Karnataka High Court
Sri.H.J.Deepak vs The State Of Karnataka on 20 December, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.19939 OF 2022 (GM - RES)
BETWEEN:
SRI. H.J.DEEPAK
S/O JAYANNA
AGED ABOUT 41 YEARS
R/A 5TH CROSS
ASHOK NAGARA
TUMAKURU - 562 160.
... PETITIONER
(BY SRI. RAMESHA H.E., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY DEPARTMENT OF
ANIMAL HUSBANDRY AND FISHERIES
VIKASA SOUDHA
BENGALURU - 560 001.
2. THE DIRECTORATE OF FISHERIES
3RD FLOOR, PODIUM BLOCK
VISHWESHWARAIAH CENTRE
DR. B.R.AMBEDKAR VEEDHI
BENGALURU - 560 001.
REPRESENTED BY ITS DIRECTOR
3. THE SENIOR DEPUTY DIRECTOR OF
2
FISHERIES, BENGALURU - 560 001.
4. THE DEPUTY DIRECTOR OF
FISHERIES, TUMAKURU - 562 101.
5. THE ASST. DIRECTOR OF FISHERIES
SIRA, TUMAKURU - 562 137.
6. B.G.YUVARAJU
S/O GOPALAPPA
MAJOR
BARAGURU VILLAGE AND POST
SIRA TALUK
TUMAKURU - 562 113.
7. SHIVAKUMAR R.,
S/O RANGAIAH
MAJOR
RAMALINGAPURA POST
BUKKAPATNA HOBLI
SIRA TALUK
TUMAKURU - 572 115.
RESPONDENT NOS. 6 AND 7 ARE AMENDED VIDE COURT ORDER
DATED 02.06.2023.
... RESPONDENTS
(BY SRI. SPOORTHY HEGDE, HCGP FOR R1 TO R5;
SRI. PRAKASH H.C., ADVOCATE FOR R6;
SMT. SRUTI CHAGANTI, ADVOCATE FOR R7)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENT TO ACCEPT THE DDS OF BID AMOUNT OF
RS.10,00,000-00(TEN LAKH ONLY) DD.NO.038408 DATED
01.10.2022 AND ANOTHER DD NO.438211 DATED 01.10.2022 AN
AMOUNT OF RS.4,19,420-00(FOUR LAKH NINTEEN THOUSAND
FOUR HUNDRED AND TWENTY ONLY) AND SECURITY DEPOSIT
3
AMOUNT DD NO.001810 DATED 01.10.2022 OF
RS.7,992-00(SEVEN THOUSAN NINE HUNDRED NINEETY TWO
ONLY) DATED 01.10.2022 BID AMOUNT OF RS.1,56,192-00(ONE
LAKH FIFTY SIX THOUSAND ONE HUNDRED AND NINETY TWO
ONLY) DD NO.438212 DATED 01.10.2022, DD NO.632220 DATED
01.10.2022 AN AMOUNT OF RS.2,38,000-00(TWO LAKH THIRTY
EIGHT THOUSAND ONLY) DD NO.505446 DATED 01.10.2022 AN
AMOUNT OF RS.2,62,000-00(TWO LAKH SIXTY TWO THOUSAND
ONLY) AND SECURITY DEPOSIT AMOUNT DD NO.001811 DATED
01.10.2022 OF RS.4,981-00 (FOUR THOUSAND NINE EIGHTY ONE
ONLY) AT ANNEXURE-J, K, L AND M.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 05.12.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court principally seeking a direction by issuance of a writ in the nature of mandamus directing official respondents to accept demand drafts of the bid amount in the light of the petitioner being the highest bidder pursuant to a tender for fishing rights at Madaluru Tank and Ramalingapura Tank in Sira Taluk, Tumkur District.
2. Heard Sri H.E. Ramesha, learned counsel appearing for the petitioner, Sri Spoorthy Hegde, learned High Court Government Pleader for respondents 1 to 5, Sri H.C. Prakash, learned counsel 4 appearing for respondent No.6 and Smt. Sruti Chaganti, learned counsel appearing for respondent No.7.
