Karnataka High Court
Toto Outsourcing Solutions Private ... vs State Of Karnataka on 18 July, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO.29881 OF 2018 (GM-TEN)
BETWEEN:
Toto Outsourcing Solutions Private Limited
No.17, 1st Floor,
Dispensary Road,
Bengaluru - 560 001.
Represented by
Authorized Signatory,
Mr. Kumar K.V. ...Petitioner
(By Sri. Dhyan Chinnappa, Senior Advocate,
Sri. Aditya Narayan, Advocate)
AND:
1. State of Karnataka
Represented by the
Director of Horticulture,
Department of Horticulture,
Lalbagh Gardens,
Bengaluru - 560 004.
2. The Director
Department of Horticulture,
Lalbagh Main Gate,
Lalbagh,
Bengaluru - 560 004.
3. The Deputy Director
Department of Horticulture,
Lalbagh Main Gate,
2
Lalbagh,
Bengaluru - 560 004. ...Respondents
(By Sri. Vijay Kumar A. Patil, AGA)
This Writ Petition is filed under Articles 226
and 227 of the Constitution of India, praying to
declare that the tender dated 12.06.2018 (Annexure-
A) in its present form incorporating the conditions at
Clauses 1 to 3, Section III (At page No.28) and
Clause-3, Section-III, Special Conditions of Contract
read with Clause 1, other special conditions is illegal
and quashing the same and etc.,
This writ petition coming on for Preliminary
Hearing this day, the Court made the following:
ORDER
Second respondent invited bids for providing of services for collection of entry fee and vehicle parking fee at Lalbagh Garden, Bengaluru for a period of one year by notification No.DDH/LBG/CW1/60/2017-18 dated 12.06.2018, by uploading same in the e-portal of the Government of Karnataka.
2. This writ petition is filed for a declaration that impugned tender notification in its present form incorporating conditions at Clauses 1 to 3 of Special Conditions of Contract as illegal and for a direction to respondents to issue fresh tender notification by 3 disclosing the details of "input" referred to in Clause 1.6 of the data sheet (internal page 10) of tender document by specifically, providing total average footfalls on a daily basis as well as during flower shows at least for past three years, average daily and total expenditure incurred during the flower shows conducted by respondent Nos.2 and 3 for the last three years.
3. I have heard the arguments of learned Senior counsel Sri.Dhyan Chinnappa for petitioner and Sri.Vijay Kumar A.Patil, AGA for respondents.
4. It is the contention of Sri. Dhyan Chinnappa, learned Senior counsel appearing for petitioner that tender notification is flawed for want of details in as much as respondent authorities have invited tender for collection of parking fee from public and collection of entry fee from public visiting Lalbagh Garden and there would be fluctuation in number of visitors who would be visiting and it depends on which day of the week as also certain 4 months and in the absence of details being furnished in that regard as indicated by the tender inviting authority itself, petitioner who is probable bidder would be handicapped to offer his bid. He would further contend that while tender inviting authority would have a right to such conditions as it may deem fit in the tender notification, it is required to maintain level playing field for all the tenderers, who participate in the tender, particularly, in the background of ensuring that tender inviting authority would expect highest revenue in the process and respondent Nos.2 and 3 being instrumentality of the State will have to act in a fair manner and not artificially. He would further elaborate his submission by contending that in the absence of technical details relating to collection of previous years being provided in the tender notification itself, respondent authorities would be required to furnish the same as and when they are sought for by the tenderers, as otherwise there would be no level playing field to bid for the tenders and the bidders of previous year 5 would have advantage of such details being available with them.
5. He would rely upon the judgment of the Hon'ble Apex Court reported in 2007 (8) SCC 1 in the case of Reliance Energy Limited and another Vs. Maharashtra State Road Development Corporation Limited and others in support of his submission and contends that if this Court were to reject the contention of petitioner for any reason than last date fixed for submission of tender be extended to enable the petitioner to submit its bid, in view of subsequent development namely, certain data having been furnished by respondent-State in these proceedings.
