Karnataka High Court
Sri. Subramanya Narashimayya ... vs The Managing Director Karnataka ... on 16 January, 2023
Bench: M.Nagaprasanna
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WP No. 18102 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 18102 OF 2022 (GM-TEN)
BETWEEN:
1. SRI. SUBRAMANYA NARASHIMAYYA PADUKONE
S/O NARASHIMAYYA
AGED ABOUT 52 YEARS
R/A NO.588, JYOTIR LINGA NIVAS
SHIVAJI GALLI,
AZAD NAGAR, DANDELI,
UTTARA KANNADA DISTRICT-581 325.
2. SRI. GEORGE DANIEL
S/O GEORGE THOMS
AGED ABOUT 63 YEARS
R/A NO.134, SAMVILLA
K.P.C. COLONY AVEDA
GANESHGUDI,
UTTARA KANNADA DISTRICT-581 365.
Digitally signed by 3. SRI. SHARANAPPA BALAPPA MURADI
PADMAVATHI B K
Location: HIGH
S/O BALAPPA MURADI
COURT OF AGED ABOUT 68 YEARS
KARNATAKA
SHRI SHARANABASAVESHWARA
KHANAVALI, LINK ROAD, DANDELI,
UTTARA KANNADA DISTRICT-581 325.
4. SRI. C. ISHWAR
S/O CHINNASWAMY
AGED ABOUT 45 YEARS
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WP No. 18102 of 2022
R/A NO.155, CAMP-1
AVEDA, GANESHGUDI,
UTTARA KANNADA DISTRICT-581 365.
5. SRI. JAGADISWAR CHINNASWAMY
S/O CHINNASWAMY
AGED ABOUT 40 YEARS
R/A NO.155, CAMP-1, AVEDA
GANESHGUDI
UTTARA KANNADA DISTRICT-581 365.
6. GANESH BHADRAYYA GUNAGA
S/O BHADRAYYA GUNAGA
AGED ABOUT 65 YEARS
R/A J.N. ROAD
DANDELI-581 325
UTTARA KANNADA DISTRICT
7. SRI. THIYADATH ANAND MADHAV
S/O MADHAV
AGED ABOUT 45 YEARS
R/A NO.194/4, DEVAKI NIVAS
L.P. CIRCLE, DANDELI-581 325.
UTTARA KANNADA DISTRICT.
8. SRI. N. ANRUDHAN NEELAKANTAN
S/O NEELAKANTAN
AGED ABOUT 65 YEARS,
R/AT BUILDING NO.694
L.P. CIRCLE, DANDELI -581 325.
UTTARA KANNADA DISTRICT.
9. SRI. CHANDRU VENKOBI KHOKANI
S/O VENKOBI
AGED ABOUT 49 YEARS,
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WP No. 18102 of 2022
R/AT LIG II A H.NO.4
GANESH NAGAR
DANDELI -581 325.
UTTARA KANNADA DISTRICT.
10. SRI. ARAVIND R. PATANKAR
S/O RAMESH PATANKAR
AGED ABOUT 49 YEARS,
R/AT H.NO.763
AZADNAGAR
DANDELI-581 325.
UTTARA KANNADA DISTRICT.
11. SRI. K. SUDHAKAR REDDY
S/O K. NASARA
AGED ABOUT 40 YEARS
R/AT MATRU BHUMI NIVAS
H.NO.LIG 15, TOWNSHIP
DANDELI-581 325.
UTTAA KANNADA DISTRICT
12. SRI. N. SHASHIDHARAN NEELKANTA
S/O NEELKANTA
AGED ABOUT 64 YEARS,
R/AT H.NO.141/4/0/44
KULAGI ROAD
DANDELI -581 325.
UTTARA KANNADA DISTRICT.
13. SRI. HARISH CHANNAIAH VADDE
S/O CHANNAIAH VADDE
AGED ABOUT 29 YEARS,
R/AT JAMAGA COLONY
AMBIKANAGAR, HALIYAL TALUK,
UTTARA KANNADA DISTRICT-581 363.
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WP No. 18102 of 2022
14. SRI. R. MANI
S/O RAJU
AGED ABOUT 56 YEARS,
R/AT H.NO.9, CAMP NO.1
GANESHGUDI AVEDA
JOIDA TALUK,
UTTARA KANNADA DISTRICT-581 365.
15. SRI. JAMES THEKKAPLACHERIL JOHNSON
S/O K.V. JAMES
AGED ABOUT 57 YEARS
R/AT B TYPES 4 KPC COLONY
GANESHGUDI, AVEDA,
UTTARAKA KANNADA DISTRICT -581 365.
