Karnataka High Court
M/S G S Management Pvt Ltd vs The Commissioner Of Police on 4 February, 2025
Author: R Devdas
Bench: R Devdas
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NC: 2025:KHC:5061
WP No. 31594 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO. 31594 OF 2024 (GM-TEN)
BETWEEN:
M/S G S MANAGEMENT PVT LTD.,
A COMPANY INCORPORATED UNDE
THE PROVISION FO COMPANIES ACT, 1956
AND REP BY ITS AUTHORIZED SIGNATORY
YASHONANDAN P
HAVING ITS OFFICE NO.1091 2ND FLOOR
SRNG, SAMPANNAPPA CHARITIES
OTC ROAD NAGARAPTHPET
BENGALURU-560002
...PETITIONER
(BY SRI. DEEPAK., ADVOCATE)
AND:
Digitally signed by
DHARMALINGAM 1. THE COMMISSIONER OF POLICE,
Location: HIGH No.1, INFANTRY ROAD BENGALURU,
COURT OF
KARNATAKA BENGALURU CITY
2. THE ADDITIONAL COMMISSIONER OF POLICE
No.1 INFANTRY ROAD BENGALURU
BENGALURU CITY 560 001
3. THE ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT
VIDHANA SOUDHA
BENGALURU CITY-560001
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NC: 2025:KHC:5061
WP No. 31594 of 2024
4. BVG INDIA LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
AND A COMPANY WITHIN THE MEANING
OF THE COMPANIES ACT, 2013
HAVING ITS REGD. ADDRESS AT
BVG HOUSE, PREMIER PLAZA
PUNE-MUMBAI ROAD, CHINCHWAD
PUNE, MAHARASHTRA-411019
AND BRANCH OFFICE AT
BVG HOUSE, NO.47,
MILLERS TANK BUND ROAD
VASANTHNAGAR, BENGALURU-560052.
5. MERU INFO SOLUTIONS
A REGD. PARTNERSHIP FIRM UNDER
THE INDIAN PARTNERSHIP ACT, 1932
HAVING ITS OFFICE AT NO.07, 2ND FLOOR
OUTER RING ROAD NAGARBHAVI 2ND STAGE
BENGALURU-560072
REP BY ITS PARTNER
MR SRIDHAR KRISHNANIAH
...RESPONDENTS
(BY SRI.NAVEEN CHANDRASHEKAR., AGA FOR R1 TO R3
SRI. PRABHAKAR KULKARNI., ADVOCATE FOR R4
SRI. VISHWAS N., ADVOCATE FOR R5)
THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE
CORRIGENDUM DTD. 08.11.2024 FURNISHED AS ANNX-C
AFTER CALLING FOR ALL THE RECORDS AND GRANT AN
INTERIM ORDER TO STAY THE OPERATION OF CORRIGENDUM
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NC: 2025:KHC:5061
WP No. 31594 of 2024
DTD. 08.11.2024 FURNISHED AS ANNX-C AND IF THE
PETITIONER BE PERMITTED TO PARTICIPATE, IF FOUND
ELIGIBLE ON THE BASIS OF ORIGINAL TENDER NOTIFICATION
AT ANNX-A TO THIS PETITION.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R DEVDAS
ORAL ORDER
The petitioner, who responded to a tender invitation at Annexure 'B' dated 25.10.2024, is before this Court aggrieved of corrigendum dated 08.11.2024 issued at Annexure 'C'. The petitioner is therefore seeking a writ of certiorari to quash the corrigendum dated 08.11.2024 and seeks a direction to the Tender Inviting Authority to consider the bid submitted by the petitioner. The writ petition was initially filed against the official respondents No.1 to 3. However, subsequently, on an application being filed by respondents No.4 and 5 who had also submitted their bids, they were permitted to come on record.
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NC: 2025:KHC:5061 WP No. 31594 of 2024
2. Learned Counsel for the petitioner submits, while drawing the attention of this Court to Annexure 'C', corrigendum dated 08.11.2024 that at Sl.No.2 under the heading 'Eligibility Criteria' what was provided earlier was that the bidder should have a achieved minimum annual turnover of Rs.10 crores during any three years out of preceding five years, specifically for Call Centre, Manpower Services/Operations. However, as per the corrigendum, the stipulation has been enhanced to Rs.18 crores during any two years out of the preceding five years. The other area of dispute is at Sl.No.3 under the same heading 'Eligibility Criteria', which originally provided that the firm should have liquid funds in the form of Cash in hand/Cash at Bank/Bank Deposits/Mutual Funds or available Overdraft limit, to the extent of Rs.2.50 crores, as on 31.03.2024 (to meet the expenditure on salary obligations of atleast three months). However, after corrigendum, the words 'mutual funds' which were found earlier have been deleted.