3. Facts, in brief, germane are as follows:
The State Government through the Department of Fisheries issues a notice inviting tender on 02nd September 2022. The tender was for the purpose of grant of fishing rights in the aforesaid two tanks. The petitioner and respondents 6 and 7 participated in the tender. The petitioner emerges to be the highest bidder for both the tanks. Respondents 6 and 7 were the next i.e., the second highest bidders. In this order petitioner would be referred to as H1 and likewise, respondents 6 and 7 as H2. In terms of the award of tender to the petitioner after he was declared to be H1, demand drafts had to be submitted as deposit for the purpose of issuance of orders granting fishing rights. The demand drafts were to reach the concerned on 1st of October 2022. It was later extended to 5.00 p.m. of 1st October 2022 to reach the concerned. The petitioner though takes demand drafts fails to reach the concerned officer of the Department before 5.00 p.m. of the said date. The next day 5 i.e., October 2nd was a holiday on account of Gandhi Jayanthi. On the 3rd of October, 2022, the next working day, when the petitioner sought to deliver demand drafts it was refused on the score that the contract is already awarded to the second highest bidder, H2, at 10.30 a.m. on 03rd October 2022.
4. This petition was thus filed on the very day i.e., on 03rd October 2022 seeking a direction for acceptance of demand drafts. This Court initially issued notice to the respondents and made award of tender to be subject to the result of the petition by its order dated 06th October 2022. This Bench, by an order dated 07th November 2022, directed impleadment of H2 persons into these proceedings, as by then the contract had been awarded. On 17th November 2022, the contract to the successful bidder was directed to be stalled in the event it was not already issued. The matter was heard later.
5. The learned counsel appearing for the petitioner would urge that the petitioner has emerged as the highest bidder. Demand drafts were also taken on 1st October 2022 to be delivered 6 to the office of the Assistant Director of Fisheries immediately, but by the time the petitioner could reach the office of the Assistant Director of Fisheries the office was locked and the petitioner could not deliver demand drafts which had admittedly been taken for their delivery. He would further contend that in similar cases where defective demand drafts were submitted and had not been taken those are accepted long after 1st October 2022. He would thus, contend that to defeat the rights of the highest bidder, on the opening of the next working i.e., 3rd October 2022 the contract is awarded to the next higher bidder, H2. He would submit that human problem for not reaching before 5 p.m. on 01st October 2022 takes away the right of the petitioner despite him being declared as H1.
6. On the other hand, the learned High Court Government Pleader representing the State would seek to defend the action, as the petitioner was sent a message on whatsapp that he should reach Sira before 5 p.m. and demand drafts should be produced before the Authority before 5.00 p.m. Admittedly, the petitioner has not reached the office of the Assistant Director of Fisheries on or 7 before 5.00 p.m. on 01st October 2022. Therefore, the office was closed after office hours and on the next working day since the petitioner had not remitted demand drafts, the contract was awarded to the second highest bidders, respondents 6 and 7. He would thus seek to defend the action of awarding of contract in favour of respondents 6 and 7. Insofar as acceptance of demand drafts of other persons, it is no doubt true that demand drafts were produced before 5.00 p.m. on 01st October 2022 but, since they were faulty, they had produced valid demand drafts on 04th October, 2022. Therefore, he would submit that the petitioner has lost his right despite being the highest bidder.
7. The learned counsel representing respondents 6 and 7, who have now been awarded the contract, would vehemently refute the submissions of the petitioner to contend that this Court should not interfere with the dispute between two tenderers. The dispute is that the petitioner did not furnish demand drafts before 5.00 p.m. on 01st October 2022 and therefore, no fault can be found with the contract being awarded to H2 in the morning of 3rd October 2022. Respondents 6 and 7 have invested huge amounts to rear the fish, 8 as contract was awarded to them and at this juncture, this Court should not interfere and permit the contract to be concluded as is awarded to H2.
