Karnataka High Court
M/S Kamakhya Diagnostic And Research ... vs The State Of Karnataka on 25 September, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2023:KHC-D:11272
WP No. 105410 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 105410 OF 2023 (GM-TEN)
BETWEEN:
M/S. KAMAKHYA DIAGNOSTIC & RESEARCH
LABORATORY,
A PARTNERSHIP FIRM HAVING ITS OFFICE AT BLOCKI
NO.14,
1ST FLOOR, GANDHI BHAVAN, BEHIND HOTEL SANMAN,
COLLEGE ROAD, BELAGAVI-590001, R/BY HIS ITS
PARTNER SRI. SHREEKANTH S/O MADHVRAO
KAVEESHWAR,
AGE. 42 YEARS, OCC. BUSINESS, BLOCK NO.14,
1ST FLOOR, GANDHI BHAVAN, BEHIND HOTEL SANMAN,
COLLGE ROAD, BELAGAVI-590001.
... PETITIONER
(BY SRI. SHIVRAJ S. BALLOLI, ADVOCATE)
VIJAYALAKSHMI
M KANKUPPI AND:
Digitally signed by
VIJAYALAKSHMI M
KANKUPPI 1. THE STATE OF KARNATAKA,
Date: 2023.10.13
16:26:23 +0530 DEPARTMENT OF LABOUR,
VIDHAN SOUDHA, BENGALURU-560001.
R/BY ITS SECRETARY.
2. THE KARNATAKA BUILDING & OTHER
CONSTRUCTION WORKERS WELFARE BOARD,
KALYANA SURAKSHA BHAVAN,
BANNERGHATTA RIOAD, ITI COMPOUND,
DIARY CIRCLE, BENGALURU-560029,
R/BY ITS JOINT SECRETARY.
-2-
NC: 2023:KHC-D:11272
WP No. 105410 of 2023
3. HLL LIFE CARE LIMITED,
HLL BHAVAN MAHILAMANDIRAM ROAD,
POOJAPPURA, THIRUVANANTHAPURAM,
KERALA-695012, R/BY ITS GENERAL MANAGER
(OPERATIONS) & UC, KANAGALA, BELAGAVI-591225.
4. CLEARMEDI HEALTH CARE PVT. LTD.,
G-21 & G-22 PLOT NO.3 GROUND FLOOR,
COMMUNITY CENTRE AGGARWAL PLAZA,
PRASHANT VIHAR, SECTOR-14, ROHINI,
DELHI-110085, R/BY ITS CHIEF EXECUTIVE
OFFICER/
THE MANAGING DIRECTOR.
5. SANJEEVINI SPECIALITY HOSPITAL
& HEALTH CARE CENTRE, SHIRUR PARK,
MAIN ROAD, PRASHANT COLONY,
VIDYA NAGAR, HUBBALI TQ. HUBBALLI,
DIST. DHARWAD-580031, R/BY ITS CHIEF
EXECUTIVE OFFICER/THE MANAGING DIRECTOR.
6. BLOSSOM MULTISPECIALITY HOSPITAL,
NO.1141, BMS PLAZA,
MANGAMMANAPALYA MAIN ROAD,
BOMMANAHALLI, BENGALURU,
DIST. BENGALURU-560068,
R/BY ITS CHIEF EXECUTIVE OFFICER/
THE MANAGING DIRECTOR.
7. ADARSH HOSPITAL,
NEAR KSRTC BUS STAND,
UDUPI, DIST. UDUPI-576101,
R/BY ITS CHIEF EXECUTIVE OFFICER/
THE MANAGING DIRECTOR.
8. ASHWINI HOSPITAL,
837X+P3G RING ROAD,
MARALUR DINNE, TUMAKURU,
DIST. TUMAKURU-572 105,
R/BY ITS CHIEF EXECUTIVE OFFICER/
THE MANAGING DIRECTOR.
