Karnataka High Court
R B Constructions vs State Of Karnataka on 14 March, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2025:KHC:10746
WP No. 6054 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 6054 OF 2025 (GM-TEN)
BETWEEN:
R.B.CONSTRUCTIONS
PROPRIETORSHIP CONCERN
REP. BY ITS PROPRIETOR
SRI MOHAMMED TALMIZ
S/O AJAZ PASHA
AGED ABOUT 28 YEARS
R/AT NO.108, LIG-2, KHB COLONY
KALYANGIRI, MYSURU - 570 019.
CLASS III CONTRACTOR
HAVING LICENSE NO:
9252/11.12.2023-10.12.2028.
...PETITIONER
Digitally signed
(BY SRI SHARATH S.GOWDA, ADVOCATE)
by NAGAVENI
Location: High AND:
Court of
Karnataka
1. STATE OF KARNATAKA
REP. BY THE PRINCIPAL SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
VIKASA SOUDHA, B.R.AMBEDKAR VEEDHI
BENGALURU - 560 001.
2. DIRECTORATE OF MUNICIPAL ADMINISTRATION
REPRESENTED BY ITS DIRECTOR
DR. B.R.AMBEDKAR ROAD
9TH AND 10TH FLOOR
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NC: 2025:KHC:10746
WP No. 6054 of 2025
VISHWESHWARAIAH TOWER
BENGALURU - 560 001.
3. MYSURU CITY CORPORATION
NEW SAYYAJI RAO ROAD
MYSURU - 570 027
REP. BY ITS COMMISSIONER.
4. THE EXECUTIVE ENGINEER
MYSORE CITY CORPORATION
MYSURU MAHANAGARA PALIKE
MYSURU DISTRICT, MYSURU - 570 001.
...RESPONDENTS
(BY SMT. SPOORTHI V., HCGP FOR R1 AND R2;
SMT. GEETHADEVI PAPANNA, ADVOCATE FOR R3 AND R4)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
TENDER NOTIFICATION DTD. 12.02.2025 ISSUED IN NO.
MAINAPA/KAPA/KAA(POO)/T.N-67/2024-25 BY THE R-4
EXECUTIVE ENGINEER, MYSURU MAHANAGARA PALIKE VIDE
ANNX-A.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner is before this Court calling in question a notification inviting tender dated 12-02-2025, issued by the 4th respondent / Executive Engineer, Mysuru Mahanagara Palike, Mysuru.
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2. Heard Sri Sharath S. Gowda, learned counsel appearing for the petitioner, Smt. Spoorthi V, learned High Court Government Pleader appearing for respondents 1 and 2 and Smt. Geethadevi M. Papanna, learned counsel appearing for respondents 3 and 4.
3. Facts, in brief, germane are as follows:
The petitioner is a Class-III Contractor having his firm registered under the Karnataka Public Works Department and having a valid license to enter into contracts. On 12-02-2025, the 4th respondent issues a notice inviting tender for maintenance of parks within the city of Mysuru, which would come within the precincts of Mysuru Mahanagara Palike, indicating the last date for submission of tenders as 20-02-2025. The petitioner does not submit his bid but a week thereafter, files the subject petition on the score that the tender notification so issued is contrary to Rule 17 of the Karnataka Transparency in Public Procurements Rules, 2000 (hereinafter referred to as 'the Rules' for short).-4-
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4. The learned counsel appearing for the petitioner would vehemently contend that his participation or non-participation in the tender would be of no avail since issuance of tender itself is contrary to law. Admittedly, the amount in tender is less than ₹2/- crores and for such value, the minimum time period stipulated under the Rules is 15 days. The tender was notified on 12-02-2025 and only 8 days' time was given for submitting the bids. The learned counsel would submit that it can be varied only for reasons to be recorded in writing.
5. Per contra, the learned counsel representing the respondents would vehemently contend that even though 8 days' time was granted, the petitioner did not choose to submit his bid / application pursuant to tender. Even today, the petitioner is not ready with his documents. It is permissible exercise of power to reduce the period of tender in short term tenders. The subject tender is for maintenance of parks.
