recorded his finding in favour of V' respcedexxt herein except referxing I it contentions urged by both the".Aleereedii'~con§is;.g»;1:§~-.oig.i. behalf of.' the appe11ant';_'<--..§eoonet" -tend » ' learned Senior Counsel first respondent. 3 A
3. ‘.z’he{_” ‘Swift 6 Gangireddy
appearing ‘dzeiti V”»;=’a;§>1V>ellant contended
that has exceeded his
jurisdiction’ judicial review power
and qua.shi’i:g “A:;neJn.1;u:es’:- ‘A’ to ‘B’ , ‘G’ and ‘W’ .
«=,_Iie ieieo pi”aced.re1ianoe upon the decision of
reported in 2002(3) ILR 3033
Court has held that there is
V — defiftiteiéinenua sotxght to be achieved between. the
ecneiitivon emzmerated and the object sought to be
no monopoly is created by inposing sech
ceiaditicn as discussed, and on the more
~~ ‘allegation of male fides in the petition in the
absence of any substantive proof, mla fides
attributed to second respondent could not have
presumed and interfered with the acwexd of
\N,/
similar service of the work for which .
were invited by second responfient. .E’here_§:’ore,’*.V he
submits that the contention igrged A.
counsels on behalf of the appaiant seoohd
respondent that the mainteheh¢eV work, sort-were
as contained in An::f§x;;re~¥§i3vc–:’i’t_ ,flm.4 teem that
sixrtilaac service provioeci to the
second correct, as
the learned’ 1_;:f,,;§F5′:ej._:gi§:htly examined the
relevant**~e. iitheewviv tender invitation
notifieations to the documents
produced “at” & R14 and came to the
ri9’1?1i 1′ correc”:’t.,’: Vcohrzlusion and held that the
not possess eligibility criteria
of tenders to the works of second
resoondente «fend rightly he has granted the reliefs
T thzevvfwrit petition in favour of the first
ju”rAeepci1dent. Therefore he submits that the same
tie?-as not call for interference by this Coert in
exercise of its appellate jurisdiction and power
as no substantial question of law would arise in
this Appeal for consideration. V
(The specification
13
as per Annexure—I (A;$px-
appropriate nodes) J” V .
(Vi)
{vii}
(xiii)
‘
” virus-._ “~~-“software
,.3orto1’.==., Symanteo) for 96.
it” v .. _divi.s{ons/section
“o~._.c:ounter cozzputer shall be provided
All the haxdwafire :;’fs:z:;i:pi:ae¢i_:”b;,¥ :'”t1;éV[
sp should be free from defect; ‘amt:
maintained” working ‘ ooadi.tion .
Minimuzn two’-., ‘extra ._sjpo.t.= billing
machines (goo£:1, working. oonciition}
shouldjae in ‘each subdivision
for :¥.1*:;n§adiz1te1{~w.rés;;ilaé::9.aznent in case
of breakdown-p.V1″ _ ” –.
me 5.9., aha.1l., ;’rovi:aé qualified
‘ _ ‘ xseersons per
o:;:}:>c1iv:isiot: inolfisive of section
:£*aj;:ot:3_ dash counter) for the
g ‘$.er¢§.ce’s.’jV’a. required
” i1:~,staJ.1:A.t;i.ox:…._”of OS,
” .. _ at%;eud.”»1;’a.mware problans and other
“Vvapplic:’ativona ~ etc . ,
i . e . ,. to
antiviral ,
. h’ 4 shall
installation of
supply and
licensed Anti
( like Mcmfee ,
Th-a…oustmnized billing application
software to be installed. in sub
office/cash.
to the an by anscoaq.
All the coasumables like printer
cartridge, ribbon tape etc shall
be provided. by the SIP.
claims against damages/loss to any
equipment/ hardware , provided by
SP, due to auxgo, fire theft etc:
shall not be entertained.
Any damages to the property of
BESCCM by the 3)? through their
personnel or equipment will be
assessed and the some will be
deducted from the payables to the
SP.
any up gradat.1.on/ replaoexnent to
any hardware supplied by the S?
has to be borne by the Si’ only.
\~N/
14
The above said Clauaes on’Wt’1ie:aVi;1et;’ugti§;na
of the tender notification’ the
learned single order,
while examining’ the -“le§;fa’l._if-‘contentions
as been urged”‘«;in V. eonsider and
record a ehether the appellant
herein fnad ‘eligibility criteria to
submit contracts awarded in
its favour? learned Counsel Sri Gangireddy
and _l”I*3.VK ‘€§up.ta___”*;ehexrently sought to justify
the*–.award,% of’~–.eontracts covered in Annexures ‘A-‘
to. vi’-.§__’ of the aypellant by accepting
V its ‘bid-..’:app”lication contending that in the year
£09.53 sisaixax certificates exhibits R13 and R14
produced by it to the second respondent
which have been aczeepted by it.