16. SRI. BHIMAPP LAXMAN LAMANI
S/O LAXMAN
AGED ABOUT 52 YEARS,
R/AT H.NO.366,
DANDELI, AMBEWADI,
UTTARA KANNADA DISTRICT -581 325.
17. SRI. NAGARAJ S. MURADI
S/O SHANKARAPPA
AGED ABOUT 30 YEARS,
R/AT NO.279, BARCHI ROAD,
OPP. INDIAN OIL PETROL BUNK
DANDELI
UTTARA KANNADA DISTRICT -581 325.
18. SRI. ASHOK S. GANIGA
S/O SRINIVAS GANIGA
AGED ABOUT 45 YEARS,
R/AT HEBBATTI, SIRSI TALUK
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WP No. 18102 of 2022
UTTARA KANNADA DISTRICT -581 325
...PETITIONERS
(BY SMT. VAIBHAVI BHAT, ADVOCATE
FOR SRI. K.S. NARAYAYANSWAMY)
AND:
1. THE MANAGING DIRECTOR
KARNATAKA POWER CORPORATION LTD.,
NO.82, SHAKTHI BHAVAN
RACE COURSE ROAD
BENGALURU-560 001.
2. THE CHIEF ENGINEER(CIVIL KALI)
KARNATAKA POWER CORPORATION LTD.,
SUPA GANESHGUDI,
UTTARA KANNADA,
UTTARA KANNADA DISTRICT-581 365.
3. THE SUPERINTENDENT ENGINEER
N. COLONY, KARNATAKA POWER
CORPORATION LTD., AMBIKANAGARA,
UTTARA KANNADA,
UTTARA KANNADA DISTRICT-581 363.
4. THE EXECUTIVE ENGINEER(CIVIL)
N. COLONY, KARNATAKA POWER
CORPOPRATIN LTD., AMBIKANAGARA,
UTTARA KANNADA,
UTTARA KANNADA DISTRICT -581 363.
...RESPONDENTS
(BY SRI. PRAMOD NAIR, SENIOR ADVOCATE FOR SRI. KIRAN
V. SAMBRANI, ADVOCATE FOR R1 TO R4; R5 - SERVED)
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WP No. 18102 of 2022
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASHING THE TENDER NOTIFICATION DATED 15.03.2022 IN
IFT NO.KPCL/2021.22/DA/WORK INDENT 12143 ISSUED BY
THE R4-EXECUTIVE ENGINEER (CIVIL)N.COLONY,KARNATAKA
POWER CORPORATION LIMITED,AMBIKANGARA,UTTARA
KANNDA DISTRICT,VIDE ANNEXURE-E TO THE WRIT PETITION;
AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Smt. Vaibhavi Bhat, learned counsel for Sri. K.S.
Narayanaswamy, learned counsel appearing for the petitioners,
Sri. Pramod Nair, learned Senior counsel for Sri. Kiran V.
Sambrani, learned counsel for respondents No.1 to 4 and have
perused the material on record.
2. The learned Senior counsel, Sri. Pramod Nair would
submit that the issue in the lis stands covered by the judgment
rendered in a Co-ordinate Bench in W.P.No.11604/2022
disposed on 15.07.2022, which was concerning a similar issue.
The Co-ordinate Bench has held as follows:
"Petitioners are before this Court challenging the
tender notification bearing No. PÁEA: ÉÆëa:JE-1mÉAqÀgï
08:2022-23, dated 23.05.2022 at Annexure-R, tender
notification bearing No. PÁ.¸Á.a/¦.©-1/mÉAqÀgï ¥ÀæPÀluÉ-
WP No. 18102 of 2022
L.J¥sï.n-11/2022-23, dated 01.06.2022 at Annexure-S,
tender notification No. f.£À.PÉÆÃ/£ÀUÀgÉÆÃvÁÜ£À ºÀAvÀ
04/n.J¸ï.02/2022-23 dated 01.06.2022 at Annexure-T
and tender notification No. f.£À.PÉÆÃ/£ÀUÀgÉÆÃvÁÜ£À ºÀAvÀ
04/n.J¸ï.04/2022-23 04/2022-23 dated 04.06.2022 at
Annexure-U and for a direction to the fifth respondent to
consider representation dated 03.06.2022 by the
petitioner Nos.2 to 7 vide Annexure-V to cancel the
tenders already called.
