ON THE FACE OF RECORD AND ETC.
THESE PETITIONS HAVING BEEN RESERVED FOR ORDERS ON 22.03.2017, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING :
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O R D E R
The petitioner in W.P.NO.7881/2017 is assailing
the order dated 16.02.2017 whereby the Government
through the said order has cancelled the earlier tender
process and ordered retendering of the work relating to
Malleswaram Ward Nos.35 and 45 Mathikere
subdivision. The petitioner in W.P.No.9569/2017 is
also assailing the very same order. The petitioner in
W.P.No.6402/2016 is assailing the order dated
21.11.2016 ordering retender for Gandhinagar Division.
Insofar as the Tender Accepting Authority (‘TAA’ for
short) rejecting the tender of the petitioner and
considering the bid of the L2 tenderer is also assailed.
In W.P.No.62068/2016 the petitioner is seeking
consideration of the bid of the petitioner relating to
Chamarajpet sub-division and issue work order in that
regard. In W.P.Nos.12735/2017, 12736/2017 and
W.P.No.6293/2017, the petitioner is seeking review and
recall of the earlier order dated 04.08.2016 passed by
this Court in W.P.No.30127/2016, W.P. No.30635/2016
and W.P.No.28986/2016.
13
2. Since all these petitions relate to the earlier
tender notification which has the genesis for the present
dispute, the petitions are considered together.
3. The petitioners in W.P.Nos.7881/2017,
60402/2016 and 62068/2016 viz., M/s Aishwarya
Infrastructure and Developers (‘M/s. AID’ for short) and
the petitioners in W.P.Nos.9569/2017, 12735/2017,
12736/2017, 6293/2017– Sri M.S.Venkatesh were among
the contractors who had responded to the tender
notification issued by the Bruhat Bengaluru
Mahanagara Palike (‘BBMP’ for short) which had been
floated through the tender notification dated 25.02.2016
for carrying out the comprehensive development of the
roads including drain, footpath and asphalting in the
different wards of Malleswaram, Gandhinagar and
Chamarajapet divisions. The bids of both the said
contractors were found technically qualified and the
financial bid was opened. The financial bid of M/s.AID
was found to be the lowest and as such was classified
as L1. The financial bid of Sri M.S.Venkatesh was
found to be L2.
14
4. The said L2 bidder raised certain queries at
that stage due to which the revaluation of the technical
bids of M/s. AID was made. In the process M/s. AID
was held not technically qualified and the bid was
rejected through the endorsement dated 07.05.2016.
Being aggrieved by such action, they were before this
Court in W.P.No.28986/2016. In respect of a similar
action taken relating to the other divisions, the petitions
in W.P.Nos.30127/2016 and 30635/2016 were filed.
This Court on taking note of the contentions, including
the objection that had been raised by the BBMP and the
manner of consideration made, was of the opinion that
the procedure followed by the Tender Scrutiny
Committee (‘TSC’ for short) to reevaluate in the manner
as done was not justified. The procedure as
contemplated in law viz., the consideration to be made
by the TAA based on the evaluation made by the TSC
was emphasized and in that view the impugned
endorsement was set aside and the BBMP was directed
to proceed from the stage where the financial bid had
been opened. A similar consideration had been made in
15
W.P.No.30605/2016, the connected petition. The said
L2 Tenderer Sri M.S.Venkatesh was not a party to the
said proceedings and it is in that view presently the writ
petitions in W.P.No.6293/2017, W.P.No.12735/2017
and W.P.No.12736/2017 are filed seeking recall/review
of the said earlier orders passed by this Court. Insofar
as the official respondents are concerned, in view of the
said orders passed in the earlier writ petitions, they
have proceeded further in the matter and the present
impugned action has been taken.
