-1-
IN THE HIGH COURT or KARNATAKA,~
DATED THIS THE 22'
THE HON'BLE MR.JUsT1OE agony" A
WRIT PETITION No. ',]"'."»»q'VVV:'9-V1'.8'VVflF 2003. (1.3%.-BM?)
AND WRIT PETITION .N0§:1}£«55V4'«5'65/2009(LB-BMP)
1Nw.P.13918g2008: '
AKRUTI CITIfY'L'.f?D T. A V
FORNEERLY 'Is:NO*c~;r:~.%_As2.. " A *
AI{RU'I'I NIRMAN LTD, -AKRUTI NIRMAN LTD.,
AKRUT'I TRADEVROAD NO."/', MAROL
MIDC;1AN]_3H'E.RI 1¥LAST,~MU»MBAI--400 093
ALSO AT._G2, PLUME'.RLA,"1_, JOHN ARMSTRONG
ROAD, RIC-I:IARDS'fII)7W1V';~--'B'LORE--5, REPTD BY
1*1s,A.IJTHOR1zEIJ REPRESENTATIVE HEMANT
. - _ -_ PETf'I'IONER
'V 'A ' 153/ :_BRIJESH PATIL, ADV)
'I§1s"H1GHNEss THE GOVERNOR OF KARNATAKA
" BHAVAN ROAD,
RAJ BHAVAN,
V BANGALORE
RERBY THE SPECIAL SECRETARY
TO GOVERNOR
V' " H2 GOVERNMENT OF KARNATAKA
THROUGH ITS SECRETARY
HOUSING AND URBAN DEVELOPMENT
M.S. BUILDING, }3ANGALORE--1.
DAY_JQF__$EP'I'E1"vfE§EfE,,4_2O 115 ' G.
THE COMMISSIONER " *
BRUHATI-I BANGALORE MAHANAGARAR I I
N.R.SQUARE, BANGALORE ._ -- " *
TIIE ADMINISTRATOR .. _ ' '
BRUHATH BANGALORE MAHANAGARA PAI
N.R.SQUARE, BANGALORE ' y .
MAVERICK HOLDING es: IN'JESTMEN'1'S_(P) LTDI
'78/1, NEWKRROAIL),
BASAWANGUDL _
BANGALORE ~ -
RERBY THE DIRECTOR ;'B.G.UDA'{;~. _
KJoTHIRAMALINGAMi.= ._ j'
PRESI$NTL.1"EtIQLDI?IZ{G TI"I_E'OF'FIC'E OF THE
HO'U_VsING.'ANB UR'EAN_ DEVELOPMENT,
.M..CSA. 'BUILEING,».BANGALORE; 1.
DR P
'EX--ADD--I'I'1'ONAL 'COL/I1x~1IssIONER (FINANCE)
BANGALORE MAIIANAGARA PALIKE,
N.R:sQUARE, I-2=ANGALORE--56O 002
' " R/AT C» 504; RANKA CORNER, 4TH F DOOR.
' V _CAMBRID'GE_._.ROAD, OPP. SAIBABA TEMPLE,
BANGALORE~56O O08
-- RANGANATH
'EX-~CI--}'~1I5;F ENGINEER (PROJECTS)
BANGALORE MAHANAGARA PALIKE,
.Rv.SQUARE, BANGALORE660 002
~. R;/AT 32, SRINIVASA ENCLAVE,
" I-ST CROSS, BASAVESHWARANAGAR,
Iufi(RIADELE'I'ED VIDE C.O. 6.11.08)
BANGALORE--56O O79
. .. RESPONDENTS
(BY SRLM KESI-LAVA REDDY, AGA)
I (By M/S I ASHOK HARANAHALLI ASSTS, FOR R3-4 )
(BY M/S. JUST LAW A/S FOR R5)
THIS W.P. FILED PRAYING "PO CALL FOR RECORDS AND
DECLARE THAT THE DECISION OF RESPONDENT NO.2 VIDE
UL
-3-
ANNEX-AR TO THE WRIT PE'I'iTION TO AWARD :EO«R
PROJECT FOR DEVELOPMENT OF HOUSING .,COM1?_L'I-;X FOR'. 4_
THE ECONOMICALLY WEKER SECTIONS OF_sO_O1E'IY.V {Ews} AT
EJIPURA, KORAMANGALA, TO RESP.ON_DEN'_'£' NO.'5;V~iS"II_.LTEG:AL ' D.
AND QUASH THE SAME.
IN W.P. 14564-65 OF 2009
3. NOORJAAN _ ..
W/O MOHAMMED GOUS. ;
AGE 31 YEARS I 2
R/AT No.23, BLC'-CK. .13, EWS QUARTERS
KORAMANGAIA,:;BANQALO'REj47. j'
AGE_52j_YEARS » '_ T
VR.[AT"?._3. ,' Emciz. NO_.23,~ EWS~QUAR'1'ERS
1' KORA.NL1X_vNGALPT,_4B.£§NGALORE 47.
2 PYARE";1.AN.w'-/O 1:;.1{§H.AD'ER*«'BTAsHA,
PETITIONERS
{By Sri' ': )
....... . ..
A 1 -.1_ _ BRUBAT BANGALORE MAHANAGARA PALIKE
" A. 2
. VRP3_P._BY"i'I'S COMMiSSIONER.
._ v RESPONDENT
{BS7 '::_ S PA, ADV }
.. 'TB'-ESEHE PETITIONS FILED PRAYING TO DiRECT TO
* 'C,O_Ml\/LANDING THE RESPONDENT TO START RE~
-CONSTRUCTION OF THE E.w.s. QUARTERS IN KORAMANGALA
[BANGALORE WITHOUT ANY FURTHER DELAY AND COMPLETE
"THE SAME WITHIN A TIME FRAME AND ETC.
THESE PETETIONS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, THIS DAY THE COURT
DELIVERED THE F OLLOVVING:
ORDER
The first petition is filed by the ladder»
calling in question the order dt. An11eX1ireL’jS,Bl:’of ii.
the State of Karnataka: _awarding the .contract”‘l
development of a Housing corniplex Weaker
Sections for short at to the 5*”
respondent; while the by displaced
residents of dismantled, for a
writ of 7 V. l l
2,’ ‘oifiapproximately 13 1/2 acres of land in
Ei3’ipura._.p4Korarnangala;’«Bangalore, belonging to the erstwhile
Co’rporatioln”o,f_lCity of Bangalore, reconstituted as Bangalore
Palilie (BMP) and presently the Bruhat
I Palike {BBMP), a residential complex
lconsi_s’tinlg< of 1512 flats in 42 blocks were constructed
AA the years 1987432 and allotted to persons belonging
" –toE5EWS. The construction when found to have serious
inherent defects, demonstrated by collapse of a building
block, led to an enquiry, and a recommendation to demolish
the building, followed by a decision to reconstruct
bi
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approximately 1640 residential flats through a eorripetivtive
bidding process.
3. The BMP issued a riotificatioln 14l{)’,.2Cv0¢i’;
published in the newspapers}. invlitingl”– ‘_E’::.pres’sion”‘l–.of
Interest’. for short ‘EOE’ for redevelopment’ log Ew’siVviibus:ng’
complex and developmenti…..oilv._ comrnercialp Hclomplex at
Koramangala, Bangalore–onc__ab§»ut’*lttl_.ilV:acres of land. The
petitioner amongst 5th respondent
BBMP by letter dt.
1.1.2005 the petitioner for presentation
and at the Meeting Hall of the BMP.
HaVi”ng regardfllltlo the magnitude of the buildings to be
and to decide the terms and conditions
._ .a=.’:durable Private Public Participation (PPP]
and policy, the BMP by resolution dt. 11.2.2005
up Ann.e’>:–ure–M appointed Infrastructure Development
ll –..gl’C.ourporation (Karnataka) India, for short {DECK as Advisor
Assistant for the said project.
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Rs.1,35,00,000/– as QMF, hence placed
preferred bidder, as indicated in_-“the::j~’..
24.2.2006 Annexure–P.
9. It is the a1legatior_1fi_f:ofvpetitionerflthat the 5″!
respondent’s offer oils. QMF, though
placed secondin netertheless in active
the BMP illegally
document, corrected/
as to accommodate the 5th
respondent,. it is alleged that the officials of
created,….reports of ‘M/s Manasa Consultants’
—.’§\/lanasa’ and M/s Strut Geo Tech
.0 for short ‘Strut Geo’, to support the bid of
the respondent as more feasible following which the
“:0: w.:co’p«1ncil of the BM? on 30.10.2006 resolved to award the
contract to the 5th respondent, Annexure–R.
