IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.16995 OF 2018 (GM-TEN) BETWEEN:
M/S. SRI. MANJUNATHA BOREWELLS SHIDLAGHATTA CARRYING ON ITS BUSINESS AT ABLLODU VILLAGE AND POST SHIDLAGHATTA TALUK CHIKKABALLAPURA DISTRICT-562 105 REP. BY ITS PROPRIETOR SHRI. A. N. MANJUNATH.
(By Mr. D.R. RAVISHANKAR, ADV.) AND:
1. STATE OF KARNATAKA SOCIAL WELFARE DEPARTMENT VIKASA SOUDHA DR. AMBEDKAR ROAD BENGALURU-560 001 REP. BY ITS ADDL. CHIEF SECRETARY.
2. THE DEPUTY GENERAL MANAGER CHAIRMAN, TENDER SCRUTINY AUTHORITY … PETITIONER DR. B. R. AMBEDKAR DEVELOPMENT CORPORATION LTD., NO.SA-11, 2ND FLOOR JILLADHALITHA BHAVANA SHIDLAGHATTA ROAD CHIKKABALLAPURA-562 101.
3. THE DISTRICT MANAGER/TENDER INVITING AUTHORITY DR. B.R. AMBEDKAR DEVELOPMENT CORPORATION LTD., NO.SA-11, 2ND FLOOR JILLADHALITHA BHAVANA SHIDLAGHATTA ROAD CHIKKABALLAPURA-562 101.
4. THE DEPUTY COMMISSIONER TENDER ACCEPTING AUTHORITY DR. B.R. AMBEDKAR DEVELOPMENT CORPORATION LTD., NO.SA-11, 2ND FLOOR JILLADHALITHA BHAVANA SHIDLAGHATTA ROAD, CHIKKABALLAPURA-562 101.
5. M/S. GEO CONSULTANCY SERVICES A PARTNERSHIP FIRM, NO. 485, 10TH CROSS, 8TH MAIN SADASHIVANAGARA, BENGALURU-560 008, REP. BY ITS PROPRIETOR, DR. Y. M. MUNIRAJU.
… RESPONDENTS (By Mr. VIJAY KUMAR A. PATIL, AGA FOR R1 & R4 Mr. MAHESH R. UPPIN, ADV., FOR Mr. N. PRAVEEN KUMAR, ADV., FOR R2 & R3 Mr. ZULFIKIR KUMAR SHARIF, ADV., FOR R5 Mr. SHANKAR REDDY, ADV., FOR IMPLEADING APPLICANT ON IA 2/2018) - - -
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 09.04.2018 PASSED BY THE FIRST RESPONDENT AS PER ANNEXURE-A. DIRECT THE TENDER ACCEPTANCE COMMITTEE/ THE DEPUTY COMMISSIONER, CHIKKABALLAPUR DISTRICT (RESPONDENT NO.4), TO ISSUE WORK ORDER TO THE PETITIONER IN PURSUANCE OF THE ACCEPTANCE OF THE TECHNICAL/FINANCIAL BID APPROVED BY THE FOURTH RESPONDENT IN TERMS OF ANNEXURE-D & G WITHIN TIME FRAME THAT MAY BE FIXED BY THIS HON'BLE COURT IN THE FACT AND CIRCUMSTANCES OF THE CASE;
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.D.R.Ravishankar, learned counsel for the petitioner.
Mr.Vijay Kumar A. Patil, learned Additional Government Advocate for respondent Nos.1 to 4.
Mr.Mahesh R. Uppin, learned counsel for Mr.Praveen Kumar, learned counsel for respondent Nos.2 and 3.
Mr.Zulfikir Kumar Shafi, learned counsel for respondent No.5.
Mr.Shankar Reddy, learned counsel for impleading applicant on I.A.2/2018.
2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition filed under Article 226 of the Constitution of India the petitioner has assailed the validity of the order dated 09.04.2018 passed by the Appellate Authority under Section 16 of the Karnataka Transparency in Public Procurements Act, 1999 (hereinafter referred to as ‘the Act’ for short).
4. The facts giving rise to filing of the writ petition briefly stated are that the State Government had invited the tenders on 23.08.2017 for e- procurement portal for the work to drilling of 165 MM DIA BOREWELL ON ‘NO WATER NO MONEY’ basis for the year 2016-17 and 2017-18 at 5 packages. The last date of uploading the tender documents to the said e- tender was 08.09.2017. The respondent No.4 viz., the tender accepting authority after verifying all the documents submitted by the petitioner accepted the technical bid of the petitioner on 28.09.2017. Thereafter on 07.10.2017, the respondent No.5 filed another objection to the Tender Accepting Authority. The petitioner thereafter was declared as a L-1 bidder on 27.12.2017. Being aggrieved, respondent No.5 filed an appeal under Section 16 of the Act on 24.12.2017 before the Appellate Authority challenging the acceptance of technical and financial bids submitted by the petitioner. The Appellate Authority by impugned order dated 24.01.2018 has set aside the tender notification dated 23.08.2017 and has directed the re- tendering afresh.
5. Learned counsel for the petitioner submitted that an appeal under Section 16 of the Act can be preferred only against the order passed by the Tender Accepting Authority under Section 13 of the Act and in the absence of any order having been passed in favour of the petitioner, the appeal was not maintainable. On the other hand, learned counsel for respondent No.5 submitted that since respondent No.5 was alleged fraud against the petitioner and fraud vitiates everything. Therefore, the Appellate Authority was justified in entertaining the appeal preferred by respondent No.5.
6. I have considered the submissions made on both the sides. It is trite law, the right to prefer an appeal is a statutory right and the condition precedent to file an appeal should be set aside before the said right is availed of. At this stage, I deem it appropriate to reproduce Section 16(1) of the Act, which reads as follows:
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.
7. From perusal of Section 16(1) of the Act, it is evident that an appeal could have been filed only against an order passed by the Tender Accepting Authority under Section 13 of the Act. In the instant case, admittedly no order was passed in favour of the petitioner under Section 13 of the Act accepting issuance of work order in his favour. He was only declared as L-1 bidder. Therefore, an appeal preferred by respondent No.5 was not maintainable. However, the aforesaid aspect of the matter has not been appreciated by the Appellate Authority. The impugned order is perceived without jurisdiction. The same is therefore quashed and set aside. Needless to state that the respondent No.5 if occasion so arises shall be at liberty to take recourse to such remedy as may be available to him under law. With the aforesaid observation, the petition is disposed of. Needless to state that this Court has not expressed any opinion on the merits of the case.
Accordingly, the petition is disposed of.
Sd/- JUDGE SS