Karnataka High Court
Sri Durga Enterprises vs The Chief Commissioner on 7 March, 2022
Author: S.G. Pandit
Bench: S.G. Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2022
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
W.P.No.4041/2022 (GM-TEN)
C/W
W.P.Nos.4197/2022, 4158/2022 AND 4226/2022
(GM-TEN)
W.P.No.4041/2022
BETWEEN:
SRI DURGA ENTERPRISES
REP. BY ITS PROPRIETOR
SRI SHANKARA MANJA
S/O SRINIVASA MANJA
AGED ABOUT 55 YEARS
NO 1/4, 6TH CROSS
BYATARAYANAPURA
MYSURU ROAD
BENGAULRU- 560026.
...PETITIONER
(BY SRI CHANDRACHUD A, ADV.)
AND:
1. THE CHIEF COMMISSIONER
BRUHATH BENGALURU MAHANAGARA PALIKE
N R SQUARE
CORPORATION CIRCLE
BENGALURU-560002.
2. THE EXECUTIVE ENGINEER (ELE)
BOMMANAHALLI ZONE
BEGUR ROAD
BOMMANAHALLI
BRUHATH BENGALURU MAHANAGARA PALIKE
BENGALURU-560068.
...RESPONDENTS
(BY SRI B.S. SATYANAND, ADV. )
2
W.P.No.4197/2022
BETWEEN:
SRI DURGA ENTERPRISES
REP. BY ITS PROPRIETOR
SRI SHANKARA MANJA
S/O SRINIVASA MANJA
AGED ABOUT 55 YEARS
NO 1/4, 6TH CROSS
BYATARAYANAPURA
MYSURU ROAD
BENGAULRU- 560026.
...PETITIONER
(BY SRI CHANDRACHUD A, ADV.)
AND:
1. THE CHIEF COMMISSIONER
BRUHATH BENGALURU
MAHANAGARA PALIKE
N R SQUARE
CORPORATION CIRCLE
BENGALURU-560002.
2. THE EXECUTIVE ENGINEER (ELE)
YELAHANKA ZONE
BRUHATH BENGALURU
MAHANAGARA PALIKE
BENGALURU-560092.
...RESPONDENTS
(BY SRI B.S. SATYANAND, ADV. )
W.P.No.4158/2022
BETWEEN:
SRI DURGA ENTERPRISES
REP. BY ITS PROPRIETOR
SRI SHANKARA MANJA
S/O SRINIVASA MANJA
AGED ABOUT 55 YEARS
NO 1/4, 6TH CROSS
3
BYATARAYANAPURA
MYSURU ROAD
BENGAULRU- 560026.
...PETITIONER
(BY SRI CHANDRACHUD A, ADV.)
AND:
1. THE CHIEF COMMISSIONER
BRUHATH BENGALURU MAHANAGARA PALIKE
N R SQUARE
CORPORATION CIRCLE
BENGALURU-560002.
2. THE EXECUTIVE ENGINEER (ELE)
DASARAHALLI ZONE, MEI LAYOUT
HESARAGHATTA MAIN ROAD
BAGALAGUNTE
BRUHATH BENGALURU MAHANAGARA PALIKE
BENGALURU-560068.
...RESPONDENTS
(BY SRI B.S. SATYANAND, ADV. )
W.P.No.4226/2022
BETWEEN:
SRI DURGA ENTERPRISES
REP. BY ITS PROPRIETOR
SRI SHANKARA MANJA
S/O SRINIVASA MANJA
AGED ABOUT 55 YEARS
NO 1/4, 6TH CROSS
BYATARAYANAPURA
MYSURU ROAD
BENGAULRU- 560026.
...PETITIONER
(BY SRI CHANDRACHUD A, ADV.)
AND:
1. THE CHIEF COMMISSIONER
BRUHATH BENGALURU MAHANAGARA PALIKE
N R SQUARE
4
CORPORATION CIRCLE
BENGALURU-560002.
2. THE EXECUTIVE ENGINEER (ELE)
RAJARAJESHWARI NAGAR ZONE
BEML COMPLEX, 3RD STAGE
BRUHATH BENGALURU
MAHANAGARA PALIKE
BENGALURU-560098.