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10. The petitioner having ‘e’r_:o”I’*:~;=,.I’erred
W.P.No. 16216/06, this court ordered inte_rin’i'”the
resolution Dt. 30.i0.200e of the B]\.’i’P,”:\tIheif1ce, it
stated that it was furnished
of 531 respondents
handwritten insertions.
under RTI Act, ‘4’that”discrepancies were
noticed in the number of car
parking repondent had
conductledv a manner, so as to eliminate
the pVeti’tio.ner’-__ thy; ‘addressing letters to the BMP,
AA, stating that 750 car parking
‘ “space>sijvere’~ not taken into consideration and if so done,
it A iiifouldgivncrease the revenue to BMP. It is further alleged
thatitihe queries under the RTI Act revealed that there
no formal agreements with M/s ‘Manasa’ and
‘Strud Geo’ to utilise their services for the project.
I/L
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11. The interim order in the writ is
stated was modified to enable the Goverriifnent’ a
decision on the resolution oftthep
decision in the Writ A’
considered the matter»’~uriderA.”Siecti0ni_, of the
Karnataka Municipal for short
‘Corporation Act’, appointed
by the Rule, in the
meeting’ ‘decided to cancel the
resolution of the council of BMP, while
the C}uovernor.__iVs*._ to have passed an order dt.
,_:2′:B.5,f20,(_38 l(AiAi’I”e’:.’..t.i.1«”i’g the department and BBMP to take
‘ matter, particularly in View of the urgency
proyxiideiil adequate shelter to the displaced families.
On _tl.’:1e installation of the popular Government, the
.,:capncellation was confirmed by order dt. 9.6.2008
Annexure~»AH following which this court dismissed the
Writ petition as having became infructuous.
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12. The 631 respor1dent-Pr}.SecretaryVis.:”said to
have put up a proposal before the Cabinet;”i1ifiolr1f_ng_item
Nos.28 and 33 of Schedule–I
Government [Transaction of Busines1s)..’ ‘Rules_. a1Q77″‘–
soliciting withdrawal of _VdecVisi_on of
Executive Committee o_rder passed
under 98(2) of the the resolution dt.
30.10.2006 of cabinet having
had a t%y”forder dt. 18.9.2008
awarded the 5″? respondent. Aileging
that thegfith Vlresporid-ent was the Commissioner, BMP
the lcouncil of the BMP took a decision and
‘ was the Pr1.Secretary when the note was put
beforierlthe cabinet and managed a stage show, has
preferred the petition for the following reliefs:
“(a) Call for records;
(b) issue a writ order or direction declaring
that the decision of respondent No.2 vide GO
No.UDD 261 MNG 2006 Bangalore Dt
iii
.31
26.09.2008 vide Arinexure» to
petition to award contract for
development of housing compt}_e$g..VV. the
economically weaker sectionscf s”ociety’-{E-W’S}.~ at;
Ejipura, Koramangala, tog Rie_sp’onde_nt..l’t No p .
illegal and quash thesanie; it
(c) issue atwrit -or other
writ or order, dir.ell<:t_iAnlg Nos.2 and 3 to
consider the 16.6.2008 &
26.6.2903 Annexure–AL
"~a_CClQI'tjl3.11Ce with direction of
tttiievvfiovernor of Karnataka dated
2l9.__5';2tOO8._lVide_4A_ni1eXure-AG and issue LoA in
V. favoiir t_ofw.p'etiiioner and award the contract in
" terms of uRFP..i:o petitioner;
'A Direct for appropriate cases being
regist_ci5ed by competent authorities to
..inye.stigate/ enquire into the entirernatter as to
illegal tampering of records/ abuse of powers by
the officials and take action against the guilty;
(e) issue any other writ , order or direction
as this Hon’ble Court may deem appropriate in
facts of the case.”
vi
13. The petition is opposed by filing of
objection dt. 5.12.2008 of the 5″”
the ailegations. It is contendec1.£he1t.’_4’the’isa
disqualified bidder since J
Assistant did not notice ‘the.yppatei1.t. in the
petitioner’s drawings, mpore’appropriate1y* providing car
parking space of dimensi’ons Iessfthan that prescribed
in the B:.1.\’l’?.’:Vs1-.b1.§1.i1d:_i0r’.1..’g’ by..:….rsgj.t2too3 and being a 0
vioijation” bye§1aws_– ought to be rejected. It is
statedxgthat not a participant in the tender
pr qccgss dalidigdthattdii/I/”ts Akruti Nirman Limited being the
, A petition deserves to be rejected.
The respondent submits that being one of the
participants in the tender process did submit RFP
..:>d’o_cument on 20.2.2006 at 3.56 p.m and not till 4.05
p.m. as recorded by the Receiving Authority which was
brought to the notice of the BMP on the Very day by
letter dt. 20.2.2006 Annexure~R12.
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(b). The QMP offered by the respondent was
Rs.1,35,00,000/– and revenue from the additional car
parking facility when not evaiuated by
incorrect recommendation. According to ‘re:sp_ond”ent
the total build up area for i
petitioner is 6,12,-4:13
respondent is 6,53,236__v:’sq,ft..,_p H’ area of the
commercial bui1din_§,§.pthe petitioner is
11,,9i7i;V64oit’geq.ttfief 5u,i9’8,’820/– sq.ft is BMP’s share
andzth–e– ‘»th’e share of the petitioner. The
respondeiitvfl have offered 18,07,374 sq.ft of
– _ of which 63,53,687 sq.ft is BMP’s
balance is the share of the respondent.
(cfitdis stated that the petitioner proposed 1,425/-
_ Vepcarparking space of which 713 is the share of the BMP
A’ the balance 712 is that of the petitioner. It is the
case of the respondent that the petitioner having
provided car parking space each measuring 2.25 mtrs X
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4.50 mtrs though byelaw 16[a) of
Byelaws, 2003 prescribes dimensions fejaehad
parking as 3.0 rntr X 6.0 Intrs,¥7xAAr»a0s’deIibe:rateiyu
by IDECK.
(d) The respondent to have car’
parking space, of which tits.._the~,sharev’HofVV the BMP,
inciusive of 500 car parking
slots. Accord’ii:;g”Vto i’espo:nd.ent–..:«its proposed 1936
car eifdainated by IDECK but was
done by the EMF.
5. , (e) Val:/ia’tion by’.’i\/Ianasa’ is said to have resulted
aaririvingfl at present value for short NPV of
the petitioner’s offer while that of
the respeiident as Rs.1o4,14,95,314.39. ‘M/s Strut
..Gr¢o’ “engaged by the BMP, having evaluated the bid
ddtdociiment opined that NPV of petitioner’s bid is
it 0′ ‘”‘Rs.101,05,54,553.99 while that of the respondent is
Rs. 1 20,25,65,010.07.
Q/wk
.1 7.
[i] It is further stated that paragraph’:’__i[;1:€2.,5
provides for evaluation of the technical’ as ‘set
out in AppendiX–V.'{ while
declaration that the technical proposal tothe,
technical specifications the BMP.
Paragraph 1. 1.5.7’ ‘interpretation of RFP is
valid only if it is invwriting ‘by the Executive
Engineer.(i%’ro§je:cts):’: the allegations of
the 1.petit’iorie-r “‘at(ort]r;.y of acceptance.