5. At the outset, since in W.P.No.6293/2017,
W.P.No.12735/2017 and W.P.No.12736/2017 the
petitioner has sought for recall of the order dated
04.08.2016 passed in W.P.No.28986/2016,
W.P.No.30127/2016 and W.P.No.30635/2016, whether
the prayer is to be accepted in that regard is to be
decided as it will have a bearing on the consideration on
other aspects. The petitioner Sri M.S. Venkatesh was
also the tenderer in the earlier process and was placed
at L2 as already noticed above. Though the TSC at the
first instance had found the bid of M/s.AID as
16
technically qualified, the re-evaluation was made in view
of the objection raised by Sri M.S. Venkatesh which in
fact had been noticed by this Court at the earlier
instance. Firstly, the objection of another tenderer at
that stage would not arise. Secondly even after this
Court had through the order dated 04.08.2016 directed
the further consideration to be made as indicated in the
order, at that stage, Sri M.S. Venkatesh did not make
out any grievance but waited till the entire process was
completed and a decision was taken. The decision to
challenge is taken only when it was ordered to retender
the work and after M/s.AID challenged that process.
6. That apart, it is to be noticed that in the earlier
petitions in W.P.No.28986/2016 and connected
petitions the Tender Inviting Authority (‘TIA’ for short)
was a party to the petition, which had urged the very
same contentions which is now sought to be urged by
Sri. M.S.Venkatesh relating to M/s. AID not satisfying
the condition of pre-requisite qualification contained in
Clause 3.2(b) of the tender documents and that the re-
examination had been made by the TSC at the instance
17
of Sri M.S.Venkatesh. This Court having adverted to
that aspect of the matter was not very much concerned
about the decision itself, but keeping in view the scope
of judicial review in a writ petition relating to certiorari
proceedings had found fault with the procedure adopted
by the TSC to arrive at its decision and it is in that view
the clock was set back to the stage at which the error in
procedure was committed and directed to proceed
further in the matter. The tender process not being
completed and the work not having been awarded to
Sri M.S.Venkatesh at that stage, no right had accrued
in his favour to entitle a right of hearing in the earlier
petitions before this Court and as such he was not
required to be heard. In that circumstance, reviewing or
recalling the earlier orders dated 04.08.2016 passed in
W.P.No.28986/2016, W.P.No.30127/2016 and W.P. No.
30635/2016 at his instance does not arise even at this
point in time. Accordingly the petitions in W.P. No.
6293/2017, W.P. No. 12735/2017 and W.P. No.
12736/2017 lack merit and the prayer made therein is
liable to be rejected.
18
7. In the above backdrop, the composite issue
that arises in the combination of the prayers contained
in the remaining petitions is as to whether in that
circumstance, M/s. AID should have been given the
benefit of the work order due to the directions contained
in the earlier order dated 04.08.2016 in W.P.
No.28986/2016 and connected petitions or whether the
TAA and the TSC were justified in the procedure
adopted by them after disposal of the earlier petitions?
Further the issue is also as to whether if such
procedure is held justified and if M/s. AID was rightly
held excluded, in that circumstance should the work
order have been given to Sri M.S.Venkatesh who was
the only other tenderer who had qualified in the
technical evaluation and thus was the L2 tenderer in
the analysis of the financial bid? If not, whether the
ultimate decision of the Government to direct
retendering the same work was justified or not ?
19
8. To determine the above aspects, the true
purport of the order dated 04.08.2016 passed in W.P.
No. 28986/2016, the reasons of which was adopted for
disposal in W.P.Nos.30127/2016 and 30635/2016 is to
be taken note and be kept in perspective. Incidentally
since the very Bench of this Court had decided the
earlier set of writ petitions, what weighed in the mind of
this Court and to what extent the consideration was
made therein is not far to seek. In that regard while
answering the first aspect to decline the prayer to recall
or review the order, it has been clearly indicated that
what was kept in view was the examination of the
correctness or otherwise of the procedure adopted in the
decision making process and not so much the decision
itself. In that view, the endorsement dated 07.05.2016
issued rejecting the technical bid of M/s.AID on making
a second evaluation by the TSC itself and the
circumstance under which it was done and the
procedure that was followed was found fault with, the
endorsement was accordingly quashed and the TAA was
directed to proceed from that stage onwards.