2. Heard the learned senior counsel
Smt.S.Susheela for learned counsel Sri.K.S.Narayana
Swamy for petitioners and learned Additional Advocate
General Sri.Dhyan Chinnappa for learned Additional
Government Advocate Sri.M.Vinod Kumar for respondent
Nos.1 to 3, 5 and 7. Perused the writ
petition papers.
3. Learned senior counsel for the petitioners
would submit that first petitioner is Association of
contractors and petitioner Nos.2 to 7 are the Class-I,
Class-II and Class-III contractors. It is the grievance of
the petitioners that while calling the tenders at
Annexures-R to U, respondent authorities have not
followed the circular dated 11.05.2022, wherein it
requires the tender inviting authority to limit the
package amount to Rs.100 Lakhs. It is the submission
of the learned senior counsel that under the impugned
tender notifications, the package amount is more than
Rs.100 Lakhs and several works are clubbed together.
Wherever the tender work relates work of Taluka level
the package shall not be more than Rs.100 Crores.
Learned senior counsel would submit inviting attention
of this Court to Annexure-R - tender notification dated
23.05.2022 that for several road works of different
villages are clubbed together and tender is invited. With
respect to Annexure-S tender notification learned senior
WP No. 18102 of 2022
counsel would invite attention of this Court to Sl.Nos.5
to 7 wherein the work of check-dams in two different
places are clubbed together and tender is invited.
Learned senior counsel referring to Annexures-R1 to R6
submits that even though the Government accorded
sanction to the works to be implemented by the
Municipalities, no packing is yet determined as on the
date of calling the tender. Thus, it is submitted that
impugned tender notifications are in total violation of
Circular dated 11.05.2022. Learned senior counsel
would submit that intention and object of issuing
circular dated 11.05.2022 is to encourage the small
contractors and if the circular itself is violated by the
Government, it would affect the rights of small
contractors and it denies opportunity to participate in
the tender process. Thus, prays for allowing the writ
petition.
4. Learned Additional Advocate General for
respondents would submit that circular dated
11.05.2022 would not be applicable to the works which
are sanctioned prior to issuance of the circular dated
11.05.2022. Learned Additional Advocate General
invites attention of this Court to Annexure-R2 wherein
the sanction is accorded under the Chief Minister
Amrutha Nagarothana Municipality Project [Phase-4] in
Chitradurga District. In pursuance to the sanction,
Annexures-T and U are issued. Therefore, he submits
that Circular dated 11.05.2022 which is issued
subsequent to sanction and approval by the
Government to the works prior to the circular, would
have no application. Further, he submits that
Government would take appropriate action in future
tenders not to club the tenders relating to two different
works and adhered to the circular dated 11.05.2022.
5. The tender notifications at Annexures-R to U
are dated 23.05.2022, 01.06.2022, 01.06.2022 and
WP No. 18102 of 2022
04.06.2022. The circular on which the petitioners place
reliance is dated 11.05.2022. Clause[1] of the Circular
reads as follows:
" "1.G ÉèÃR (1) gÀ ¸ÀPÁðgÀzÀ ¸ÀÄvÉÆÛà ÉAiÀÄ°è ¸ÁªÀðd¤PÀ
¸ÀAUÀæºÀuÉUÀ¼À ¥Áè¤AUï, ¥ÁåPÉÃfAUï ªÀÄvÀÄÛ ±ÉqÀÆå°AUï ºÁUÀÆ
C£ÀÄzÁ£À ®¨sÀåUÉƽ¸ÀĪÀ §UÉÎ w½¸À ÁVzÀÄÝ,
PÁAiÀÄðAiÉÆÃd£ÉAiÀÄ C£ÀĵÁ×£ÀªÀ£ÀÄß UÀªÀÄ£ÀzÀ°èlÄÖPÉÆAqÀÄ
¥ÁåPÉÃfAUï ªÀiÁqÀĪÀÅzÀ£ÀÄß ¥Àj²Ã°¸À®Ä w½¸À ÁVgÀÄvÀÛzÉ.
CzÀgÀAvÉ ¥ÁåPÉÃfAUï ªÀiÁqÀĪÀ ¸ÀAzÀ¨sÀðzÀ°è vÁ®ÆèPÀÄ ªÀÄlÖzÀ°è
C£ÀĵÁ×£ÀUÉƽ¸ÀÄwÛgÀĪÀ PÁªÀÄUÁjUÀ¼À ¥ÁåPÉÃeï ªÉÆvÀÛªÀ£ÀÄß
UÀjµÀÖ gÀÆ.100.00 ®PÀëUÀ½UÉ ¹Ã«ÄvÀUÉƽ¸ÀvÀPÀÌzÀÄÝ."