«therefore the said certificates accepted by the
seeozzd respondent are rightly not aecepted by the
learned single Judge for the s.1′.:@le reason that
the scope of werk in respect of which bids were
\M/
18
learned counsel appearing on Ioehalr
appellant and the second respondent :.T:trcng'<i 9
reliance opon the provision »"S'e.~.c;:t_iox1 _
4(a) of the Karnataka _ rransporon
Procureznents Act, 1999' '(snort
referred to as 'K2913' Act}. n_fl:'c')u1"1'1'..1.o13.€i.:"'.fig"A tnat the
award of contract appellant in
relation to +;rn-.~.a___ sujbj intolved in the
impugned and valid,
thexoforg could not have
quashéti »jin_T"v.exercise of his judicial
review nofiér of first respondent.
The ;:.pp;e11:§::1:_ being the service provmer to the
. ';3econ<i 7"re$"pondent iiii is examined by a committee of
" consisting of one technical.
reprosontntioe of procsuring entity, one technical
<,,ropres4.4.=§.ntativo of the government organisation
A'*:i_21oVaVliing with similar procurement and one
' répresentative by a reputed acaci;em:i.c institution
" cad opinion is piaceo before the Board of the
second resgondent it has applied its mind with
reference to the recommendation made by the
expert committee to award. contract in favour of
\m/
20
this appeal. The above contention:;§’_:’.”‘o9£’~ _
appellant and the second resjpondent».
strongly rebutted by the f
placing strong reliance: of
Kf.!.”J.’P Act. He further -it-3s1:21:’@insion
trade on behalf of. ‘the second
respondent placing it 4 (1:1) and
Me) of t1:e:..:<:§¢*;~. attracted to
the facts reason that section
4 clause». .V.4{Io3t–::V're§arrliag exceptions with
regarchto of the provisions of
the Act, 'ato Vafirard,' in respect of works
eachgoune. of tizeniv is independent
' :%.ii.stinct clause by themselves Neither
time 4' at: 4(a) is attracted to the facts of
'V the for one reason that BESCOM is unable to
it this court that the appellant is a single
.' ai-reririce provider available in the Karnataka
it ' " ~3tate , for not following the procedure
V contenvplatecl under the provisions of the KTTP Act
to award the contract to the appellant for a
period of 3 years unaer Annexurew-G. Further in
m/
21
View of Section 5 of the Act the :f:i,Vés”
applicable to the case on hand and actionv L” V’
seoond respondent in awarding”A’oon.tré;<:t«
of the appellant amounts A"ico1ii'£'ss=,A;.':1rytarat"
largesse, which is vio1a£i§e of éxgiaié it of the '
Constitution of India a;3d–fli:hé'~»..}AjtzciqraonitJiof the
Suprae Court rep§i£éa'rigi;$i§iD19?9 so 1628,
therefore , he .~. §1,mr;i.*ta… itfiag _ V single
Judge ' aspects into
consideratiorii. law to the facts
situationi 11$,-53V _r§::Vj'fVocted the Award of
contraot by recording the
reason, hoiuciigig' ..thaEt this is not a case either
é::-J..a.us;e -Ho) the exwytion clause
awarding contract by dispensing
tlie as proceeded under the provisions
Cof K_5.'?.'P Act. therefore, he has urged that
"..j"tIieit'-game! does not call for interference by this
— Cogzrt .
\O As to whether qjuashing of the award of
contract covered in Annoxure-G is legal and
just§.£:£.ed in law . \W/
23
5. Procurement other than ._
Prohibited: on and froaettw the I datefgof
conmenoanent of this Aci; no E-‘rocuirement
antity shall procure go’ods1′”or eer*a*:_i..oes~
exoept by inviting fienderefor sup;’>_lyL ‘
_t3..It in an undispnteti» of
contract in favour roof is with
regard to work of and soft”
ware in Koiaré “_- hand Bangalore
Rural …. of 65 paise per
instal3.at.i_o”x}.~T thev…..s’§uccess:Eul generated
131115 ‘exclusive of applicable
tax, the” . Jwork is as specified in
Anneqtnre-G :;u:q”Vt1:e}e approximate azmunt of Aim
it It “payable for three years is
A’:-‘~.’:s;.ttS,’#¥!1′.;f1§»V,60 as per Annexurem-G for a period
of. genre’ from the éate of nrplenmentation and
3″”««.__V”‘exten-fiehie for 2 more years on mtuaily agreed
and conditions by the parties. time said
clause is contrary to the provisions of the Act.
The learned Single Judge with regard’ to this
aspect of the ease has elaborately referred to in
the izvpzigned order from paragraph 14 onwards by
referring to the proceedings of the expert
NONX
betweéenv ‘the e§:3:;er_t_. comnittee memhezrs of second.
AV__responc3eAxxtM Mr.$adagopen, has held that the
_ seczticn of the KTPF Act cannot be construed.
est e of experts cozzstituted under the
provisions of the KTPP Act, as it was a
VA:.’coa:%xzxittee of four officials who were not experts
«land with reference to the letter it discloses
24
committee of second respondent consisting
Joint Secretary, Energy Bepartment,
Director (Technical) , BESCOMJUV {.’i_–.:{.§.)”