-3-
NC: 2023:KHC-D:11272
WP No. 105410 of 2023
9. R K HOSPITAL, SINDAGI NAKA,
OPPOSITIE SWARAJ TRACTOR SHOWROOM,
VIJAYAPUR-586101, R/BY ITS CHIEF EXECUTIVE
OFFICER/ THE MANAGING DIRECTOR.
10. DR. RAJU'S BLOOMS DIAGNOSTIC CENTRE,
YERNOOL COMPLEX, GANGAMMA GUDI ROAD,
CHIKKABALLAPUR-562101, R/BY ITS CHIEF
EXECUTIVE OFFICER/ THE MANAGING DIRECTOR.
... RESPONDENTS
(BY SRI. MADANMOHAN M. KHANNUR, AGA FOR R1;
SRI. MRUTYUNJAY TATA BANGI, ADVOCATE FOR R2;
SRI. ADARSH GANGAL, ADVOCATE FOR R3;
SRI. PRASHANT MATHAPATI, ADVOCATE FOR R5 & R6;
SRI. VIJAYKUMAR B. HORATTI, ADVOCATE FOR R4 & R7;
SRI. RAGHAVENDRA A. PUROHIT, ADVOCATE FOR R8 & R9;
SRI. SADAND M.K., ADVOCATE FOR 10)
THIS WRIT PETITION IS FILED UNDER ARTICELS 226
AND 227 OF THE CONSTITION OF INDIA, PRAYING TO ISSUE A
WRIT OF CERTIORARI QUASHING THE IMPUGNED REJECTION
OF THE PETITIONERS BID/TENDER FOR BEING EMPANELED
WITH THE 2ND RESPONDENT IN THE TENDER DATED.
07/10/2022 BEARING NO. KBOCWWB/PHC/CR-05/2022-23/T2,
VIDE ANNEXURE-C AND ETC.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
-4-
NC: 2023:KHC-D:11272
WP No. 105410 of 2023
ORDER
1. The petitioner is before this Court calling in question a rejection of his claim for empanelment with the 2nd respondent in terms of the tender notification dated 07.10.2022 having been turned down, a consequential mandamus is also sought by issuance of a writ in the nature of mandamus directing the respondents to empanel the petitioner for conducting preventive health check up and construction workers as per tender dated 07.10.2022.
2. Heard the learned counsel Sri.Shivaraj S. Balloli appearing for the petitioner, learned counsel Sri.M.M.Khannur, AGA for respondent No.1, Sri.Mrutyunjay Tata Bangi for respondent No.2, Sri.Adarsh Gangal for respondent No.3, Sri.Prashant Mathapati for respondent Nos.5 and 6, Sri.Vijaykumar B. Horatti for respondent Nos.4 and 7, Sri.Raghavendra A. Purohit for respondent Nos.8 and 9 and Sri.Sadanand M.K. for respondent No.10.
-5-
NC: 2023:KHC-D:11272 WP No. 105410 of 2023
3. The 2nd respondent Karnataka Building and Other Construction Workers Welfare Board (hereinafter referred to as the "Board" for short) issues a notice inviting tender on 29.07.2022 for the empanelment of agencies to provide preventive healthcare checkup facilities for the registered construction workers of the Karnataka Building and Other Construction Workers and their dependents in various districts of Karnataka. The petitioner finding himself eligible to be empanelled in terms of the notice inviting tender submits his bid. His bid comes to be rejected by the impugned communication which is called in question in the subject petition.
4. After the rejection of the bid of the petitioner, another tender notification is issued on 07.10.2022 for the very same purpose. This tender notification is published on 07.10.2022 and the pre-bid meeting was slated to be conducted on 15.10.2022 and the opening of the bid was on 29.10.2022. The petitioner calling in question his rejection for such empanelment in terms of the tender -6- NC: 2023:KHC-D:11272 WP No. 105410 of 2023 notification dated 29.07.2022 has approached this Court in the subject petition.
