IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 24TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No.1152 OF 2018 (GM-TEN) BETWEEN M/S TRANSASIA BIO-MEDICALS LTD., REPRESENTED BY ITS AUTHORIZED SIGNATORY SRI. P.K.MEGHANADAN SON OF LATE P.K.KRISHNAN AGED 51 YEARS TRANSASIA HOUSE, NO.8, CHANDIVALI STUDIO ROAD ANDHERI (EAST), MUMBAI – 400 072.
...APPELLANT (BY SRI. K.G.SADASHIVAIAH, ADVOCATE) AND 1. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY DEPARTMENT OF HEALTH AND FAMILY WELFARE VIKASA SOUDHA BENGALURU - 560 002.
2. THE KARNATAKA STATE DRUG LOGISTICS AND WAREHOUSING SOCIETY REPRESENTED BY ITS ADDITIONAL DIRECTOR NO.1, DR. SIDDAIAH PURANIK ROAD K.H.B.COLONY, MAGADI ROAD BENGALURU – 560 079.
3. THE COMMISSIONERATE OF HEALTH AND FAMILY WELFARE ANANDARAO CIRCLE BENGALURU - 560 009.
...RESPONDENTS (BY SRI. S.S.MAHENDRA, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT Nos.1 AND 3 SMT. M.C. NAGASHREE, ADVOCATE FOR RESPONDENT No.2) THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 21/02/2018 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT IN WRIT PETITION NO.41685 OF 2017 BY ALLOWING THIS WRIT APPEAL IN THE ENDS OF JUSTICE AND CONSEQUENTLY ALLOW THE WRIT PETITION NO.41685 OF 2017 AS PRAYED FOR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 21.02.2018 passed by the learned Single Judge in W.P.No.41685 of 2017, by which the petition was disposed off with an observation that the representation at Annexure-M be taken note and a decision be taken about the competitiveness of the revised price if any to be offered, the writ petitioner is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India praying for a writ of mandamus directing the 2nd respondent to issue purchase orders in respect of remaining three equipments which are already accepted and for a direction to consider Annexure-M dated 10.08.2017 at an earliest and till such time, not to cancel the contract tender or re-tender the notification as per Annexure–F.
3. The petitioner is a Company registered under the Companies Act having its registered office at Mumbai, which deals with supply of medical equipments all over India and in Karnataka. It states that it is an authorized dealer of SYSMEX Corporation, Japan, which manufactures Haemetology Cell Counter. The petitioner is supplying medical equipments and servicing medical equipments to major hospitals in the State of Karnataka. The 2nd respondent by notification dated 01.03.2017 issued E-Tender notification for supply of nine medical equipments. The petitioner being fully competent and qualified to supply the tendered equipments offered to supply the equipments tendered. Even though six bidders participated including the petitioner for supply of four equipments, except the petitioner all other tenderers could not meet the specifications of tender criteria insofar as supply of 5-Part Haemetology Analyzer/Cell Counter. The petitioner was successful and his bid was accepted. Notification was issued on 07.08.2017 in respect of the above said one equipment. In respect of the other three equipments the petitioner was qualified in technical bid but financial bid was not opened since the petitioner was the lone bidder who was technically qualified. Hence, the respondents decided to re-notify with regard to those three equipments. Therefore, the petitioner made representation to the respondents seeking for issuance of purchase order since the 2nd respondent negotiated price with the petitioner way back on 27.04.2017. As there was no response to the representation the petitioner filed the instant writ petition praying for the above stated reliefs. The learned Single Judge after hearing both sides by order under appeal disposed off the writ petition with an observation that the respondents to take note of the representation and a decision be taken about the competitiveness of the revised price if any to be offered. Aggrieved by the same, the petitioner is in appeal.
4. Heard the learned counsel for the appellant and learned Additional Government Advocate for the respondents-Authority. Perused the appeal papers.