Engineer, Elect, (SPDRP, P 5
cw). 6.14 (Elect), BESCGM -y§ithV”Arefere.nc’e_:
letter addressed to iérofesgsor &
Director, Internaticnegl. of Inrormation
Technology , Bangalore’ H _i it opinion
was sought can directly
award the’ and using of
scozzrz::;+’v”?’.«-1:13′ to the appellant.
The leernetl firith reference to the
corresponoience. it letters made and written
_ _1 experts constituted under
that it is only an opinion of an expert and if
the second respondent has acteci on such opinion
\m/
25
it is highly illegal. He has also
recorded other valid reasons in support : ‘
conclusions stating that the …cn_se ‘.to4_’_=&bea:_ it
justified by the assess does
or? the grounds in the ‘«~..exccpt:icn iclégjzvses of
Section.4 (3)-{h) of the Act. learned
Single Judge has the ixwugned
order that BESQOM material
documents to” is only a
single available in
the has got exclzzsive
;riqhta’;,,,§’or by it as there
cannot be _V – adc§j,it;io11nl service so far as
work.___,_£or a. period of 3 years and
fn1rtherV_ *.e”.:.tén_dable for 2 years, particularly
wizere’ §t~o:”:R; involves a sum of Rs. 6 crores,
V. therefore,” the finding of the learned single
Vfiudgge gisperfectly legal and valid as the same is
s._s2;j3ported with legal basis does not call for
interference with by this Court. The learned.
Senior Counsel on behalf of the first respondent
is perfectly justified in placing strong reliance
upon the finding and reasons recorded by the
\\w/
26
learned Single Judge in the ixrpugned order and
rightly contended that that confennentA…VVi*-o;’;”
contract in favour of the ax>:E>e3.la.:;t”””‘€ri<3_;e5
Amaexure-3 by the sesame: is c1ea:…..,§tageV.i.::: oft
iargesse which is violative o:E
Constitution of xndia as held 1:43; the "c.5ux<t"*
in the case of zNTemmr:o§Aj}"i. Mercer' t§LU'iiii9'itiTY
Vs. A¥ARAM snerrfg Ar1i""19"'}9 so
1523. It is wortz;§h#i1'e"' relevant
portion of parecgreph V" judgment,
which is as it it
'\'-"z:.i._,_.'l,_.'l. 'eeen: from this
judgment" , that restricting the
invitation" Vito" tenders to a
3.:i.m.’1.ted= c1essV._of’15_ei*sons was held to be
violative of the-. equality alause,
be_ca.use”‘~+.h’e. o’,1as;v_si’£’i1.e relation to the
-o1′:’.i~jecVt.__so1:ght————to be aohieved, namely,
A eeliintg “e;E kzendu leaves in the interest
‘ “er then general public. The standard or
vinorm, by the Government for
entering into contracts of sale of
::endu’_1i’eaves with third parties was
disarixanatory and could not stand the
scrutiny of Article 1,4 and hence the
” ‘tsohetne was held to be invalid. The
x rejected the contention of the
– Government that by reason of section 10
it was entitled to dispose of Icendn
leaves in such manner as it thought fit
and there wee no limitation upon its
power to enter into contacts for sale
of Jcendu leaves with snob persons it
\w/
28
flavour of the appellant, it has put–ujp
infrastructure and large mmiber of woriqtien’ 1-
employed by the appellant, if, this cou1″–t..
stage, the order of the learned $…1′.n§”l4e f
upheld great financial hardehipiuwould A .§;’a{zsea;1.”
to the appellant, but lot
be caused to the cons’ium_ersg’;i’W_’V”-toontention of
the counsel for second
respondent cannot; ‘he a Court for
the reason does not possess
the Q’?su_!:;gz1i.:Vtting tender–.’oids
in relation to —ooirered in Annexure– ‘A’
to ‘D’ Hg} the conferred with the
_,oontre¢it’V and the cannot plead equity as
Single Judge has recorded his
reasons with reference to the
rival oontentions urged by the learned
” §”f:_:_o’uns,el z 5.6: the parties and rightly held that
it of coatract in favour of the Appellant
Annexures-‘A’ to ‘D’ in favour of the
is vitiated on account of illegality,
Apart from the above reason the learned single
judge has gives direction to the second
‘m/
29
respondent herein to redo the matter. In eo.._:f.a;r
as award of contract as per Annexure-G_,;””weVV’~haired
already held that it is lergesee upen”
the appellant by the BESCOM §.c<.v:c$:,;etA
public interest will be_._a.dver.ee1Ly afilfected V
therefore no equity need; "a.ppl"ied.V_ "case
in favour of the Appellant} the contention
urged and prayer regfard by the
learned cceneele and
second V Interim order
granted …. dissolved. The
submisieion' _» counsel for the
eppellantt' as "'–we_'LJ… it second respendent is
rejegtedp. is also rejected.
~,r._'<He_re this kind of contract by the
"not be awarded by the BESCGM in
favoiir 'of person without following the
precedazte as provided under the provisions of the
'V V ' fK'i'3?P- ,nc£.
“After dictating the judgment, learned
heounsel for the appellant sought an interim