5. The learned counsel Sri.Shivaraj S. Balloli appearing for the petitioner would contend that the tender notification for empanelment dated 29.07.2022 stood continued in terms of the tender notification dated 07.10.2022. It is his submission that nobody need have separately applied pursuant to the tender notification dated 17.10.2022 as it was in continuation of the notice inviting tender dated 29.07.2022. He would on this plea submit that though he has not participated in the tender notification dated 07.10.2022 he would contend that he need not participate as it is a continuation of the NIT dated 29.07.2022 in which he had participated.
6. The learned counsel Sri.Mrutyunjaya Tata Bangi appearing for the 2nd respondent would take this Court through the documents appended to the petition to demonstrate that the NIT issued on 29.07.2022 for empanelment and the NIT issued on 07.10.2022 are -7- NC: 2023:KHC-D:11272 WP No. 105410 of 2023 altogether different, participants may have been common, but the empanelled tenderers in 29.07.2022 notification and 07.10.2022 notification are entirely different and the empanelment that had to happen in terms of 29.07.2022 has already happened qua others. That has nothing to do with the notice inviting tender dated 07.10.2022 in which the petitioner does not participate. Therefore, he has no locus to even question what has happened pursuant to 07.10.2022, notice inviting tender.
7. The counsel appearing for the 3rd respondent, the successful bidder, in terms of the earlier notice inviting tender dated 29.07.2022 would submit that the notice inviting tender dated 07.10.2022 is entirely a different, though it is for the same work. It did not preclude the earlier participants to participate. It is not in continuation of notice inviting tender dated 29.07.2022. He would further contend that the petitioner has not participated in the subsequent tender seeking empanelment and now cannot contend that the process is illegal. -8-
NC: 2023:KHC-D:11272 WP No. 105410 of 2023
8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
9. The afore-narrated facts are a matter of record. They need not be reiterated. The petitioner's agency participates for empanelment pursuant to an NIT dated 29.07.2022. The tender was supposed to get closed on 17.08.2022. The claim of the petitioner comes to be rejected. The rejection is communicated to him through the online portal. The subsequent NIT is issued on 07.10.2022. The petitioner does not participate in the said NIT by submitting his bid. The plea of the petitioner is that he need not participate as it is a continuation of the earlier tender. The petitioner appears to have generated an obfuscation to himself with regard to the continuance of the earlier tender, as the 07.10.2022 notice inviting tender is on the face of it an independent tender, which though did not preclude the earlier participants to participate, it cannot be termed to be a continuance of 29.07.2022 -9- NC: 2023:KHC-D:11272 WP No. 105410 of 2023 tender. If the petitioner has any grievance, his grievance can be restricted only to 29.07.2022 tender and not to a notice inviting tender dated 07.10.2022 as he has not even submitted his bid for empanelment in the said tender.
10. It is trite law that a tenderer who stays outside the tender cannot question the nuances of tender in a notice inviting tender, as sitting on the fence, he cannot call the contents of tender in question. The petitioner is now wanting to do the same, he sits on the fence does not submit his bid pursuant to the subsequent tender dated 07.10.2022. Reference being made to the judgment of this Court in W.P. No.17266/2022 became apposite. This Court has held as follows:
"9. I have given my anxious consideration to the submissions made by the respective learned senior counsel and have perused the material on record. In furtherance whereof the issues that would fall for my consideration are -
(i) Whether BESCOM was right in seeking to re- tender only those 10 tenders that were quashed by this Court? and
- 10 -
NC: 2023:KHC-D:11272 WP No. 105410 of 2023
(ii) Whether petitioners have any locus to question any act of BESCOM qua the tender notified, notwithstanding their non-participation in thetender process?
In the light of the second issue cutting at the root of the matter, Ideem it appropriate to consider the same at the outset.
Issue No.2:
(ii) Whether petitioners have any locus to question any act of BESCOM qua the tender notified, notwithstanding their non-participation in thetender process?
