Karnataka High Court
M/S Geetha Electrical Stores vs The State Of Karnataka on 9 September, 2022
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.16610 OF 2022 (GM-TEN)
BETWEEN:
M/S GEETHA ELECTRICAL STORES,
A PARTNERSHIP FIRM,
NO.2, 4TH CROSS, 1ST MAIN,
BYATARAYANAPURA, MYSORE ROAD,
BANGALORE - 560 026.
REP. BY ITS MANAGING PARTNER,
S. KESHAV.
...PETITIONER
(BY SRI. KALYAN R, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
DEPARTMENT OF POWER AND ENERGY,
VIKAS SOUDHA,
BANGALORE - 560 001.
REP. BY PRINCIPAL SECRETARY.
2. BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED.,
OFFICE AT K.R.CIRCLE,
BENGALURU - 560 001.
REP. BY MANAGING DIRECTOR.
3. THE GENERAL MANAGER(ELEC.)
PROCUREMENT, BESCOM, 4TH FLOOR,
CORPORATE OFFICE,
PROCUREMENT SECTION, K.R. CIRCLE,
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI.VINOD KUMAR M, AGA FOR R1;
SRI.ANOOP HARANAHALLI, ADVOCATE FOR R2 & R3)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
IMPUGNED TENDER NOTIFICATION NIT PUBLISHED DATED
05.08.2022 BEARING NO.BESCOM/BCB-1432/2022-23
HIREHALLI ISSUED BY THE R-3 AS PER ANNEXURE-A TO THE
W.P AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
In these two petitions, petitioner - Partnership Firm is
knocking at the doors of the Wirt Court grieving against
certain conditions stipulated in the Tender Notification dated
17.06.2022 issued by the General Manager (Elec.) of 3rd
Respondent whereby bids for execution of several works
have been invited.
2. Learned counsel appearing for the petitioner
submits that the 'qualifying requirements' as prescribed at
paragraph 11 (4) & (5) in the subject notification are
unsustainable inasmuch as there are already Standard
Tender Documents generated at the hands of Government
on 06.08.2005 & 14.10.2008. The impugned clauses of the
said notification read as under:
"4. The Bidder should have successfully
completed as prime contractor, at least one work
of HT/LT distribution network of value not less
than 50% of the amount put to tender in the
previous five financial years (2017-18, 2018-19,
2019-20, 2020-21 & 2021-22) to any
ESCOMs/Govt. Utilities.
Note: Updated to the FY in which the
tenders are invited. The value of the completed
works shall be given a weight of 10% per year to
bring them to the price level of the FY in which
the tenders are invited.
5. The Bidder should have executed
minimum quantity of 31 Kms of HT UG Cable
works in any ESCOMs/Govt. Utilities on PTK/TTK
in any one year of the previous 5 years (2017-
18, 2018-19, 2019-20, 2020-21 & 2021-22) and
the same should be in successful operation for at
least 2 years as on the date of bid submission."
3. Petitioners counsel fairly submits that ordinarily
as to what conditions are to be stipulated in the tender
document lies in the exclusive domain of authorities and
Writ Courts do not readily interfere, subject to all just
exceptions. However, the extant normative guidelines
having been promulgated vide Government Orders dated
2005 & 2008, no discretion is left to the tender issuing
authority to prescribe something else and therefore, the
impugned conditions are void ab initio. This apart, the non
compliance with such general conditions is an error apparent
on face of the record warranting indulgence of the Writ
Court. An argument to the contrary, says the counsel, would
deprive small contractors to tap State Largesse. He also
contends that the stipulations are unjust and arbitrary
warranting their invalidation.
4. Per contra learned Panel Advocate appearing for
the Respondents Nos. 2 & 3 and the learned AGA appearing
for the State oppose the petition contending that it is now a
well settled position of law that wide discretion is accorded
to tendering authorities in prescribing conditions &
qualifications. In support of their contention they place
reliance on the decisions of the Apex Court in MICHIGAN
RUBBER vs. STATE OF KARNATAKA (2012) 8 SCC 216 and
UFLEX LTD. vs. STATE OF TAMIL NADU (2022) 1 SCC 165.
5. Added, learned Senior Advocate argues that
stipulations in the impugned notification have been made
pursuant to the technical expertise of the authorities gained
through working experience in the field and therefore the
indulgence of the Writ Court in such matters is not
warranted. They also point out that the petitioner was not a
bidder at all, expect in respect of one item that too on the
strength of the Investigating Officer. So contending, they
seek dismissal of the Writ Petition.
6. Having heard the learned counsel appearing for
the parties and having perused the petition papers, this
Court declines indulgence in the matter as under and for the
following reasons:
(a) The contention of learned counsel appearing for
the petitioner that qualifying requirements in terms of
impugned conditions at clauses 11(4) & (5) being repugnant
to General Guidelines laid down by the Government in 2005
& 2008, the same should be voided is a bit difficult to
countenance. Government has laid down certain guidelines
regulating what should be prescribed in such matters, is
true. However, such guidelines cannot be treated as Euclid's
Theorem. They are only broad guidelines which admit some
discretion with tender issuing authority to vary certain
conditions depending upon certain circumstances.
Therefore, the impugned notification is not vulnerable for
challenge merely because the petitioner is not in a position
to comply with the qualifying requirements of the tender.
(b) There is force in the vehement contention of
learned Sr. Advocate & learned AGA appearing for the
respondents that the impugned conditions have been
stipulated on the basis of long experience in the field after
taking into account a host of factors which Courts are not
able to assess the worth of and therefore, should keep away
from undertaking a deeper examination in a limited
supervisory jurisdiction constitutionally vested under Articles
226 & 227. The Apex Court in M/S N.G. PROJECTS LIMITED
vs. M/S VINOD KUMAR JAIN, Civil Appeal No. 1846 of 2022
disposed off on 21.03.2022 has observed as under:
"...The essence of the law laid down in the
judgments referred to above is the exercise of
restraint and caution; the need for
overwhelming public interest to justify judicial
intervention in matters of contract involving the
state instrumentalities; the courts should give
way to the opinion of the experts unless the
decision is totally arbitrary or unreasonable;
the court does not sit like a court of appeal
over the appropriate authority; the court must
realize that the authority floating the tender is
the best judge of its requirements and,
therefore, the court's interference should be
minimal..."
The above observations come to the rescue of the
respondents, there being neither arbitrariness nor
unreasonableness in the impugned conditions.
(c) The contention of the learned counsel for the
petitioner that clause (4) to 11 and clause (5) come in
collision with each other at least to some extent and
therefore, the impugned conditions should be voided, is bit
difficult to agree with. When these conditions are collectively
read together with working experience, the arguable
repugnancy pales into insignificance. If all other tenderers
have understood the tender conditions and successfully
participated, this Court is at loss to know why petitioner as
well could not do it. Even his claim in respect of one of the
tender items made on the basis of an interim order has also
been rejected by the authority. Thus, there is no reason to
accept the complaint of the petitioner especially when the
question of interference by the Writ Court in tender matters
being no longer res integra. The Apex Court in M/S UTKAL
SUPPLIERS vs. M/S MAA KANAK DURGA
ENTERPRICES, (2021) SCC OnLine SC 301 has observed as
under:
" This Court has repeatedly held that
judicial review in these matters is equivalent to
judicial restraint in these matters. What is
reviewed is not the decision itself but the
manner in which it was made. The writ court
does not have the expertise to correct such
decisions by substituting its own decision for
the decision of the authority."
In the above circumstances, these petitions being
devoid of merit, are liable to be dismissed and accordingly
they are, costs having been made easy.
Sd/-
JUDGE
cbc
