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2019 Supreme(Kar) 565
IN THE HIGH COURT OF KARNATAKA
Alok Aradhe, J.
T.S. Narayana - Appellant
Vs.
Chamundeshwari Electricity Supply Corporation Ltd. - Respondent
Writ Petition No. 8664 of 2019, 8964 of 2019, 8965 of 2019, 8966 of 2019, 8967 of 2019, 8968 of 2019, 8969 of 2019, 8970 of 2019, 8971 of 2019, 8972 of 2019
Decided On : 22-07-2019
D.L.N. Rao, Adv., Udaya Holla, Adv., Joseph Anthony, Adv., Sriranga, Adv.
Headnote:
Karnataka Transparency in Public Procurements Act, 1999 - Section 16 - Claim a fundamental right - Electricity Supply Corporation Claim a fundamental right - Electricity Supply Corporation -Transformer Manufacturing Firm or Transformer Manufacturing Firm providing joint venture to bidder should have manufactured and supplied minimum numbers of Distribution Transformers to any of ESCOMs in State of Karnataka in any one of three financial years and However on representation being made by Contractors like petitioners tender condition with regard to eligibility was modified and it was provided that bidder should have manufactured and supplied minimum of number of distribution transformers last of submission of tenders was also modified commercial bid was be opened whereas price bid was to be opened - Transformer Manufacturing Firm or Transformer Manufacturing Firm providing joint venture to bidder should have manufactured and supplied minimum numbers of Distribution Transformers to any of ESCOMs in State of Karnataka in any one of three financial years - However on representation being made by Contractors like petitioners tender condition with regard to eligibility was modified and was provided that bidder should have manufactured and supplied minimum number of distribution transformers last date of submission of tenders was also modified commercial bid was to be opened whereas price bid was to be opened -Held, Court dealt with tenders for supply of RCC and PSCC poles and therefore was that requirement of supply of poles to BESCOM was arbitrary as same was not based on any scientific criteria- In instant case respondent have given cogent reasons in their reply for fixing eligibility criteria to ensure that only manufacturers can participate in tender notification which in turn ensures timely supply of transformers which is of utmost importance to farmers to enable them to irrigate their fields- Therefore aforesaid decision is of no assistance to petitioners in fact situation of case - Insofar as decision KARNATAKA POWER TRANSMISSION CORPORATION supra is concerned in aforesaid case no reasons were assigned while exercising power -Therefore aforesaid decision is also of no help to petitioners situation of case which requires exercise of power of judicial review under Article Constitution of India at this stage that too at instance of petitioner who has not participated in tender process despite an interim order granted by this court permitting him participate in process of tender provisionally- In case interference is made at this stage entire tender process would be required to be scrapped which is against public interest as transformers had to be installed for supply of electricity to farmers who irrigate their fields preceding analysis no case for interference in exercise of powers of judicial review under Article Constitution of India is made out- However petitioners shall be at liberty to take recourse to remedy which is available to him under Karnataka Transparency in Public Procurements - Needless to state that in case such an appeal is filed Appellate Authority shall decide appeal without being influenced by any of observations contained in this order – Petition disposed
JUDGMENT :
Alok Aradhe, J.
Mr. D.L. N.Rao, Learned Senior Counsel for Mr.Anirudh Anand, learned counsel for the petitioners.
Mr.S.Sriranga, learned counsel for respondent Nos.1 and 2.
Mr.Udaya Holla, Learned Senior Counsel for Mr.Joseph Anthony, learned counsel for respondent No.3.
In these writ petitions, the petitioners who were Super Grade and Class-I grade electrical contractors seek writ of certiorari for quashment of tender notification dated 21.01.2019, by which bids have been invited for providing additional transformers to existing overloaded DTCs by extending High Tension/Low Tension lines and erection of 25KVA distribution transformers on total turnkey basis in Hassan Operations and Maintenance Division.
2. Facts giving rise to filing of these writ petitions briefly stated are that Chamundeshwari Electricity Supply Corporation Ltd., (hereinafter referred to as 'the Corporation' for short) is a distribution company, which floated the tenders dated 21.01.2019 in question inviting bids for purposes of carrying out the electricity distribution work in Mysuru. The total value of the work was 61.69 Crores. The Corporation in its tender notification described certain qualification by the prospective bidders in Clause 9 viz., that the bidders shall possess Class-I Electrical Contractor licence and shall have Transformer Manufacturing Unit in Karnataka or bidders possessing Class-I Electrical Contractor licence (lead bidder) can have a joint venture with a Transformer Manufacturing firm based in Karnataka. It was further provided that the bidder possessing the Transformer Manufacturing Firm or Transformer Manufacturing Firm providing the joint venture to the bidder should have manufactured and supplied minimum of 4000 numbers of Distribution Transformers to any of the ESCOMs in the State of Karnataka in any one of the three financial years i.e., 2015-16, 2016-17 and 2017-18. However, on representation being made by the Contractors like the petitioners, the tender condition with regard to eligibility was modified on 16.02.2019 and it was provided that the bidder should have manufactured and supplied minimum of 2500 number of distribution transformers. The last date of submission of tenders was also modified to 26.02.2019. On 28.02.2019, the Techo commercial bid was to be opened, whereas, the price bid was to be opened on 01.03.2019. The petitioners have assailed the validity of the aforesaid eligibility condition of the prospective bidders as laid down in Clause 9 of tender Notification inter alia on the ground that the conditions contained in Clause 9 had been tailormade to favour two companies. Therefore, the eligibility criteria described in Clause 9 is arbitrary and discriminatory. It is also averred in the writ petitions that there are only two companies in the State of Karnataka who have supplied a minimum of 4000 numbers of distribution transformers in the State of Karnataka in any of the three preceding financial years. It is also pleaded that the aforesaid tender conditions have been incorporated to exclude the petitioners and other similarly situate persons and the tender notification is violative of Rule 17(i)(b) of the Karnataka Transparency in Public Procurements Rules, 2000 (hereinafter referred to as 'the Rules' for short) inasmuch as 60 days time was not given for submission of the bid. In the aforesaid factual background, the petitioners have approached this court.
3. Learned Senior counsel for the petitioners submitted that the eligibility criteria of the proposed bidders is fixed in such a manner so as to ensure that only two manufacturers viz., M/s Suvarna Transformers and M/s Kailash Transformers Pvt. Ltd., are eligible to participate or only such Contractors who have formed a joint venture companies with the aforesaid two manufacturers. While inviting the attention of this court to the eligibility requirements contained in the previous as well as in the subsequent years, it is argued that no such stipulation is
