Karnataka High Court
M/S Yojaka India Private Limited vs State Of Karnataka on 11 March, 2022
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.4179/2021 (GM-TEN)
BETWEEN:
M/S. YOJAKA INDIA PRIVATE LIMITED
A PRIVATE LIMITED COMPANY INCORPORATED
UNDER INDIAN COMPANIES ACT,
HAVING ITS REGISTERED OFFICE AT
D. NO.3-2B/43, 2ND FLOOR,
ABCO TRADE CENTER, NH17,
KOTTARA CHOWKI
MANGALURU-575 006
REP. BY ITS MANAGING DIRECTOR
SRI JAGADISH BOLOOR.
...PETITIONER
(BY SRI VENUGOPAL M S, ADV.)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF PUBLIC WORKS,
PORTS AND INLAND WATER TRANSPORT,
VIKASA SOUDHA,
BENGALURU-560 001,
REP. BY ITS SECRETARY.
2. THE APPELLATE AUTHORITY AND
PRINCIPAL SECRETARY TO THE GOVERNMENT,
DEPARTMENT OF INFRASTRUCTURE DEVELOPMENT,
PORTS AND INLAND WATER TRANSPORT,
2
VIKASA SOUDHA,
BENGALURU-560 001.
3. EXECUTIVE ENGINEER,
PUBLIC WORKS,
PORTS AND INLAND WATER TRANSPORT,
PORTS AND FISHERIES DIVISION, UDUPI.
2ND FLOOR SHAMILI HALL
AMABALAPADY, UDUPI-576 101.
4. TECHNICAL BID EVALUATION COMMITTEE
REP. BY ITS CHAIRMAN AND
CHIEF ENGINEER, C AND B NORTH,
DHARAWAD-580001.
5. THE CHIEF ENGINEER,
PUBLIC WORKS DEPARTMENT,
GOVERNMENT OF KARNATAKA,
NORTH ZONE,
DHARAWARD-580001.
6. SRIPATHY ASSOCIATES
CIVIL ENGINEERING CONTRACTORS,
NO.62, THANGAPERUMAL STREET,
ERODE-638001
REP. BY ITS AUTHORISED SIGNATORY.
...RESPONDENTS
(BY SRI R SUBRAMANYA, AAG A/W
SRI M VINOD KUMAR, AGA FOR R1, R2 & R3
R4 & R5 SERVED
SRI BASAVARAJ V SABARAD, SR.COUNSEL A/W
SRI H L PRADEEP KUMAR, ADV. FOR R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER PASSED BY THE R-3 DATED 19.12.2020 VIDE
ANNEXURE-C ISSUED BY THE R-3 IN SO FAR AS THE
PETITIONER IS CONCERNED ISSUED BY THE R-3 AND QUASH
3
THE WORK ACCEPTANCE LETTER DATED 16.02.2021 ISSUED
BY THE R-3 VIDE ANNEXURE-G AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
The petitioner, claiming to be a reputed Construction Company specialized in Jetty Construction, Dredging, Floor Protection Works, Bridges and Road is before this Court under Article 226 of the Constitution of India, praying for a writ of certiorari to quash the letter dated 19.12.2020 bearing No.EE P&F/DVN/Udupi/AE/Hejamadi Kodi/997/2020-21 addressed by the 3rd respondent to the Superintending Engineer (Annexure-C); to quash the acceptance letter dated 16.02.2021 bearing No. No.EE P&F/DVN/Udupi/AE/ Acceptance letter/1336/2020-21 (Annexure-G); for a direction to defer the further actions pursuant to the tender notification No.KPWD/2020-21/OW/WORK-INDENT124184 for the work of "Development of Hejamadi-Kodi Fishery Harbour in Kaup Taluk, Udupi District" dated 28.08.2020 vide Annexure-A; a direction to 3rd respondent to consider 4 and to open financial bid of the petitioner and to quash the order bearing No.JDD 16 PSP 2021 (414939) dated 10.02.2021 (Annexure-P), appellate order.
2. Heard learned counsel Sri.Anand R Kolli for Sri.M.S.Venugopal, learned counsel for the petitioner, learned Additional Advocate General Sri.Subramanya along with Sri.M.Vinod Kumar, learned AGA for respondents No.1 to 3, Sri.Basavaraj V Sabarad, learned Senior Counsel for respondent No.6. Perused the entire writ petition papers.
3. The 3rd respondent/Executive Engineer-Tender Inviting Authority issued Tender Notification dated 28.08.2020 inviting tenders from interested and qualified tenderers for execution of Development of Hejamadi-Kodi Fishery Harbour in Kaup Taluk, Udupi District; last date for submission of the tender was 30.11.2020. After scrutiny, opening of technical bid was on 21.12.20220. The amount put to tender was about Rs.132,53,11,390.28/-.
