Veera Vahana Udyog Pvt. Ltd. , R/by its Managing Director Srinivas Reddy vs Karnataka State Road Transport Corporation, R/by Managing Director, KSRTC

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(Kar) 542

High Court of Karnataka
THE HONOURABLE MR. JUSTICE K.L. MANJUNATH & THE HONOURABLE MR. JUSTICE RAVI MALIMATH
Veera Vahana Udyog Pvt. Ltd., R/by its Managing Director Srinivas Reddy
Versus
The Karnataka State Road Transport Corporation, R/by Managing Director, KSRTC & Others
Writ Appeal No.2226 of 2009 (GM-TEN)
Decided on : 05-08-2009

Advocates appeared:
For the Appellant:Udaya Holla, Senior Counsel for K. Shashi Kiran Shetty, Advocate.
For the Respondents:R1 & R2, Shweta Anand for Yukti Law Chambers, R3, Jayakumar S. Patil, Senior Counsel for Dayanand. S, Patil, Advocate.

Headnote:CODE OF CIVIL PROCEDURE, 1908 - Order 6, Rule 17: [K.L.Manjunath & Ravi Malimath,JJ] Interlocutory Application filed during the pendency of the Writ Petition - Disposal - Procedure to be adopted - Held, the Courts are duty bound to consider all Interlocutory Applications before the consideration of the final case on merits. The procedure adopted by the Single Judge in rejecting the Interlocutory Application as having become infructuous due to the final disposal of the case is not only erroneous but is opposed to the basic principles of Jurisprudence. The procedure adopted by the Single Judge in finally hearing the matter without considering the pending application is not only erroneous but a procedural irregularity. Exceptionally the same may be considered at the stage of final hearing for reasons to be recorded. The failure to consider the application before passing an order on merits is erroneous. The procedure adopted by the Single Judge is erroneous and opposed to law.
KARNATAKA TRANSPARENCY IN PUBLIC PROCUREMENTS (AMENDMENT) ACT, 2007 - Section 18A: [K.L. Manjunath & Ravi Malimath,JJ] Tender for construction of Ultra Deluxe Rajahamsa bus bodies - e-Tender Notification inviting Applications for prequalification and commercial Offers - Challenge to conditions imposed in the tender document - Dismissal of writ petition - Appeal against rejection of Application filed under Order 6 Rule 17 - Held, In view of the amendment to the Act and insertion to Section 18-A if the Act, as it is mandatory on the part of the Government and other statutory corporation to procure through e-processing system only from the date of Notification issued by the State of Karnataka. In the Instant case, the Notification is issued on 27.02.2009 but the said Notification has come into effect only from 16.03.2009. As on the date of Annexure-A and so also on Annexure-A1, there was no Notification authorising the respondent/Corporation to procure through e-procurement platform. When there is no authorisation as provided under Section 18-A of the Act which is mandatory, the Single Judge has committed an error in rejecting the application for amendment and dismissing the said application as having become infructuous without considering the legal consequences of inviting tender through e-procurement without there being any authorisation as required under Section 18-A of the Act. It is no doubt true that the appellants have participated in the tender process, it is open for the appellant to challenge the legality and correctness of the Notification as contrary to Section 18-A at the first instance. It is no doubt true that appellant had participated in the tender process, but at the same time when there is violation of the statute, that there cannot be any estoppel against any parties. The Notification issued on 27.02.2009 would come into force only with effect from 16.03.2009. Therefore, when Notification has been issued earlier even though tender document has been issued subsequent to 27.02.2009, it cannot cure the defect, as the Notification itself is one without jurisdiction.

Judgment :-

The unsuccessful writ petitioner has filed this appeal, challenging the legality and correctness of the order passed in Misc.W.4285/09 in WP.No.11881/2009 dated 29.6.2009 and also the order passed in WP. No.11881/2009 dated 29.6.2009.

2. Facts leading to this case are as hereunder:

As per Annexure-A tender notification dated 24.12.2008 KSRTC invited e-Tender; inviting applications both for pre-qualification and commercial offers through e-Tender process for construction of Ultra Deluxe Rajahamsa Bus Bodies on 210”/218”/222”/244” WB Chassis of 200 numbers by fixing the EMD amount of Rs.1,00,000/-and tender document fee of Rs.10,000/-. As per e-Tender notification, tender forms were to be issued between 29.12.2008 and 13.1.2009, pre bid meeting was fixed at 14.00 hours on 16.1.2009, last date for submission of tender is 23.1.2009 till 14.00 hours, opening of pre qualification cover at about 14.30 hours on 23.1.2009 and opening of financial bid at 15.00 hours on 29.1.2009.

3. Again as per Annexure-A1 a corrigendum was issued to the notification dated 24.12.2008 on 27.2.2009 reducing the quantity of buses from 200 to 100 and changing the time schedule. As per the corrigendum, pre-bid meeting was scheduled to be held on 23.3.2009 at about 14.00 hours, issuance of tender forms from 4.3.2009 to 18.3.2009 during office hours, last date for submission was up to 14.00 hours on 30.3.2009, opening of pre-qualification cover was fixed at 14.30 hours on the same day and opening of financial bid shall be on 4.4.2009 at 12.00 hours. As per Annexure-D, certain pre-qualification criteria’s were changed in the corrigendum. Therefore, in the pre-qualification meeting, writ petitioner sought for change of terms and conditions incorporated under the corrigendum on the ground that only to favour certain person, KSRTC has changed the norm by fixing that a tenderer should have constructed ultra deluxe/Hi-tech luxury coaches from 2004-05 and that it cannot participate in the tender process. A representation was also submitted on behalf of the writ petitioner requesting the KSRTC to change the eligibility criteria as per Annexure-F dated 23.3.2009. Thereafter, writ petitioner participated in e-tender.

4. On 30.3.2009, pre qualification cover was opened and the same was sent for evaluation. Subsequently, by giving a notice to all the participants, the technical bid was opened on 6.4.2009 and only R-3 was found to be eligible in pre qualification tender. Writ petitioner was found unqualified as it did not fulfil terms and conditions of the tender notification.

5. Challenging the legality and correctness of the conditions imposed in the tender document contending that certain conditions are imposed only to favour R-3, writ petition was filed by the writ petitioner seeking the following reliefs:

“a) Issue a writ in the nature of certiorari any other appropriate writ, order or direction quashing the clause 2(b) of the terms and conditions laid down in Annexure-B to the tender document/application pursuant to the tender notification No.KSRTC/2008-09/T-80 27.2.2009 due on 30.3.2009 issued by R-2 produced as Annexure-D.

b) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction declaring that the action of R-2 in not opening the commercial bid of the petitioner.

c) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing R-2 to open the commercial bid of the petitioner dated 30.3.2009 produced as Annexure-L.

d) Grant such other relief that this Hon’ble court may deem fit in the facts and circumstances of the matter.”

6. KSRTC as well as R-3 filed detailed counter denying the allegations made in the writ petition. It was contended that the writ petition filed by the petitioner was not maintainable and that the petitioner cannot challenge the terms and conditions of the eligibility criteria as it was for the KSRTC to fix the eligibility criteria in order to get better buses in t

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2009 Supreme(Kar) 542

Cases Referred (4)