Karnataka High Court
Mahamad Rafi S/O Jamalsab vs The State Of Karnataka on 18 April, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2024:KHC-D:6498
WP No. 101624 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
WRIT PETITION NO. 101624 OF 2024 (GM-TEN)
BETWEEN:
MAHAMAD RAFI S/O. JAMALSAB,
AGE: 34 YEARS,
OCC: CLASS 1 CONTRACTOR AND PROPRIETOR OF
M/S LUCKY POWER SYSTEM,
AT: NAGARASANAHALLI VILLAGE,
POST: KANAGONDANAHALLI
TALUKA AND DISTRICT: DAVANAGERI-577002.
...PETITIONER
(BY SRI SACHIN C. ANGADI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
DEPARTMENT OF ENERGY,
2ND FLOOR, VIKAS SOUDHA,
DR. B.R. AMBEDKAR VEEDHI,
BENGALURU-560001,
R/BY ITS PRINCIPAL SECRETARY.
2. SUPERINTENDING ENGINEER (EL),
PROJECT MONITORING CELL
CHANDRASHEKAR
LAXMAN CORPORATE OFFICE, HESCOM,
KATTIMANI
P.B. ROAD, NAVANAGAR,
Digitally signed by
HUBBALLI-580025.
CHANDRASHEKAR
LAXMAN KATTIMANI
Location: HIGH
...RESPONDENTS
COURT OF
KARNATAKA
DHARWAD BENCH
(BY SRI MADANMOHAN M. KHANNUR, AGA FOR R1;
SRI B.S. KAMATE, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT,
ORDER OR DIRECTION IN THE NATURE OF CERTIORARI OR ANY
OTHER APPROPRIATE WRIT, ORDER OR DIRECTION AND BE
PLEASED TO QUASH THE AMENDMENT TENDER NOTIFICATION
BEARING NO. HESCOM/SEE(PMC)EEP-1/AEE-2/2023-24/CYS-5197
DATED 29-12-2023, ISSUED BY THE 2ND RESPONDENT WHICH IS
PRODUCED AT ANNEXURE-B TO THE WRIT PETITION; ISSUE A WRIT,
ORDER OR DIRECTION IN THE NATURE OF CERTIORARI OR ANY
OTHER APPROPRIATE WRIT, ORDER OR DIRECTION AND BE
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WP No. 101624 of 2024
PLEASED TO QUASH THE REJECTED BID NO. B5137472 WHICH IS
FILED BY THE PETITIONER IN TENDER NOTIFICATION
HESCOM/2023-24/EL/WORK-INDEN91 DATED 26-10-2023 ISSUED
BY THE 2ND RESPONDENT WHICH IS PRODUCED AT ANNEXURE-C TO
THE WRIT PETITION; ISSUE A WRIT, ORDER OR DIRECTION IN THE
NATURE OF MANDAMUS TO THE 2ND RESPONDENT TO GIVE THE
PERMISSION TO PETITIONER AND PARTICIPATE IN THE TENDER
NOTIFICATION HESCOM/2023-24/EL/WORK-INDENT91, IN THE
INTEREST OF JUSTICE, WHICH IS AT ANNEXURE-A.
THIS PETITION IS COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed seeking for following reliefs:
a) Issue a Writ, order or direction in the nature of Certiorari
or any other appropriate writ, order or direction and be
pleased to quash the amendment Tender Notification
bearing no. HESCOM/SEE(PMC)EEP-1/AEE-2/2023-
24/CYS-5197 dated 29-12-2023, issued by the 2nd
respondent which is produced at Annexure-B to the writ
petition.
b) Issue a Writ, order or direction in the nature of Certiorari
or any other appropriate writ, order or direction and be
pleased to quash the Rejected Bid no. B5137472 which is
filed by the petitioner in Tender Notification
HESCOM/2023-24/EL/work-Inden91 dated 26-10-2023
issued by the 2nd respondent which is produced at
Annexure-C to the writ petition.
c) Issue a writ, order or direction in the nature of
Mandamus to the 2nd respondent to give the permission
to petitioner and participate in the Tender notification
HESCOM/2023-24/EL/work-Indent91, in the interest of
justice, which is at Annexure-A.
2. Sri Sachin C.Angadi, learned counsel for
petitioner submitted that respondent no.3 had issued tender
notification at Annexure-A bearing BID no.HESCOM/2023-
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24/EL/work-Indent91, dated 26.10.2023 for construction of
5 nos of 11KV link lines from 110/11KV Kulenur sub-division
of Haveri Division on total turn key and lumpsum basis. It
was submitted duration for completion of work was four
months and value of tender was Rs.78.9 lakhs. It was
submitted, petitioner being eligible Class-I Contractors
submitted his bid on 04.11.2023. But on 29.12.2023,
respondent no.2 issued amendment notification modifying
tender conditions by inserting a new technical requirement of
obtaining and submitting 'manufacturers consent letter'. Said
condition reads as follows:
A) The bidder should submit the "Manufacturer
consent letter from Electrical line material (Poles,
Conductor and Hardware) Manufacture in
HESCOM Jurisdiction.
