IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR. JUSTICE A.S. BOPANNA WRIT PETITION NO.42842/2013 (GM-TEN)

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 27 TH DAY OF SEPTEMBER, 2013 BETWEEN: BEFORE THE HON BLE MR. JUSTICE A.S. BOPANNA WRIT PETITION NO.42842/2013 (GM-TEN) M/S. LARSEN & TOUBRO LTD. MOUNT POONAMALLEE ROAD, MANAPAKKAM, P.B.NO.979, CHENNAI , REP. BY ITS AUTHORISED REPRESENTATIVE SHRI.K.PARASURAMAN.... PETITIONER (BY SRI K G RAGHAVAN, SR. COUNSEL FOR SRI RAJESH S V, ADV. FOR M/S. RAJESH & RAJESH.) AND: 1. KRISHNA BHAGYA JALA NIGAM LTD. 3RD FLOOR, PWD ANNEXE, K.R.CIRCLE, BANGALORE REP. BY ITS MANAGING DIRECTOR. 2. G. SHANKAR -IVRCL JOINT VENTURE HEADED BY SRI G SHANKAR CLASS I CONTRACTOR SHAMILI, NH 17, AMBALAPADY UDUPI RESPONDENTS (BY SRI D N NANJUNDA REDDY, SR. COUNSEL FOR SRI M.R.C. RAVI, ADV. FOR C/R-1 SRI UDAY HOLLA SR. COUNSEL FOR M/S. HOLLA & HOLLA FOR IMPLEADED R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENT TO AWARD THE TENDER FOR THE WORK OF SURVEY, INVESTIGATION, DESIGN, SUPPLY, ERECTION, TESTING & COMMISSIONING OF REQUIRED NUMBER OF METALLIC VOLUTE PUMPS COUPLE TO HT MOTOR AT PROPOSED KOPPAL SECOND LIFT HEAD WORK, INTAKE CHANNE FROM DC-1 TO JACKWELL-2, PUMP HOUSE, MANIFOLD, ALONGWITH ELECTRICAL PANEL, FCMA SOFT

2 2 STARTER CAPACITOR, 220 KV POWER TRANSFORMER, HT CABLING, 220KV SUB STATION MS RAISING MAIN VALVES AND CONSTRUCTION OF DELIVERY CHAMBER, SUPPLY OF SPARE PARTS AND TOOLS INCLUDING REQUISITE MAIN POWER FOR O & M OF THE SYSTEM COVERED UNDER THE SCOPE FOR FIVE YEARS FROM THE DATE OF COMPLETION FOR KOPPAL LIFT IRRIGATION SCHEME ON TURNKEY BASIS FLOATED BY THE RESPONDENT IN FAVOUR OF THE PETITIONER AN IN THE EVENT THE SAID TENDER IS ALREADY AWARDED TO ANOTHER ENTITY, TO QUASH AND SET ASIDE THE SAME AND RESTRAIN THE SAID ENTITY FROM EXECUTING THE WORK THERETO. THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT PASSED THE FOLLOWING: O R D E R IA.No.1/2013 for impleadment is filed by the applicant contending that he has succeeded in the tender process and work has already been awarded to him. In that view, certainly the applicant would be a proper and necessary party to the instant petition. Accordingly, IA.No.1/2013 is allowed. Amendment to the cause title to carried out forthwith. 2. In view of the contention put forth both by the official respondent as well as the private respondent who has presently been impleaded that the work has already been awarded to the impleaded respondent, certainly Section 16 of the Karnataka Transparency in Public Procurement Act, 1999 would come into play inasmuch as the petitioner would have to avail the alternate remedy of appeal.

3 3 3. Learned Senior counsel for the petitioner would further submit that though such alternate remedy is available in the Act, in the instant facts the same cannot be considered to be a efficacious remedy inasmuch as the Appellate Authority indicated therein as per Rule 29 of the Karnataka Transparency in Public Procurement Rules though provides the Government to be the Appellate Authority, the Secretary to the Water Resource Department would be the Appellate Authority in view of the notification dated issued to that effect. In that view, it is contended that the Secretary to the Water Resource Department who is the Appellate Authority in the instant facts is also a member of the Board of the respondent No.1 and had taken part in one of the meeting relating to the consideration of bids. In view of the said submission and having noticed the notification, suggestion had been putforth by this Court to the learned Senior counsel appearing for the respondents, more particularly the respondent No.1 to secure appropriate directions from the Government to appoint an appropriate Appellate Authority who would consider the appeal objectively and by an officer not being a part of the respondent No.1.

4 4 4. Accordingly, a memo dated is filed and a communication dated is enclosed thereto, whereby the Government has intimated the respondent No.1 the two names for the said purpose. Having noticed the same and in consultation with the learned Senior counsel appearing for all the parties, I am of the opinion that it would be appropriate to indicate that Sri Srinivasachary P.N., Principal Secretary to Government, Urban Development Department, Government of Karnataka will act as the Appellate Authority in the instant case. 5. The petitioner shall therefore file the appeal before the said authority within a week and it would be open for the petitioner to file an application seeking for interim orders. It is further made clear that if the interim application is not pressed by the petitioner even though the same is filed before the Appellate Authority and if the petitioner seeks that the main matter itself be considered and disposed of expeditiously, in such event, the Appellate Authority will dispose of the appeal as expeditiously as possible, but not later than six weeks from the date on which such submission being made by

5 5 the petitioner with regard to the consideration of the appeal itself without pressing for interim orders. However, if the petitioner chooses to press the application for interim orders, the Appellate Authority shall consider such application after providing opportunity to the respondents before him in accordance with law. 6. Considering that this Court is relegating the parties to the Appellate Authority and indication is made for expeditious disposal, the procedure of issue of notice by the Appellate Authority need not be adhered to inasmuch as all the parties will now appear before the Appellate Authority on at 3.00 p.m. as the first date. The Appellate Authority would thereafter regulate the proceedings. In terms of the above, the petition stands disposed of. Sd/- JUDGE ST/bms