Karnataka High Court
Shri H K Sathish vs State Of Karnataka on 7 January, 2022
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.18374 OF 2021(GM-TEN)
BETWEEN:
SHRI. H K SATHISH,
S/O KITTAPPA GOWDA,
AGED 49 YEARS,
R/AT LAKSHMI RANGANATHA NILAYA,
VIJAYANAGAR, 1ST CROSS,
CHIKKAMAGALURU - 577 101.
...PETITIONER
(BY SRI. ASHOK B PATIL, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF MUNICIPAL ADMINISTRATION,
VIKASA SOUDHA,
BENGALURU - 560 001.
2. THE DIRECTOR,
DEPARTMENT OF MUNICIPAL ADMINISTATION,
VISVESHVARYA TOWERS, AMBEDKAR VEEDHI,
BANGALORE - 560 001.
3. THE DEPUTY COMMISSIONER,
CHIKMAGALUR DISTRICT,
CHIKMAGALURU - 577 101.
4. THE COMMISSIONER,
CITY MUNICIPALITY,
CHIKKAMAGALUR - 577 101.
... RESPONDENTS
(BY SRI. ARUNA SHYAM, AAG A/W
SRI. VINOD KUMAR M, AGA FOR R1 TO R3;
SRI. A NAGARAJAPPA, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
TENDER NOTIFICATIONS A) DATED 13.09.2021 ANNEXURE-B
2
ISSUED BY THE DIRECTOR OF MUNICIPAL ADMINISTRATION,
THE R-2 HEREIN, THROUGH THE R3 AND ETC.,
THIS PETITION COMING ON FOR ORDERS THIS DAY
THROUGH VIDEO CONFERENCE, THE COURT MADE THE
FOLLOWING:-
ORDER
Petitioner, a Class-I Contractor is knocking at the doors of Writ Court for assailing the subject tender process on the grounds of non-specification of material particulars of the works to be accomplished, non-disclosure of tender opening date and the vagueness of tender requirements.
2. After service of notice, respondent nos. 1 2 & 3 have entered appearance through the learned AAG and they have filed the Statement of Objections resisting the writ petition; similarly, the fourth respondent has entered appearance through its Panel Counsel and it too has filed its independent Statement of Objections.
3. Both the learned AAG & the Learned Panel Counsel vehemently oppose the writ petition contending that: there is no legal requirement of disclosing the opening date of the tender; the tender particulars in the tender documents are sufficient and therefore other tenderors have already been in the fray; the specification of the works mentioned therein gives the rough idea as to the 3 requirement of works in question; if at all there was any difficulty, it was open to the petitioner to solicit the information from the concerned; lastly, petitioner lacks locus standi. So contending, they seek dismissal of the writ petition.
4. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter for the following reasons:
a) The first submission of learned counsel for the petitioner that there is a legal requirement of mentioning specifically the date of opening of the tender in the Notification and this requirement having not been complied with, the entire tender process is vitiated is sustainable in view of such a requirement arising under Section 11 of the Karnataka Transparency Act r/w Rule 9(f) of Karnataka Transparency Rules; this addition to the provisions of Rule 9 came to be loaded to the statute book by way of amendment vide Notification dated 07.09.2019;
such Rules are made after gaining working experience in the field and therefore being significant, they cannot be treated as directory; Rule 9(f) specifically mandates fixing 4 of date & time for opening of tenders; the vehement contention of learned AAG and Mr. Nagarajappa appearing for the respondents that 18.11.2021 is fixed for the opening of technical bids, is true; however matter relating to tender has grown as 'Tender Jurisprudence' precedent by precedent; there is a marked difference between opening of a technical bid and opening of tender; the former is only a step-in-aid whereas the latter more often than not brings an enforceable obligation ie., a contract; the former precedes the latter; they cannot be approximated to each other; thus there is a breach of statutory rule to the prejudice of the petitioner and this constitutes a huge error apparent on the face of the record.
