Karnataka High Court
Ghouse Ahmed vs The State Of Karnataka And Ors on 27 July, 2023
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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WA No. 200093 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
WRIT APPEAL NO.200093 OF 2023 (GM-TEN)
BETWEEN:
GHOUSE AHMED
S/O ALLAH BAKSH
AGED ABOUT: 33 YEARS, OCC: BUSINESS AND
PROPRIETOR OF GHOUSE AHMED
R/O: E/8/545, FILTERBED ROAD
TAJ NAGAR MUSLIM SANGH, KALABURAGI,
TQ. AND DIST: KALABURAGI-585 102
Digitally signed by
SOMANATH
PENTAPPA MITTE
Location: HIGH
...APPELLANT
COURT OF
KARNATAKA
(BY SRI SHIVANAND PATIL AND
SRI ARUNKUMAR AMARGUNDAPPA, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
VIDHAN SOUDHA BENGALURU 560001
REPRESENTED BY ITS PRINCIPAL SECRETARY
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NC: 2023:KHC-K:5922-DB
WA No. 200093 of 2023
2. THE DIRECTOR
DIRECTORATE OF MUNICIPAL ADMINISTRATION,
9TH AND 10TH FLOOR, VV TOWER,
DR. AMBEDKAR VEEDHI,
BENGALURU -01
3. THE COMMISSIONER
KALABURAGI CITY CORPORATION
NEAR JAGAT CIRCLE,
TQ. AND DIST: KALABURAGI-585 102
4. THE EXECUTIVE ENGINEER
AGED ABOUT: 34 YEARS, OCC: NILL
KALABURAGI CITY CORPORATION
NEAR JAGAT CIRCLE,
TQ. AND DIST: KALABURAGI-585 102
5. M/S RANJEET INFOTECH
MANPOWER AGENCY, # 10-27,
PLOT NO.12, TAYAMMA NILAYA,
SUBASH JADAV COLONY, UDNOOR ROAD
TQ. AND DIST: KALABURAGI-585 106
REPRESENTED BY
MEENAKSHI W/O SHASHIKANTH KORAWAR
AGE: 36 YEARS, OCC: HOUSEHOLD AND
BUSINESS
...RESPONDENTS
(BY SRI MALLIKARJUN C. BASAREDDY, GA FOR R1 AND R2;
SRI AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI GOURISH S. KHASHAMPUR, ADVOCATE FOR R3 AND R4;
SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE FOR R5)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO ALLOW
THIS WRIT APPEAL AND SET -ASIDE THE ORDER DATED
07.06.2023, PASSED IN W.P.NO.200919/2023 (GM-TEN), BY
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WA No. 200093 of 2023
LEARNED SINGLE JUDGE OF THIS COURT, CONSEQUENTLY
ALLOW THE WRIT PETITION FILED BY THE APPELLANT /
PETITIONER, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant, who is unsuccessful in his W.P.No.200919/2023 which stands dismissed by order dated 07.06.2023 but with certain directions, is in appeal. The material directions issued by the writ Court read as under:
"ii. Respondent Nos.3 and 4 are directed to continue with the Tender Notifications at Annexures-H, J and K by issuing an addendum extending the time by a period of thirty days.
iii. The impleading applicant as also the petitioner or anybody-else are permitted to participate in the said tender process by submitting their bids or revised bids within the time frame as may be fixed in the Addendum."
The writ Court, in addition to the directions as aforesaid, has also directed the Director, Directorate of Municipal Administration - the second respondent - to cause an -4- NC: 2023:KHC-K:5922-DB WA No. 200093 of 2023 enquiry into the subject tender process and submit a report within a period of 30 days from the date of the order. This conclusion is ostensibly because of its opinion that the manner in which the tender process is conducted by the third and fourth respondents reeks of mala fides. The third and fourth respondents have filed an application for recall of this direction.
2. The facts necessary for disposal of this writ appeal would be that a Tender Notification consisting of three packages for supply of food packages to sanitation workers employed by the Kalaburagi City Corporation is issued on 21.09.2022. The petitioner and M/s. Gutti Basaveshwar Man Power Agency [for short, the Man Power Agency] are the qualified bidders, but both of them had submitted a financial quote of Rs.27/- per plate, the minimum price mentioned in the Tender Notification. It appears that certain proceedings are drawn by the third and fourth respondents to cancel the entire tender process because both the appellant and the aforesaid Agency had submitted similar financial quote, but these proceedings are -5- NC: 2023:KHC-K:5922-DB WA No. 200093 of 2023 not made part of the record. The fourth respondent has issued a fresh tender on 04.03.2023 for the same three packages, and the appellant has called in question the second Tender Notification in the subject writ petition and an interim order is granted.