...RESPONDENTS
(BY SRI B.S. SATYANAND, ADV.)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ANNEX-A NOTIFICATION TERMED AS INVITATION
FOR TENDER (IFT) VIDE DATED 06.01.2022 PUBLISHED BY THE
R-2 ON BEHALF OF THE R-1 FOR ELECTRICAL WORK AND ANY
OTHER SUBSEQUENT ACT AND ACTION PURSUANT TO
ISSUANCE OF ANNEX-A WITH RESPECT TO THE SAID
NOTIFICATION DATED 06.01.2022.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner, who is common in all the above writ petitions, is before this Court under Article 226 of the Constitution of India praying for a writ of certiorari to quash Notification (Annexure-A) bearing No.BBMP/EE/ELE/BZ/TEND/05/2021-22 dated 06.01.2022, Invitation for Tender work i.e., to provide Tubular Pole Street Lights Arial Bunch Cable Park Lights/Lake Pathway Lights and Timer Switches 5 with connected accessories in various Wards of the BBMP.
2. Heard Sri A. Chandrachud, learned counsel for the petitioner and Sri B.S. Satyanand, learned counsel for the respondents in all these writ petitions.
3. Learned counsel for the petitioner submits that petitioner is Class I Electrical Contractor. It has carried out/executed several electrical works of the respondent- BBMP. Respondent-BBMP issued tender notification dated 06.01.2022 inviting tenders from eligible contractors registered with the respondent-BBMP or any other Governmental agency to execute the works given in the table in the notification i.e., providing Tubular Pole Street Lights, Arial Bunch Cable Park Lights/lake pathway lights and Timer Switches with connected accessories in various Wards of the BBMP. The petitioner is aggrieved by clubbing of several wards in one Zone, stating that clubbing the wards resulted in high financial requirement, which many of the 6 contractors would not be in a position to meet. It is contended that the BBMP has clubbed the wards in the Zone for carrying out the electrical work only to keep out some of the tenderers and to favour some of the tenderers. As the clubbing of wards, increases volume of execution of work, needs higher financial capacity, which the tenderers like the petitioner would not be in a position to meet. Learned counsel further contends that stipulation of 45 days time for execution of work is also unreasonable, since no contractor would be in a position to execute the work within 45 days. It is also his submission that both the conditions are incorporated in the tender document solely with a view to keep out tenderers like the petitioner and to award the tender to few tenderers to avoid strong and healthy competition.
4. On the other hand, Sri B.S. Satyanand, learned counsel for the respondents submits that the petitioner has not participated in the tender process itself, except in W.P.No.4197/2022. The petitioner in 7 W.P.No.4197/2022 had applied for one work and his tender was evaluated. On evaluation, his tender is rejected at the stage of technical bid as he failed to qualify technically. The petitioner has not challenged the rejection of his tender. Hence the prayer of the petitioner would not survive for consideration. Accordingly, W.P.No.4197 is rejected.
5. Learned counsel for respondents further submits that the petitioner in other writ petitions having not participated in tender process itself would not be entitled to challenge the conditions of tender document. It is his submission that due to administrative reasons and to get the work implemented in an expeditious manner, time frame of 45 days is fixed.
6. Tender notification dated 06.01.2022 is for execution of electrical works of providing Tubular Pole Street Lights Arial Bunch Cable Park Lights/Lake Pathway Lights and Timer Switches with connected accessories in various Wards of the BBMP. It is seen from the tender notification that four wards of a Zone 8 are clubbed together for execution of work giving time frame of 45 days. Clubbing of four wards of a Zone for execution of tender work and granting 45 days of time for execution of work would be neither discriminatory nor unreasonable. Exercise of judicial review is available in matters like tender, if the approach of the tender inviting authority is arbitrary, malafide or procedure adopted is meant to favour someone. Imposing terms and conditions of a tender always to be left to the wisdom of the tender inviting authority. It is for the tender inviting authority to incorporate reasonable conditions depending upon the work. Normally conditions are incorporated in tender documents to find out the capacity and experience of tenderer in the field. It is not open for the petitioner to contend that clubbing of wards is unreasonable and it would increase the financial burden. Always it is open for the tender inviting authority to get the work done in a particular manner. The Courts under judicial review could interfere with the conditions of tender only if it is 9 shown that such condition is malafide and incorporated to favour certain contractors or persons. In the case on hand, even though the petitioner has made averment that the condition of execution of contract by 45 days time and clubbing of wards is to favour some contractors, the petitioner has failed to demonstrate the same. He has also not named the persons to whom the respondent-BBMP is likely to favour, in the process of finalization of the tender. The Hon'ble Apex Court in the case of MICHIGAN RUBBER (INDIA) LIMITED Vs. STATE OF KARNATAKA AND OTHERS reported in (2012) 8 SCC 216 has held that the Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory and malafide or actuated by bias, the Courts would interfere. At paragraph 23, the Hon'ble Apex Court has held as follows :-
"23. From the above decisions, the following principles emerge:10
(a) the basic requirement of Article 14 is fairness in action by the State, and non-
arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;
(b) Fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited;
(c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of 11 tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted;
(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and
(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim fundamental right to carry on business with the Government."