20
9. For better appreciation, it is appropriate to
reproduce the relevant portion of the order in W.P.
No.28986/2016 which is as hereunder;
“8. Therefore, if in that light the
evaluation as has been made, keeping in
view the nature of the observations made
in the note sheets which directs
reconsideration is kept in view, the
consideration as made purportedly by the
Committee appears to be only to satisfy
the decision, which had already been
taken to disqualify the petitioner as
contained in the note sheet and to
thereafter consider the sole bidder, who
would be in the field. Hence, if the
subsequent evaluation as made is
considered in the background of the
evaluation, which was made by the
Committee, at the first instance it is seen
that with regard to the work experience to
be satisfied as provided under Clause
3.2(b), the Committee in fact had referred
to the total cost of the work that had been
undertaken by the petitioner as well as the
other tenderer Sri.M.S.Venkatesh and
thereafter has held that both of them
would meet the eligibility criteria only after
such evaluation the financial bid was
21
opened. If that be the position, the nature
of the subsequent consideration made
would indicate that the same is done only
with an object of disqualifying the
petitioner, in view of the note that had
already been put up. That apart, the re-
evaluation also does not indicate that any
other additional consideration had been
made by the Committee except stating that
he does not meet the eligibility criteria for
which no basis is indicated.
9.Hence, in the said circumstances
when the Committee had found the
petitioner to be eligible at the first instance
and in that light, the financial bid had
been open and the petitioner was found to
be L1, the respondents re-visiting the
aspect regarding the technical evaluation
once again without strong basis will not be
acceptable. Such action would indicate
that the same has not been done with a
bonafide intention of evaluating the bids in
an appropriate manner, but is only to
disqualify the petitioner by raising such
issues belatedly with a malafide intention.
10. In addition what is also to be
kept in view is that, as rightly pointed out
by the learned Senior Counsel for the
petitioner, a Technical Evaluation
22
Committee had evaluated the tender
documents and found the petitioner to be
eligible. It is only the Tender Accepting
Authority, which could have either
accepted or rejected such evaluation for
reasons to be recorded and not an
Executing Engineer as has been done and
that too by raising a note for approval
seeking for a re-evaluation. Therefore, if
all these aspects are kept in view, the
endorsement dated 07.05.2016 at
Annexure ‘J’ cannot be sustained. If that
be the position, the second evaluation as
made, based on which such endorsement
has been issued also would not be
sustainable.”
(Emphasis is supplied herein)
10. The consideration as made in
W.P.No.28986/2016 will leave no room for doubt that
this Court did not approve the procedure adopted
where, after the evaluation was made by the TSC a note
was put up as at Annexure-L to that petition relating to
the non satisfaction of the condition contained in clause
3.2(b) of the tender documents. Based only on the same
the TSC which had become functus officio in so far as
the technical and financial evaluation stage in the
23
process had at that stage re-assumed the role once over
again, that too after the financial bid had been opened.
It is in that view this Court had held, from that stage
onwards it was the prerogative of the TAA and not for
the TSC to reverse the process based on a note of the
Executive Engineer. The fact that this Court had clearly
indicated that the TAA could have either accepted or
rejected for reasons to be recorded will make it clear
that this Court had not determined the absolute right in
favour of M/s.AID to be issued with the work order as
they were L1 tenderer but allowed the process to be
taken forward from the stage wherein the financial bid
had been evaluated to thereafter be done in accordance
with law by the TAA.
11. If that be the position, what was desired by
this Court was that the report of the technical and the
financial evaluation which was already made by the TSC
was to be collated and be taken to the next stage by
submitting it to the TAA who was required to process
the same from that stage. The direction issued by this
Court had not circumscribed the consideration to be
24
made by the TAA in any particular manner. Therefore,
as per the protocol for tender evaluation, TAA can
reassess the documents in the backdrop of the
evaluation report of the TSC, the material available on
record and take a decision regarding evaluation which
can also be different from the one taken by the TSC or it
may also be open to the TAA to send it back to the TSC
for re-evaluation, if it is not satisfied with the evaluation
made. However, such decision taken will be for the
reasons to be recorded which will be open for judicial
scrutiny in the appellate or such other forum where the
remedy is provided in law.
