VIJAYA INNOVATIVE CONCEPTS Vs. THE COMMISSIONER, THE JOINT COMMISSIONER (MARKETS), THE PRINCIPAL SECRETARY GOVERNMENT OF KARNATAKA URBAN DEVELOPMENT DEPARTMENT AND THE STATE OF KARNATAKA REP. BY ITS SECRETARY INFRASTRUCTURE DEVELOPMENT DEPARTMEN

JUDGEMENT

(1.) THE Petitioner in W.P. No. 38070/2009 is assailing the notification dated 03.12.2009. In the said notification, the Respondent/Bruhat Bangalore Mahanagara Palike ('BBMP' for short) had called tender in 30 selected locations for erecting Sky walks fitted with aesthetically designed capsule lifts. In W.P. No. 2345/2010, the very same Petitioner is challenging the tender notification dated 11.01.2010 wherein the Respondent/BBMP had called for tenders for erecting similar sky walks in locations to be identified by the tenderers. In both the cases, the construction was on Design Build Own Operate and Transfer ('DBOOT' for short) basis.

(2.) IN both these petitions, the challenge to the respective tender notification by the Petitioner is on the ground that the Petitioner had submitted a project report indicating their expertise in constructing such Skywalks and therefore, the Petitioner contends that the Respondent/BBMP should have adopted 'Swiss Challenge' method instead of adopting the tender process. In that regard, it is contended that the non -adoption of the 'Swiss Challenge' method has prejudiced the interest of the Petitioner as well as the Respondents and in any event, the concept mooted by the Petitioner has thereafter been used by the Respondent/BBMP for throwing it open to all contractors and therefore, the same calls for interference.

(3.) SRI Arun Govindraj, learned Counsel by referring to the petition averments would contend that Government of Karnataka has announced its new infrastructure policy 2007 for the State of Karnataka. Reference is made to the relevant Clauses at 4 and 29 to contend that the said policy provides that in respect of the Government contracts, and the contracts to be entrusted by Government bodies such as the Respondent/BBMP, there is a an option for seeking exemption from the applicability of the provisions of the Karnataka Transparency in Public Procurements Act, 1999 ('KTPP Act' for short). On obtaining such exemption, it would have been open for the Respondent to seek for private sector participation. In that regard, it is contended that the Petitioner in any event being an innovator of the project of erecting sky walks with lifts was entitled to be considered and if there was any other person who was able to challenge the proposal put forth by the Petitioner, in such event, the same could have been considered. The contention put forth on behalf of the Petitioner is that the Petitioner has undertaken the work for several other projects including for the Government of Arunachal Pradesh. Therefore, the Petitioner's proposal ought to have been considered by the Respondents In this regard, learned Counsel has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Ravi Development Vs. Shree Krishna Prathisthan and Others, AIR 2009 SC 2519 . With reference to the said judgment, it is contended that the Hon'ble Supreme Court has also upheld the mode of Government agencies entrusting the work under the 'Swiss Challenge' method and the same is an accepted procedure and the same ought to have been adopted by the Bruhat Bangalore Mahanagara Palike. Further, it is urged that the tender notification whereby participation of all concerned has been permitted is not. sustainable since at first instance the case of the Petitioner based on its proposal ought to have been considered by the Respondent/BBMP keeping in view the infrastructure policy, more particularly when the proposal putforth by the Petitioner had also been approved by the Minister for Infrastructure Development. It is therefore contended that the tender notifications are not sustainable.