6. Per contra, learned AGA, Sri. Vijay Kumar A. Patil, appearing for respondents would support the impugned tender notification and submits that tender impugned cannot be found fault with, since conditions stipulated thereunder is clear and there is no ambiguity and if at all any doubts which according 6 to petitioner was existing, they were at liberty to seek such clarification of such doubts in the pre-bid meeting held on 02.07.2018, in which meeting petitioner did not participate and as such, contention now raised in this petition is only to postpone the tender process. Hence, he prays for dismissal of the petition.
7. Having heard the learned counsel appearing for petitioner and on perusal of records, it requires to be noticed at the outset that Hon'ble Apex Court in the case of Reliance Energy Limited and another Vs. Maharashtra State Road Development Corporation Limited and others reported in 2007 (8) SCC 1, has held if there is vagueness or uncertainty in the tender norms specified, it may result in unequal and discriminatory treatment and it would violate the doctrine of level playing field. It has been held:
"36. We find merit in this civil appeal. Standards applied by Courts in judicial review must be justified by 7 constitutional principles which govern the proper exercise of public power in a democracy. Article 14 of the Constitution embodies the principle of "non- discrimination". However, it is not a free- standing provision. It has to be read in conjunction with rights conferred by other articles like Article 21 of the Constitution. The said Article 21 refers to "right to life".
It includes "opportunity". In our view, as held in the latest judgment of the Constitution Bench of nine Judges in I.R. Coelho V. State of T.N, Articles 21/14 are the heart of the chapter on fundamental rights. They cover various aspects of life.
"Level Playing Field" is an important concept while construing Article 19(1)(g) of the Constitution. It is this doctrine which is invoked by REL/HDEC in the present case. When Article 19(1)(g) confers fundamental right to carry on business to a company, it is entitle to invoke the said doctrine of "Level Playing Field". We may clarify that this Doctrine is, however, subject to public interest. In the word of globalization, competition is an important factor to be kept in mind. The doctrine of "Level 8 Playing Field" is an important doctrine which is embodied in Article 19(1)(g) of the Constitution. This is because the said doctrine provides space within which equally placed competitors are allowed to bid so as to sub serve the larger public interest. "Globalization", in essence, is liberalization of trade. Today India has dismantled licence raj. The economic reforms introduced after 1992 have brought in the concept of "Globalization".
Decisions are acts which result in unequal and discriminatory treatment, would violate the doctrine of "level playing field"
embodied in Article 19(1)(g). Time has come, therefore, so say that Article 14 which refers to the principle of "equality"
should not read as a stand alone item but it should be read in conjunction with Article 21 which embodies several aspects of life. There is one more aspect which needs to be mentioned in the matter of implementation of the aforestated doctrine of "level playing field". According to Lord Goldsmith, commitment to the "rule of law"
is the art of parliamentary democracy. One of the important elements of the "rule 9 of law" is legal certainty. Article 14 applies to Government Policies and if the policy or act of the Government, even in contractual matters, fails to satisfy the test of "reasonableness", then such an act or decision would be unconstitutional.
37. In Union of India V. International Trading Co. the Division Bench of this Court speaking through Pasayat, J had held: (SCC p.445, para 14-15) "14. It is trite law that Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional.
15. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 10 14 and the requirement of the every State action qualifying for its validity on this touch stone irrespective of the field of the activity of the State is an accepted tenet. The basis requirement of Article 14 is fairness in action by the State, and non- arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrainess is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of the given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness."
38. When tenders are invited, the terms and conditions must indicate with legal certainty, norms and benchmarks. This "legal certainty" is an important 11 aspect of the rule of Law. If there is vagueness or subjectivity in the said norms it may result in unequal and discriminatory treatment. It may violate doctrine of "level playing field".
8. As held by the Hon'ble Apex Court, tender inviting authority would be required to indicate with 'legal certainty' norms and benchmarks as otherwise the tenderers would be at dis-advantageous position. Such situation would vary from facts of each case. It cannot be defined in a straight jacket formula as to what should be the benchmark specified under the tender notification by the tender inviting authority.