Therefore, the petition should be rejected solely on the ground that the petitioner has not participated in the tender and is wanting to stall the process of tender.
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6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
7. The afore-narrated facts are not in dispute as link in the chain of events are a matter of record. The sole contention of the petitioner is that, the mandate of minimum time for submission of tender is violated. The minimum time for submission of tender is dealt with under Rule 17 of the Rules.
It reads as follows:
17. Minimum time for submission of tenders.-
(1) Tender Inviting Authority shall ensure that adequate time is provided for the submission of tenders and minimum time is allowed from the time of the publishing in the Karnataka Public Procurement Portal and the last date for submission of tenders. This minimum period shall not be less than the period mentioned below:
(a) For tender upto rupees two crores in value, fifteen days,
(b) For tenders in excess of rupees two crores in value thirty days (2) Any reduction in the time stipulated under sub-rule (1) has to be specifically authorized by an authority superior to the Tender Inviting Authority for reasons to be recorded in writing. This reduced time shall not be less than seven days.
(3) The last date for submission of tenders, so fixed, shall be on the working day and time shall be mandatorily between 10.00 hours and 17.30 hours only."-6-
NC: 2025:KHC:10746 WP No. 6054 of 2025 Though upto ₹2/- crores of value, 15 days' time is granted, it can be reduced by the Tender Inviting Authority for reasons to be recorded in writing. This contention would be available to a person who has participated in the tender or is stopped from participating in the tender. The petitioner, as observed hereinabove, is not a participant in the tender.
8. In an identical circumstance, while answering the said issue this Court in WRIT PETITION NO.5304 OF 2024, DECIDED ON 6-03-2024 has held as follows:
"14. It is an admitted fact that the petitioner has not participated in the tender. It is not that no tenderer has participated pursuant to the notice inviting tender. There are three bidders, all three of them have submitted their bids. The three companies are as follows:
(i) Mega Engineering India Limited (MEIL);
(ii) Hindustan Construction Company (HCC)
(iii) GVPR Engineers Limited (GVPR).
If three can participate in the bid by submitting necessary bid documents, the petitioner's claim that it needs time to get prepared to participate in the bid cannot be accepted. If the petitioner is ineligible even according the averments in the petition, it cannot be said that the Tender Inviting Authority has to holds its hand, wait till the petitioner becomes eligible and then notify the tender. If the petitioner has sat outside the tender by not participating in it, it cannot challenge any clause in the tender, as several submissions are made with regard to technicalities, merit or conditions of tender stipulated. All that cannot be -7- NC: 2025:KHC:10746 WP No. 6054 of 2025 entertained at the instance of a tenderer who does not participate in the tender, stays outside and wants to throw a spanner into the spoke of the tender. The issue whether the tenderer not participating in the tender, can call the conditions in tender in question, is no longer res integra. The Apex Court in the case of NATIONAL HIGHWAYS AUTHORITY OF INDIA v. GWALIOR-JHANSI EXPRESSWAY LIMITED1, in considering this issue, has held as follows:
"20. 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 para 10 above, there is no title 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 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 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, 1 (2018) 8 SCC 243 -8- NC: 2025:KHC:10746 WP No. 6054 of 2025 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 tender documents concerned. 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 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."
(Emphasis supplied) The judgment of the Apex Court has been followed by the Division Bench of High Court of Calcutta in the case of SUBIR GHOSH v. STATE OF WEST BENGAL AND OTHERS2 wherein the Division Bench of the High Court of Calcutta also considers the fact that a tenderer who participates in the pre-bid meeting ought to have submitted his tender along with the documents to raise a challenge to the tender or the tender conditions at the later point in time. The Division Bench of High Court of Calcutta holds as follows:
"...... ..... ..... 2 2020 SCC OnLine Cal 2213 -9- NC: 2025:KHC:10746 WP No. 6054 of 2025
4. The more important factor is that the tender process in this case opened sometime in March, 2019 and the closing date for submitting online bids was April 1, 2019. The writ petition was filed in January, 2020. Though it is submitted on behalf of the writ petitioner that the time to submit the bids was extended, no specific date in such regard is indicated. What is apparent is that the writ petitioner did not participate in the bidding process and yet chose to challenge the same.