12. In that light, the consideration in that regard
being the similar in respect of the work in the different
divisions which are the subject matter herein, the
consideration as made relating to the Gandhinagar sub
division and raised in W.P.No.60402/2016 is taken note
for decision making in these petitions. The
consideration made after the direction in the earlier
petition is as seen in Annexure M and M1. Though the
same would record as the proceedings dated 11.11.2016
25
of the TSC, the body of the proceedings will indicate
that detailed reference is made to the order dated
04.08.2016 passed in W.P.No.28986/2016 in its correct
perspective and in that light has recorded that the
committee which has considered the matter is itself the
TAA and in that view having assessed the material has
taken the independent decision that M/s. AID does not
satisfy the criteria as the documents are found to be
fabricated and has decided that the work be given to the
L2 tenderer Sri M.S.Venkatesh, which decision is to be
implemented after approval of the Government keeping
in view the scheme under which the work is
undertaken.
13. Therefore, in so far as the procedure that is
followed by the BBMP subsequent to the earlier order
dated 04.08.2016 of this Court, there is no legal flaw
committed. With regard to the subject of the decision
itself, in holding that the documents submitted by
M/s.AID being fabricated and therefore the Work
Qualification Certificate dated 03.03.2016 did not
satisfy the qualification criteria, extensive arguments
26
are addressed by the learned senior counsel for M/s.AID
and is also contended that the very same certificate is
accepted by the BBMP to award the work to them in
Byatarayanapura Division and the learned counsel for
Sri M.S.Venkatesh, on the other hand refers to the said
certificate with reference to the tender cost indicated
therein and would seek to point out that the work
undertaken as per the other tenders and the bills paid
to M/s.AID, would not match up to the value indicated
therein. The learned counsel though would also refer to
certain aspects to indicate the manner in which it has
been fabricated, I do not propose to analyse the said
contentions to render a finding on that aspect herein.
That is for the reason, firstly such seriously disputed
questions of fact which may require evidence to be
recorded cannot be gone into in the limited scope
available to this Court in a writ petition. Secondly, if on
such conclusion in the impugned order the work order
was actually awarded to the L2 tenderer, M/s.AID
would have had the remedy of assailing it in an appeal
as provided under Section 16 of KTPP Act wherein the
27
re-appreciation of the material was possible. Further, in
the present circumstance the decision is also to initiate
action in accordance with law, including against the
official of BBMP who is stated to have aided the
fabrication and as such it would not be appropriate for
a writ Court to dwell into those aspects as the defence is
to be putforth in such proceedings.
14. Hence, for all the above reasons, it cannot be
said that the action taken by BBMP pursuant to the
earlier order is in any way contrary to the direction
issued therein and as such merely because this Court
had directed to proceed from the stage of opening the
financial bid, it does not mean that it was mandated in
the order of this Court that M/s.AID being the L1
tenderer was to be awarded the work. Hence the prayer
made in W.P. Nos. 60402/2016 and 62068/2016 is also
not sustainable.
15. The issue which therefore remains for
consideration is as to whether the decision taken by the
Government to direct the BBMP to retender the work in
28
question is justified. On that aspect, in so far as the
grievance put forth by M/s.AID in W.P. No. 7881/2017
the same would not require this Court to advert to
further details since in the circumstance where the right
for award of work as claimed by M/s. AID has been
declined, the question of M/s. AID being aggrieved by
the decision to retender will not arise. The learned
counsel for Sri M.S.Venkatesh while assailing the action
taken to retender the very work which the BBMP being
TAA had decided that it be awarded to the
Sri M.S.Venkatesh as he was the L2 tenderer when
M/s. AID though the L1 tenderer had not qualified in
the technical evaluation would refer to the provision
contained in Section 14 of KTPP Act with regard to the
limited scope available therein to cancel the tender or
order retender in terms of Section 15 of KTPP Act. In
that circumstance, it is contended that the action taken
is not justified.