“r_(g’)_The ‘respondent.__ further states that paragraph
1.24 otx impeachable, unfettered right in
to erigaas-V and utilise the services of the
consultarit_S which when examined by the Commissioner
as indicated in the notes at page 13 to 15
in the-file bearing No.EZC/F/1565/2004, copy of which
= .i_sj’A”fumished under RTI ACT, Annexure–R14, the drawing
submitting by the petitioner were found to be vioiative of
the Building byelaws of BMP and deserves to be
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disqualified by applying paragraph 1.29.x3′[a}_V r/W
paragraph 5.4 B of the Draft Concession__Ag’re.einent.’=It
is asserted that the appointment of the
empanelled with the BMP to ei£icit:_-thleirpofgthe
two bids cannot be foundfanlt V
(h) Responderit..specificaily ‘denies the allegation of
interpolation in the ‘fioici1mer1t.>.j’Vi.n’jconnivance with
6th respondient iotheregofficiers BMP.
dtveiy14,t_ filed a rejoinder dt. 10.12.2008
to thevV’i’*-stavtement” objections of 5″? respondent
ri§i*ter.;%itiI18 th’e”a-V-erments in the memorandum of Writ
V in addition contends thus “after completion
it Vbii’Ev(d3.I’-i5..V:_i’.tssessment only as mandated by RF? terms
and Rtile 28(4) and (5) of KTPP Rules, the financial bids
opened without any dernour from any quarters.” It
is clarified that the petitioner earlier known as ‘Aiiruti
Nirrnan Limited’ had changed its name to ‘Akruti City
Limited’ on obtaining a fresh Certificate of Incorporation
fiyuk
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from the Registrar of companies in Maharashtra. It is
alleged that the notings dt. 23.2.2006 V.3;és.rp200e,
subsequent to opening of the RFP and
manufactured to subvert of
the tender proceedings to,favour—- 531 it 0
15. Respondent and__4Vhave””0pp0s’ed the
petition. by filing statenlem-,– of.obj.¢ctioéns-.d.t;§ 26.2.2009
inter alia contendinag’htha,te. blocks, spread
over 13.’_I’2~2.h-ggredsptpof in Koramangala, Bangalore, in
a dilapidated required demolition and
recon..structior1′ of a building complex under a public-
partnership [P1319 Model) pursuant to which the
A ._ respondent and one IDEB submitted their
20.2.2000 and at 4.30 p.m. the bids were
” soperied in their presence.
(a) The report of IDECK recommending the
petitioner as the first preferred bidder when considered
was found to be lacking in evaluation of material
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aspects, more appropriately the car parking
being in conformity with the Building
respondent’s bid containing :1’ev.eixcar ‘slots it.
was not evaluated, requiring a»ps’econd,–opinion’:.
Commissioner for _ agre.en’1ent the
recommendation Erlgifieeié (Projects)
approved the propowsafi opinion of two
independent submitted
a reportidon integrated evaluation of the
technical of petitioner and that of the
531 respondent ‘NPV’ at the end of 30″” year,
that “the_.._proposal of 531 respondent was more
‘ BMP than that of the petitioner. The other
‘VM/s Strut Geo’ opined that BMP would
beneiit. inuch more in the bid offered by the 531
“ii .Vre”spondent than that of the petitioner.
(b) According to the BMP the evaluation by
IDECK was based on the QMF offered by each of the
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participants while the evaluation by the
was based on Net Present Value of
years, integrating both technical’ ‘and it
Parameters adopted, _4 is 4’icl:ai1ned,:p’,.’i,,”
construction; revenue ‘addition-Z parking
facilities and other i
(c) The having placed its
recommen_dati,on ,l:wiefo»re’ the ‘Standing Committee for
by the Council on
considering the supplementary
to whether BOOT Module is a
_ g ppoptiofi, …. _, _
to the respondent, petitioner having
the resolution of the council by filing Writ
* Paetivtion No.l216/ 2006, the Executive Committee
constituted by the Governor, during President’s rule on
23.5.2008 decided to cancel the resolution without
issuing notice to the Administrator of BMP since the
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term of the council had expired. It is stated. the
issue of the Government Order dt.
was dismissed as having it
[e] It is further stated th’a,tVll’i”s/I/s giaped’ia;i~lso¢ia;
Welfare Association, thRe’petitioIielr “the 5″‘
respondent havingrepreselntations to the
popular Governrnen.t,..:on the matter was
taken up Section 98(4) of the
Karnatakaj’,Mui31jl¢1pvail..pycorporation Act, 1976 since the
decision’ dt.’ the Executive Committee did
not” _containl” ‘reasons for cancelling the Council’s
therefore, having regard to the fact
._ the circumstances, by Order dt. 9.6.2008
cancelled; the earlier Govt. Order and approved the
* :c_ouncil’s resolution.
(i) Respondents specifically deny the allegation of
interpolation in the tender document, so also the
allegation that tender document of 51″ respondent did
Wk
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not provide for multi level car parking. Accordirig the
respondents the car parking is shown
the proposed commercial building
parking facility. V V
(g) It is lastly statedL”‘~thatllti1e’ ‘Mid of .-in;
respondent records alias share
amount, accountedash’capital annual account for
the year _ query, the 531
nrildertaking that equity shares
Would._bepallott§§(j. fninirnurn of Rs.iO lakhs, equal
to the thresphold ll”.-financial calculation criteria for net
« a.:s”s.pecified in the ‘RFQ’.
f.”i”‘l”i’e petitioner iiied rejoinder statement dt.
to the statement of objections of 3rd and 4th
it respondents reiterating the averinents in the
‘memorandum of writ petition and contending that the
T Chief Engineer (Projects) could not have opined that the
petitioner’s RFP was not in accordance with the
Lek
.24
Building Byelaws after M/ s IDECK submitted’
Though the petitioner proposed 1725
{DECK reckoned only 1470, u
therefore, the petitioner’s in
the terms therein. Engineer
(Projects) on he “iillegitirnate’
design to help 5th the tender by
hook toll’lthelpetitioner, the letter
disclosed 750 car
500 car parking slots
1936 multi level car parking
The RFP….p’rovides for BMP’s entitlement to be
V alone and no stipulation of sharing
‘revenue car parking and therefore, cannot form a
validlAl:;asis to award the tender. it is stated that the
x _reports of the second consultant have no legal sanctity.
The interpolation in the RFP document, it is alleged, is
because neither the report of IDECK nor the area
statement of 5″” respondent part of the technical bid,
5/°<L
25.
made provision for multi level car parking, solalso the
sectional view of the plan did not disclose _rnu]_ti. car
parking, while the technical
evidences proposed 1500
that the format of
provide for submission of other form
and contrary to assertions tlrgtlrespondent in the
letters dt. 33,06 car parking
slots, slots. It is
the petitioner raised objections
to the of RF? by the 5*” respondent,
rieveirftlielessi officials accommodated the 5th
‘ —in violation of the tender terms and that
l’ did not waive the objection over
eligibility/qualification of 5th respondent. It is lastly
,:c’o’ntended that at the instance of the 51″ respondent,
neither the Karnataka Government (Transaction of
Business] Rules 1977 nor Section 98(4) of the Karnatka
Municipal Corporation Act, 1976, for short ‘KMC Act’
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26.
enable review of a valid decision by””‘-th.e__} State
Government.
17. The petition is oppopsednby. filing of “V
objections dt. 8.5.2009′
Karnataka, denying the regard to
the imperative ” to rehabilitate the
displaced sections of
society jgrlesidential buildings, in
note Annexure–R1 of
for Works and BM? Council
that was not in accordance with the
B3fe1aws_.and the opinion of the two consultants
‘ .respondent’s proposal was more beneficial.
it Were. circiimstances on which orders were passed
invoking Section 98(4) of the ‘KMC Act’. The decision, it
stated, is bonafide and on consideration of all
relevant material. It is asserted that the need to review
the earlier decision of the Executive Committee
appointed by the Governor during the President’s Rule
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followed by the Government Order, was absence of
reasons since Section 98(2) mandates reasons’ Ito” be
assigned if the resolution is prejudiciaJ..to4_:thve:~int.erest
the Corporation.
18. Having heard.*th_e lelarnled
parties, perused the the order
impugned, the :’~-fonieldecisiolnll making is.
“whether the awardiofi ieontraef v.fo’1?,.1*edevelopment of
‘eV6@ple_’x and development of
cozntrieprciai at Eijipura. Koramangala.
Ba’ngalore”‘t§”tlhe’V’5*l= respondent can be faulted and
on any permissible ground of judicial
tilt is trite law that award of contracts by the
, ;Stat’e—-,; its instrurnentalities, statutory bodies and other
it ‘-i,_l”au’lthorities falling within the meaning of State under
Article 12 of the Constitution of India is settled by a
catena of reported opinions, a few of which are:
N
” ‘Commissioner,
23
. Ramniklal N.I3hutta ~–v- State
[(1977) 1 SCC 1346];
Ramana Dayaram Shetity It ; ‘I
Airport Authority of India’ ar1d’eiothe:’r’~:- [A1379
SC 1628]; K V. _ V
Fertilizer Corporation» Union
of India [[1981]1,SC~Cf§3l604i];
Central se_ _V S” India Limited
[(19831 SvCiCV:25O4]A ‘ – –
. Shyiain State of I-Iaryana
–v– Union of India
Liiiiessisiisdeizem;
;i_fi’atal”CeEln’lar=–v- Union of India [1994(6) soc
65ii.]j;f S
International Limited –v~ IVR
I ..4″C.or’;$truCtions Limited [1999[1] sec 491];
Monarch Infrastructure Pvt. Limited –v~
Ullasnagar Municipa}
Corporation and others [2000(4) Supreme 34];
10. Air India Limited –v– Cochin international
11.