9. Keeping these principles in mind, when facts on hand examined, it would disclose that second respondent has invited tenders calling upon the tenderers to offer their bids for collection of entry fee and vehicle parking fee at Lalbagh Garden, Bengaluru for a period of one year. The details as to the entry fee to be collected in respect of category of persons who would be entering garden is specifically 12 indicated in the data sheet furnished in column No. 1.2 indicating thereunder, that "adult/children aged above 12 years" would be required to pay an entry fee of Rs.20/-. Likewise, two wheeler vehicles have been classified under one category and such vehicles would be required to pay entry fee of Rs.20/-. In order to allay the apprehension of the bidders, it has been specifically indicated in Clause 1.6 that respondent would provide required inputs during the pre-bid meeting. In other words, second respondent has made it specifically clear that if there were any anticipated pit falls or short comings or details if required and sought for by bidders same would be provided by the second respondent. In that view of the matter, petitioner cannot be heard to contend that details regarding number of persons who have visited the garden in the past one year with details and number of days and such other details are also required to be furnished. When a bidder like petitioner intends to bid, it is expected of such bidder to undertake survey, collect data and all other details 13 before submitting its bid. However, under the guise of seeking technical details or probable pit falls the bidder would face, such bidders cannot be allowed to fish out the details or evidence at the time of submitting bids and thereby stall the tender process. In fact, as rightly pointed out by learned Additional Government Advocate appearing for respondents the only glitch a tenderer may face during the tender process in the instant case is regarding the collection of entry fee during two important days in a year during the period when the tender is in operation namely when two flower shows are held during the months of January and August which attracts visitors in thousands and lakhs. As such, tender inviting authority anticipating such contingency under the heading Other Special Conditions of Contract has specifically under the impugned tender notification indicated that tenderer would collect the rates for the whole year excluding two flower shows held during January and August and it has been specified thereunder that respondent would collect 14 fee of Rs.20/- per person as entry fee so collected by the Department by calculating the number of visitors who have visited would be paid to tenderer for the said period, after deducting 2/5th of the collection as expenses incurred for the arrangements made for the collection of entry fee.
10. In this background, petitioner cannot be heard to contend that respondents ought to have indicated or specified in the tender notification itself, as to number of persons who have visited in the previous year, so as to enable the petitioner to submit its bid. At the cost of repetition, it requires to be noticed that tenderer is also expected to undertake the exercise of making its own survey before submitting its bid and the yardstick for the same cannot be restricted to one week in a month or one day in a week and it would be in the domain of the bidder to collate all such information as it desires at the time of submitting its bid.
15
11. In that view of the matter, this Court finds that relief sought for by the petitioner in this writ petition cannot be granted. Yet another aspect which cannot be lost sight is the fact that learned Government Advocate has infact made available statistics with regard to probable number of vehicles and number of persons who would be visiting Lalbagh Garden during the year and this would also allay the apprehension of the petitioner and it would definitely meet the requirement of a tenderer like petitioner namely providing data to be furnished by second respondent to the bidders as indicated in clause 1.6 of the tender document.
12. Yet another contention raised by the learned Senior counsel appearing for the petitioner for extension of time to submit the bid also cannot be acceded to for the simple reason that undisputedly petitioner had attended the pre-bid meeting held on 02.07.2018 and had sought for information which is now sought for in the present writ petition and same 16 had not been sought for by the petitioner in its representation submitted on the next day of the pre- bid meeting held and if same had been sought for it would have been obviously furnished to the petitioner by second respondent in the said pre-bid meeting itself. In the absence of any material to show that the petitioner had attended/participated and sought for its details in the pre-bid meeting, petitioner cannot be heard to contend the details relating to previous year collection ought to have been indicated in the impugned tender notification. Even otherwise, these details now having been furnished, extending the last date fixed in the tender document for submitting the bid cannot be accepted. In fact learned Government Advocate has submitted a corrigendum to the impugned tender notification has been issued by extending the last date upto 21.07.2018 upto 17.30 hours. Said submission is placed on record. 17
For the aforesaid reasons, this Court finds there is no merit in this writ petition. Hence, writ petition stands rejected.
Ordered accordingly.
SD/-
JUDGE MBM