Keshav Vittal Naik Vs. M/S. Channakeshava Prasad Wines, Honnavar, District Uttara Kannada and Others - Court Judgment

Excerpt:
- karnataka transparency in public procurements act, 1999 (29 of 2000) section 4: [n. kumar, j] notice inviting tender for supply of billing machines, stationeries and other equipments to electricity supply company held, requisite qualification of having 3 years experience in providing similar service would mean experience of providing similar goods to any electricity supply co. expression similar service is referable to goods invited to be supplied under tender. earlier experience of tuning and maintenance of billing software would not suffice. hence award of contract on basis of aforesaid earlier experience is liable to be quashed. section 4(b): [n. kumar,j] award of contract to a particular person without calling for tender held, the committee constituted was not of experts. they were unable to take a decision. the said committee committed an error in referring the matter to a professor, an expert in the field for which they had no power under the act. it is the procurement entity which has to constitute a three member expert committee to consider the services rendered by the second respondent and then to find out whether he is the only person who has got exclusive control of the said service. that has not been done. after the matter was referred to professor obviously he was not aware of the provisions of this act. he has not certified that the petitioner is the only source from which this service could be procured. the recommendation made by him is very general in nature. it does not satisfy the requirement contemplated under proviso to sub-section (b) of section 4. in the letter addressed by him to the first respondent, he has not declared that goods or services are available from a single source or that the second respondent has exclusive rights in respect of the goods and services. another error committed was without properly understanding the contents of the said letter, the first respondent has proceeded on the assumption that professor is of the view that the second respondent is the only single source from whom the said service could be procured and they have awarded the contract to the second respondent on the basis of the said letter. this award of contract in utter violation of section 4(b) is liable to be quashed. -- section 4(b) :award of contract for spot billing and collection and total revenue management of billing and collection of bescom sub-divisions - compliance to the provisions of section 4 - requirements to be satisfied under, before a contract could be awarded without calling for tender- importance of appointing expert committee - held, during the period of natural calamity or emergency declared by the government for procuring goods or services it is not necessary to follow the procedure prescribed under the act. where the goods or services are available from a single source or where a particular supplier or contractor has exclusive rights in respect of the goods or services or construction work and no reasonable alternatives or substitutes exist. then it is not necessary to follow the procedure prescribed under the act. there is no obligation to procure such services and goods by inviting tenders. but, before this provision could be invoked, there should be a finding by a competent authority that the goods or services are available only from a single source or a particular supplier or a contractor who has exclusive rights in respect of the goods or services. for that purpose the statute provides for constitution of a committee of three experts. on facts held, it is clear that there is total non-application of mind by the first respondent in the constitution of the expert committee, in making reference to an expert and also in not understanding what the expert has stated by way of his opinion. therefore, the first respondent committed a serious illegality in awarding the contract to the second respondent. -- section 9: tender award of contract to second respondent in preference to the petitioner who appears to have all the requisite qualification-challenge to on facts held, the second respondent did not have the three years experience as required under the terms of the bid document. the second respondent did not possess the three years experience in supplying spot billing machines and other hardware items which is the subject matter of the tender in question. the decision of the procurement entity that the second respondent do possess three years qualification in supplying spot billing machines to the first respondent of a period of three years is ex facie illegal and contrary to the material on record. the award of contract to the second respondent in preference to the petitioner who appears to have all the requisite qualification is a clear case of preferring a bidder who does not satisfy the qualification prescribed by the procuring entity. therefore, the award of the contract to the second respondent is illegal and is liable to be quashed. 1. this appeal is filed assailing the order of the learned single judge allowing the writ petition.2. the matter relates to dispute with regard to partnership in respect of m/s. chennakeshava prasad wines, a partnership firm (hereinafter referred to as 'firm'). the appellant herein filed an application on 18-6-1998 to the 3rd respondent-deputy commissioner (excise) alleging that he and his wife smt. lakshmi are the partners of the firm; that one prasanna d. naik has registered another partnership deed on 4 digits stamp paper stating that he and his wife smt. saraswathi are the partners of the firm, thereby, fraud has been committed by furnishing false information and requested not to renew the license of the firm to conduct the liquor business. based on that representation the 3rd respondent issued an endorsement on 5-9-1998 stopping renewal of the license. the same was challenged by prasanna d. naik in appeal before the excise commissioner. the excise commissioner allowed the appeal on 16-11-1998, set aside the endorsement and directed to issue license in favour of prasanna d. naik. the appellant challenged the same in appeal no. 604 of 1998 before the karnataka appellate tribunal. on 20-5-1999 the tribunal allowed the appeal, set aside the order of the excise commissioner and a direction was issued to handover business of the firm to the appellant on the basis of the full bench decision of the tribunal in appeal nos. 660 and 665 of 1997 and 49 of 1998 decided on 3-2-1999. the firm represented by prasanna d. naik filed w.p. no. 17418 of 1999 challenging the order of the tribunal. the learned single judge by the order dated 9-6-1999, which is under challenge in this appeal, found that the full bench decision of the tribunal relied upon actually helped prasanna d. naik. in other words, the full bench decision of the tribunal was in favour of prasanna d. naik and against the appellant. it was noticed that as per the findings of the excise commissioner from 1993-94 the licence of the firm was renewed in favour of prasanna d. naik. it was further noticed that though the firm was constituted on 16-6-1992 with appellant and his wife lakshmi keshav naik as partners, in the year 1993-94 prasanna d. naik and saraswathi prasanna naik have taken over the firm as partners and the retirement of the appellant and his wife from the firm as partners was also informed to the department. it was also observed that since 1993-94 there was no further change in the constitution of the firm. these facts were found on the basis of the report of 3rd respondent.3. admittedly there is a dispute between two groups and it is clear from the order of the learned single judge that a suit is also pending between the parties. the decision in the said suit will bind the parties. the findings recorded by the learned single judge are based upon the report of the 3rd respondent and the records perused. the findings cannot be found fault with and no interference is called for in this case.4. writ appeal is rejected.