b) The second contention of learned counsel for the petitioner that the work in question is of huge size & of gigantic value; the tender estimated value is 5,50,67,000/-; in addition to this, there are other works which transcend this figure in multiples; the works are specified broadly at Item 82 of the tender document at Annexure-B i.e., "improvements of Roads, Drains and other development works in Chikkamagaluru CMC Limits under Nagarothana (Municipality) Phase - 3 Scheme"; these works inter alia includ asphalting of some roads and 5 putting concrete to the other; which roads are to be asphalted and which are to be concreted, is not specified; the quality, content and the pricing would enormously vary depending upon whether it is a case of asphalting or of concreting; therefore without these necessary material particulars, petitioner was not in a position to make a rational estimation of the tender value and thus was unjustifiably disabled from participating in the tender process; where a statutory bodies like respondents go for a public tender, the same has to comply with the prevalent fairness standards which apparently are breached in the case at hands; this constitutes the second error apparent on the face of the record inasmuch as, it robs the petitioner of a reasonable opportunity of participation in the public tender process.
c) The vehement contention of learned AAG that the petitioner could have sought for the information from the concerned does not come to his rescue, inasmuch as, petitioner had sent a Legal Notice dated 01.10.2021 a copy whereof is at Annexure-J requesting for the recall of the tender in question on the argued defects therein; these defects/anomalies could have been addressed by the answering respondents by furnishing necessary 6 information & clarification; in fact the very tender document itself at paragraph 15.1 assures such an exercise; however the said respondents maintained a stony silence and did not send response to the grievances aired in the legal notice; this stony silence is ununderstandable, to say the least; therefore contention of the kind vehemently canvassed on behalf of the respondents by the learned AAG does not merit countenance.
d) The submission of learned counsel for the petitioner that the tender works ought to have been split and separate tenders ought to have been called for so that even small & sundry contractors could participate in the tender process is bit difficult to countenance; learned AAG appearing for the respondents rightly repels the said submission placing reliance on the decision of the Apex Court in MICHIGAN RUBBER (I) INDIA LIMITED VS. STATE & OTHERS, (2012) 8 SCC 216; he is more than justified in support of his contention that what all works a tender should comprise, and whether tender should be in plural offers or one common offer for all the works, are a matter that lie within the discretion of the authorities concerned and that this court cannot run a race of opinions with such agencies; an argument to the contrary 7 would amount to the judicial organ of the State over- stepping its limits and encroaching upon the domain of the executive; this offends the doctrine of separation of powers vide SAHIB RAM JAWAYA KAPOOR vs. STATE OF PUNJAB, AIR 1955 SC 549.
e) The last submission of learned counsel for the respondents that the petitioner having not participated in the tender lacks the locus standi to lay a challenge thereto, is again bit difficult to agree with; had the petitioner participated in the tender process, arguably the challenge would have been ousted on the ground of estoppel and the doctrine of approbation & reprobation; petitioner has approached the court at the earliest point of time and no third party rights are created as yet; this court had accorded an interim protection; learned AAG's reliance on the decision of a Co-ordinate Bench in W.P.Nos. 8664 & 8964-972/2019 (GM-TEN) in D.S.NARAYANA & OTHERS Vs. CHAMUNDESHWARI ELECTRICITY SUPPLY CORPORATION LTD., disposed off on 22.07.2019 does not much come to his assistance; paragraph 13 therein mentions about the interim order whereby the litigant therein was permitted to participate in the subject tender process and that the said litigant had not availed the 8 benefit thereof; that is not the case here; in fact the tender process was stalled by the interim order of this Court; it hardly needs to be stated that a decision is an authority for the proposition that is actually laid therein in a given fact matrix and not for all that which logically follows from what has been so laid down, said Lord Halsbury more than a century ago, in the celebrated case of QUINN Vs. LEATHEM (1901) A.C. 495, 506.
In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned tender notifications at Annexures B to H. However, it is open to the respondents to go for fresh tender process in accordance with law.
Costs made easy.
Sd/-
JUDGE Bsv