Indian Oil Corporation vs M/S G.D.Anakal
2022 Latest Caselaw 3075 Kant

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         IN THE HIGH COURT OF KARNATAKA,
                 KALABURAGI BENCH

      DATED THIS THE 23RD DAY OF FEBRUARY, 2022

                      BEFORE

  THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
                        AND

   THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

           WA NO 200027 OF 2022 (GM TEN)

BETWEEN

INDIAN OIL CORPORATION
MARKETING DIVISION, SOUTHERN REGION,
SOUTHERN REGION INDIAN OIL BHAVAN,
139, NUNGAMBAKKAM HIGH ROAD,
CHENNAI 600034
BY ITS EXECUTIVE DIRECTOR,
TENDER INVITING AUTHORITY        ...APPELLANT

(BY SRI. AMRESH S. ROJA, ADV.)

AND

M/S G.D.ANAKAL
SHOP NO. 8-1376,
NEHRU GUNJ,
KALABURAGI 585102
BY ITS PARTNER DINESH
S/O. GANESH ANAKAL
                                       ...RESPONDENT

(BY SRI.HARSHVARDAN R.MALIPATIL, ADV.)
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   WRIT APPEAL FILED U/S.4 OF THE KARNATAKA HIGH
COURT ACT, BY THE ADVOCATE FOR APPELLANT PRAYING
THAT THIS HONOURABLE COURT TO SET ASIDE THE
ORDER    DATED     17.12.2021    PASSED  IN   WP
NO.202116/2021 BY ALLOWING THE ABOVE CAPTIONED
WRIT APPEAL, IN THE INTEREST OF JUSTICE.

     This appeal coming on for admission this day,
K.S. Hemalekha J., delivered the following:


                              JUDGMENT

This intra-Court appeal by respondent

No.2/Indian Oil Corporation ("the Corporation" for

short), assailing the order dated 17/12/2021 in

W.P.No.202116/2021, passed by the learned single

Judge, whereby the learned Single Judge allowed the

writ petition setting aside the communication dated

28/10/2021 issued by respondent No.2/Corporation

and permitted the petitioner to participate in the

tender proceedings directing the Corporation to

consider the financial bid of the petitioner by

evaluating the same in accordance with law.

2. The parties herein shall be referred to as

per their ranking before the learned single Judge.

3. Brief facts arose for filing of this appeal is

that the petitioner is a registered partnership firm

involved in the business of transportation of petroleum

products and that respondent No.2/Corporation had

called for tender for road transportation of bulk

petroleum products pertaining to the jurisdiction of

Kalaburagi depot on the official website.

4. The petitioner being interested in the said

tender, applied for the tender work. The tenderers

who were the partners of partnership firm as per the

tender document were required to produce the copy of

the registration certificate from the Registrar of firms,

wherein the names of all the partners are mentioned.

The relevant portion of the clause reads as under:

"Tenderers are required to submit copy of Registration Certificate from Registrar of Firms

to establish the registered partnership firm enclosing all annexures wherein names of all the partners of the said partnership firm are mentioned or Certificate of Incorporation (as applicable)."

5. The petitioner along with his application

submitted a copy of the Certificate of Registration of

firm issued by the Registrar of Firms, Kalaburagi, and

the deed of partnership, which discloses the names of

the partners. The respondent issued a query calling

upon the petitioner to furnish the documents relating

to the partnership firm. The petitioner on the query

by respondent No.2 furnished all the necessary

documents. However, it appears that respondent

No.2 rejected the tender of the petitioner during the

evaluation on the ground that the petitioner has not

furnished the annexures regarding the certificate of

partnership firm, wherein the names of all the

partners are listed.

6. According to respondent No.2/Corporation,

£ÀªÀÄÆ£É-J (Form-A) issued by the Registrar of Firms is

not produced by the petitioner and thus, rejected the

technical bid. Learned Single Judge held that the

rejection of the technical bid vide order dated

CC28/10/2021 is on the sole ground of not producing

£ÀªÀÄÆ£É-J (Form-A) issued by the Registrar of

Partnership Firm, which is on a technical ground as

the petitioner has produced the document to show

that the petitioner is qualified and the copy of the

partnership deed is produced wherein the names of

the partners of the partnership has been disclosed.

7. Heard Sri. Amresh S. Roza, learned counsel

appearing for the appellant and Sri. Harshavardhan R.

