MOHAMMED SHAFI S/O MOHAMMED KHAJA HUSSAIN vs. THE GOVERNMENT OF KARNATAKA AND ORS

1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 15TH DAY OF MARCH, 2016 BEFORE THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI WRIT PETITION Nos.200764-200766/2016 (GM-TEN) BETWEEN: Mohammed Shafi S/o Mohammed Khaja Hussain, Age: 34 years, Occ: Contractor, R/o H.No.12-4-131, LBS Nagar, Chandrabanda Road, Tq: Dist: Raichur – 584 102. …Petitioner (By Sri Liyaqat Fareed Ustad, Advocate) AND: 1. The Government of Karnataka, Rep. By its Secretary, Dept. of Forest Ecology & Environment, M.S. Building, Vidhan Veedhi, Bangaluru – 560 001. 2. The Principal Chief Conservator of Forest, Aranya Bhavan, 18th Cross, Malleshwaram, Bangaluru – 560 001. 3. Deputy Conservator of Forests, Forest Dept. Kalaburagi Circle, Kalaburagi – 585 103.

2 4. The Deputy Conservator of Forests, Forest Dept. Raichur – 584 102. 5. The Deputy Conservator of Forests, Forest Dept. Yadgiri – 585 201. …Respondents (By Sri A. Syed Habeeb, AGA) These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to issue a writ in the nature of certiorari and quash the communication letter No.A2/ BUDGET/ MU.KA/ CR-64/ 2015-16/ 2047 dated 17.02.2016 passed by the respondent No.4 vide Annexure-E & further direct the respondent No.3 to finalize the tender notification A3/ BGT/ TENDER/ CR/ 2015-16 dated 11.2.2016 vide Annexure-B & further direct the respondent No.5 to finalize the tender notification A2/BGT/TENDER/CR-/2015-16 dated 09.02.2016 vide Annexure-B2. These petitions coming on for Preliminary Hearing this day, the Court made the following: ORDER The petitioner, a Forest Contractor has called into question the order, dated 17.02.2016 (Annexure-E) rejecting his tender which he has submitted in response to the e-procurement tender notification (Annexure-B). 2. Sri Liyaqat Fareed Ustad, the learned counsel appearing for the petitioner submits that the petitioner

3 has been doing the forestry work. However, the respondents are not furnishing the work done certificate. He submits that the petitioner’s application for the renewal of the registration as a Forest Contractor has been pending consideration before the authorities. If the respondent-authorities had only issued the said certificate, the petitioner’s tender would have been readily accepted. He complains that the respondents are deliberately withholding the issuance of the said certificate only to avoid the petitioner. 3. He submits that the issuance of the tender notification (Annexure B) itself is in violation of Rule 28 of the Karnataka Transparency in Public Procurement Rules, 2000 (‘KTPP Rules,’ for short). The value of the tender works in question exceeds 50.00 lakhs. The tender inviting authority is bound to follow the two cover tender system.

4 4. He submits that none of the conditions enumerated in Section 14 of the Karnataka Transparency in Public Procurement Act, 1999 (‘KTPP Act’, for short) are present in the instant case and that therefore the petitioner’s tender ought not to have been rejected. He submits that the conditions, which are now relied upon by the Additional Government Advocate were not put on the web-portal. 5. Sri A. Syed Habeeb, the learned Additional Government Advocate appearing for the respondents submits that the tender notification itself prescribes the documents which are to be produced with the tender; the said conditions are extracted hereinbelow: J) 2015-16£Éà ¸Á°è£À°è F «¨sÁUÀzÀ°è CgÀtå UÀÄwÛUÉzÁgÀgÉAzÀÄ £ÉÆAzÁ¬Ä¹zÀ ¥ÀæªÀiÁt ¥ÀvÀæzÀ ¥Àæw. ©) .......... ¹) UÀÄwÛUÉzÁgÀgÀÄ F »AzÉ 3 ªÀµÀðUÀ½AzÀ CgÀtÉåÃPÀgÀt PÁªÀiUÁj ¤ªÀð»¹zÀ ºÁUÀÆ ¸À¹ ¨É¼É¹zÀ §UÉÎ «¨sÁUÀ ªÀÄlÖzÀ CgÀtå C¢üPÁjUÀ¼ÀÄ ¤ÃrzÀ C£ÀĨÀsªÀzÀ zÀÊrüÃPÀÈvÀ ¥ÀæªÀiÁt ¥ÀvÀæ.

5 r) ZÁ°ÛAiÀÄ°ègÀĪÀ DzÁAiÀÄ vÉjUÉ ¥ÀvÀæzÀ zÀsÈrüÃPÀÈvÀ ¥ÀvÀæ (Present Income Tax Clearance certified copy) 6. He submits that as is clear from the impugned rejection order, the petitioner has not produced the said documents. That is why his tender is rejected. He submits that the petitioner has been filing the petition after petition. 7. The submissions of the learned counsel have received my thoughtful consideration. 8. On the ground that some terms of notification are onerous, this Court’s intervention is not required. I say so for three distinct reasons: a) Tender notification as such is not challenged; b) Having taken part in the tender process pursuant to the tender notification, half way through the petitioner cannot challenge the tender terms and conditions. The matter would have been different, if the petitioner

6 were to approach this Court before taking part in the tender process. The petitioner is estopped from impliedly making any challenge to the tender conditions. c) It is trite that the State and its authority can fix the terms and conditions for inviting the tender based on its commercial perception and its view of public interest. 9. The next grievance of the petitioner is that the conditions of the tender notification were not made known. The petitioner himself has produced the appendage of terms and conditions attached to the tender notification. Nowhere in the memorandum of the writ petition an averment is made or the contention is taken to the effect that it was not made available to the petitioner. That apart, the term and condition No.29 of the tender notification states that for the detailed tender conditions, the tenderer can contact the Office of the Deputy Conservator of Forests, Territorial Division, Kalaburagi (only in the Office hours). For the reasons

7 best known to himself, the petitioner has not availed of the same. 10. The last grievance of the petitioner is that the request for the renewal of registration of Forest Contractor and issuance of the Work Done Certificate have remained unconsidered. If the respondents have only been sitting on the petitioner’s request, the petitioner ought to have approached this Court seeking the mandamus to the concerned authorities to consider his request for issuance of the said two documents. Having not done so, the collateral grievance cannot be raised in these proceedings. 11. In the result, I dismiss these petitions. No order as to costs. 12. Liberty is reserved to the petitioner to make a demand on the respondents for the issuance of the Work Done Certificate and for the issuance of the

8 renewal of the Forest Contractor’s registration. If the respondent- authorities show inaction in the matter, the petitioner has the liberty of approaching this Court after one month from the date of his filing the anticipated representations. 13. At this juncture, Sri A. Syed Habeeb submits that the petitioner’s request for the issuance of the said documents is already rejected, as he is not entitled to the same. If that is so, the petitioner has the liberty of challenging the same in appropriate proceedings. 14. No order as to costs. Sd/- JUDGE LG