2011 Supreme(Kar) 188

2011(3) KCCR 1945
High Court of Karnataka
THE HONOURABLE CHIEF JUSTICE MR. J.S. KHEHAR & THE HONOURABLE MRS.JUSTICE MANJULA CHELLUR
P.R. Ramesh & Others
Versus
The State of Karnataka & Others
WRIT PETITION No.35639 to 35641 of 2009 (LB-BMP)(PIL)
Decided on : 11-03-2011

Headnote:KARNATAKA MUNICIPAL CORPORATION ACT, 1976 - Sections. 99(2)(b), 100(2), 16,167,168 & 509: [J.S. Khehar, C.J. & Mrs. Manjula Chellur,JJ] Consequences flowing from appointment of Administrator during period when Corporation was not functioning through elected Councillors - Held, The tenure of the Councillors of the Bangalore Mahanagara Palike i.e., BBMP expired on 26.11.2006, the question of constitution of Standing Committees thereafter, would arise only after fresh election of Councillors to the re-constituted Bruhat Bangalore Mahanagara Palike i.e., the BBMP were held. It may be stated, that after the expiry of the tenure of the elected Councillors in November, 2006 the newly elected Councillors held their first meeting on 28.2.2010. It is only thereafter, that Standing Committees would come into existence. During the absence of duly elected Councillors, all the Standing Committees are automatically dissolved, and an Administrator is vested with responsibility of discharging the duties of the Standing Committees, as also, of the Corporation. Reference in this behalf may be made to Section 99(2)(b) of the Municipal Corporations Act, which reveals, that during the period a Corporation remains dissolved all powers and duties conferred on the Standing Committees, as also, on the Corporation would be performed by the Administrator. A similar mandated is contained in Section 100(2) of the Municipal Corporations Act, which also provides, that after the appointment of the Administrator the entire responsibility vested in the Standing Committees, as also, with the Corporation, would be discharged by the Administrator. In the aforesaid view of the matter, during the period when the BBMP was not functioning through elected Councillors, i.e., when no Standing Committees were in existence, all functions ordinarily required to be discharged by the Standing Committees and/or by the Corporation could legitimately be discharged only and solely by the Administrator. That being so, in the absence of elected Councillors, we are of the view that the Administrator had validly discharged the duties and responsibilities, of not only the Standing Committees of the BBMP, but also of the Corporation itself. Therefore, sanction and approval granted by the Administrator can validity be treated as sanction and approval of the Standing Committees and/or the Corporation itself.

       KARNATAKA MUNICIPAL CORPORATION ACT, 1976 - Sections 182 & 183 & Karnataka Municipal Corporations Rules, 1977, Rules 6 & 6-A: [J.S.Khehar, C.J. & Mrs.Manjula Chellur,JJ] Tenders - Works estimated to cost of Rs. 22,000/- crores - Notification issued by Commissioner inviting tenders for awarding contracts for execution of - Held, In the absence of Councillors of the BBMP as also the Standing Committees of the BBMP, the responsibility of the Councillors, as also, the Standing Committees has to be shouldered by the Administrator. Accord of approval at the hands of the Cabinet of Ministers, satisfies the requirement of approval at the hands of the State Government, irrespective of the nature of estimates/contracts which are subject-matter of consideration. The highest sanctioning authority is the State Government. It is apparent that the approval at the hands of the Cabinet of Ministers, constituted sanction at the hands of the highest prescribed authority.