Malipatil, learned counsel appearing for the

respondents.

8. In addition to the various contentions

raised in the appeal, the first and foremost contention

canvassed by the learned counsel for the appellant is:

(i) That the writ petition filed is one without

jurisdiction as contemplated under Clause 22 of the

Tender document produced as per Annexure-D to the

writ petition and the said clause has not been adhered

to by the petitioner.

(ii) The Court of jurisdiction till the placement of

letter of acceptance is High Court of Madras and

thereafter, the High Court of Bangalore during the

contract period as per Clause 22 of the tender

notification.

Clause-22 reads as under:

"The Court of Jurisdiction till the placement of LOA is High Court of MADRAS and thereafter the High court of Bangalore during the contract period"

In support of his contention regarding

jurisdiction learned counsel for the appellant relied on

the judgment of the Hon'ble Apex Court reported in

(1994) 4 SCC 711 in the case of Oil and Natural

Gas Commission Vs. Utpal Kumar Basu and

Others, and the judgment of the High Court of

Orissa at Cuttack in W.P.(C) No.35107 of 2021 in

the case of Satyajit Panda, proprietor Vs. The

Indian Oil Corporation and another judgment of the

High Court of Judicature at Madras in W.P.

No.24153/2021 and W.M.P Nos.25475, 25478

and 25479 of 2021 in the case of M/s. Om

Ganesha Metal Drums V/s. The General Manager

and another.

(iii) The requisite annexures £ÀªÀÄÆ£É-J (Form-A)

as contemplated under Clause 8 and item No.6 of the

tender document having not been produced by the

petitioner has resulted in rejecting the tender bid of

the petitioner by respondent No.2 -Corporation.

(iv) The requirements for production of requisite

annexures £ÀªÀÄÆ£É-J (Form-A) as per the tender

document is to verify the registration of the

partnership firm and also to verify the names of the

partners.

9. Under these circumstances, the learned

counsel for the appellant would seek to contend that

the order of the learned Single Judge is without

considering that the rejection of the tender bid is in

view of the non compliance of the requirements of the

tender document.

10. The learned counsel referred to the

following Clauses of the tender document.

Clause-8 reads as under:

"Tenderers are required to submit copy of Registration Certificate from Registrar of Firms to

establish the registered partnership firm enclosing all annexures wherein names of all the partners of the said partnership firm are mentioned or Certificate of Incorporation (as applicable)"

Items No.16 reads as under:-

"Registration Certificate from Registrar of Firms to establish the registered partnership firm enclosing all Annexures wherein names of all the partners of the said partnership firm are mentioned or Certificate of Incorporation in case of company."

11. Referring to these clauses, it is submitted

that the petitioner having not complied with the

tender document as such not entitled to be permitted

to participate in the tender proceedings.

12. Per contra, learned counsel for respondents

would contend that insofar as the jurisdiction of this

Court is concerned, the tender work pertains to

Gulbarga Depot of the respondent No.2 and petitioner

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has made a bid from Kalaburagi and thus, contended

that the cause of action arises within the jurisdiction

of Karnataka High Court as the work is executed in

the jurisdiction of the Karnataka High Court. It is

further canvassed that the learned Single Judge has

rightly taken into consideration regarding the

jurisdiction and has held that as the tender and

execution of work is within the jurisdiction of the

Karnataka High Court and thus, the Court has got

jurisdiction to entertain the writ petition. It is also

contended that the petitioner has complied with the

query raised by respondent No.2 and furnished the

partnership deed showing the names of the partners.

Thus, the contention of the appellant-Corporation that

the requirement of Annexures-£ÀªÀÄÆ£É-J (Form-A)

which is sought to be furnished is not produced by the

petitioner is not sustainable as the petitioner has

produced the registered partnership deed issued by

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the Registrar of Firms showing the names of the

partners of the partnership firm and thus would

contend that the rejection of bid by the Corporation is

on technical ground and the learned Single Judge

looking into all these aspects has rightly allowed the

writ petition and thus sought to contend that there is

no ground to interfere with the order of the learned

Single Judge.