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 not in dispute; they are all respective contentions which are a matter of record. A notice inviting tender was issued by the Department of Fisheries, Tumkur District for grant of fishing rights for a period of 5 years from 2022 to 2027 in two tanks i.e., Madhaluru Tank and Ramalingapura Tank within the precincts of Sira Taluk. The tender had certain conditions. The conditions were that the highest bidder, after his declaration to be the highest bidder, should furnish a demand draft within 24 hours of declaration of highest bidder. The financial bid was opened on 29th September 2022. Therefore, demand draft in terms of the Circular is supposed to have reached the concerned on or before 30th September 2022 before close of office hours. This 9 was extended up to the evening of 01st October 2022. These are facts which are not in dispute. The petitioner/highest bidder secures demand drafts on 01st October, 2022. The demand drafts are appended to the petition, all are in favour of the Assistant Director of Fisheries, Sira Taluk and the challans that were used to get demand drafts are also appended. The petitioner had to reach the office of the Assistant Director of Fisheries by 5.00 p.m. on 01st October, 2022. He did not. He has reasons for not having been able to reach the office before 5.00 p.m. on 01st October 2022. The next day being October 2, 2022, a national holiday on account of Gandhi Jayanthi. The next working day is 03rd October, 2022. Therefore, between 5.00 p.m. on 01st October 2022 and 10.30 a.m. on 03rd October 2022, there was nobody working in the office. The petitioner reaches the office of the 5th respondent in the morning hours of 03rd October 2022 only to be shown an endorsement that contract is awarded to H2, in the light of the petitioner not complying with the condition that he had to deliver demand drafts to the office on or before 5.00 p.m. on 01st October 2022. 10
10. It would have been an altogether different circumstance if the petitioner had not secured demand drafts as on 01st October 2022. He has in fact secured draft drafts as is necessary under the tender/circular, not to keep them in his pocket, but to deliver them to the 5th respondent. He is the highest bidder. It is un- understandable as to why the highest bidder of a fishing contract that too for a period of five years would take a demand draft before expiry of the last date and keep it with him and not furnish it to the concerned for award of contract.
11. It is the submission of the learned counsel for the petitioner that he could not reach the office before 5.00 p.m. and the office was closed later. This would stand to reason as the next working day was on 03rd October 2022 and in the morning hours of 03rd October 2022 the contract was already awarded to H2. This act of the State does not inspire confidence as H2 is awarded the contract in mortal hurry. If October 2, 2022 was a working day and the petitioner had reached the office on 3rd October, 2022 it would have been justified that the petitioner had lost his right. The rights of a highest bidder is sought to be whittled away by the act of the 11 State in issuing an endorsement and awarding the contract immediately to the next highest bidder, which on the face of it, is arbitrary. The tender condition though stipulated that within 24 hours of award of contract demand drafts should reach the concerned, this was extended up to 5.00 p.m. on 01st October 2022. The petitioner rushed to the office on 03rd October 2022 to deliver demand drafts which were dated 01st October 2022. In all fairness, in the light of the intervening holiday, the State ought to have accepted demand drafts and awarded contract to the highest bidder. What the State would do is surprising. It not only awarded the contract to H2 not at the rate that H2 had offered, but at the rate H1 had offered, to project as if there is no loss of revenue to the State. This is clearly a case where H2 has matched the price of H1 after the financial bid is opened and H1 is declared to be the highest bidder. Therefore, there appears to be a serious flaw in what the State has conducted itself in award of contract to H2.
12. The petitioner knocked at the doors of this Court on 03rd October 2022 itself and on 06th October 2022 this Court passed the following order:
12
"Learned Government Advocate accepts notice for the respondents.
The award of tender would be subject to the result of this writ petition.
Two weeks time is granted to comply with the office objections.
Re-list this matter on 12-10-2022.
Hand delivery of the order is permitted."
The order was that the award of contract would remain subject to the result of the petition. Therefore, it is a case of lis pendence. The contract is awarded to H2 and the award of contract is subject to the result of the petition. Then comes slew of orders of this court. On 07th November 2022 the following order is passed:
"Learned counsel appearing for the petitioner submits that the only issue in the case at hand is delayed remittance of the Demand Draft as he was the highest bidder in the Tender so issued for fishing rights. Since the petitioner had not deposited the amount on or before the closure office hours on 03.10.2022, contract was awarded in favour of H2 Bidders.
Learned counsel would submit that in other cases, the respondents have accepted the Demand Drafts in terms of the Tender even 4-5 days after the last date was over.
Learned counsel for the petitioner seeks leave of this Court to implead the person, who has been allotted fishing rights according to what is found in the statement of objections.13
Permission is granted.
List the matter on 17.11.2011 in 'Fresh Matters' list."
On 17th November 2022 the following order is passed:
"Issue notice to the impleading applicant. Petitioner is also permitted to serve the impleading applicant by way of hand summons.