Airport Limited and others [2000(1) Scale 346];
Craig Martin Distillery Pvt. Limited
Kerala State Beverages [Manufacturing and
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29.
Marketing) Corporation Limited [geoog(i”kf)_i
623];
12. Reliance Energy Limited a “‘–..v;’ ;
Maharashtra State’ » . _ “~]’j’eveI:oprii.e:nt
Corporation LiIr1it_ed [(_S?.0.0?i8.
SCC 1].
20. The obsei”vatior.is Cotirt in the said
decisions could be t’.hi,is’~ii_i.
a}.a’2’L1’d.V::Of €oontrdact”‘wfiether by a private
partyior pubiicdfjbodyi:or*.i;he State is essentially
afi traiisaction. In arriving at a
cornrnerciaiwg “decisig5n. considerations which are
parainouiit Varei~-._cori1rr1erciai considerations. The
»»’-{State can”‘chVoos.e its own method to arrive at a
A deciesion-iy It can fix its own terms of invitation to
that is not open to judicial scrutiny. It
‘A into negotiations before finaliy deciding
ioaaccept any one of the offers made to it. Price
i ” ._need not always be the sole criterion for awarding
it ” “a contract. It is free to grant any relaxation for
bonafide reasons, if the tender conditions permit
such a relaxation. It may not accept the offer even
though it happens to be lowest or highest.
However, the State and its Corporations etc., are
30.
bound to adhere to the norms, standar.ds.:_:’and
procedure laid down by them and
from them arbitrarily. Though the decisiojri.:ta’1<erii_A
by them is not amenable:~to–.§t1d'icia1'"irew.rievf1~oiti.A
merit, the Court can examine 1d"ie'iVdecision
process and interfere' it 'found"v'hVVit:iated:
rnalafides, unreasonabieriess, arbitrariness and
due to Violation,' of ,the- titerrris conditions
imposed by the _
21. :..Iri.e:VRau1§iaq€ case (supra), the
Apex” .t}ius:”.W V it
, fig, _:a’Wa.rd of a contract, whether it is by a
pvrivate or…’~~by a pubiic body or the State, is
it iessentiaily a commercial transaction. In arriving at a
E5″cor”n.r,I&1ercia1 decision, considerations which are of
V _ “‘–v.para:noiint importance are commercial considerations.
V ‘I’h;cse;\ivou1d be :
(1) the price at which the other side is Willing
to do the work:
(2) whether the goods or services offered are
of the requisite specifications:
(3) whether the person tendering has the
ability to deliver the goods or services as
per specifications. When Iarge Works
54:
(4)
3!.
contracts involving eréVgagenj’1ent”. _.’ of
substantial manpower or s;b>eCi.fic’°
skills are to be Soifered,’-the finé..ncialA’abi1ity7_ S
of the tendereijtoinfiuiiil of S
the job is also irnpV_ortant;.’:”‘ _
the abi1ity”e’o:f’ithe teridererv-itoadeliver goods
or;_…563/lrices ‘to_ do it the ‘work of the
requiilsite-_standaifd” quality; l
pastV_v:’eXpe_rienc’e~vv ofvfgthe tenderer and
whether’ heddhjasVgsiiiccessfully completed
.. sin:1:il.a;r-lwork’–eariier;
will be taken to deliver the
– it or services; and often
‘ { of the tenderer to take fo1Eow–up
:§c::§i_;.,’ rectify defects or to give post-
: contract services.
Everrwhen the State or a public body enters into a
A transaction, considerations which would
in its decision to award the contract to a given
.. would be the same. However, because the State
Visor a public body or an agency of the State enters into
such a contract, there could be, in a given case, an
element of public law or public interest involved even
in such a commercial transaction.
]_;<L
.32.
10. What are these elements of public
interest? (1) Public money would be expendedvfor the
purposes of the contract. [2] The
which are being commissioned cou.ldV_ a pu’b.l.ic’°–.,
purpose, such as, constrluctionp of r’oac1.s;”V<'pu'blic7. L
buildings, power plants or
The public would be d_irectly._interested_:
fulfilment of the contraet»so that.th'e–hVser'v:ices become
available to the public" (4): The public
would also be "irttere'sted' "'th:e:qt1aIity of the work or
goods can lead-tremendous"fxptiblic hardship and
substantial financial lpfeither in correcting
mistakes in'"r,ectifyi.ng defects or even at times in
redoing — thus involving larger outlays
ot,ppi_ib1ie_ and delaying the availability of
ppservic-es,""facilities or goods, e.g., a delay in
.comn1issiohing a power project, as in the present case,
lead to power shortages, retardation of industrial
1 develeprnent, hardship to the general public and
_.~s11_b'stantial cost escalation.
"11. VVhen a writ petition is filed in the High Court
challenging the award of a contract by a public
authority or the State, the court must be satisfied that
there is some element of public interest involved in
entertaining such a petition. If, for example, the
dispute is purely between two tenderers, the court
bk
33
must be very careful to see if there is a;e._y..Velen:ent of
public interest involved in the 1itigation;VV’.._’_P;’ _.__mere
difference in the prices offered by t1*J;e__”t\ve,teI1derers._
may or may not be decisive in ”
public interest is involved iniiintervening “in,_p_sL:ci’i a
commercial transaction. It is. important “to’jbe’ar”in
mind that by courtvinte’r.ventio1’i….the _”pro~p’o’s’ed’ project
may be considerably pd§V1_ayed_p_Vthus “esVca1a_tfing the cost
far more sa.vi”ng__i.which the court would
ultimately effect as by deciding the
dispute:in.__ favourVof:Von_e ‘tiendei’er.V’ the other tenderer.
There_forjei,’t’ iunlessiathe ilswslatisfied that there is a
public interest, or the
tr’ansacti~of1i.is» into mala fide, the court should
I’1–o4tlinteV1’v_ei1eunder Article 226 in disputes between
‘ ~ _ two V Ii-val ‘ tenderers . ”
it ».:1i:j; Jagadish Manlal –v– State of Orissa
it SOC 517 Raveendran J., having considered
A ail “inrportant earlier pronouncements of the Apex Court
” have a bearing on the decision making recorded
the summary of findings thus:
“22. Judicial review of administrative action
is intended to prevent arbitrariness,
Lift
34.
irrationaiity, unreasonableness, bias”
maiafides. Its purpose is to
choice or decision’ “-is made V ‘
‘V55 V
lawfully” and not to cheek
decision is “sound’V’.’«-.._V When the; power of
judicial review is in matters’ “relating to
tenders or certairfspeciai
features should’ A contract
is a cornmerciaj Evaluating
tenders ,_?:eritrac’ts are essentially
co1i3.n1e_r(.:ia1 ‘furicti.ons.~~’ Principles of equity and
fnatur’a,l j’ufstic’e~,VVstay a distance. If the
7-de’cision”reiuatingto award of contract is bona
fidea and is in interest, courts wiil not, in
exercise of power of judicial review, interfere
i.,eve’n if avprocedural aberration or error in
_ “assessment or._._prejudice to a tenderer, is made
Vo’ui’;[.:–. power of judicial review will not be
vperinitted to be invoked to protect private
it -interest at the cost of pubiic interest, or to
decide contractual disputes. The tenderer or
contractor with a grievance can always seek
damages in a civii court. Attempts by
unsuccessful tenderers with imaginary
Lil
(1)
(ii)
[iii]
37.
Review of the Order of the Governor of
Karnataka is impermissible sin.ce_l’_resulted
in a civil action being decided;”-f_” . 2 “‘
The State in order, to._revieiylvtl1Vedecision ‘of.
the Governor during Rule__Ao:;_glht
to have sought 1le’a_y’e of
W.P.No. 162 16/”2006
9.06.2005 as..i-‘infrnct-uousl”in. View of the
order of’ 2 Government;
H “of on
A.l.terI1ati.ve.ly=it eponten’d.ed” that since the Iis
b€%.t.\.?9Jeen–_ ‘was concluded by the
thelvlfilovernor, the parties were
‘ opportunity of hearing at the
” vtinie of reyiew.