5. Learned counsel for the appellant would submit that the learned Single Judge committed an error in rejecting the prayer of the petitioner and disposing off the writ petition with an observation to take note of the representation if revised price is offered. The learned counsel contends that the respondents could not have taken a decision to re-notify the tender for three equipments for which the petitioner was technically qualified on the ground that he was the lone bidder, that too after negotiating the price. The learned Single Judge ought to have rejected the contention of the respondents that the price quoted by the petitioner is more than the prevailing market price, without producing any supporting documents. The price quoted by the petitioner is in conformity with the rates fixed by NHSRC. Thus prays for allowing the appeal.
6. Per contra, learned Additional Government Advocate for the respondents would support the order passed by the learned Single Judge and submits that the price quoted by the petitioner for the three equipments in question was higher than the market price, which the learned Single Judge has noted in his order. It is his further submission that the petitioner was the lone technically qualified tenderer for supply of three equipments in question and there was no competitor to the petitioner, who had quoted higher price than the estimated cost and market price. The action taken by the respondents is neither arbitrary nor unreasonable but has taken in the interest of public. Hence, prays for dismissal of the appeal.
7. Having heard the learned counsels for the parties and on perusal of detailed order passed by the learned Single Judge, we are of the view that there is no perversity nor erroneousness in the order passed by the learned Single Judge. By notification dated 01.03.2017 e-tender was issued for supply of nine medical equipments. The petitioner who was competent and qualified had tendered for supply of those medical equipments. The petitioner was technically qualified for supply of four equipments. The petitioner‘s bid in respect of one equipment i.e., 5-Part Haemetology Analyzer/Cell Counter was accepted and the petitioner was asked to supply the equipment. In respect of other three equipments i.e., [a] 3 Part-Haemetology Analyzer/Cell Counter, [b] Fully Automated Biochemistry analyzer and [c] Semi-Automated Biochemistry Analyzer, the petitioner was the lone tenderer who was technically qualified. Since the petitioner was the single bidder who was technically qualified, the respondents took a decision to re-notify the tender for supply of those equipments. It is not in dispute that the petitioner was qualified in technical bid and he was the lone bidder who qualified in technical bid. No other tenderer was technically qualified to compete with the petitioner. The respondents-Authority have taken decision to re-notify the tender. We see neither arbitrariness nor unreasonableness in re-notifying the tender when lone tenderer was qualified technically. When there is competition, the State would get best price and would be able to protect the interest of the State. Moreover, the respondents further contended that rate quoted by the petitioner is higher than the estimated cost and market price. The learned Single Judge in the course of his order has discussed the same in the form of comparative table by which it could be seen that the price quoted by the petitioner is more than the market rate.
The Authorities relying on the circular dated 20.03.2017 have compared the price and have taken a decision to re- notify the tender. The contention of the petitioner that the rejection of the petitioner’s tender on the ground on which it is rejected is not contemplated under the provisions of the Karnataka Transparency in Public Procurement Act, 1999 is meritless. Strictly if it is seen, the tender of the petitioner is not rejected. The process of tender from the stage of technical bid is not proceeded further, in view of the fact that the petitioner was the lone bidder who qualified technically. Therefore, the said contention of the petitioner cannot be accepted. When the petitioner was the lone tenderer who qualified technically to participate in the financial bid, there would be no competitor in the financial bid. Therefore, the respondent–State in a larger public interest has rightly taken a decision to re-notify the tender. No right is created in favour of the petitioner solely because the petitioner was technically qualified. The petitioner has failed to point out any arbitrariness nor unreasonableness in the action of the respondent– Authorities. However, in the facts and circumstances of the case the learned Single Judge had provided an opportunity to the petitioner to offer its revised price. The petitioner has not made out any ground to interfere with the order passed by the learned Single Judge. Hence, the writ appeal is dismissed. Consequently, I.A.No.1/2018 is rejected.
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JUDGE JUDGE SMJ CT:bms