Msk Worldwide Express Private ... vs State Of Karnataka
2022 Latest Caselaw 8256 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 7TH DAY OF JUNE, 2022

                         BEFORE

          THE HON'BLE MR.JUSTICE S.G.PANDIT

          WRIT PETITION NO.3353/2022 (GM-TEN)

BETWEEN:

MSK WORLDWIDE EXPRESS PRIVATE LIMITED
#797, 10TH MAIN ROAD,
35TH CROSS, 4TH BLOCK,
JAYANAGAR, BENGALURU-560011,
REPT. BY ITS MANAGING DIRECTOR,
SATISH KUMAR M.
                                           ...PETITIONER
(BY SRI RAKESH B BHATT, ADV.)

AND:

1.     STATE OF KARNATAKA
       DEPARTMENT OF HEALTH AND FAMILY WELFARE,
       VIKASA SOUDHA,
       BANGALORE-560001,
       REPT. BY ITS PRINCIPAL SECRETARY.

2.     COMMISSIONER AND APPELLATE AUTHORITY
       OFFICE OF COMMISSIONER OF
       HEALTH AND FAMILY WELFARE
       AROGYASOUDHA, MAGADI ROAD,
       BANGALORE-560023.

3.     PROJECT DIRECTOR
       KARNATAKA STATE AIDS PREVENTION SOCIETY,
       AROGYASOUDHA,
       4TH FLOOR, 1ST CROSS,
                               2

     MAGADI ROAD,
     BANGALORE-560023.

4.   SEQUEL LOGISTICS PRIVATE LIMITED
     PLOT NO. L-374, 5TH MAIN,
     6TH SECTOR, HSR LAYOUT,
     BENGALURU,
     KARNATAKA-560102,
     REPRESENTED BY ITS DIRECTOR.
                                             ...RESPONDENTS
(BY SRI M VINOD KUMAR, AGA FOR R1 & R2
 DR. S.V.GIRI KUMAR, ADV. FOR R3
 SMT. SHRUTI NAYAK, ADV. FOR
SMT. SNEHA NAGARAJ, ADV. FOR R4)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 31.01.2022 PASSED BY R2 ANNEXURE-F
AND ALSO CONSEQUENTLY SET ASIDE THE DECISION OF THE
R3 IN REJECTING THE PETITIONERS BID AND DIRECT THE R3
TO OPEN THE FINANCIAL BID OF THE PETITIONER AND GRANT
THE CONTRACT TO THE LOWEST BIDDER.

    THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:-


                         ORDER

Petitioner is before this Court under Article 226 of the

Constitution of India, praying for a writ of certiorari to set

aside the order dated 31.01.2022 passed by the second

respondent in No.KSAPS/Lab Service/VL-ST/01/2020-21

(Annexure-F) and consequently to set aside the decision of the

3rd respondent, rejecting the petitioner's bid and also for a

writ of mandamus, directing respondent No.3 to open the

financial bid of the petitioner and grant the contract to the

lowest bidder.

2. Heard Sri.Rakesh B.Bhatt, learned counsel for the

petitioner; Sri.M.Vinod Kumar, learned Additional

Government Advocate for respondent Nos.1 and 2, Dr.Giri

Kumar, learned counsel for respondent No.3, learned counsel

Smt.Shruti Nayak for Smt.Sneha Nagaraj, learned counsel for

respondent No.4. Perused the writ petition papers.

3. Learned counsel for the petitioner would submit that

respondent No.3 invited short term tender for Transportation

of Blood Samples from Art Centers to Designated Viral Labs

under AIDS Programme for the year 2021-22 under Tender

Notification dated 17.09.2021. Last date for submission of

e-Tender was on or before 04.10.2021 and opening of

Financial bid was on 11.10.2021. Learned counsel for the

petitioner submits that the petitioner along with tender offer

form uploaded 7 documents which were required to be

uploaded, within the last date for uploading tender offer form.