.._vThe first contention of the learned Sr.counse1
that the time fixed for submission of
4 pm. on 20.2.2006, the 531 respondent
2′ ” Ihaavirig submitted the RFP at 4.05 pm. as animated in
ll’Annexure–L deserved rejection. It is no doubt true that
AI1nexure–L discloses recording the the time as 4.05 of
submission of RFP by the 5″] respondent. However this
UK
38.
is clarified by the 5*” respondent in its letter of date
acknowledged on the very same date
its statement of objections that the worn
its representative who submitted:-the:
as 3.56 pm. A perusal oil
for receipt of RFPS does of the
petitioner or the at the time of
submission or when all
the pm on the same day.
rejoinder statement dt.
10i12.l2008’v ‘statement of objections of the 5″‘
relspocnd.ent. stat-es”that after completion of the technical
V financial bids were opened “Without
from any quarters” lending support to the
fact that there was no challenge to the submission of
it v by 5th respondent since it was Well before 4 pm.
Considering the clarification put–forth by the 591
respondent in its letter, it is probable that the wrist
M
.40 ‘
statement, after the letters dt. 3.3.2006 and:’2_Qa_..4;~2006
claiming multi levei car parking slots.
not being in the required ..format,.’dMi’ti”t’ edontendedde.
deserves rejection under ”
document.
26. The said eieuse
” 1. 1 — Sigr1’~di’1_ji-g Vof’:jProposal:
‘-vt’o’tfi’dw..piiovide all the information
aepegf the specified format. BMP
to reject any proposal that is not
‘ .,:i1;…_the Aspeveified format.
The Proposal should be submitted in two
parts.
” Part I Submission:
XXXXXXX
Part II Submission:
.4].
(a) This should contain only the
Proposal in terms of the amount (in Rupees) to
be paid by the bidder to
the Appointed Date [hereinafter r;éferred~_to as :’;Q_nart.er1y
Management Payment” 0 “‘ V
(b) The Financial l?roposal._,_shonld._be.iias per the
formats set out in
… V. €X5tmination.._ ‘oi”‘”-Appendix-7 discloses
reads thus:
*.,”;f1’cOf1f1E*. level car parking to BMP’s
t . .. shaft? lnayh.’-be”‘con.sidered as an extra income.
0’ ….. ‘ sd/-
20.2.2006″
The aforestated instructions being the bidding
pp gprocedure, contained in the RFP, indicates that QMF
to be expressed in terms of the amount in
Rupees, in the format set out in Appendix 7. The
instructions do not state that RFP is liable to be
rejected if information is furnished in addition to what
Erik
A3.
to presume the insertion in the RFP and freshgset of
plans. The allegation that the 5th win
connivance with respondents 6 to 8
RFP document, it is arguedkmusetfivbeappresuinedw3ii1ce*–
the report of IDECK .did__ noti._sta.te about
revenue from 1nulti~leve1 «iacilitiies. In the
other words the petitioner an inference of
connivance. alt is else*.vhei:e._said..’that essentials may be
inferred.,:’v,rheii;:.; –.fr’o:n1–.’ thevvwwv-facts proved justify the
inference.’ surmise, conjecture or guess,
on the otherph-and, draw an inference from proved facts
long as it lis’a-legitimate inference. The contention of
V the “petitioner must necessarily fail.
In order to appreciate the contentions of the
it ” parties it is necessary to extract clause 1.32 of the RFP
‘relating to “Salient Features of the Project”, which runs
‘ thus:
Wk
.44.
“1.32.Sa1ient Features of the Project:
(a)
(b)
(C)
{H
,,… .]§.I1d for
BMP shall handover the Site on is
within 30 days from _ of the'”V._
Concession Agreem:e’nt.”w p_
The concessione_1’re sheill engineer,
construct and naeixage 1v64_O”‘fIats:;in the EWS
Facility at no cost
The Concessiona;ire’°5shéill” construct and
n1a3,intai£1 the ..V_’__l_f’Tj2ici1ity as per the
..Vev5.specf’ificgitio:r1s set” out in< the Concession
' Agf€€rh€fite«s. t .\
'Fhe"Concessionaire is free to use the remaining
development of a
V .:'co'mmercia1 / residential complex.
The commercial/residential complex shall be
developed at no cost to BMP.
BMP and the Concessionaire shall each own
50% of the commercial/ residential complex.
bi
(31
(I’ll
–
‘V ._Vand7managernent of BMP’s share of commercial
lk}
“45.
Transfer of title of Concessionaire’s share of the
commercial / residential complex s}1all.fbe’l’n1ade
upon completion and handov_err’of
Facility and commercial / to”,
BMP.
BMP’s share .*of___ the 2 conimerzzilalg /, residential
complex shal’lV”g:l3e handed 0li’§3r to the
Concess-ionaire for. rjn-aria,gement; V “V
Concessiponvaire right to sub —
license sub.-.5rent”the_con1mercial / residential
” is .. fv7.co1n”‘pVleX.”;_”
of the maintenance of EWS Facility
‘-14
/x”re’s1uential complex shall be for a duration
T”‘v1)_eginning their individual CODs and ending the
ijekpiry of 30 years from the date of signing of the
‘T Concession Agreement.
Concessionaire shall handover the EWS Facility
and BMP’s share of commercial / residential
complex at no cost and good operating condition
at the end of the Concession period. 1
.46.
{1} Concessionaire shall pay Quarterly’
Payment to BMP, which shall increasein
for every block of 3 yearsf’
29. Having regard’ the V proj
and its salient featuresip__stipra;.._vprnoreiappropriately in
matters of civil -53. no obligation on
the P3113 the «::…V’pr’opose a scheme
detailing” it-lplemiisbenefits under each
on its comprehensive
to conclude which of the
proposal in public interest.
contention that the reports of ‘Manasa’
._ are not authorised by a competent
a”L1tliori’ty:’ is without merit. Clause 1.24 of the RFP
V ” Vidocuirnents reads thus:
” 1.24 Consultant(s) or advisor(s}:– To assist in
the examination, valuation and comparison of
proposals, BMP may utilise the services of
M
consu1tant(s) or advisor(s}.”
,;§’?—
The notes at S1.N0s.38, 39, 40, 41 and 42 of Annexure—_R15
read thus:
38. aaréfimowag sag as:-bacsadd csaogfi ma; e.–.7;’.f:§s”a.*»’ “-afflcfiggfiafi
aéfieagfioiadg M/s. IDECK sqzag, zbzéaamdd ways ‘£3335
add $386383 aa’©ma’>3-ESQ mgemfi (Broadly) aaaeazagg.;3:::VA.lje§,a.a$’d
mega sgngnaacmem 330*’-‘a>aa’9rr§ 2.25m gz “4′.5m. T_;~>ge;:7z>d:35′.
assaososa Bye–law 33em:$£o33.=3;x gmgamq
sadea vadoocfi c:3.ea:sSo3a c:3.r;:.~_;:.aifi -fie’.-&’&f’3ug’.%’§@fi _;e3z’ba3 *.
a-tiomafiaaiaigt swam:-gm aasfiaamag.’ ‘ll/larvaric
Holdings daid I3ye–law éfi;’9Eu:$332_>=6.
mad amgamq multi ‘Mel car §.palri’1<Vj:1g"'~.(MLCP) aazaamzzsocsa
masziwafizzg, was; Bye–law §-Sfiad :.e..&;:sea+s;'é:@r:3f;.,loos was aezarid
eaom aasaméfi. a;:_:am.__ caw¢:5a”‘mé;a_:’aé3a;aa:-sq. wring} mega
uz:axo3_;3.
39. mos: m%¢nao;;a’ “«’:$l2_:::oi@e.a’,§fi am #dd9o5ae”g,, emesedaas
zadamflwd Holdings fie??? (Technical
& Financial.’Bid)’adaaé’e;_e«.V$wegm::g; am aaamcsaacs aaosauaaaoasa
a~a2.3a>_a,cd: a€>c:s*”e;._fi:3;,v ‘ ” —
.1-(£0. aaméaaggs, _ . Said
l’€:3éT’.>$ ésafigaajgql ” .V'(‘a.=’;aE’axi3) a.a.ozc_
me: (oisae)
l ‘ of finalising the bids, the existing empanelled
V .c0nsL1l’tan’£s ofBMP namely M/s. Manasa Consultants and M/S.