13. Insofar as the first contention of the

learned counsel for the appellant is concerned, that

this Court has no jurisdiction to entertain the writ

petition as per Clause 22 stated supra is not

acceptable for the reason that the tender work

pertains to Gulbarga Depot, the petitioner is residing

at Kalaburagi and the bid has taken place at

Kalaburagi and mere existence of an alternate forum

does not create a legal bar on High Court to exercise

its writ jurisdiction in view of the dictum of the Hon'ble

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Apex Court in the case of Maharashtra Chess

Association vs. Union of India and others

[(2020)13 SCC 285] held as under:

"22. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors. Thus, the mere fact that the High Court at Madras is capable of granting adequate relief to the Appellant does not create a legal bar on the Bombay High Court exercising its writ jurisdiction in the present matter.

23. This brings us to the question of whether Clause 21 itself creates a legal bar on the Bombay High Court exercising its writ jurisdiction. As discussed 13 1958 SCR 595 above, the writ jurisdiction of the High Court is fundamentally discretionary. Even the existence of an alternate adequate remedy is merely an additional factor to be taken into consideration by the High Court in deciding whether or not to exercise its writ jurisdiction.

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This is in marked contradistinction to the jurisdiction of a civil court which is governed by statute. 14 In exercising its discretion to entertain a particular case under Article 226, a High Court may take into consideration various factors including the nature of the injustice that is alleged by the petitioner, whether or not an alternate remedy exists, or whether the facts raise a question of constitutional interpretation. These factors are not exhaustive and we do not propose to enumerate what factors should or should not be taken into consideration. It is sufficient for the present purposes to say that the High Court must take a holistic view of the facts as submitted in the writ petition and make a determination on the facts and circumstances of each unique case."

14. The Apex Court in the judgment of

Maharashtra Chess Association has held that the High

Court must take holistic view of the fact as stated in

the petition and the jurisdiction of the High Court

under article 226 being extraordinary and being

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discretionary has to exercise its writ jurisdictions on

well settled principles of law.

15. The judgments relied by the learned

counsel for the appellant as stated in Oil and Natural

Gas Commission Vs. Utpal Kumar Basu and

Others reported in (1994) 4 SCC 711, the judgment

of the High Court of Orissa at Cuttack and another

judgment of the High Court of Judicature at

Madras stated supra is in respect, where the petition

does not disclose or even a part of cause of action

arises within the territorial jurisdiction, in the present

facts and circumstances, the cause of action has

arisen in Kalaburagi and the tender document pertains

to Gulbarga Depot as could be seen from Annexure-D.

Thus, undisputedly the cause of action accrues within

the jurisdiction of this Court and this Court has

jurisdiction to entertain the petition under Article 226

of the Constitution of India and thus, the petition filed

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before this Court is one with jurisdiction and the same

is maintainable.

16. Perusal of the order of the learned Single

Judge and in view of settled proposition of law in the

case of Maharashtra Chess Association vs. Union

of India and others (stated supra), the first

contention of the appellant that this Court does not

have jurisdiction is not acceptable and same is liable

to be rejected.

17. Insofar as the second contention of the

appellant is concerned that the Clause pertaining to

the requirement for production of £ÀªÀÄÆ£É-J (Form-A) is

not acceptable as the plain reading of Clause No.8

Item No.16 would depict that the bidder requires to

produce the registration certificate from the registrars

of Firm to establish the registered partnership firm

enclosing all the annexures wherein the names of all

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the partners of the said partnership firm are

mentioned or certificate of incorporation in case of

company, it is undisputed that the petitioner has

produced the copy of the deed of partnership showing

the partners, endorsement of firm registration and

certificate of registration. These documents clearly

disclose that the firm is registered and reflects the

names of the partners of the partnership firm and

thus, the rejection of the bid on the ground that

£ÀªÀÄÆ£É-J (Form-A) which is nothing but a document

rather a procedure to verify whether the partnership is

registered and to verify the names of the partners, the

petitioner having produced the documents as per the

requirement of the bid tender document, the rejection

of the tender bid of the petitioner that £ÀªÀÄÆ£É-J (Form-

A) issued by a registrar of Firm is not produced does

not appraise the mind of this Court. Accordingly we

find no reasons to interference with the order of the

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learned Single Judge, which in our considered view is

just and proper and the same does not call for any

interference by this Court.

18. In the result, we pass the following:

ORDER

i) Writ appeal by respondent No.2-

Corporation is hereby dismissed.

ii) The order of the learned Single Judge in

WP No.202116/2021 dated 17.12.2021 is hereby

confirmed.

iii) No order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE

Vmb