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3. Learned Counsel submits that in terms of the tender notification pre-bid meeting was fixed on 05.11.2024 at 12 noon and last date and time for submission of the tender was fixed on 11.11.2024 at 5.00 p.m. The date and time of opening technical bid was 12.11.2024 at 5.30 p.m. On 05.11.2024, the petitioner participated in the pre-bid meeting. Nothing further transpired on the said date and intimation was given to the petitioner to once again appear for pre-bid meeting on 08.11.2024, which was not found in the tender document. Learned Counsel submits that on 05.11.2024, during the pre-bid meeting there were only three participants viz., the petitioner, respondents No.4 and 5. However, on 08.11.2024 each of the bidders was separately called for a meeting. Two or three hours after the meeting was concluded, the impugned corrigendum was issued bringing in the changes which practically keeps out the petitioner from the race.
4. Learned Counsel submits that the reason for such corrigendum being issued may not be too far away to find. -6-
NC: 2025:KHC:5061 WP No. 31594 of 2024 Respondent No.4 was the successful bidder on the previous occasion and it continues to provide the services known as '24 x 7 Dial 112', which is the vision of the Government to provide an integrated emergency response system with a signal emergency No.112, to address different categories of citizens. Dial 112 is designed to address all emergency signals received from citizens through voice call, SMS, e-mail, panic SOS signal, web portal etc. The value of the tender has been fixed at approximately Rs.10 crores including GST. Learned Counsel submits that on a plain reading of Annexure 'C', the impugned corrigendum, it appears that the changes are brought in, since such requirement would meet the provisions of The Karnataka Transparency in Public Procurements Act, 1999 (hereinafter referred to as the 'KTPP Act' for short). Learned Counsel submits that there is nothing that can be found which would enable such corrigendum having regard to the provisions contained in the KTPP Act.
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5. On the other hand, it is now sought to be contended at the hands of respondent No.4, which is providing the services at present that the requirement is probably flowing from a standard document of the Government of Karnataka known as 'K/W-4', which is filed by the fourth respondent along with a memo for production of a document dated 30.12.2024.
6. Learned Counsel for the petitioner would further submit that at Sl.No.1 in the impugned corrigendum, the Eligibility Criteria clause 4.1 is sought to be modified to enable respondent No.5 to participate in the bid process. Earlier, the requirement was that the bidder should be a Company registered under the Companies Act, having minimum three years experience in deployment of Manpower for 24 x 7 helpline services. However, such a requirement of the bidder, being a registered Company has been removed enabling any bidder having minimum three years experience in deployment of Manpower for 24 x 7 helpline services to participate in the tender process. Learned Counsel submits that the respondent- -8-
NC: 2025:KHC:5061 WP No. 31594 of 2024 authorities seems to have given a go-by to a big requirement of the prospective services provider being a registered Company and it is taking the risk of having any person to come and participate in the tender.
7. In this regard, the petitioner had also raised an objection in the communication dated 20.11.2024 at Annexure 'E' that since the services are very critical in terms of managing manpower and their safety, wherein employees including female employees have to work during night shifts, and in order to ensure meeting statutory obligations according to labour laws and the safety regulations, it is always preferred to have a Private Limited Company for the said purpose and for accountability of larger public interest. Nevertheless, the objections raised by the petitioner have not been adhered to.
8. Learned Counsel for the petitioner draws the attention of this Court to a decision of this Court in the case of Electronic Enterprises Vs. Karnataka Power Corporation Ltd., reported in ILR 1994 KAR 125, where -9- NC: 2025:KHC:5061 WP No. 31594 of 2024 it was held that there is a difference between a case where a person is excluded from opportunity to carry on a trade and a case where a person is permitted to enter the competition in the field of trade. It was held that in the former case, opportunity is denied, resulting in violation of Article 14 of the Constitution of India; similarly, exercise of fundamental right to trade under Article 19(1) is prevented. This Court therefore held that competition is inherent in the trade and in fact, efficiency and service to the general public will be increased only by proper competition in the trade. That is why, an opportunity created to extend the scope of competition among the traders is not restrained in the exercise of writ jurisdiction. However, if a person is not meted out an equal treatment and is denied of a fair consideration and opportunity given to one outweighs the skeleton opportunity given to another, it may be a case of unfairness inviting judicial scrutiny under Article 14 of the Constitution. Learned Counsel would therefore submit that it is not clear as to how and why the two conditions which earlier enabled the
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NC: 2025:KHC:5061 WP No. 31594 of 2024 petitioner to participate in the tender is now modified in effect to keep away the petitioner from the competition.