. Geostructv Bangalore, their sczwzccs. may he enlisted.
V l” Approved
VI
4/3
Sd/–
4/3
1:4
31. Thus what can be gathered from the notes
supra is, that the petitioner proposed 17
slots each measuring 2.25 mtrs X
3.0 rntrs X 6.0 rntrs,
Byelaw) 2003 a violation, reg#u.ir.enien’i:,.”beir1g
a serious technical flaw bearing on
the salient featu’r:esfi– as vvell as cost
implications A in terrnS,:’of and asset value.
The’,.51h_lirefsploiulentlp’proposed; 1950 car parking slots,
byelaw’ levels, entailing in additional
benefitswin ‘terms’oi revenue to the EM? and increase in
._Sii’€3,._g$ll’i.d assetv–va”ue, more appropriately in view of the
0 ~00i’PP’fioriEule*-‘entitling BMP to only 50% of the built area
“year parking space. M/ s IDECK , the Advisor
Assitstant for the project having failed to examine,
‘._gevgaluate the proposals of the petitioner and the 5″‘
respondent, in the manner required of it, the
Commissioner for BMP approved the proposal to have
the RFP i.e. Technical and Financial offers, of both the
),w(
.49
petitioner and 5″‘ respondent evaluated”«l:’l:s}f;V”two
independent consultants viz., Manasa :’C~eo.’
In the light of clause L24 extmcted be;
said that the BMP was
from the two consultantsejlgiing eVa1u.ating’v_;’proposals’.
The further contention thatt.r.eports”‘were obtained
by the 5th respondent if the BMP
though not conntenanced.
H for the petitioner opposes
the assgertions respondent and the BMP that
the plans discloselmnlti level car parking facility, on the
“that the evaluation by M/ s IDECK did not
hence a presumption that plans were
‘i’c”I3l23§:’3.®ti””V’and furnished to ‘Manasa’ and ‘Strud Geo’. At
” Vet.heV”thresho1d, in the absence of proved facts the
drawing of an inference would be on surrnise,
conjuncture and.guesswork. There is force in the
submission of the learned Sizcounsel for the respondent
M
.50.
who points out to the sectional drawings submitted by
the 531 respondent as evaluated by ‘Manasae
Geo’ disclosing 38,034 sq.rntrs (3o,756yi4-,.,,,72d6S)
basement floor and 24,680 in
from 1 to 9th floors for car’ in
the Building byelaws. In parking
slots in the while
Strut Geo and Manasa 60 parking
slots in 480 slots and 36
nurnbelrs put together total to 1,952
(1436 16).’: ~v__Th,e ‘report of IDECK reckoned that the
p_etit>i_loraer’s hxproposal if changed according to the
V for parking slots as set out in the byelaws
evaluated as 1425 car parking slots in the
baserrient floor, only, measuring 37210 sq.mtrs (28,060
u _f|_-0,150). Thus IDECK having not evaluated this aspect
of the technical proposal of the respondent necessitated
the BMP to secure the evaluation of the Technical and
financial bids of the parties, by two ingependent
UK
.5E.
consultants. In my opinion, the assertioiis’V”th.at~i.. the
plans submitted by the 5th respondent were,
unacceptable.
33. The petitioner Vhai2ing:__i,«’ofifeiied
as QMP against the the Si”
respondent it is ‘ought to be
declared as successfui counsel points
out to reieira7ifit:.:;:~ro€rision;s ‘R.-5P documents which
read thiis: ii.
Evaluation: Part II
Su’I.:i14;t41ii=VsiVé’i;1”4’i.: »* _. 4
‘1;2a’;1 Part 11 Submission of all the Bidders
Whopass eitaluation of Part I submission would
_ bsievaiiisisd.
A The Part I Submission and Part II
S.ubinission would be evaiuated on the basis of
“tinge evaluation criteria set out in Section 2. The
H Bidder submitting the highest Financial Proposal.
as per terms and conditions set out in Section 2,
shall be declared as the Preferred Bidder.
jyi
52
2. Evaluation Methodology:
2.2. Evaluation Parameter:
2.2.} Part II SL1bITliSSiOIT-.” (Fir1ar1cial~i’Prop_o.sal)h of
all bidders who pass. th[ee’voIu.ti’on of Q3artvi–I
Submission, would be ”evaluated’ on} thee
basis of ‘9 the p’ropose’d, “‘V..Q’ua1*ter1y”‘
Management P3Yifi_ei7t. ‘
2 . 2 Seiectiorla_ V ” A . p
2.2.1 The FinancialPropo’sa}s..’would be ranked
descending order’ the Quarterly
Ififianagemient Payr”1″ie11t;” with the Bidder
“~th’e_ highest Quarterly
‘ii._l’g’_{Vanage1rient”Payment being ranked first
“”” the. Bidder” quoting the second
‘ ” ‘5I_»high.es’t,_Quarterly Management Payment
_ p ‘ _rar1k.ed4as.p’second and so on.
2.2.2 T..he’~ABid’derVranked first in accordance
*with 7,the” above procedure would be
declared as the Preferred Bidder.”
. The aforesaid evaluation methodology,
._ understood in the light of the framework
salient features of the project, supra, based
“V ‘A on vvhich the project was conceived. It is not in dispute
that EDECK, developed a durable PPP framework and
V policy, based on past experience of BMP in projects
such as ‘Garuda Mall’, ‘Maharaja complex’, “Divyashree
M
51
property’, Madiwala and Siddaiah Road, by the
following rnethodoiogz (a) Evaluation of
options to understand the riskéof _
return being revenue accretions (bl
evaluation of specific of:__
relating to achievernent..r”oi;..”g_objectives “of project;
overall benefit toad to agreement
obligations management
and “objectives of BMP was to
unlock ‘corriiriercial’l’va1ue “of a portion of the property,
reduce’ eveliicuiar’i:ongestion with retained risk of market
or ‘vo1.un1e risk for its share while capital
excluding land being nil and partial
7 gcommercial risk, the financial accruals, cash inflow,
returns in terms of rupees per square foot, per month,
, igiand BMP’s share in potential upside over the asset life.
In terms of the project BMP would relinquish ownership
of the Iand in lieu of 50% of built area, to be maintained
M
by the builder for a period of 30 years.
.54.
35. The 5131 respondent offeredéi of
Rs. }..35,00,000/~, in additionto .inco1ne’viro.fndnujiti ‘leifel.
car parking which M/s J
accordance with the saiijentfeaturesd’of
the policy, since esche*.*v§z.’e\d”‘froIIi’ co’nsideration the
additional income respondent and
as the Rs.1,50,50,500/..
recomIr1en:ded’t first preferred bidder.
t_h.eVs’edcond. It is a matter of fact
to the notice of the BMP
by » the uddlettelt’ 3.3.2006 of the 5th respondent,
.V’.r1ecessitated an integrated evaluation of the financia}
it bid in the RFP of both the petitioner and
the V53′ -respondent by the two independent consultants.
at .’I4’heV””car parking slots numbering 1425 evaiuated by
“1D’ECK in the RFP of the petitioner though the
T petitioner proposed 1724 car parking slots, in contrast
with 1952 car parking siots proposed by the 5″”
124
56.
among them was beneficial, in the interest_’of,’:p,i;folic,
since ownership right over 50% of
property in question being he
relinquished, in lieu of_5Q°/o ofplbuilt Q’
circumstances, the contentiori of pvetitioner that
being the highest ‘ pa jacket
formula, is entitled jsticcessful bidder,
is
the financial gain,
required’ “l on a common platform
integratjlgllug both’ and financial proposals of the
petitioner thegffih respondent. The two consultants
‘ ,:.V’Manasaf’«,,,a_”ud ‘Strut Geo’, worked out the net present
“trained A of Bl\/1P”s share based on the following
criteria: V
(a) construction cost;
(b) annual escalation cost;
(c) revenue from additional car parking facility;
((1) Net Present Value at the end of 30 years, to
arrive at the following:
bi
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mmw Sm mm”
waw mwmwm om 93.55%
qwmwm mm»
Emmm mm”
qmmmwwm
Kama» mm
buumowca <m_:m om
nmmlbnaw
Bmdmmmmmmbn mmmm
mwwmflmg
awowmw
mm.mmm.E
. owoH.mw…. ..
