IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE BETWEEN:
THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.17932/2019(GM-TEN) KARNATAKA COMMERCIAL AND INDUSTRIAL CORPORATION PRIVATE LIMITED NO 10, CHURCH ROAD, BASAVANAGUDI, BANGALORE – 560004. REPRESENTED BY ITS AUTHORISED SIGNATORY MR. KUMAR K. V., MANAGER.
(BY SRI A.S. PONNANNA SENIOR COUNSEL FOR SRI ADITYA NARAYAN, ADVOCATE) AND:
... PETITIONER 1. STATE OF KARNATAKA DEPARTMENT OF HORTICULTURE VIDHANA SOUDHA, AMBEDKAR VEEDHI, BENGALURU – 560001.
REPRESENTED BY ITS SECRETARY 2. THE DIRECTOR DEPARTMENT OF HOTICULTURE LALBAGH, BENGALURU – 560004.
3. THE SPECIAL OFFICER DEPARTMENT OF HOTICULTURE NANDI HILLS, CHIKKABALLAPURA DISTRICT – 562101.
... RESPONDENTS (BY SRI VIJAY KUMAR A PATIL, AGA FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THE RESPONDENTS DECISION TO CANCEL THE TENDER PROCEEDIGNS, PURSUANT TO THE TENDER DATED 24.11.2018 [ANNEXURE-B] VIDE THE IMPUGNED COMMUNCIATION DATED 22.3.2019 [ANNEXURE-A] AS ILLEGAL AND ARBITRARY.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner has filed the present writ petition to declare that the decision of the respondents in canceling the tender proceedings pursuant to the tender dated 24.11.2018, bearing No. H.D./S.O./NANDI/TA/GATE/ 42/2018-19 Annexure-B and the impugned communication dated 22.3.2019, bearing No.HD:124:HDV:2019 Annexure-A as illegal and arbitrary; to direct the respondents to conclude the tender proceedings pursuant to the tender notification dated 24.11.2018 bearing No. H.D./S.O./NANDI/TA/G ATE/42/2018-19, Annexure-B in a time bound manner; and to direct the respondents to award the contract under the tender dated 24.11.2018 bearing No.H..D./S.O./NANDI/TA/GATE/42/2018-19 to the petitioner, if it is found to be the sole eligible bidder.
2. It is the case of the petitioner that the 1st respondent issued a tender inviting bids for collection of entrance fee and vehicle parking fee at Nandi Hills. The contract commencement date was fixed as 1.2.2019. The petitioner submitted his fully responsive bid on 23.1.2019 pursuant to the notice inviting bids by paying a sum of Rs.10 lakhs as earnest money. In response to the tender issued inviting bids there were four participants, amongst whom petitioner was one of the successful bidder in technical bid and other three bids were rejected. Despite this, the respondents have not taken any action to notify the petitioner on the outcome of the tender proceedings. Therefore, he was forced to file a writ petition in W.P.No.15448/2019 for a direction to the respondents to conclude the process of tender dated 24.11.2018. When the matter was posted for preliminary hearing, the learned Government Advocate produced the order dated 22.3.2019 which was communicated to the petitioner. Therefore, the writ petition was dismissed as withdrawn with liberty to him to assail the order dated 22.3.2019 in accordance with law, if so advised. That is how, the present writ petition is filed challenging the communication made by the State Government dated 22.3.2019.
3. I have heard the learned Counsel for the parties to the lis.
4. Sri A.S. Ponnanna, learned Senior Counsel for the petitioner contended that the impugned communication/order passed by the respondents is erroneous since it has been passed without assigning any reasons and hence, it cannot be sustained. He further contended that out of the four participants, the petitioner was technically qualified and other three participants’ bids were rejected. The main ground taken by the authorities in the communication is that he is only single bidder who is qualified and hence, it cannot be proceeded which is erroneous and contrary to the provisions of Section 14 of the Karnataka Transparency in Public Procurement Act, 1999. Therefore, he sought to allow the writ petition.
5. Per contra, Sri Vijaykumar A Patil, learned Additional Government Advocate appearing for respondent Nos.1 to 3 sought to justify the impugned communication and contended that it is the discretion of the Tender Inviting Authority to cancel the tender and accordingly, by the impugned communication, the respondents-State Government has taken a decision not to proceed with the tender since only a single bidder is in the tender process. Therefore, he sought to dismiss the writ petition.
6. Having heard the learned Counsel for the parties, it is an undisputed fact that the respondents issued a tender inviting bids for collection of entrance fee and vehicle parking fee at Nandi Hills. In response to the tender issued by the 1st respondent, there were four participants, amongst whom, the petitioner was technically qualified. According to the petitioner and the learned Additional Government Advocate, the other three bids were rejected. It is also not in dispute that since the respondents have not taken any action to notify the petitioner on the outcome of the tender proceedings, he was forced to file writ petition before this Court in W.P.No.15448/2019. During the pendency of the writ petition, the impugned communication dated 22.3.2019 came to be produced in the said writ petition and therefore, the writ petition was dismissed as withdrawn with liberty to the petitioner to assail the impugned communication. The impugned communication is cryptic since no reason is assigned except stating that the proposal involves a single bid and there is no competition in the tender. Hence, it has been decided to reject the same and invite the new tenders by modifying the conditions.
7. The provisions of Section 14 of the Karnataka Transparency in Public Procurement Act, 1999 prescribes general rejection of tenders which reads as under:
“14. General rejection of tenders.-
(1) The Tender Accepting Authority may at any time before passing an order of acceptance under section 13 reject all the tenders on the ground of changes in the scope of procurement, failure of anticipated financial resource, accidents, calamities or any other ground as may be prescribed which would render the procurement unnecessary or impossible and report the same to the Procurement Entity.
(2) The Procurement Entity shall thereafter communicate the fact of the rejection under this section to all the Tenderers and also cause the same to be published in the Tender Bulletin.”
8. The communication does not attract the ground for rejection of tender as contemplated under the provisions of Section 14 of the Karnataka Transparency in Public Procurement Act, 1999. Since no reasons are assigned in the communication, the impugned communication is cryptic in view of the fact that when the petitioner was technically qualified, they ought to have decided giving proper reasons why they are inviting a new tender, but the same is not forthcoming.
9. In view of the above, the impugned communication issued by the State Government cannot be sustained and the matter requires re-consideration by the State Government.
10. In view of the above, writ petition is allowed.
The impugned communication dated 22.3.2019 issued by the 1st respondent is hereby quashed and the matter is remanded to the respondents. The 1st respondent shall consider the matter afresh and after giving an opportunity to the petitioner, pass appropriate orders strictly in accordance with the provisions of the Karnataka Transparency in Public Procurement Act, 1999 and Rules and in accordance with law.
Ordered accordingly.
Sd/- Judge Nsu/-