3. It was submitted that though additional condition
required consent letter from manufacturers, time for
uploading of documents in compliance with said condition
only 7 days. Consequently, petitioner was unable to comply
with said condition and his bid was rejected as technically
non-responsive as per Annexure-C. Aggrieved thereby,
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petitioner was before this Court challenging amendment to
tender notification and endorsement rejecting his bid. Apart
from above, petitioner was also seeking direction for
consideration of his bid in response to tender notification
dated 26.10.2023. It was submitted issuance of amendment
notification without providing adequate time was contrary to
Karnataka Transparency in Public Procurement Rules, 2000
(for short, 'Rules') and violative of fundamental rights of
petitioner and was arbitrary and illegal and hence prayed for
allowing petition.
4. On other hand, Sri B.S.Kamate, learned counsel
for respondent no.2 sought to justify amendment. It was
submitted, after issuance of tender notification, respondent
issued an amendment to tender notification. It was
submitted said amendment was approved by appropriate
authority and respondents had taken care to ensure
sufficient time for compliance with additional condition. As
such petitioner was having sufficient period of 7 days to
comply with condition but failed. Therefore, challenge
against amendment would not sustain. In this regard,
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learned counsel sought to rely upon decision of Hon'ble
Supreme Court in TATA Motors V/s The Brihan Mumbai
Electric Supply and Transport Undertaking in Civil
Appeal no.3897/2023 disposed of on 19.05.2023, Michigan
Rubber V/s State of Karnataka reported in (2012) 8 SCC
216 and W.P.no.8902/2022 disposed of on 09.11.2022 by
this Court. It was submitted, in its judgment dated
09.11.2022, this Court had held power to issue corrigendum
modifying tender condition was available to tender authority,
under Rule 14 of Rules. It was submitted, merely on ground
that petitioner could not comply with same, under
misconception that his bid was rejected due to lapse of time,
present writ petition was filed. It was submitted as on date
of issuance of amendment, time for submission of bids was
not over and available upto 06.01.2024. Having failed to
upload documents as required under amendment, petitioner
had come up with instant challenge on untenable grounds. It
was further submitted that as on today tender process was
completed and contract was awarded to successful bidder
NC: 2024:KHC-D:6498
who was also issued with work order. He had commenced
work and therefore sought for dismissal of petition.
5. Heard learned counsel and perused writ petition
record.
6. From above, it is seen petitioner is challenging
amendment to tender notification as being violative of Rules,
while respondents contend assumption of petitioner that
rejection of his bid was due to efflux of time for submission
of bid was misconceived and failure to comply with condition
despite providing sufficient time would not permit grant of
any relief to petitioner.
7. A perusal of order sheet reveals that at time of
issuance of notice on 07.03.2024, further developments in
tender process were made subject to outcome of writ
petition. Subsequent orders dated 02.04.2024 and
04.04.2024 had specifically called upon respondent to
disclose whether there was any approval for reduction in
time for submission of bids after issuance of amendment
notification.
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8. Indeed in judgment dated 09.11.2022 passed in
W.P.no.8902/2022, power of tender authority to issue
corrigendum notification is upheld. But in this case, challenge
against amendment is not ground of lack of power. Infact,
Rule 15(3) of Rules would provide for extension of last date
for receiving tenders on account of changes or any other
reasonable ground etc. But issue herein is whether
stipulation of time limit for submission of bids after
corrigendum/amendment can be less than minimum time for
submission of bids as provided under Rule 17(2) of Rules,
which reads as follows:
" (2) Any reduction in the time stipulated under sub-
rule (1) has to be specifically authorized by an
authority superior to the Tender Inviting Authority for
reasons to be recorded in writing."
9. No doubt, respondents have stated that after
issuance of amendment notification, there was specific
extension of time upto 06.01.2024 i.e. by 7 days and same
was uploaded on portal. But requirement of approval by
authority higher than tender authority has not been stated to
have been complied. Thus amendment would be in violation
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of requirement of Rule 17(2) of Rules. As such, corrigendum
and all subsequent events thereto would be rendered illegal.
10. But, taking note of fact that work in question is a
short term tender for four months and Annexure-R6/work-
order is dated 15.03.2024 and successful bidder is likely to
have invested time and money to a substantial extent
towards completion of works, instead of setting it at naught,
it would be appropriate for this Court to relegate petitioner to
avail damages.
11. Hence, writ petition is disposed of holding
stipulation of time of only 7 days for submission of bids after
issuance of amendment to tender notification as violative of
Rule 17(2) of Rules and consequently holding rejection of
petitioner's bid on ground of non-compliance with additional
condition of submission of documents as per amendment as
illegal, entitling petitioner to claim damages for wrongful
rejection of petitioner's bid.
For said purposes, petitioner would be at liberty to
approach appropriate Civil Court.
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In view of disposal of writ petition, pending
interlocutory application does not survive for consideration.
Sd/-
JUDGE
CLK