5
4. The petitioner as well as 6th respondent submitted their tenders in pursuance of the Tender Notification dated 28.08.2020. The tender of the petitioner was rejected at the stage of opening of the technical bid as the petitioner had not fulfilled the qualification prescribed under clause 3.2(c) of Tender Notification. The tender of 6th respondent was accepted and letter of acceptance of tender was issued on 16.02.2021. Pursuant to which, an agreement was entered into on 26.02.2021 and on the same day, work order was also issued. The work site was handed over to the successful bidder/6th respondent herein on 03.03.2021.
5. Learned counsel for the petitioner submits that the petitioner having come to know that petitioner's tender was rejected under communication dated 19.12.2020 (Annexure-C), the letter written by the 3rd respondent to Superintending Engineer, he preferred an appeal before the second respondent/Appellate Authority. The Appellate Authority without appreciating the contentions raised by the 6 petitioner, under its order dated 10.02.2021 (Annexure-P) rejected the appeal. Learned counsel for the petitioner submits that when the matter was listed for preliminary hearing on 15.03.2021, this Court granted interim order restraining the 6th respondent from proceeding with the work entrusted.
6. Learned counsel for the petitioner urges two grounds in support of his prayer. The first ground is being that even though the petitioner fulfills the criteria prescribed under clause 3.2(c) of Tender Document i.e., Annexure-A, the respondent-Tender Accepting Authority, without examining, rejected petitioner's tender which is wholly arbitrary and unreasonable. One of the qualifications prescribed is that a tenderer must have executed the work stated in Clause 3.2(c) in any one of the financial year out of last 5 years. It is his submission that if the work executed by the petitioner taken cumulatively during the previous five years, he would qualify and his tender ought to have been considered. Inviting 7 attention of this Court to Annexure-J, he submits that the petitioner has carried out the work of Dredging and Reclamation to an extent of 2,98,674.38 M3 and while completing the work of Construction of Mangalore 3rd Stage Fishery Harbour at Mangalore, Mangalore Taluk and D.K. District and other works, he has carried out Construction of Fish Landing Center at Koderi near Byndoor and he also invites attention to other documents to contend that he qualifies all the criteria stated above.
7. Nextly, learned counsel contends that the order of the Appellate Authority is unreasoned and non-speaking order. He would contend that even though the Appellate Authority extracted the contentions raised by the petitioner, thereafter failed to answer the contentions by assigning reasons. Inviting attention to internal page 7 of the appellate order, learned counsel would submit that the Appellate Authority merely stating that the documents uploaded by the petitioner were examined and found that only 2 out of 8 items have 8 been satisfied. Thus, he submits that the second respondent as an Appellate Authority discharges the function of quasi judicial, ought to have assigned reasons. Learned counsel also raises a contention that the Executive Engineer who was functioning as on that date was to retire within next six months, as such he could not have accepted the tender, in view of the proviso to Section 13 of the Karnataka Transparency in Public Procurement Act, 1999. Thus, learned counsel prays for allowing the writ petition.
8. Learned Additional Advocate General appearing for respondent-State submits that the tender of the petitioner was rejected solely on the ground that he had not fulfilled the qualifications or criteria required for executing the work tendered under Annexure-A. He invites attention of this Court to clause 3.2(c) of Annexure-A/Tender Document to say that out of 8 criteria or qualifications, the petitioner has fulfilled only 2. Therefore, the tender of the petitioner was rejected at the stage of technical evaluation itself. It is his 9 submission that the person who would not fulfill the qualifications required for the tender cannot claim that rejection of his tender is bad. According to the learned Additional Advocate General, it is for the Tender Inviting Authority to incorporate conditions of tender depending on the nature of work that is tendered. Further it is submitted that the criteria mentioned at clause 3.2(c) is absolutely necessary for executing the work of Development of Hejamadi-Kodi Fishery Harbour in Kaup Taluk, Udupi District. Those criteria are incorporated only to see that the project is implemented properly and to assess the capacity of the tenderer. Further, the learned Additional Advocate General would submit that the petitioner had submitted fabricated documents with regard to his carrying out certain works to establish the work quantity. To find out truthfulness of the documents, the State Government had written to the authority where the tenderer said to have executed the work. The reply received from the office of the Executive Engineer, Valsad Road and Building Division, 10 Valsad clearly states that the petitioner has not carried out the work of such nature.