5. It is possible that a prospective bidder finds the terms of the tender documents to be unfair or illegal and challenges the same; but such challenge has to be before the time to put in the bids is closed. At any rate, if a bid is made and the bid is thrown out on an illegal or unfair ground contained in the tender documents, even then, a challenge can be fashioned. But a person who has not participated in the bidding process at all cannot challenge the tender conditions on any ground whatsoever. This admitted aspect of the matter escaped the attention of the Single Bench while passing the impugned order of January 15, 2020.
6. For the reasons aforesaid, the order dated January 15, 2020 cannot be sustained and the same is set aside. Since the best arguable case of the writ petitioner will not result in any of the tender terms being altered as the writ petitioner did not participate in the process at all, the writ petition itself is dismissed. Nothing in this order will be construed to be an approval of the terms and conditions of the tender document and in an appropriate challenge, the same may be considered in accordance with law."
(Emphasis supplied) The Apex Court, in the later judgment, in the case of AIRPORT AUTHORITY OF INDIA VS. CENTRE FOR AVIATION POLICY, SAFETY & RESEARCH (CAPSR) & OTHERS3, has held as follows:
32022 SCC OnLine SC 1334
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".... .... ....
25. We have heard learned counsel for the respective parties at length.
26. At the outset, it is required to be noted that respondent No. 1 claiming to be a non-profit organisation carrying out research, advisory and advocacy in the field of civil aviation had filed a writ petition challenging the tender conditions in the respective RFPs. It is required to be noted that none of the GHAs who participated in the tender process and/or could have participated in the tender process have challenged the tender conditions. It is required to be noted that the writ petition before the High Court was not in the nature of Public Interest Litigation. In that view of the matter, it is not appreciable how respondent No. 1 - original writ petitioner being an NGO would have any locus standi to maintain the writ petition challenging the tender conditions in the respective RFPs. Respondent No. 1 cannot be said to be an "aggrieved party". Therefore, in the present case, the High Court has erred in entertaining the writ petition at the instance of respondent No. 1, challenging the eligibility criteria/tender conditions mentioned in the respective RFPs. The High Court ought to have dismissed the writ petition on the ground of locus standi of respondent No. 1 - original writ petitioner to maintain the writ petition.
27. Even otherwise, even on merits also, the High Court has erred in quashing and setting aside the eligibility criteria/tender conditions mentioned in the respective RFPs, while exercising the powers under Article 226 of the Constitution of India. As per the settled position of law, the terms and conditions of the Invitation to Tender are within the domain of the tenderer/tender making authority and are not open to judicial scrutiny, unless they are arbitrary, discriminatory or mala fide. As per the settled position of law, the terms of the Invitation to Tender are not open to judicial
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NC: 2025:KHC:10746 WP No. 6054 of 2025 scrutiny, the same being in the realm of contract. The Government/tenderer/tender making authority must have a free hand in setting the terms of the tender."
(Emphasis supplied) The Apex Court holds that the tender inviting Authority is at liberty to choose its own method and the only permissible judicial review would be in the decision making process. The decision making process in the case at hand cannot be challenged by the petitioners, as the petitioners have not even participated in the tender."
15. In the light of the preceding analysis, the petition does not deserve entertainment. The examination of projection of a statutory aberration by petitioner fails, as it is in tune with the mandate of sub-rule (2) of Rule 17 of the Rules and above all, the petitioner having not participated in the tender, cannot challenge any conditions of tender. No Tender Inviting Authority can be directed to hold the tender, till the tenderer meets eligibility or prepares for participation in the tender. If he is ineligible; he is ineligible, and if he has not participated, he would lose locus to challenge.
(Emphasis supplied) In the light of the judgment of this Court quoted supra, which is rendered following the judgments of the Apex Court, the petitioner who has not participated in the tender has no locus to call in question the notice inviting tender on the score that it is in violation of Rule 17 of the Rules.
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9. Finding no merit in the petition, the petition stands rejected.
Sd/-
(M.NAGAPRASANNA) JUDGE NVJ List No.: 2 Sl No.: 22 CT:SS