16. In that regard, it is seen that after the BBMP
had sent the file to the Government seeking for approval
of the further action, the Addl. Secretary to the Urban
29
Development Department (BBMP) has placed it before
the Principal Secretary, Urban Development Department
through the communication dated 08.11.2016
(Annexure R1). The Principal Secretary on verification of
the file has noted as follows,
"In view of the fact that the tender process is
vitiated, it is ordered to retender the works".
17. The BBMP having acceded to the same has
retendered one of the works, the further process of
which is held up due to these petitions and the
retendering of the other works are kept on hold due to
the pendency of these petitions. One of the Residents
Welfare Association has filed I.A.No.2/2017 in
W.P.No.7881/2017 seeking to implead themselves so as
to highlight the hardship being faced by the general
public due to the delay in completion of the work as the
road condition has deteriorated in the area where the
work was to be undertaken.
18. The objection statement filed on behalf of the
Government would indicate that the Government on
30
keeping in view the entire sequence of events which led
to the earlier round of writ petition and the manner in
which the tender process had been undertaken was of
the opinion that the entire process of transparency
under KTPP Act is not followed by the TIA and TAA
during the process of tender and considering that the
tender for asphalting major roads in the centre of the
city was invited on 24.02.2016 and a year had passed
without progress, a conscious decision was taken to
cancel the tender process as the tender had not been
awarded in favour of any bidder and no right had been
created. Reference is made to the power available under
Sections 14 and 15 of the KTPP Act.
19. In the above background as noticed, the
litigation with regard to the tender process commenced
with the petition in W.P.No.28986/2016 at a stage when
the tender process had not even been completed. On
the evaluation of the technical and financial bid having
been done, one of the tenderers Sri M.S.Venkatesh had
raised objection with regard to the documents relied on
by the other tenderer M/s. AID and the consideration
31
made thereafter was as if an adversarial litigation was
being adjudicated in the tender process itself. The
nature of the allegations and counter allegations made
in that regard relating to the evaluation process with
reference to the tender documents will indicate that
Rule 23 of the KTPP Rules 2000 was followed more in
breach since the confidentiality was not maintained.
Further the learned counsel for Sri M.S.Venkatesh, the
L2 tenderer while opposing the prayer made by M/s.AID
seeking for issue of the work order in their favour
pursuant to the tender evaluation made on 24.07.2016
has referred to the TSC proceedings as at Annexures-D
and D1 in W.P.No.60402/2016, to point out the
irregularity in the proceedings wherein the
Superintending Engineer has not signed the
proceedings while the Executive Engineer who has
signed was at the verge of retirement. The learned
counsel has also referred to Rule 23 to point out that
the confidentiality has not been maintained as
otherwise M/s. AID could not have produced the
documents along with the earlier writ petition. The said
32
contentions in my opinion would act as double edged
sword. It is the very same irregular proceedings dated
24.07.2016 under which Sri M.S.Venkatesh was also
held to be technically qualified and as such the benefit
of such proceedings cannot be available to either of the
parties. Hence if all these aspects of the matter are kept
in view, as rightly observed by the Government, the
entire process was contrary to the requirement under
the KTPP Act and the conclusion that the tender
process was vitiated is justified so as to cancel the
process and retender the work. Hence
W.P.No.9569/2017 would also fail.
The impleading applications are disposed of
without specific orders though the contentions urged
therein has formed part of the consideration.
In the result, the W.P.Nos.7881/2017
60402/2016, 62068/2016, 6293/2017, 9569/2017,
12735/2017 and 12736/2017 are dismissed with
no order as to costs.
Sd/- JUDGE akc/bms
Recommended