A reading of the above Clause makes it clear that
while packaging the work at Taluka level, the packaging
amount shall not exceed Rs.100 Lakhs. In the
impugned tenders, no doubt tender amount exceeds
more than Rs.100 Lakhs. Annexure-R tender
notification is in respect of construction of road in
various villages of Chitradurga Legislative Assembly
Constituency. In respect of the road work, decision and
sanction was accorded as per Annexure-R6 dated
23.02.2022. Annexure-R6 is approval by the State
Government for construction of CC Road and drainage
works at Scheduled Castes/Schedule Tribes colony.
Thus, it can be seen that in respect of Annexure-R,
tender work sanction was accorded much prior to
Circular dated 11.05.2022. In respect of Annexure-S, it
is tender for construction of check dams in Hosadurga
Taluk of Chitradurga District. Works relating to check
dams and bridges, tender work cannot be split and it
cannot be awarded to different contractors. The work
relating to check dams and bridges is one work which
could be one package. Therefore, circular dated
11.05.2022 would have no application. In respect of
Annexures-T and U tender works, those are the works
sanctioned under Chief Minister Amrutha Nagarothana
[Municipality] Project [Phase-4] for Monakalmuru
Municipality as well as Holalkere Town Municipal
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WP No. 18102 of 2022
Council roads and drainages. Those works are
sanctioned by Government much prior to issuance of
the circular dated 11.05.2022.
6. The jurisdiction of this Court under Article
226 of the Constitution of India to interfere with the
tenders/contracts is very limited. The Hon'ble Apex Court
in Michigan Rubber (India) Limited, V/s. State
of Karnataka and Others [(2012) 8 SCC 216, has
explained the nature and scope of judicial review in the
matter of Government Contracts/tenders. At paragraph
23 it is held as follows:
"23. From the above decisions, the
following principles emerge:
(a) The basic requirement of Article 14
is fairness in action by the State, and non-
arbitrariness in essence and substance is the
heartbeat of fair play. These actions are
amenable to the judicial review only to the
extent that the State much act validly for a
discernible reason and not whimsically for
any ulterior purpose. If the State acts within
the bounds of reasonableness, it would be
legitimate to take into consideration the
national priorities;
(b) Fixation of a value of the tender is
entire within the purview of the executive
and the courts hardly have any role to play in
this process except for striking down such
action of the executive as is proved to be
arbitrary or unreasonable. If the Government
acts in conformity with certain healthy
standards and norms such as awarding of
contracts by inviting tenders, in those
circumstances, the interference by courts is
very limited;
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WP No. 18102 of 2022
(c) In the matter of formulating
conditions of a tender document and
awarding a contract, greater latitude is
required to be conceded to the State
authorities unless the action of the tendering
authority is found to be malicious and a
misuse of its statutory powers, interference
by courts is not warranted;
(d) Certain preconditions or
qualifications for tenders have to be laid
down to ensure that the contractor has the
capacity and the resources to successfully
execute the work; and
(e) If the State or its instrumentalities
act reasonably, fairly and in public interest in
awarding contract, here again, interference
by court is very restrictive since no person
can claim a fundamental right to carry on
business with the Government."
The Hon'ble Apex Court has made it clear that in
the matter of formulating conditions of tender document
and awarding a contract/tender, greater latitude is
required to be conceded to the State Authorities, unless
it is found to be malicious and misuse of its power,
interference by Courts is not warranted.
7. However, submission of the learned
Additional Advocate General that in future while inviting
the tenders, Circular bearing No. DE 263 ªÉZÀÑ -12/2022
dated 11.05.2022 would be strictly adhered to is placed
on record.
With the above, writ petition stands disposed of."
3. The submission of the learned counsel appearing for
the petitioners are that the authorities must at least in future
follow the circular issued by the state on 29.04.2022.
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WP No. 18102 of 2022
4. The learned Senior counsel would also submit that
in all future tenders the circular dated 29.04.2022 will be
adhered to.
5. Since the tender process had commenced long
before, the circular being notified by the State, there is no right
of the petitioners that is taken away or to even contend that
there should be a re-tender in terms of the tender notification
issued after the notification of the circular.
6. Placing the submission of the learned Senior
counsel that in future, same would be adhered to, on record , I
deem it appropriate to dispose the petition without interfering
the impugned application.
Sd/-
JUDGE
JY