The contract to the successful bidder shall not be issued, till the next date of hearing, if not already issued.
List the matter 22.11.2022 in 'Fresh Matters' list."
By then what happens was respondents 6 and 7 had sown the seedlings of the fish into the tanks for their harvest. Since the very action of award of contract was made subject to the result of the petition, the result would be binding upon H2. Therefore, the investment that H2 has made is also subject to the result of the petition.
13. The contention of the learned counsel for the petitioner is that contracts for several fish tanks were to be awarded to persons who would deliver demand drafts within the evening of 01st October 2022. But for two other tanks in Sira Taluk itself, the State directed to get a new demand draft on account of K2 challan not matching. 14 Notices were issued to those two tenderers and they read as follows:
"¸ÀASÉå: ºÀUÀÄ¥À/01/2022-23 ¢£ÁAPÀ:04/10/2022.
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...
"¸ÀASÉå: ºÀUÀÄ¥À/01/2022-23 ¢£ÁAPÀ:04/10/2022 £ÉÆÃnøï UÉ:
ªÀÄtÂPÀAoÀ ©£ï ¯ÉÃmï ºÀ£ÀĪÀÄAvÀgÁAiÀÄ¥Àà ¯QëöäøÁUÀgÀ, ®QëöäøÁUÀgÀ (¥ÉÆÃ) PÀ¸À¨Á (ºÉÆÃ), ²gÁ vÁ®ÆèPÀÄ.
ªÀiÁ£ÀågÉ, «µÀAiÀÄ: ¨Éë£ÀºÀ½î PÉgÉAiÀÄ ºÉZÀÄѪÀj ©qï ªÉÆvÀÛ ªÀÄvÀÄÛ ¨sÀzÀævÁoÉêÀt ªÉÆvÀÛ ¥ÁªÀwUÉ ¤ÃrzÀ r.r §zÀ¯Á¬Ä¹ PÉÆqÀĪÀ §UÉÎ.15
**** ªÉÄð£À «µÀAiÀÄPÉÌ ¸ÀA¨sÀA¢¹zÀAvÉ 2022-23 £Éà ¸Á°UÉ ²gÁ vÁ®ÆèQ£À E¯ÁSÁ PÉgÉUÀ¼À£ÀÄß E-mÉAqÀgï ªÀÄÆ®PÀ mÉAqÀgï DºÁ餸À¯ÁVvÀÄÛ. CzÀgÀAvÉ ¨Éë£ÀºÀ½î PÉgÉAiÀÄ DyðPÀ ©qï£ÀÄß ¢£ÁAPÀ:30/09/2022 gÀAzÀÄ vÉgÉAiÀįÁV ªÀÄtÂPÀAoÀ ©£ï ¯ÉÃmï ºÀ£ÀĪÀÄAvÀgÁAiÀÄ¥Àà, ®QëöäøÁUÀgÀ, ®QëöäøÁUÀgÀ (¥ÉÆÃ), PÀ¸À¨Á (ºÉÆÃ), ²gÁ vÁ®ÆèPÀÄ vÁªÀÅ £ÀªÀÄÆ¢¹gÀĪÀ ©qï ªÉÆvÀÛªÀÅ EvÀgÉ ©qÁÝgÀjVAvÀ ºÉaÑgÀĪÀÅzÀjAzÀ vÁªÀÅ ¨Éë£ÀºÀ½î PÉgÉAiÀÄ «ÄãÀÄ¥Á±ÀĪÁgÀÄ ºÀPÀÌ£ÀÄß ¥ÀqÉAiÀÄ®Ä H1 ©qïzÁgÀgÁVzÀÄÝ, ¸ÀzÀj PÉgÉAiÀÄ ºÉZÀÄѪÀj ©qï ªÀÄvÀÄÛ ¨sÀzÀævÁoÉêÀt ªÉÆvÀÛzÀ r.¹.¹ ¨ÁåAQ£À r.rUÀ¼À£ÀÄß vÁªÀÅ ¢£ÁAPÀ:01/10/2022 gÀAzÀÄ ¤ÃrzÀÄÝ, ¸ÀzÀj r.r UÀ½UÉ K2 Challan vÉUÉAiÀÄ®Ä ¢£ÁAPÀ:03/10/2022 gÀAzÀÄ ¥ÀæAiÀÄvÀß¹zÁUÀ K2 Challan generation ¸ÁzsÀåªÁVgÀĪÀÅ¢®è DzÀÝjAzÀ ¸ÀzÀj r.r UÀ¼À£ÀÄß §zÀ¯Á¬Ä¹ ¤ÃqÀ®Ä F ªÀÄÆ®PÀ w½¸ÀÄvÁÛ r.¹.¹ ¨ÁåAQ£À r.r UÀ¼À£ÀÄß F ¥ÀvÀæzÉÆA¢UÉ ®UÀwÛ¹ »A¢gÀÄV¹zÉ."