9. With regard to the contention that the Appellate Authority has not assigned reasons and the second respondent-Appellate Authority discharges the quasi judicial function, learned Additional Advocate General submits that the appeal before the second respondent-Authority is only administrative appeal and he would not discharge the function of either judicial or quasi judicial. In support of his contention, he relies upon decision of the Hon'ble Apex Court reported in (2020)16 SCC 489 in the case of SILPPI CONSTRUCTIONS CONTRACTORS v/s UNION OF INDIA AND ANOTHER. Further with regard to the contention that the Appellate Authority has not assigned reasons, he relied upon the decision of the co-ordinate Bench dated 17.09.2021 in W.P.No.1430/2021 and other connected writ petitions (M/S.YOJAKA INDIA PRIVATE LIMITED v/s STATE OF KARNATAKA AND OTHERS). It is submitted that no reasons 11 need be assigned and the respondents could justify the rejection of tender by assigning reasons in their statement or affidavit before the Court. Thus, learned Additional Advocate General prays for dismissal of the writ petition.
10. Learned Senior Counsel Sri.Basavaraj V.Sabarad supports the submission of the learned Additional Advocate General and in addition he submits that the petitioner is before this Court only after the work order was issued to the 6th respondent and work site was handed over him. It is submitted that as the petitioner had not qualified or has not fulfilled the criteria, the Tender Accepting Authority has rightly rejected the bid of the petitioner.
11. On hearing the learned counsel for the parties and on perusal of the writ petition papers, the only point that arises for consideration is as to whether the rejection of the petitioner's tender is justified?
12
12. Answer to the above point would be in the affirmative for the following reasons:
The petitioner submitted his tender pursuant to Annexure-A/Tender Notification dated 28.08.2020 to execute the work of "Development of Hejamadi-Kodi Fishery Harbour in Kaup Taluk, Udupi District". The 3rd respondent-Executive Engineer is the Tender Inviting Authority and the Tender was through e-procurement of Government of Karnataka. The Tender Notification is governed by the Karnataka Transparency in Public Procurement Act, 1999 and the Karnataka Transparency in Public Procurement Rules, 2000 (for short "the Act and Rules"). The amount put to tender was approximately Rs.132.53 crores. Clause 3.2(c) prescribes the qualification and if the tenderer qualifies the criteria enumerated therein, then only he would be qualified technically and to participate in the next stage i.e., for financial bid. Clause 3.2(c) requires a tenderer execution of item of works stated therein in any one of the financial years in the last 5 years. Clause 3.2(c) reads as follows:13
Minimum Sl.
Item of work Approximate
No.
Qty
1. Cement Contract 15306.36 CUM
(PCC/RCC)
2. Dredging 282360.00 CUM
3. Primary/Secondary 368559.30 M.T
Stones
4. Armour Stones 121743.99 M.T
5. Tetrapods 8493.60 Nos
6. Steel Liner
7. Bored/Cast in Situ 2303.20 Rmtr
Piles
8. TMT Steel 628.37 Tonne
The tender of the petitioner is rejected on the ground that the petitioner would not qualify since he has not executed the items of work together in any one of the financial year during last five years as enumerated under Clause 3.2(c). The clause requires execution of items of work enlisted therein in any one of the financial years in the last 5 years. The contention that the petitioner has executed items of work stated therein in different financial years of the last 5 years and if cumulatively taken, he would qualify as required. But the contention of the petitioner to take the work executed cumulatively cannot be accepted, it requires execution of 14 items of work stated therein together as one work in any one financial year in the last 5 years. It would not provide for cumulative work carried out as the work executed in one financial year. The interpretation of clause in a tender document is always better left to the Tender Inviting Authority and to their wisdom. The Court or any other Authority cannot interpret the requirement of a qualification of a tenderer. The requirement of execution of work to qualify for submission of tender always depends on the nature of work tendered and always conditions are incorporated to assess the capacity of a tenderer to execute the work put to tender. The following table would amply makes it clear that the petitioner has not fulfilled the qualification or criteria laid down under clause 3.2(c) of the tender document.
Minimum
Sl. Agency Uploaded
Item of work Approximate
No. Qty
Qty
1. Cement Contract 15306.36 CUM 46164.50 CUM
(PCC/RCC) (Satisfied)
2. Dredging 282360.00 CUM 1108000.00 CUM
(Satisfied)
3. Primary/Secondary 368559.30 M.T 69326.00 CUM
Stones (95668.99 MT)
(Not Satisfied)
15
4. Armour Stones 121743.99 M.T 72020.50 CUM
(114185.10 MT)
(Not Satisfied)
5. Tetrapods 8493.60 Nos 1164 Nos
(Not Satisfied)
6. Steel Liner 207.43 Tonne -(Not Satisfied)
7. Bored/Cast in Situ 2303.20 Rmtr 303.00 Rmtr
Piles (Not Satisfied)
8. TMT Steel 628.37 Tonne 312.73 Tonne
(Not Satisfied)
A careful perusal of the above table indicates that except item Nos.1 and 2, the petitioner has not qualified in any other items i.e., items No.3 to 8. Thus, a person who has not carried out the work as expected by the Tender Inviting Authority would not be entitled for award of tender work. Thus, the respondents are justified in rejecting the tender of the petitioner.