9. During the course of this case, this Court called upon the learned AGA to furnish the original records so that this Court could look into the records and find out as to what went behind the impugned corrigendum. Accordingly, the learned AGA has today furnished the original records and this Court finds that other than what is found at Annexure 'C', there is nothing more in the original records. The impugned corrigendum does not point out to the standard document 'K/W-4' as was sought to be pointed out by the learned Counsel for respondent No.4.
10. Learned Counsel for respondent No.4 however seeks to contend that there is express provision contained in Rule 14 of the Karnataka Transparency in Public Procurement Rules, 2000, which clearly provides that at any time after the uploading of the tender documents and before the opening of the tender, the Tender Inviting Authority may make any changes, modifications or
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NC: 2025:KHC:5061 WP No. 31594 of 2024 amendments to the tender documents and these shall be notified on the Karnataka Public Procurement Portal through issue of Addendum or Corrigendum or Clarification and they shall form part of original tender document.
11. In this regard, learned Counsel also sought to place reliance on some of the recent decisions of co- ordinate benches which have noticed such a Rule providing for corrigendum. It is also pointed out from the tender document itself that at clause 1.6, liberty is reserved to the Tendering Authority to make any such changes in the tender document which are in consonance with Rule 14 of the Rules.
12. Clause 1.6 of the tender document provides that at any time prior to the last date of receipt of bids, the Tender Inviting Authority may for any reason, whether on their own initiative or in response to the queries posed by the bidders, the tendering authority may modify the RFP document by a corrigendum. Learned Counsel would therefore submit that the issuance of the impugned corrigendum at Annexure 'C' cannot be found fault with,
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NC: 2025:KHC:5061 WP No. 31594 of 2024 having regard to the express provision contained in the Rules and the tender document. Learned Counsel would further submit that it is only fourth respondent which is clearly eligible to participate in the tender, pre- amendment or post amendment. On the other hand, post amendment the petitioner will be disqualified and pre- amendment, respondent No.5 will be disqualified. Learned Counsel would therefore submit that having regard to the settled position of law that Courts are required to undertake judicial review to implement the provisions of law and it would be impermissible for the Court to allow such a writ petition which would only pave way for the tender to be carried out contrary to law. In this regard, the learned Counsel has drawn the attention of this Court to several judgments.
13. On the first date of hearing of this petition i.e., 25.11.2024, this Court had directed the tendering authority to process the technical bid without reference to the conditions incorporated in the corrigendum at Annexure 'C', subject to the outcome of this writ petition.
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NC: 2025:KHC:5061 WP No. 31594 of 2024 On 09.12.2024 it is recorded that the technical bids were processed. Thereafter, liberty was given to respondent No.3 to open the financial bid of all the qualified participants in accordance with the tender document.
14. Learned AGA submitted that the financial bids were opened after leave was granted by this Court and it is found that the petitioner is L1 (lowest bidder) and respondent No.4 is L2 and respondent No.5 is L3. Learned AGA submits that the services sought under the tender document viz., '24 x 7 Dial 112' being an emergency services, it is critical and the results of the tendering authority should be announced as early as possible to enable the continuous services to the general public.
15. Learned Counsel for respondent No.5 submits that the prayer in the writ petition is to quash the impugned corrigendum dated 08.11.2024 at Annexure 'C'. If the impugned corrigendum is quashed, the fifth respondent will become ineligible to participate in the tender process. On the other hand, if the two clauses that were pointed out by the learned Counsel for the petitioner
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NC: 2025:KHC:5061 WP No. 31594 of 2024 are permitted to be restored as they were prior to the corrigendum, it will also enable the fifth respondent to participate in the tender process. Learned Counsel for respondent No.5 also adopts the arguments of learned Counsel for respondent No.4.
16. Having the critical nature of the Tender in mind, the matter has been taken up at the request of learned Counsels and the learned AGA, for final disposal.
17. Heard the learned Counsels for the petitioner, learned AGA for respondents No.1 to 3, learned Counsel for respondent No.4 and learned Counsel for respondent No.5 and perused the petition papers.