10. The afore-narrated facts with regard to issuance of notice inviting tender for the works notified therein are not in dispute. The petitioners though belong to Scheduled Castes/Scheduled Tribes and reservation of 10 tenders being accorded thereto out of 50 tenders, did not participate in the tender process, are all a matter of record. The notice inviting tender did no where restrict any tenderer to participate in any tender on the NIT dated 28.03.2022. Though reservation was stipulated qua 10 tenders, the tenderers belonging to Scheduled Castes/Scheduled Tribes were not precluded from participating in the tenders of general category. As a matter of fact, there were several tenderers who did participate in both the tenders reserved for Scheduled Castes/Scheduled Tribes and in the general category. The petitioners chose to sit on thefence, did not participate in the tender process at all, neither in the 10 reserved
- 11 -
NC: 2023:KHC-D:11272 WP No. 105410 of 2023 tenders nor in the 40 unreserved tenders. Therefore, the petitioners now seek to point out lacunae in the tenders, sitting outside throughout. Whether that would be permissible is the question?
11. A tenderer who remains outside and then seeks to question the tender process or conditions stipulated in the tender notification would not get locus to challenge and condition of tender. This issue need not detain this Court for long or delve deep into the matter. The Apex Court in the case of NATIONAL HIGHWAYS AUTHORITY OF INDIA (supra) 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
- 12 -
NC: 2023:KHC-D:11272 WP No. 105410 of 2023 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, 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
- 13 -
NC: 2023:KHC-D:11272 WP No. 105410 of 2023 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 Apex Court clearly holds that the tenderer who would chose to stay away from the tender process cannot be heard to whittle down the rights of eligible bidders who had participated in the tender process on the basis of written and express terms and conditions. At the culmination of the tender process, if the tenderer had not participated in law, he cannot be seen to question the terms and conditions. The petitioners, in the case at hand, have admitted their non participation in the tender. Staying away from the tender, they cannot now seek to challenge the tender. It is further germane to notice a similar view taken by the Calcutta High Court. A Division Bench of the High Court of Calcutta in the case of SUBIR GHOSH v. STATE OF WEST BENGAL AND OTHERS reported in 2020 SCC OnLine Cal 2213 has held as follows:
"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
- 14 -
NC: 2023:KHC-D:11272 WP No. 105410 of 2023 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."
In the light of the judgments of the Apex Court in the case of NATIONAL HIGHWAYS AUTHORITY OF INDIA and the Division Bench of the Calcutta High Court in the case of SUBIR GHOSH holding that only a participant can question the tender, the challenge raised by the petitioners who are not the participants in the
- 15 -
NC: 2023:KHC-D:11272 WP No. 105410 of 2023 subject tender, would thus tumble down. Therefore, the second issue that fell for consideration which concerns locus of the petitioners to challenge the tender process being held against the petitioners, the first issue with regard to tender process would not arise for consideration, as it is trite law, that if a writ petitioner has no locus to raise a challenge to the subject matter, no other ground on merit of the challenge need be considered."
The petitioner in the case at hand has also remained outside.
11. Therefore, the petition insofar as all further proceedings that he calls in question pursuant to the earlier tender including 07.10.2022 is unacceptable.
12. Insofar as the claim of the petitioner that his tender has been rejected in terms of tender notification dated 29.07.2022 is concerned, if the work orders are already issued or to be issued to the successful bidders / agencies for empanelment, it is open for the petitioner to knock at the doors of the Appellate Authority under Section 16 of the Karnataka Transparency in Public Procurements Act, 1999. Reserving such liberty and
- 16 -
NC: 2023:KHC-D:11272 WP No. 105410 of 2023 noticing the fact that the petitioner has no right to question the tender subsequent issued on 07.10.2022 in the garb of a challenge to the rejection of the petitioner in the first tender is clearly not entertainable.
13. For the aforesaid reasons, the following:
ORDER
(i) The challenge insofar as the tender is concerned stands rejected.
(ii) Reserving liberty to the petitioner to approach the Appellate Authority under Section 16 of the Karnataka Transparency in Public Procurements Act, 1999, in the event he is still aggrieved.
(iii) Interim order subsisting as on date shall stand dissolved.
Sd/-
JUDGE Rsh / ct:bck List No.: 4 Sl No.: 16