3. The fourth respondent contends before this Court that because of the interim order granted and the exigency to take measures to ensure food is supplied to the sanitation workers, a decision was taken to invite both the appellant and the Man Power Agency, at the request of the appellant, for negotiations. The appellant and the Man Power Agency have consented to share the three packages with appellant agreeing to take two of the packages and the Agency agreeing to the third package. Though the letter of acceptance is also issued accordingly, this is not given effect to, and the fifth respondent, the successful tenderer in the previous period has continued to supply food to the sanitation workers.
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4. The writ Court has essentially dismissed the appellant's writ petition on the ground that once the second Tender Notification dated 04.03.2023 was issued, the third and fourth respondents could not have entertained any request from the appellant and issued letter of acceptance in terms of the negotiated arrangement and this decision appears is intended to favour the appellant. The writ Court, in this context, has also opined that the conduct of the entire tender process reeks of mala fides while also directing the Director, Directorate of Municipal Administration to hold an enquiry and file a report.
5. Sri Shivanand Patil, the learned counsel for the appellant, submits that the writ Court could not have dismissed the writ petition without examining the merits of the decision to issue second Tender Notification, especially when it is not even disputed that a financial quote of Rs.27/- per plate was an acceptable quote and neither the appellant nor the Man Power Agency was disqualified otherwise. The negotiations alluded to by the writ Court is -7- NC: 2023:KHC-K:5922-DB WA No. 200093 of 2023 not before the date of second notification but during the pendency of the proceedings.
6. Sri Ameet Kumar Deshpande, the learned Senior Counsel for the third and fourth respondents, submits that these respondents permitted the appellant and the Man Agency to negotiate because of the interim order was granted on 06.03.2023 staying the second Tender Notification dated 04.03.2023 and the authorities ought to have taken certain measures to ensure food was supplied to the sanitation workers. If the first Tender Notification is cancelled after due proceedings because the authorities had difficulty in making the choice between the two who are equally placed, and a certain decision is taken to meet the exigency, the writ Court could not have concluded that the tender process is conducted mala fide. This Court must therefore expunge such remark and also observe that no enquiry would be necessitated much less a report to this Court.
7. At the outset, this Court must observe that the fifth respondent perhaps unwittingly is the beneficiary of -8- NC: 2023:KHC-K:5922-DB WA No. 200093 of 2023 this dispute. His contract ought to have been ceased much earlier but is continued because of this litigation. The appellant cannot assert any right unless there is a concluded contract even if he had submitted one of the highest bids. The fact that, because of certain circumstances as now pleaded, the appellant and the Man Power Agency are called for a negotiation during the pendency of the writ petition cannot create an enforceable right in the appellant. The writ Court's order dismissing the challenge to the second notification dated 04.03.2023 must essentially be understood in this context and when so understood, this Court is not persuaded to opine that there is any reason for interference.
8. On the question of interference with the directions issued for an enquiry by the Director, Directorate of Municipal Administration, this Court must opine that such enquiry is not because of a concluded opinion and if it were to be so, there would have been no occasion for the writ Court to direct an enquiry. The fact that an enquiry is directed by itself demonstrates that the opinion is recorded -9- NC: 2023:KHC-K:5922-DB WA No. 200093 of 2023 as a reason to opine that the circumstances justify an an enquiry.
9. It is canvassed on behalf of the third and fourth respondents that proceedings are drawn for cancellation of the tender dated 21.09.2022 and it is only after such proceedings the second Tender Notification is issued on 04.03.2023, but these are circumstances that could be placed before the Director, Directorate of Municipal Administration who will have to consider the merits of such contention on merits without being influenced by any observation in the writ Court's order. If certain circumstances emerge and an enquiry is directed so that the concerned in the hierarchy of administration looks into it after due opportunity to all the concerned, this Court is of the considered view that the directions in this regard need not be interfered only because of an apprehension of some difficulty.
10. The question canvassed are answered accordingly, and the writ appeal stands disposed of
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NC: 2023:KHC-K:5922-DB WA No. 200093 of 2023 clarifying that the tender accepting authority, while acting in terms of the directions issued by the writ Court for finalization of the tender process, shall act strictly in accordance with law without being influenced by any observation made in the course of this order or in the course of the writ Court's order against of the parties. It must also be observed that the Director, Directorate of Municipal Administration shall file a report as directed by the writ Court within reasonable time and in any event within an outer limit of five [5] months from the date of receipt of a certified copy of this order.
Sd/-
JUDGE Sd/-
JUDGE SWK List No.: 1 Sl No.: 21