IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOs.7472-7473 OF 2019 (GM-TEN) BETWEEN:
SRI K.B.SOMASHEKHAR, S/O SRI K.B.BETTASWAMY, AGED ABOUT 36 YEARS, R/AT KANTANAHALLI VILLAGE, TURUVEKERE POST, YADIYUR HOBLI, KUNIGAL TALUK – 572 134.
(BY MR.SOMASHEKARA, K.M., ADV.) AND:
… PETITIONER 1. THE MANAGING DIRECTOR CAUVERY NEERAVARI NIGAMA NIYAMITA LIMITED (GOVT OF KARNATAKA ENTERPRISES) ANAND ROA CIRCLE GANDHINAGAR BENGALURU-560009 2. THE EXECUTIVE ENGINEER CAUVERY NEERAVARI NIGAMA NIYAMITA LIMITED HEMAVATHI CANAL INVESTIGATION DIVISION HEBBURU TUMKUR DISTRICT-572120 3. THE SUPERINTENDING ENGINEER CAUVERY NEERAVARI NIGAMA NIYAMITA LIMITED HEMAVATHI CANAL CIRCLE TURUVEKERE TUMKUR DISTRICT-572227 4. THE CHIEF ENGINEER CAUVERY NEERAVARI NIGAMA NIYAMITA LIMITED HEMAVATHI CANAL ZONE TUMKUR-572101 5. SRI RAJAKUMAR T DELETED AS PER THE S/O SRI THIMMEGOWDA ORDER DATED 10/04/2019 AGED ABOUT 49 YEARS R/O MUDDANHALLI GUNUGUREMELA POST TUMAKURU-572101 … RESPONDENTS (BY MR.K.S.BHEEMAIAH, ADV FOR R1 TO R4 (VK FILED IN R/O R2 ONLY) VIDE ORDER DATED 10/04/2019 R5 IS DELETED) - - -
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE RECOMMENDATION MADE BY THE R-2 DTD:5.2.2019 RESPECTIVELY VIDE ANNEXURE-E AND E1 RESPECTIVELY AS FAR AS PETITIONER CONCERNED AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Somashekara K.M., learned counsel for the petitioner.
Mr.K.S.Bheemaiah, learned counsel for respondent Nos.1 to 4.
2. The writ petitions are admitted for hearing.
With consent of the learned counsel for the parties, the same are heard finally.
3. In these petitions, the petitioner inter alia seeks a writ of certiorari for quashment of recommendation made by respondent No.2 dated 05.02.2019 so far as petitioners are concerned. The petitioner also seeks a writ of mandamus directing respondent No.2 to consider the application of the petitioner holding that National Small Industries Corporation Limited certificate issued to the petitioner vide Annexure-D in place of Earnest Money Deposit is sufficient and the petitioner is qualified for the tender.
4. Facts giving rise to filing of the writ petitions briefly stated are that respondent No.2 while inviting short term item rate work tender for construction of civil works vide Notification dated 29.11.2018. The tenders were invited on online e-procurement forms and the last date for submission of the completed e-tender documents was 20.12.2018 upto 4.00 p.m. The petitioner in response to the aforesaid online tender submitted his bid in respect of the works mentioned at S.No.1 to 4, 6, 7 and 9. The petitioner along with his tender furnished the certificate issued by National Small Industries Corporation Limited. However, the petitioner did not pay the Earnest Money Deposit. Thereupon since, the petitioner did not furnish the Earnest Money Deposit, the Executive Engineer recommended vide communication contained in Annexures D and D1 to reject the technical bid of the petitioner. In the aforesaid factual background, the petitioner has approached this Court.
5. Learned counsel for the petitioner submitted that since, the petitioner along with his bid had furnished a certificate issued by National Small Industries Corporation Limited and therefore, he was not required to furnish the Earnest Money Deposit and the action of the Executive Engineer in recommending rejection of the bid of the petitioner is per se arbitrary. On the other hand, learned counsel for the respondent has supported the stand taken by the respondents.
6. I have considered the submissions made by learned counsel for the parties. From perusal of the short term tender Notification dated 29.11.2018, it is evident that a bidder was required to deposit the Earnest Money Deposit, which is mentioned in column No.(iv). It appears that the petitioner is placing reliance on Rule 26(5) of the Karnataka Transparency in Public Procurement Rules, 2005. The aforesaid Rule reads as under:
26(5) : Micro and Small Enterprises registered with NSIC under a single point vendor registration scheme, shall be facilitated by providing tenders sets free of costs, exempting from payment of Earnest Money Deposit during purchases by all Government Department and State owned PSUs.
7. From perusal of the aforesaid Rule, it is evident that the aforesaid Rule would apply to the case where the purchases are made by Government Department and state owned Public Sector Undertakings. In the instant case, purchase is not made by Government department and public sector undertaking. The short term tender in question pertains to the construction work. Therefore, Rule 26(5) of the Rules has no application.
8. Admittedly, the petitioner have not deposited the Earnest Money Deposit along with their tender condition. Therefore, their bids have rightly been recommended to be rejected by the executive engineer. The action of the respondent by no stretch of imagination can be said to be arbitrary and rational.
I do not find any merit in the writ petitions. The same fails and is hereby dismissed.
Sd/- JUDGE SS