Even though the petitioner had uploaded all requisite

documents along with tender offer form, the Tender Scrutiny

Committee rejected the technical bid of the petitioner on the

ground that the petitioner has not uploaded tender offer form;

financial statement and the certificate with regard to capacity

of the petitioner to execute the tender work. On rejection his

tender, the petitioner filed an appeal under Section 16 to the

appellate authority. The appellate authority after hearing the

parties, by order dated 31.01.2022 rejected the appeal of the

petitioner and while rejecting the appeal of the petitioner, it

held that the petitioner had not uploaded the tender offer

form and gave a finding that the petitioner had uploaded

financial statement as well as certificate with regard to

capacity of the petitioner to execute the tender work.

4. Learned counsel Sri.Rakesh B.Bhatt for petitioner

contends that question of uploading the tender offer form

would not arise since without uploading the offer form, the

other documents cannot be uploaded. The tenderer has to fill

up the offer form and upload all other documents as required

under the Tender Notification. Learned counsel would submit

that the petitioner had filled up the tender offer form and

uploaded all the requisite documents. There is no reason to

say that the petitioner had not uploaded tender offer form.

Unless the petitioner fills up the tender offer form, the

petitioner would not be in a position to upload other

necessary documents. Since the respondents have received

other documents, it is to be presumed that the petitioner had

uploaded the tender offer form. Thus, he submits that action

of the respondents is wholly arbitrary and opposed to the

clauses in the Tender Notification.

5. Per contra, learned counsel Dr.Giri Kumar appearing for

respondent No.3 submits that the 3rd respondent issued work

order on 02.03.2022 in pursuance of acceptance of tender to

4th respondent who was the lowest bidder and respondent

No.4 is executing the work of Transportation of Blood

Samples from Art Centers to Designated Viral Labs under

AIDS Programme for the year 2021-22. It is his submission

that once the work order is issued, the petitioner cannot

contend that his tender is to be accepted. It is also his

submission that the petitioner had not uploaded the tender

offer form along with other documents. The appellate

authority, after examining the records has come to the

conclusion that the petitioner had not uploaded the tender

offer form, which is a finding of fact. Learned counsel for

respondent No.4 adopts the submission made by learned

counsel for respondent No.3. Thus, they pray for dismissal of

the writ petition.

6. Learned counsel for the petitioner contends that unless

tender offer form is filled up, the petitioner could not have

uploaded all other documents. Whether the petitioner had

uploaded the offer form along with all other documents or not

is a question of fact. Against the rejection of his tender, the

petitioner filed an appeal before the second respondent-

Commissioner/appellate authority, wherein the second

respondent-appellate authority, on examination of the

contentions of the petitioner has come to the conclusion that

the petitioner has not uploaded the offer form. The finding of

fact arrived at by the appellate authority cannot be gone into

by this Court under Article 226 of the Constitution of India.

Moreover, the tender work is already entrusted to respondent

No.4 and respondent No.4 is executing the tender work from

14.03.2022. At this stage, it may not be proper for this Court

to interdict with the execution of tender work.

7. The Hon'ble Apex Court in a recent decision reported in

2022 SCC Online SC 336 in the case of N.G.PROJECTS

LIMITED v/s VINOD KUMAR JAIN AND OTHERS while

considering scope of judicial interference in Government

tenders at paragraphs 21, 22 and 23 has held as follows:

21. Since the construction of road is an infrastructure project and keeping in view the intent of the legislature that infrastructure projects should not be stayed, the

High Court would have been well advised to hold its hand to stay the construction of the infrastructure project. Such provision should be kept in view even by the Writ Court while exercising its jurisdiction under Article 226 of the Constitution of India.

22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e., not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was malafide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona-fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.

23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not

have the expertise to examine the terms and conditions of the present-day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.

A reading of the above decision makes it clear that if the Court

finds that there is total arbitrariness or that the tender has been

granted in a malafide manner, still the Court should refrain from

interfering in the grant of tender, but instead relegate the parties to

seek damages for the wrongful exclusion rather than to injunct the

execution of the contract.

8. For the reasons recorded above, I decline to entertain

the writ petition.

It is open for the petitioner to claim damages, if so

advised.

Sd/-

JUDGE

mpk/-* CT:bms