A reading of the above portion of the judgment of the Hon'ble Apex Court makes it clear that it is for the tender inviting authority to incorporate the terms and conditions depending upon the nature of the work. The tenderers cannot dictate terms to the tender inviting authority and on the other hand, it is for the authority to impose reasonable conditions.
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7. Admittedly the petitioner has not participated in the tender process. Without participating in the tender process, the petitioner could not have challenged the tender notification. It is to be noticed that the tender notification is dated 06.01.2022 and the last date for submitting the tender was 19.01.2022. The technical bid was opened on 21.01.2022 and financial bid was opened in W.P.No.4158/2022 on 20.01.2022 and in W.P.Nos.4041 & 4226/2022 on 27.01.2022 respectively. The petitioner is before this Court by filing the above writ petitions on 16.02.2022 and 17.02.2022 respectively, i.e., subsequent to the opening of the technical bid. If the petitioner was aggrieved by any of the tender conditions, it was open for the petitioner to challenge the same before this Court, within the last date for submitting the tender and the petitioner could have sought permission to submit his tender.
8. The Hon'ble Apex Court in a decision NATIONAL HIGHWAYS AUTHORITY OF INDIA THROUGH DIRECTOR Vs. M/S. GWALIOR JHANSI EXPRESSWAY LIMITED 13 THROUGH DIRECTOR reported in AIR 2018 SC 3380 has made it clear that a person, who has not participated in the tender process cannot challenge the validity of the terms and conditions of tender. Relevant portion at paragraph 18 reads as follows :-
"18. While considering the relief claimed by the respondent (claimant), the same should have been tested on the touchstone of the principle governing the tender process, especially when the validity of the tender document has not been put in issue or challenged before any competent forum. Going by the terms and conditions in the tender documents, as already alluded to in paragraph 8 above, there is no tittle of doubt that the right of the claimant (respondent) to match the bid of L-1 or to exercise ROFR would come into play only if the respondent was to participate in the tender process pursuant to the notice inviting tenders from the interested parties. The objective of tender process is not only to adhere to a transparent mechanism but to encourage competition and give equal opportunity to all tenderers with the end result of getting a fair offer or value for money. The plain wording of the eligibility clause in the tender documents and the incidental stipulations make it explicit that the respondent was required to participate in the 14 tender process by submitting its sealed bid (technical and financial). The fact that a deeming clause has been provided in the tender document that if the respondent was to participate in the bidding process, it shall be deemed to fulfill all the requirements of the tender clauses 3 to 6 of the RFP, being the existing concessionaire of the Project, does not exempt the respondent from participating in the tender process; rather the tenor of the terms of the documents made it obligatory for the respondent to participate in the tender process to be considered as a responsive bidder, along with others. Having failed to participate in the tender process and, more so, despite the express terms in the tender documents, validity whereof has not been challenged, the respondent cannot be heard to contend that it had acquired any right whatsoever. Only the entities who participate in the tender process pursuant to a tender notice can be allowed to make grievances about the non- fulfillment or breach of any of the terms and conditions of the concerned tender documents. The respondent who chose to stay away from the tender process, cannot be heard to whittle down, in any manner, the rights of the eligible bidders who had participated in the tender process on the basis of the written and express terms and conditions. At the culmination of the tender 15 process, if the respondent had not participated, in law, the offer submitted by the eligible bidders is required to be considered on the basis of the stated terms and conditions. Thus, if the claim of the respondent was to be strictly adjudged on the basis of the terms and conditions specified in the subject tender document, the respondent has no case whatsoever."
9. The petitioner has failed to demonstrate as to how the clubbing of wards and providing 45 days time for completion of work is arbitrary or unreasonable. On the other hand, on facts this Court would not find unreasonable or arbitrary with those conditions. Moreover, one who has not participated in the tender process cannot be allowed to make grievance about the terms and conditions of the tender.
For the reasons recorded above, the writ petition stands rejected.
Sd/-
JUDGE NG* CT:bms