Z3 Huwnmma <mLSm
wm.mm.mo
Owowmm
Wm. .53
Owowmm
wm. H o
Onowmm
mm.mw.»…m_.,VV
032$ ..
mmm CNN mm»
_….E_.G3 mm
I.
…Ow9.mm.I. I
352 mm»
mm. Sena
Owowmw
?
I30.
cannot be construed as creating an unqualified
right on the part of any and every 2
persons to insist that the Corporation.sh’oul,d”:’ ‘
provide a parking place its v”‘{‘hev’4 l”
statute will become unwor3l{able’p.i;f
construed as obligingpctthe (:orp’oration.,
parking place to any it
as that of the re.spondentVs’pvto”–~par1r tliveiryehicles.
We do not think”‘-that was correct
in directing the t’o~vcor1j,t-i,i1ue to provide
the site ‘i’nfl:,,’dispute -V.V~to”«Vthe.”‘Vr§:_spondents for an
best, there can only
be a consider the needs of the
respondents, of the requirements of
5 public” Iiintereslt, ll examine if they can be
flaccoinzrnodated’ elsewhere inside or outside the city
liniit.s_=cjand, if it is possible to permit the
to park their vehicles on such site on
such-«fterrns and conditions as may be decided
We direct accordingly.”
V’ , “_«Viewed thus, the integrated evaluation of the RFPS of
the parties on the basis of NPV a common platform, by
Manasa and Strut Geo, is in consonance with the basis
UL
ix’: –
. ..Deprecipatio1′”.t /
.62,
b. Net worth of the applicant as on Marcp’i:1″*3l,
2005 shall be atleast Rs.1O crores.;H_”‘-
c. Aggregate net cash accruals-
applicant for the last two~
financial years shall 3 atlealst “*Rs_.:f’iVp¢
crores.” V l l A’ ‘
Appendix 6 of proifidvesgeneral
instructions
” General Instructio’ns:__V f
.Net Cash Accruals” – if V
–{p1″ofit After; Tax / Depreciation /
‘ ‘
Fo1~.V_p4’Partn.era}u:’3~~ M [Profit After Tax /
l A it Expenses /
Non cash
” Erno~l-urnents paid out to Partners)
. Net
it = (Subscribed and Paidflup Capital /
Re.serves) — (Revaluation reserves / Miscellaneous
it .. expenditure not written off)
A’ capital account / Reserves
For Partnership Firm — Aggregate of partners’
Aggregate of
l/4.’
V O .’ ff ‘6. ‘ .
.63
drawings by partners ~ Aggregate of _
partners
3.Year 1 shall be the
Ymmmmmamnfimmwnmflwmw
4.The financial year’ would the sanie”‘as”Vthe one
normally followed” its Annual
Report – _-tw*–‘ l” t*”t
5.The audited annual
fizialnoiall .s£atern.ents’ asw-required for this RFQ.
VVi:’failureVtofd:o be considered as a non-
(:’;.'”i’he should clearly indicate the
‘caicu1_ations” “” and references in the financial
it _ s’t.a’ternVe11–ts in arriving at the above numbers in
it ” an uajttaehed worksheet.”
‘The report of IDECK on the RFQ evaluation, it is
* eontlended though observed that the 591 respondent is
ineligible, nevertheless the 7th respondent–Asst.
T Commissioner addressed a letter dt. 28.12.2005 to the
M
.64
5th respondent informing that it had for
submission of the proposal subject
letter of undertaking as per the fottna.t”‘enc10sed’ 7
42. This submissio’r’1’wl_V’is _fact2u’a1ly”:inc:orrect. The
report Annexure~R’?.0p”–to .sta_t€n1~ent of objections of
the 53° respondent,submitted pursuant to
the preah-;d §}e’x_ercise” _disc3eses””a summary of the
pI'(31iIIlii*1’l.Eli’_’\3″€l}&}Ll.al:i0fl recomijg that the 5*” respondent
is “l5″ro\}’i4sional~ljr«.Qu and on obtaining clarification
from the ..5i” Ifevspdondelnt, the final evaluation summary
..c_thatx”the—5th respondent is qualified and reads
tl’11.1s:.,_d A
Holdings and Investments Pvt.
” (MHIPL) has a sum of Rs.22,15,00,000
(Rupees Twenty Two Crores and Fifteen
Lakhs only) as Share Application Money
which has been accounted as Capital in the
Annual Accounts for the year 2004-05. This
LKL
435.
Share Application Money been considered for
the computation of the Networth.
A letter of undertaking’ (format”= letter ‘4
enclosed) shall need
MHIPL indicating that inl’t.h1e–,eventv.of’A’MHlVPpl§ t
is selected as the ‘the
captioned project, ‘shallhcornplete the
allotment of s;hares’tfor_ a minimum
sum of Rs.l_(V)v,’l'(}._(V),C’}’_(_V)V,{t)0-E’:/v.4′-t[j{Rupees Ten
tc’rott;s :t{(*3′;ftla.l ttjtfie threshold financial
:t”t.pqtia1t£i:cet£ioh’t» for Networth as
specified Within 15 days of such
of selection as Successful Bidder
uandppprovlidelproof of the same.”
u:’Following the observation of IDECK in its
ll ‘ Q supra, the 7″? }:espondent~Additional
Coinrnissioner (Finance), BMP by letter dt. 28.12.2005
‘._£lr;nexure»F enclosed a format of the letter of
undertaking for compliance by the 591 respondent which
was duly complied. in that View of the matter no
N
.66.
exception can be taken to the BMP’s
undertaking of the 5th respond_ent_._
44. A faint effort
5th respondents baiancegpyshdgét -for 2003 and
2004 put together ‘criteria of average
income of” two compieted
financial’ ” 01}/i’isVc.W.2868/2010 for
amerxdmentd raising additional
grotmgd’sy’, on payment of cost quantified
at ‘Rs.50~,00O complied with, the additional
are i’jLna-vailabie to the petitioner.
‘::Even otherwise the criteria in the RFP is
average income for the financial years 2003-04 and
ei2o04m05 and not 200203 and 2003-04 as contended.
Learned Sizcounsel for the 5th respondent is correct in
pointing out to the audited balance sheet for the years
2003-04 and 2004~05 disclosing Rs.50,26,80,972/– as
bi
.67.
total income and the average of two years-_ being
Rs.25,13,40,486/– is more than Rs.20 5th
respondent declared Rs.22,15,00,0()_0:A’/_’~-3
application money, and has
audited annual accounts __for theiyear xévliioll
when reckoned to compute’ net ispompliance
with the financial
46. The last of ‘the 6′,oontentioi_1sCadvanced by the
petitioner’ need’V’3r3ot«deteain the court for long. During the
pendieney. of 2006 fiied by the petitioner
chaiienging resolution dt. 30.10.2006 of the BMP
«-the resolution dt. 19.5.2006 of the Committee
~_ Vv’or_1.<_sszrecommending the award of the project to the
rvevspoindent, the Governor, during President's rule
" 'appointed an Executive Committee which passed the
order dated 23.5.2008 to cancei the resolution dt.
30.10.2006 of the Council of the BMP, reads thus:
jflx
SUBJECT FOR CONSIDERATION BY THE EXECUTIVE COMMITTEE
CASE SHEET
Department file No: UDD 261 MNG 2006
Date of issue of Executive
Submission Note : Circulated Subject. Committee Case
No.I3CC 198/2008
Date of Serial SUBJECT:
Executive Number in
Committee the Agenda
Joint venture Jpmject
meeting Private–Pub1ic–Pé_rtjoipafio11 -3 {P_PF’.}_ ‘
mode at Ezipura, Kora:nang’a1.a.=. ”
23.05.2008 4 ‘ *
E><1£cU'i'1x{E..ecoMMiTi*E£3_:
The ,Excc_u.-ti'Ve,. Conimittee
Cie_c1'ded–_ {to ~ V.car1cei the
resolution No. 13_{Se06)e dated
30.10.2006 p'é:sse'd' by the
Ciouncil; of"«.131iu11at;. Bangalore
Mahéinagaim Paiike and
1 directeazi '-«the Department of
_ _. "IJ1jb'2{t'1 f~-*Dejve1opn1ent to
_ ____ _ ' '*-1;,:__co1nn1unic.a,te7 the decision
V ' afte1T_ getting the concurrence
tfrorn the Election Commission.