18. Having regard to the facts narrated hereinabove, this Court is required to consider as to whether the impugned corrigendum at Annexure 'C' can be sustained or it requires to be quashed or whether a portion of the corrigendum can be directed to be read as they were before modification. The learned Counsel for the petitioner is right in his submission that the participation of respondent No.5 in the tender process should be
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NC: 2025:KHC:5061 WP No. 31594 of 2024 permitted to enable larger competition. This Court should also notice the fact that respondent No.4 is the present service provider. This would mean that it has past experience and in the know of things. The chances of respondent No.4 faltering are very less and accordingly, no part of the tender conditions have caused any difficulty to respondent No.4. On the other hand, a plain reading of the impugned corrigendum at Annexure 'C' only points out to the requirement of the provisions of KTTP Act and not even a reference is made to 'K/W-4' which is a Standard Document pointed out by the learned Counsel for respondent No.4. This Court has also looked into the said document known as 'K/W-4', which was initially notified on 06.08.2005 and modified on 14.10.2008. It is also not disputed that 'K/W-4' pertains to tenders which are valued less than Rs.10 crorers and 'K/W-6' would apply to tenders which are more than Rs.10 crores. Since the value of this tender is less than Rs.10 crores, 'K/W-4' may apply. Even in K/W-4, clause 3 which pertains to qualification of the tenderer, it is prescribed that to qualify, each tenderer
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NC: 2025:KHC:5061 WP No. 31594 of 2024 in its name should have in the last five years achieved in atleast two financial years a minimum financial turnover (in all cases of civil engineering construction works only) of the tender value (usually not less than two times the estimated annual payments under the contract).
19. At clause 3.3(b) it requires that each tenderer should further demonstrate liquid assets and/or availability of credit facilities of not less than the value of the tender (credit lines/letter of credit/certificates from Banks for meeting the fund requirement etc.). Here again in the brackets it is provided as :(usually the equivalent of the estimated cash flow for three months in the peak construction period).
20. No doubt, learned Counsel for respondent No.4 has pointed out to some decisions of this Court which have held that this general document would apply to all tenders, including services. However, it is for the answering respondents to say as to why such conditions have been missed out in the tender notification or tender document, notified earlier. However, this Court has to notice the fact
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NC: 2025:KHC:5061 WP No. 31594 of 2024 that many of the conditions prescribed in the standard document 'K/W-4' or for that matter 'K/W-6', extensively refers to construction works and a separate table is given to meet the requirements of such tender documents pertaining to construction works. Having regard to the fact that construction activities are carried on not only by registered Companies, but by registered partnership firms and proprietary concerns, no such requirement of registered companies is found in the document. Therefore, if at the request of fifth respondent, such a clause requiring a registered Company only to apply, is removed, the Tendering Authority is fully justifiable and reasonable.
21. On the other hand, the tender notification has been modified by issuance of the impugned corrigendum, although no one pointed out to the requirement in terms of 'K/W-4'. As rightly pointed out by the learned Counsel for the petitioner, respondent No.3-Tender Inviting Authority has only stated that the corrigendum is issued to
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NC: 2025:KHC:5061 WP No. 31594 of 2024 ensure the document is brought in tune with the provisions of the KTTP Act.
22. Further, the wisdom falling out from the judgments cited by the learned Counsel for the petitioner in the case of Electronic Enterprises (supra) that having regard to the public interest which should be the paramount interest of the State and its authorities, it would not be unreasonable on the part of the Tender Inviting Authority to have made relevant changes to expand the scope of the competition.
23. On the other hand, introducing certain conditions or removing certain conditions which would keep away a bidder who was otherwise qualified in terms of the original document, would be counter protective as held by this Court. If the impugned corrigendum is set aside, respondent No.5 will be disqualified and if the impugned corrigendum is upheld, the petitioner will be disqualified. The fourth respondent will be the only entity in the fray and continuance of the services at the hands of
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NC: 2025:KHC:5061 WP No. 31594 of 2024 respondent No.4 without any competition, will also not be in larger public interest.
24. In that view of the matter, this Court is of the considered opinion that if the third respondent-Tender Inviting Authority was of the opinion that changes are required to be brought to the tender document and in the process, some of the bidders will be kept out of fray, then it would be prudent on the part of the third respondent to recall the tender and issue a fresh tender incorporating all the conditions that would be meeting the prescriptions of the KTPP Act and 'K/W-4' or 'K/W-6', as the case may be, while fine tuning the requirement, having regard to the 'services' that are called for under the tender document. Necessary changes which enable 'play in the joints' is required to be given to the Tender Inviting Authority to prescribe conditions which are suitable for the purpose of the tender document. Such liberty or discretion shall be exercised by the third respondent and ensure that the larger public interest is subserved.
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25. In that view of the matter, the writ petition is partly allowed. The impugned corrigendum dated 08.11.2024 at Annexure 'C' and the tender document itself at Annexure 'B' are quashed and set aside, while directing the third respondent-Tender Inviting Authority to issue a fresh tender, having regard to the observations made by this Court. Since the tender notification at Annexure 'B' is quashed and set aside, all further process that has taken place under the said document also stand quashed. The third respondent shall call for a fresh tender, having regard to the observations made by this Court and having regard to the public interest, as expeditiously as possible and at any rate within a period of four weeks from the date of receipt of a copy of this order.
Pending I.As., if any stand disposed of accordingly.
Sd/-
(R DEVDAS) JUDGE JT/-
CT: JL