13. The petitioner contended that the order of the appellate authority is neither a reasoned nor a speaking order and further it is contended that the second respondent-Appellate Authority is discharging the functions of quasi judicial authority, as such, it is expected to assign reasons. This contention of the petitioner is liable to be rejected as the 16 appeal under the Act is an administrative appeal and the appellate authority need not assign elaborate reasons. The Hon'ble Apex Court in the case of SLIPPI CONSTRUCTIONS CONTRACTORS (supra) at paragraph 25 has held as follows:
"25. That brings us to the most contentious issue as to whether the learned Single Judge of the High Court was right in holding that the appellate orders were bad since they were without reasons. We must remember that we are dealing with purely administrative decisions. These are in the realm of contract. While rejecting the tender the person or authority inviting the tenders is not required to give reasons even if it be a State within the meaning of Article 12 of the Constitution. These decisions are neither judicial nor quasi- judicial. If reasons are to be given at every stage, then the commercial activities of the State would come to a grinding halt. The State must be given sufficient leeway in this regard. The Respondent nos. 1 and 2 were entitled to give reasons in the counter to the writ petition which they have done."
The above portion of the decision of the Hon'ble Apex Court makes it clear that the appellate orders in the matter of tenders are neither judicial nor quasi judicial and it is purely administrative decision. Further, it is held that while 17 rejecting the tender, the person or authority inviting tenders is not required to give reasons. It is also held that the rejection could be justified by giving reasons in the counter to the writ petition.
14. The co-ordinate Bench in W.P.No.1430/2021 and connected writ petitions disposed of on 17.09.2021 at paragraph (f) it is held as under:
"f) The vehement contention of petitioner's counsel that the grounds urged by the learned AAG are not the reasons on which the impugned orders have been structured and therefore they cannot be countenanced vide decision of the Apex Court in MOHINDER SINGH GILL VS. CHIEF ELECTION COMMISSIONER, AIR 1978 SC 851, does not much come to his aid; that was a case involving the examination of decisions of a constitutional authority namely, the Election Commission of India and they were taken in exercise of power under Article 324 of the Constitution of India; the Apex Court observed that the validity of orders of the statutory authorities have to be adjudged on the basis of the reasons assigned therein and that these reasons cannot be supplemented de hors, is true; however, case of the petitioner essentially 18 relates to the realm of contract, as already mentioned above; it has been a settled position of law for more than a century that, a decision is an authority for the proposition that it actually lays down in a given fact matrix and not for all that which logically follows from what has been so laid down vide Lord Halsbury in QUINN vs. LEATHEM, (1901) AC 495; learned AAG is more than justified in banking upon a recent decision of the Apex Court in SILPPI CONSTRUCTIONS CONTRACTORS Vs. UNION OF INDIA, (2020) 16 SCC 489, to the effect that even in writ petitions, the grounds that are a bit a alien to the ones stated in impugned orders of the kind, can be urged to defeat a challenge thereto; at para 25, it is observed as under:
"25. That brings us to the most contentious issue as to whether the learned single judge of the High Court was right in holding that the appellate orders were bad since they were without reasons. We must remember that we are dealing with purely administrative decisions. These are in the realm of contract. While rejecting the tender the person or authority inviting the tenders is not required to give reasons even if it be a state within the meaning of Article 12 of the Constitution. These decisions are neither judicial nor quasi-judicial. If reasons are to be given at every stage, then the commercial activities of the State would come to a grinding halt. The State must be given sufficient leeway in this regard. The Respondent nos. 1 and 2 were entitled to give reasons in the counter to the writ petition which they have done.""19
The co-ordinate Bench was of the view that the Appellate Authority need not assign any reasons and the rejection could be justified by assigning reasons in the counter to the writ petition. Thus, the second contention also fails and accordingly the same is rejected.
15. Lastly, learned counsel for the petitioner contended that the decision of the 3rd respondent is opposed to proviso to Section 13 of the Act. The first proviso to Section 13 states that the Tender Inviting Authority consists of Single Officer who is due to retire within next six months from the date fixed for acceptance of tender, he shall not act to accept the tender without obtaining prior approval of the Procurement Entity. In the instant case, the 3rd respondent is the Tender Inviting Authority and 3rd respondent was not the Tender Accepting Authority. As such, the proviso to Section 13 relied upon by the petitioner would not assist the case of the petitioner. Whether the petitioner submitted fabricated 20 documents or not need not be gone into in detail, since it is a matter of record and petitioner is to be given an opportunity.
16. For the reasons stated above, there is no merit in any of the contentions raised by the petitioner and accordingly, the writ petition stands rejected.
Sd/-
JUDGE mpk/-* CT:bms