Sd/~ THAKUR} A A GOVERNOR OF KARNATAKA . . . . . .. ' emcfié Egan 1 "
fiswéocé éérsn a;:gr.~{e..vear:3,;-..ta’csass:i;¢ amass.-sea
“s;ac:;ee §asa”ez1′:3: e:;~<».:1;,\;:.-.oF
59.
47. Thereafter the Governor on 29.5.2008′-passed
the following order:
” As directed by HE. the”Qovernorftnex’Fiie ‘wads’;
called from the Cabinet Seé2tio:i’e.and»._dthe’ isVsL:e”i’T1vvas
discussed, with the Advocate C–e’nerai.r,»”u’h”iA’h:e_.
General has opined the Exceilenevv-Z Governor
may order as follows:
“Now that V V» Committee
has _,can’ee11eid Resolution, the
the_WVE3]Ed3MP are directed to
j taltie’ taking into consideration
t1n.Vateria}’.,_ ” iriciuding the IDECK Report
dated’ .. February 2006 as well as the
;,.fi:;oi1ditionV”Hot the buildings during monsoon
r. urgency to provide adequate shelter
{of families.”
‘ ‘ ‘ H.E. may order as above.
Sd/- 29.5.2008
[Sharada Subrarnaniam]
Special Secretary to Governor.”
.70.
48. Following the said order,~«~~-.’4.t1fie__i:4″.j’ State
Government issued Govt. Order (it.
‘AH’ exercising power under .0
Act’, which when .=p1aceci’._v_”‘before’-‘V-0. com
W.P. l6216/ 2006 was become
infructuous by ordertllirlt. _
petitioner, the 5″‘
respor1d–en’t and association representing the
displaced the popular government
installeduon whence the State Government
»noticed’*——–that the order dt. 23.5.2008 of the
S basis for the G.O. dt. 9.6.2008, not being
speaking order since reasons were not forthcoming
and.,V__’3’ no consideration of relevant materials,
‘gtalntamounted to denial of justice in the matter of
canceliing the Councils resolution dt. 30.10.2006.
exercised jurisdiction under Subsection (4) of Section 98
UL
.71.
of the ‘KMC Act’ to pass the order impugIie–d}l
98(4) of the ‘KMC Act’ reads thus: d’ L. d V
“98. Submission of copies’ ji)f’.v1’é:s_Oli1t5.0I;ii;9TT
Government and Governmerttsls power to e:i11’c’e.}.V”~
resolution and ordersi ~
xxx
XXX
3-_,VGo’ven1ment;. rnayd arty’ time, on further
:”‘?°P°E”
.:represencta£fii:o,n’ *–.[i:)y’=_ the Corporation or
“”” “revise’;’-rnodify or revoke an order
.V V strb–section [3]
power thus being validly traced
Aiheirtgghad to the consideration of relevant
V a hearing on the decision making, the
d’ statutory power cannot be struck down on
the .V:ground that review of the order of the Governor
‘wivirefquired the leave of this court in W.P.16216/2006
since dismissed as infructuous by order dt. 9.6.2008.
The further contention that the order dt; 9.6.2008
dismissing W.P.16216/2006 resulted In a civil action
Jxk
.79.
being decided, in the circumstances, be
countenanced. The contention, in
the Governors decision, decided.yth.e”.iis4_’b.etwe_en,__two
bidders and hence they were entitled
of hearing, is unacceptable;.Vl’V:’ I._»say”*s_o_”VbecVause while
Cancelling the resolti”ti_oI’ip of the BMP
when cancelled by-” Committee of the
Governor, award the Project
to was no necessity for
opportunity of hearing before
‘ revoking._thatllorde_r’. otherwise a fair consideration
offers of petitioner and the 5th respondent no
V are involved. This court, it is needless to
consider the larger interest of public rather
inter–se interest between rival bidders, as
it = iblisserved by the Apex Court in Raunaq International
E and Jagadish Manlal’s case (supra).
M
.7 3.
51. Byelaw 9.10.3 of the Bangalore
Palike Bylaws, 2003 (for short ‘Bylavrsi Floor
Area Ratio [FAR] as the aggregate oi.
parts of the building inclpudingll’
staircase rooms, ramps, rooms,
balcony, ducts izvater tank.
lobbies, corridors provide for
common area used for
parking _ , ramps, escalators,
machine ducts including sanitary
ducts Having regard to the magnitude
constru:c,tiQrvi of the residential mu1ti–storied flats
‘ for, offered by the petitioner being £112,413 sq.ft
‘l A by the 531 respondent is 6,532.36 sq.ft
‘the commercial building of 11,97,640 sq.ft and
it sq.ft respectively, requires technical expertise
E in the matter of evaluation of RFPS and is best to leave
the matter for decision of those who are qualified to
address the issues as has been done by the BMP calling
bk
.74.
upon an evaluation of RFPS by two consul-tants.d.j’ [The
action of the BMP or the evaluation
in my considered opinion cannot.Tibet’-.characterised. as
neither arbitrary or irra_tional__ ‘so a’s”d’ jgtov for
interference.
52. The obse’rvatio’n_ j. a””D.livis.ion Bench of this
Court in 4_:’S__.M.Rab”::’:: étrgdéis –v- Deputy
ComiIzissi’o’r1eE*;:.; ani1′.d»othae’rs’»i-rid W.A. No.2669/1999 and
batch’ the scope of judicial
review of ..administ1_”ative experts in the circumstances is
‘~ ., ….. .. n
Two overriding considerations should
with and guide the reviewing Court to
*~ ‘narrow the scope of review. The first is that of
“deference to the administrative expert. Chief
Justice Neely in Monongahela Power Co. V.
PSCU79, I89[W.Va. 1981] observed thus :
“I have very few illusions about my own
limitations as a judge and from those limitations I
bi
.71′ S
generalize to the inherent iimitations,..__llof
appellate Courts reviewing rate cases. : V’
remembered that this Court’ sees .ap}3ro}t’iriiately
1,262 cases a year with five judges.”_ggI’:a1n_
accountant, electrical engineer,’ kfinancievr, ” ba~.nlker,.. V pl ”
stock broker, or systems”-management’ It
is the height of folly to judges’ intelligently to
review a 5,00l)’,_ pag’eW_ the
intricacies of public,e_utilit3,:7′
47. In ‘Blames, CQLln.’qz’V,”tlGa;’risOIt Diversion[312
N.Vl[.*’2’d,__20..,f{r1’;d_,_._l981l’={itwas held that it is not
fu.ric_tiorllof judgellto act as a super board.
:”I+_’urther,: “Coal League V. United
state-S5694 f;’2h..::i7s”t5th Cir, 1982), it was held
. ., that the Arevtewinglvjudge cannot act with the zeal of
pedantic ———- schoolmaster. In Granville V.
.,Gregory(83 M0. 123, 137 (1884)). it has opined that
1 Court were to review fully the decision of a
bodybsuch as a State board of medical examiners –
.. l’l’if would find itself wandering amid the mazes of
therapeutics or boggling at the mysteries of the
pharmacopoeia.” In Steenerson v. Great North
R.R.{72 NW. 713, 716 (Minn. 1897)) it was opined
that the situation pointed out in Granville V.
Gregory(supra), is not a case of the blind leading
the blind, but of one who has always been deaf and
bi
.76.
blind insisting that he an see and hear betteie:.,
one who has always had his eyesight and l at
and has always used them to; *”the:f.. it
advantage in ascertaining the _
matter in question.
48. Thus it is not “legitiinatexpovverl of
the Court within thevp..tioinairi_.p’ of jititiieialsireview
power to lightly ‘interfere administrative or
executive action. the base of
which_is–:t;he_ expertise in
the ._We«’d.o.notl”tind any flaw, legal
thepart lof”t’r1le Board in altering the
l*Ir1e~thod and by that action none of
L legal the appellants–petitioners are
impaiied V er violated. On the other hand, the
.d:isc.ussion’ supra clearly shows that the alteration
..of.th,e”~:nethod is in the interest of the appellants-
1 ‘V and the similarly circumstanced
‘ pt Before parting I must place on record the
it it ‘teynaclious and pains taking advocacy presented by the
learned senior counsel for the parties and the learned
l Advocate General for the State. The subject matter
Ltfi