The notices issued to those tenderers were that they had to get a different demand draft which would mean that it was a defective demand draft that was delivered. This is accepted long after the last date fixed for delivery of demand drafts. This was some time in October 2022 in terms of documents appended to the memo filed by the respondent. The defence is that demand draft had already been submitted, which was defective. A defective demand draft is no demand draft in the eye of law. If those people have shown bona fides by depositing demand drafts which are defective and were directed to be changed after the due date, the human error of the petitioner, as explained hereinabove, ought to have been condoned and demand drafts produced by him ought to have been accepted, as there was not even one hour of difference between the 16 evening of 1st October, 2022 and the morning of 3rd October, 2022. By then not only endorsement is generated but contract is also awarded to H2. This action of the State becomes arbitrary.
14. The learned counsel appearing for respondent No.7 has sought to rely on several judgments of the Apex Court to contend that the Court should not interfere in contractual matters. Judicial review, in matters relating to contracts, would be extremely limited. She has placed reliance upon the judgments in the cases of: (i) JAGDISH MANDAL v. STATE OF ORISSA1 and (ii) STATE OF BIHAR v. AMRENDRA KUMAR MISHRA2 to buttress the submission that in the absence of no legal right the Court should not issue a writ in the nature of mandamus on the basis of sympathy.
15. There can be no qualm about the principles so laid down by the Apex Court. Their applicability to the facts of the case is what is to be noticed. The facts obtaining in those cases which are decided by the Apex Court are not the facts obtaining the case at 1 (2007) 14 SCC 517 2 (2006) 12 SCC 561 17 hand. Therefore, they become distinguishable without much ado. In the case at hand, the legal right that has flown to the petitioner is declaration of him as the highest bidder and all that remained was delivery of demand drafts, as explained hereinabove. Therefore, it is not a case that the petitioner did not have any legal right at all, as is observed by the Apex Court. No writ is considered to be issued on sympathy or misplaced sympathy. It is on the flow of a legal right that has flown in favour of the petitioner.
16. Insofar as non-interference in matters of contract, it is not in dispute that this Court would be extremely slow in interfering in the matter of tender or contract as it is in the best wisdom of the tender inviting authority to have the conditions incorporated and decide to whom the contract is to be awarded, except in cases where the action of the State is arbitrary. Arbitrariness is what was noticed in the entire action of the State in the light of the preceding analysis. Therefore, the award of contract to H2 is arbitrary and, therefore, unsustainable.
18
17. In the jugglery of dates and pendency of the petition, H2 has sown fish links into the tanks and they have all come to harvest, as close to a year has passed by. Therefore, respondents 6 and 7 who have invested money should be permitted to harvest fish in both the tanks, as the investment of respondents 6 and 7 cannot be reaped by the petitioner who is not awarded the contract so far. Therefore, H2 is permitted to harvest entire fish in both the tanks as on today. The petitioner shall be awarded the contract in terms of his declaration as H1 for the remaining period of the term in the tender.
18. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition is allowed.
(ii) Mandamus issues to respondents 1 to 5 to accept demand drafts of the petitioner and award contract in his favour. The contract shall run from the date of award of such contract and would be in operation for the term of the contract in terms of the subject tender.
The petitioner shall furnish all necessities for award of contract.
19
(iii) H2/respondents 6 and 7 who have invested in developing fish in the tanks are permitted to take the present harvest without any hindrance from any quarter. After harvesting of fish by respondents 6 and 7 is over, the contract shall be awarded in favour of the petitioner.
(iv) The aforesaid action shall be concluded within 4 weeks from the date of receipt of a copy of this order.
Consequently, I.A.No.1 of 2023 also stands disposed.
Sd/-
JUDGE bkp CT: SS