       KARNATAKA MUNICIPAL CORPORATION ACT, 1976 - Sections 509, 99 & 100: [J.S.Khehar, C.J. & Mrs. Manjula Chellur,JJ] Appointment of Administrator - Power of Government to make appointment when duration of existing Corporation had expired and new Corporation could not be constituted as election to constitute new Corporation could not held due to certain difficulties? - Held, It is apparent, that the exigencies in which Sections 99 and 100 of the Municipal Corporations Act can be invoked for the appointment of an Administrator, are specific and predetermined, by the said provisions themselves. It is only when the appointment of an Administrator has been made in exercise of the power vested in the State Government under Section 99 of the Municipal Corporations Act, that the duration of such appointment cannot transgress beyond the period during which the Municipal Corporation remains dissolved. An in case the Administrator has been appointed under Section 100 of the Municipal Corporations Act, the period of such appointment cannot however exceed six months if the appointment of the Administrator has been made by the State Government in exercise of power flowing out of Section 100 aforementioned. It is apparent, from our analysis of Section 99 and of Section 100, that specific exigencies lead to the invitation of action at the hands of the State Government under the aforesaid provision. The tenure of the existing Councillors of the BMP (including petitioners 1 and 2 hereinabove) naturally expired on the completion of the term of the said Corporation on 22.11.2006. In compliance of the directions issued by this Court, the process of elections to the BBMP was conducted during 2009/2010. On the completion of the aforesaid election process, 198 Councillors came to constitute the new BBMP. Neither Section 99 nor Section 100 of the Municipal Corporations Act, were the basis for the conclusion of the term of office of the Councillors of the BMP on 22.11.2006. In fact, the tenure of the elected Councillors of the BMP naturally expired on 22.11.2006. In the aforesaid view of the matter, it is not possible for us to conclude, that the appointment of the Administrator in the present case can be stated to have emerged from the authority exercisable by the State Government either under Section 99 or under Section 100 of the Municipal Corporations Act. The contingency in which the Administrator was appointed after the expiry of the tenure of the existing Councillors of the BMP on 22.11.2006 has not been expressly provided for under any express provision of the Municipal Corporations Act. The period during which elected Councillors were not functioning, to run the affairs of the BBMP, and Administrator had necessarily to be appointed. For the situation in hand since recourse could not be made to Sections 99 and 100 of the Municipal Corporations Act (for the appointment of an Administrator) the State Government, had necessarily to take recourse to Section 509 of the Municipal Corporations Act. A valid interpretation of a legal provision, can never lead to an unacceptable or impracticable conclusion. In the absence of duly elected Councillors, the only manner in which the affairs of the BBMP could be administered, was by the appointment of Administrator. That having been done during the course of the period during which circumstances were beyond anybody’s control, the same should flow from a statutory provision. Since Sections 99 and 100 of the Municipal Corporations Act are inapplicable to the facts and circumstances of this case, and since, no other provision, which can be stated to be applicable has been brought to our notice, reference made to Section 509 of the Municipal Corporations Act has to be accepted as the only source of refuge in the facts of the present case.

       KARNATAKA TRANSPARENCY IN PUBLIC PROCUREMENT ACT, 2000 - Section 25 & Karnataka Transparency in Public Procurements Rules, 2000, Rules 2(b) & 27: [J.S. Khehar, C.J. & Mrs. Manjula Chellur, JJ] Pre-qualification of tenderers - Held, The impugned advertisements Annexures-A to C merely solicited applications from interested parties for pre-qualification. Those short listed in the process of pre-qualification will be invited to submit tenders for specified works. The process of ’pre-qualification’ and the process of ’tenders’ being separate and distinct, their respective procedures have been separately provided for, and as such, the procedure stipulated for one cannot be ipso facto made applicable to the other. Separate provisions are provided under the Transparency Act (and the Transparency Rules), to regulate the aforesaid two processes (the ’pre-qualification process, and the ’tender process’). Only when the process of ’pre-qualification’ comes to an end, the ’tender process’ commences. In other words, the latter process is not a part of the former process, but the latter follows the former. The term ’pre-qualification’ has been defined in Rule 2(b) of the Transparency Rules (extracted above). In our considered view, it is imperative to collectively read Rule 2(b) along with Rule 27 of the Transparency Rules. On a collective perusal of the aforesaid provisions, there is no room for any doubt, that the process of ’pre-qualification’ is a matter separate and distinct from the process of invitation of ’tenders’. Pre-qualification is a process whereby prior to invitation of tenders, parties desirous of executing contracts are invited, and are screened. Parties are short listed on the basis of their experience and past performance, and also, on the basis of their capabilities and financial status and capacity. So that, when ’tenders’ are to be invited for execution of specific works/goods, only those possessing acceptable credentials are invited to submit their ’tenders’. The ’pre-qualification process’ and the ’tender process’ do not overlap one another. Only when the former concludes, the latter begins. Therefore, the two processes viz., the ’pre-qualification process’, as also, the tender process’, being separate and distinct from one another, the conditions stipulated for compliance under the provisions of the Transparency Act (and of Transparency Rules) for the ’tender process’, cannot be ipso facto applicable to the ’pre-qualification’ process. The impugned advertisements having been issued for the purpose of short listing, as a part of the process of pre-qualification only the conditions stipulated for compliance at the stage of pre-qualification will be applicable.