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2019 Supreme(Kar) 148
IN THE HIGH COURT OF KARNATAKA
B.M. SHYAM PRASAD, J.
Lakshmi Venkateshwara Borewells Shidlaghatta - Appellant
Versus
State of Karnataka - Respondent
Writ Petition No. 53791 of 2018
Decided On : 22-02-2019
D.R. Ravishankar, Adv., Muniraja M, Adv., Udaya Holla, Adv., Vijaya Kumar A Patil, Adv., P. Mahesha, Adv., C. Jagadish, Adv., K. Narayana Swamy, Adv.
The impugned conditions in the Tender Notification were found to be justified and integral to the tender process, and the drilling of Borewells did not fall under the definition of 'Construction Works' as per the Karnataka Transparency in Public Procurement Act, 2001.
Headnote:
Tender Notification - Quashing of Conditions - Karnataka Transparency in Public Procurement Act, 2001 - Section 27A - Financial turnover, eligibility criteria, and preference for Scheduled Castes and Scheduled Tribes - [Borewells] - [Karnataka Transparency in Public Procurement Act, 2001 - Section 27A] - The court discussed the impugned conditions in the Tender Notification and their compliance with the Karnataka Transparency in Public Procurement Act, 2001, specifically Section 27A. The court analyzed the financial turnover requirements, eligibility criteria, and the absence of preference for Scheduled Castes and Scheduled Tribes, and concluded that the impugned conditions were not onerous, unreasonable, or vitiated by legal malice. The court also determined that the drilling of Borewells did not fall under the definition of 'Construction Works' as per the Act.
Fact of the Case:
The petitioner sought to quash certain conditions in a Tender Notification issued by the General Manager-Development and Tender Inviting Authority for drilling Borewells. The petitioner argued that the conditions were onerous and unreasonable, and the notification did not provide preference to Scheduled Castes and Scheduled Tribes as required by the Karnataka Transparency in Public Procurement Act, 2001.
Finding of the Court:
The court found that the impugned conditions were not onerous, unreasonable, or vitiated by legal malice. It also rejected the petitioner's request for an extension of the last date for uploading the tender.
Issues: The issues involved the compliance of the Tender Notification with the Karnataka Transparency in Public Procurement Act, 2001, the reasonableness of the financial turnover requirements, and the absence of preference for Scheduled Castes and Scheduled Tribes.
Ratio Decidendi: The court held that the impugned conditions were justified and integral to the tender process to ensure the necessary financial wherewithal for timely execution of the Borewell drilling project. It also determined that the drilling of Borewells did not fall under the definition of 'Construction Works' as per the Act.
Final Decision: The writ petition and all pending applications were rejected by the court, and no costs were awarded to the petitioner.
B.M. SHYAM PRASAD, J.
The petitioner inter alia has sought for quashing of conditions in No.3.2(a), (b) & (c) of the Tender Notification dated 9.11.2018 in No. ADCL/TND/228 (published on 17.11.2018) issued by the General Manager-Development and Tender Inviting Authority, Dr.Ambedkar Development Corporation Ltd., (Respondent No.4) for the purposes of drilling of 165mm dia Borewells on 'No Water No Money Basis' across the state in about 60 packages. The petitioner has also sought for a direction to respondent Nos.1 to 4 to modify the Notification dated 9.11.2018 (for short, 'Tender Notification') and to issue fresh tender notification permitting the petitioner to participate in such fresh tender process. The impugned conditions 3.2(a), (b)&(c) of the Tender Notification read as follows:
"3.2 To qualify for award of this contract, each tenderer in his name should have in the last 5 years i.e., 2013-2014 to 2017- 2018
(a) Achieved in at least TWO financial years minimum financial turnover of Rs. 796.48 lakhs in Borewell drilling only (usually not less than 2 times the estimated annual payment under this contract) not arised copies of certificates issued by chartered accountants should be uploaded.
(b) Satisfactory completion as a prime contractor for at least one similar work with any government Department/under taking organisation of value not less than Rs. 199.12 lakhs (50% of the cost of the work) (certificate issued by the employer not below the rank of executive engineer shall be uploaded)
(c) Executed in any one year out of the last 5 years a minimum number of Borewells of not less than 80% of the estimated numbers in any package (certificate issued by the employer not below the rank of executive engineer shall be uploaded)."
2. Sri D. R. Ravi Shankar, the learned counsel for the petitioner, positioned his legal submissions in support of the prayer/s in the writ petition on the basis of the following assertions. The Tender Notification is issued for the purpose of providing Free Borewells to persons from the Scheduled Castes and Scheduled Tribes in their own lands to help them tide over water difficulties during summer. The authorities had issued tenders for similar purposes during the previous years, but the respondent No.4-the tendering authority insofar as the Tender Notification has deviated from the previous tenders on two significant counts viz, (i) in enlarging the size of each package and (ii) in prescribing the qualification for the tenderers to participate.
3. On previous occasions, the tenders were divided into smaller packages, and in fact, multiple packages with about 30 Borewells per package were prescribed for each assembly constituency. But in the present Tender Notification, two or more assembly constituencies have been combined into one package with each package involving drilling of approximately 350-400 Borewells. As regards the eligibility, as in previous tender notifications, the Tender Inviting Authority has prescribed that every tenderer/contractor should own a Borewell Drilling Rig and should have minimum two Borewell Drilling Rigs on lease with all the three Borewell Drilling Rigs being registered with Karnataka Groundwater Authority. However, as regards the qualification, there are material differences, and when seen in juxtaposition, the differences will be as follows:
Condition Number
The Present Tender Notification
The Previous Tender Notifications
3.2 (a)
Achieved in at least TWO financial years.
In Borewell drilling only.
A minimum financial turn over, usually not less than 2 times the estimated annual payment under this contract
Achieved in at least ONE financial year.
A minimum financial turnover, usually not less than the estimated annual payment under this contract
3.2 (b)
Satisfactory completion as a prime contractor for at least
