IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION NO.22970/2018 (GM-TEN) BETWEEN:
M/S. EXCEL SPORTS, A PROPRIETARY CONCERN, NO.1, MAJESTIC CIRCLE, NEAR ARYA BHAVAN SWEETS, BENGALURU - 560009.
BY ITS PROPRIETOR, SRI RAJINDER SINGH KHANUJA. ... PETITIONER (BY SRI N.S. SANJAY GOWDA, ADVOCATE) AND:
1. THE DIRECTOR, DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT, M.S.BUILDING, 1ST FLOOR, DR. AMBEDKAR VEEDHI, BENGALURU - 560001.
2. THE DEPUTY COMMISSIONER, TUMKUR DISTRICT, TUMKUR - 572101.
3. THE DEPUTY DIRECTOR, DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT, INDIAN RED CROSS BHAVAN, NEAR CHURCH CIRCLE, ASHIKA ROAD, TUMKUR - 572101. ... RESPONDENTS (BY SRI VIJAY KUMAR A.PATIL, AGA) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMUNICATION DATED 29.04.2018 ISSUED BY THE 3RD RESPONDENT (ANNEXURE-D) BASED ON DECISION DATED 25.04.2018 STATED TO HAVE BEEN TAKEN BY THE 2ND RESPONDENT AND ALSO THE COMMUNICATION DATED 9.5.2018 ALSO ISSUED BY THE 2ND RESPONDENT (ANNEXURE- G).
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Sri N.S. Sanjay Gowda, learned counsel for the petitioner.
Sri Vijaykumar A.Patil, learned Additional Government Advocate for the respondents.
2. The writ petition is admitted for hearing.
With the consent of the parties, the matter is heard finally.
3. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner inter alia seeks for a writ of mandamus for quashment of the communication dated 29.04.2018 issued by the respondent No.3. The petitioner also seeks a direction to the respondents to permit the petitioner to supply utensils as per the purchase order dated 28.02.2018 by extending time for delivery.
4. The facts giving rise to filing of this petition briefly stated are that an E-tender notification was issued by the respondents on 28.10.2017 for supply of 17 types of utensils to Anganwadi Centres in Tumkur District under the Matrupurna Scheme. On 18.01.2018, technical bids were opened and thereafter, financial bids were opened on 22.02.2018. The Deputy Commissioner approved the bid of the petitioner on 28.02.2018. Thereafter, on the same day, purchase order was issued to the petitioner for supply of 14 items for a total value of `170.303 lakhs. The aforesaid order contains the stipulation that the supply was to be made within 45 days from the date of receipt of purchase order, failing which the EMD and security deposit would be forfeited. On 07.03.2018, the petitioner received the purchase order by e-mail and on 15.03.2018, an agreement was executed between the parties.
5. On 01.04.2018, the petitioner submitted a representation requesting the respondents to grant 90 days time instead of 45 days stipulated in the purchase order on the ground that the utensils are not available due to scarcity of raw materials. The Deputy Commissioner by the impugned order dated 25.04.2018, invited fresh tenders and directed for taking action as per the tender conditions. The petitioner again submitted a representation on 03.05.2018 seeking extension of time for supply of utensils. In the aforesaid factual background, the petitioner has approached this Court seeking relief as stated supra.
6. When the matter is taken up today, learned counsel for the petitioner submitted that the petitioner even today is ready to supply the utensils as per the specifications mentioned in the tender notification within a period of four weeks from today at the rate mentioned in the purchase order.
7. On the other hand, Sri Vijaykumar A.Patil, learned AGA opposed the aforesaid prayer and has submitted that since the petitioner has violated the conditions of supply of utensils within a period of 45 days, therefore, the EMD of the petitioner has rightly been forfeited and fresh tender has been directed to be issued. It is further submitted that the action of the respondents is perfectly just and legal and does not call for any interference.
8. I have considered the submissions made by the learned counsel for the parties and have perused the records.
9. Ordinarily, this Court would not have interfered with the matter. However, it is pertinent to mention here that a bench of this Court while entertaining the writ petition had granted an ad interim order dated 24.05.2018, by which, communication dated 29.04.2018 which has been impugned in this petition was stayed. As a result of the order of stay which is still in operation, the respondents have not been able to procure the utensils as per the tender notification.
10. It is well settled in law that no citizen should suffer prejudice. In case, the writ petition is dismissed, the respondents should be required to issue fresh tender notification and would be required to purchase the utensils at a higher price as the prices of the utensils must have gone up. Besides that, the utensils are required for supply to Anganwadi Centres and if the writ petition is dismissed, the respondents would again be required to commence the process of inviting tenders afresh which will consume time.
11. In the aforesaid peculiar facts of the case, I am inclined to accede to the prayer made by the petitioner. Accordingly, the impugned communication dated 29.04.2018 is hereby quashed. The petitioner is directed to supply utensils as per the specification mentioned in the tender notification on the rates mentioned in the purchase order within a period of four weeks from date of receipt of certified copy of the order passed today.
12. Needless to state that in case the petitioner fails to fulfill the specifications mentioned in the tender notification within the time limit stipulated above, the respondents shall be at liberty to proceed against the petitioner in accordance with law.
With the aforesaid observation, writ petition is disposed of.
Sd/- JUDGE ca