IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.6580 OF 2019 (GM-TEN) BETWEEN:
M/S KANTHI AGENCY NETWORKS 17/1, “KANTHI”, 5TH BLOCK SHIVASHAKTHI ROAD SHAKTHINAGARA MYSORE – 570 029.
(BY MR.KALYAN R, ADV.) AND:
1. THE STATE OF KARNATAKA DEPARTMENT OF MEDICAL EDUCATION VIKAS SOUDHA BANGALORE REPTD. BY PRINCIPAL SECRETARY 2. MANDYA INSTITUTE OF MEDICAL SCIENCES MANDYA – 572 401.
REPTD BY ITS DIRECTOR 3. VENKATESHWARA SECURITIES PVT. LTD. NO.358/F, 14, 1ST FLOOR GURUDEVANNA STREET AGRAHARA, MYSORE – 570 029.
… PETITIONER (BY MR.VIJAY KUMAR A. PATIL AGA FOR R1 MR.SATHISH M. DODDAMANI ADV. FOR R MR.ABUBACKAR SHAFI ADV. FOR R3) … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUNGNED TENDER NOTIFICIATON DATED 16.01.2019 ISSUED BY R2 AS PER ANNEXURE-A TO THE W.P.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Kalyan R., Learned counsel for the petitioner. Mr.Vijay Kumar A. Patil, learned Additional Government Advocate for respondent No.1.
Mr.Sathish M.Doddamani, learned counsel for respondent No.2.
Mr.Abubakar Shafi, learned counsel for respondent No.3.
In this petition under Articles 226 and 227 of the Constitution of India, the petitioner inter alia seeks a writ of certiorari for quashment of the impugned tender notification dated 16.01.2019 issued by respondent No.2. The petitioner has also assailed the validity of the conditions contained in Clauses No. 4, 5, 9, 18, 19, 20, 21 & 22 of the impugned tender conditions as being violative of Articles 14 and 16 of the Constitution of India. The petitioner also seeks a writ of mandamus directing respondent No.3 to issue fresh tender notification in accordance with the Karnataka Transparency in Public Procurements Act, 1999 and the Rules framed thereunder.
2. Facts giving rise to filing of the writ petition briefly stated are that the petitioner is a partnership firm involved in manpower recruitment, supply of personnel, Data Entry Operators, Security services, house keeping and allied services. The respondent No.2 is an autonomous medical college established under the Societies Registration Act which is funded and controlled by the State Government. The petitioner has been awarded tender for providing security services by respondent No.2 since 2015. The respondent No.2 even before completion of period of contract awarded to the petitioner, issued tender notification on 07.08.2018 which was subsequently withdrawn and thereafter a fresh tender notification was issued on 16.01.2019 for availing the services of security guards to respondent No.2 on outsourcing basis for the year 2019-2020.
3. In response to the aforesaid tender notification, five tenderers submitted their bid including the petitioner. On 29.01.2019, a pre bid meeting of intending tenderers was held and on 14.02.2019, was the last date of uploading / submission of bids. The technical bids were to be opened on 15.02.2019, whereas financial bids were to be issued on 23.02.2019. The petitioner approached this court by filing a writ petition on 05.02.2019, seeking the reliefs as stated supra.
4. Learned counsel for the petitioner submitted that the impugned conditions in the tender are arbitrary and unreasonable and are violative of Article 14 of the Constitution of India. It is further submitted that the respondent No.2 did not execute any contract in favour of respondent No.3 and straight away issued a Work Order in violation of Section 13 of the Act. It is also submitted that respondent No.3 has quoted an amount of 2% as service charges, therefore, his bid is liable to be rejected as per the terms and conditions of the NIT. It is also urged that action of the respondent No.2 in rejecting the technical bid of the petitioner is arbitrary and condition No.4 and 5 of the tender notification are violative of the standard tender document prepared under Rule 28-h of the Rules.
5. On the other hand, learned Additional Government Advocate for respondent No.1 submitted that the authority inviting tenders is well within its right to prescribe the terms and conditions of the tender and the scope of judicial review with regard to interference of the terms and conditions is extremely limited. In support of aforesaid submissions, reference has been made to decision of the Supreme Court in ‘JAGDISH MANDAL VS. STATE OF ORISSA AND OTHERS’, (2007) 14 SCC 517. Learned counsel for respondent No.2 submitted that Work Order has been issued in favour of respondent No.3 on 07.03.2019 and therefore, the petitioner has an alternative efficacious remedy of filing an appeal under Section 16 of the Act. In support of aforesaid submissions, reliance has been placed on decision of this court in ‘KIRLOSKAR BROTHERS LIMITED PUNE VS. KARNATAKA NEERVARI NIGAM LTD., BANGALORE AND OTHERS’, 2009 (5) KAR L.J.608 AND ONNYX ELECTRONICS KARKAR DOOMA NEW DELHI VS. STATE OF KARNATAKA AND OTHERS’, 2019 (3) KAR L.J. 442. Learned counsel for respondent No.3 has adopted the submission made by respondent No.2.
6. I have considered the submissions made by learned counsel on both the sides and have perused the record. It is well settled in law that when the statute creates a right and a corresponding duty, and provides a forum for redressal of its grievance, ordinarily the party should avail of the forum prescribed by law. It is equally well settled legal proposition that ordinarily if an alternative remedy is available the court should not interfere in exercise of its extraordinary jurisdiction. [SEE: SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329].
7. Before proceeding further, it is apposite to take note of relevant extract of Sections 13 and 16 of the Act, which reads as under:
13.Acceptance of Tender – The Tender Accepting Authority shall, after following such procedure as may be prescribed pass order accepting the tender and shall communicate the information relating to acceptance of tender together with a comparative analysis and reasons for accepting of tender to the procurement entity and the Tender Bulletin Officer.
Provided that where the Tender Accepting Authority consists of single officer who is due to retire within the next six months, from the date fixed for the acceptance for tender, he shall not act to accept the tender without obtaining prior approval of the procurement entity.
Provided further that subject to such general of special order as may be issued by the Government from time to time, the Tender Accepting Authority may before passing order accepting a tender negotiate with lowest tenderer.
16. Appeal – (1) Any tenderer aggrieved by an order passed by the Tender Accepting Authority other than the Government under Section 13 may appeal to the prescribed authority within thirty days from the date of receipt of the order:
Provided that the prescribed authority may, in its discretion allow further time not exceeding thirty days for preferring any such appeal, if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time.
(2) The prescribed authority may after giving opportunity of being heard to both the parties pass such order thereon as it deems fit and such order shall be final.
(3) the prescribed authority shall as far as possible dispose of the appeal within thirty days from the date of filing thereof.
8. Thus, a conjoint reading of the aforesaid provision makes it axiomatic that if an order is passed by the tender accepting authority, an appeal shall lie under Section 16(1) of the Act. Admittedly, in the instant case, Work order has been issued by tender accepting authority on 07.03.2019. The aforesaid order is appealable under Section16(1) of the Act. Therefore, it is not necessary for this court to examine the matter on merits as the petitioner can raise all the contentions before the Appellate Authority. The contention that since the provision of Section 13 has not been followed, therefore, the petitioner does not have remedy of an appeal does not deserve acceptance as Section 16(1) of the Act provides an appeal against the order passed by the tender accepting authority and an order admittedly has been passed in this case by the tender accepting authority on 07.03.2019.
9. Therefore, in the fact situation of the case, I deem it appropriate to dispose of the writ petition with liberty to avail of the remedy provided to the petitioner under Section 16 of the Act. Needless to state that in case, the petitioner files an appeal along with application for stay, the Appellate Authority after affording an opportunity of hearing to all necessary parties shall decide the appeal as well as the application for stay expeditiously within a period of four weeks from the date of filing of such an appeal.
With the aforesaid liberty, the petition is disposed of.
Sd/- JUDGE SS