Karnataka High Court
M/S. Bannari Constructions vs Karnataka Soaps And Detergents Limited on 28 May, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 24.04.2024
Pronounced on : 28.05.2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.7700 OF 2024 (GM - TEN)
BETWEEN:
M/S. BANNARI CONSTRUCTIONS
NO.4, GIRIDARSHINI LAYOUT,
T. NARASIPURA ROAD,
MYSURU - 570 011.
REPRESENTED BY ITS
MANAGING PARTNER,
SRI. RAJU GOWDA,
AGED ABOUT 53 YEARS,
S/O. LATE M. K.CHIKKAMARIGOWDA.
... PETITIONER
(BY SRI D.R.RAVISHANKAR, SR.ADVOCATE A/W
SRI SUNIL S.RAO, ADVOCATE)
AND:
1. KARNATAKA SOAPS AND DETERGENTS LIMITED
NO.27, INDUSTRIAL SUBURB,
BENGALURU-PUNE HIGHWAY,
BENGALURU - 560 055,
2
REPRESENTED BY ITS
MANAGING DIRECTOR.
2. THE DEPUTY GENERAL MANAGER
KARNATAKA SOAPS AND DETERGENTS LIMITED,
NO.27, INDUSTRIAL SUBURB,
BENGALURU-PUNE HIGHWAY,
BENGALURU - 560 055.
... RESPONDENTS
(BY SRI JAYAKUMAR S.PATIL, SR.ADVOCATE A/W
SMT.MANJULA D., ADVOCATE FOR C/R-1 AND R-2;
SRI P.PRASANNA KUMAR, ADVOCATE FOR IMPLEADING
APPLICANT IN I.A.NO.1/2024)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER OF CANCELLATION OF TENDER DATED
07/03/2024 BEARING TIME STAND 10.23.26 FOUND WITHIN
ANNEXURE-A.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 24.04.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
3
ORDER
The petitioner is before this Court calling in question an order
of cancellation of tender dated 07-03-2024 floated by the 1st
respondent for procurement of Sandranol perfumery item.
2. Facts, in brief, germane are as follows:-
The petitioner is said to be in the business of distribution of
various perfumeries including one such perfumery by name
'Sandranol' and claims to have been the successful bidder on
several occasions, whenever such tenders were floated by the
respondent/Karnataka Soaps and Detergents Limited (hereinafter
referred to as 'the Company' for short). The issue in the lis would
commence from a notice inviting tender by the Company on
14-10-2023 for procurement of Sandranol, which was a two cover
tender as is obtaining under the Karnataka Transparency in Public
Procurements Act and the Rules framed thereunder (hereinafter
referred to as the 'Act and the Rules' for short). After the notice
inviting tender the probable tenderers were called for pre-bid
meeting on 23-12-2023. The averment is, it was again re-scheduled
to 13-01-2024. Certain amendments insofar as timeline for bid
submissions, revision in payment terms and execution of
agreements subsequent to award of tender were sought to be
modified. Therefore, the tender stood modified in terms of the
resolution in the pre-bid meeting which was notified on
23-01-2024. It is then the bids submitted by the tenderers were
sought to be assessed. The petitioner submits its bid on
25-01-2024 on the e-procurement portal of the Company. The last
date for submission of bid in terms of the tender document was
29-01-2024.
3. There were four bidders to the procurement of Sandranol.
On 30-01-2024 the technical bids were opened i.e., the first cover
was opened and two people emerged technically eligible. One is
the petitioner and the other is M/s Karnataka Aromas. The financial
bid was yet to be opened, which comes to be opened at a later
point in time and the petitioner emerges as the lowest bidder and
was expecting to be awarded the contract in its favour. The
contract was not executed by the Company in favour of the
petitioner in terms of the notice inviting tender. But, a pre-
negotiation meeting with the petitioner was called by the Company
on 24-02-2024. A clarification was sought on the ground that the
petitioner had not enclosed manufacturer's authorization letter
which is said to be the mandate as per tender condition No.29. The
petitioner requests for some time to get the certificate on
02-03-2024. Four days thereafter the tender itself is cancelled and
the Company resolves to call for a fresh tender. It is then the
petition is preferred on 11-03-2024. This Court directed
maintenance of status quo during the pendency of the petition,
which interim order is continued from time to time. The matter was
heard with the consent of the learned counsel representing the
parties.
4. Heard Sri D.R. Ravishankar, learned senior counsel
appearing for the petitioner, Sri Jayakumar S. Patil, learned senior
counsel appearing for respondents 1 and 2 and Sri P. Prasanna
Kumar, learned counsel appearing for impleading applicant in
I.A.No.1 of 2024.
5. The learned senior counsel Sri D.R. Ravishankar appearing
for petitioner would vehemently contend that the manufacturer's
authorization letter can never lead to rejection. It is the one that is
to be sought at the time when the scrutiny of the tender happens.
The law does not permit the Tender Inviting Authority to go back in
the tender and begin the process after having declared the
petitioner to be L1 and calling the petitioner for negotiation on
certain terms. He would submit that the petitioner has been
supplying the very same perfume, Sandranol for the last four years.
He has a certificate given by the Company/Associate Allied
Chemicals India Private Limited which was itself supplying till the
petitioner came into the picture. No authorization letter was ever
asked till now in any of the tenders. The letter submitted was
taken as authorization letter. It is for the first time a new thing is
sought to be introduced, that too at the fag end of the tender only
to favour certain party. It is his submission that the said
authorization letter also has been furnished. There can be no qualm
now to award the contract in favour of the petitioner. He would
seek to place reliance upon certain Rules which will bear
consideration at a later point in time.
6. Per contra, the learned senior counsel Sri Jayakumar S.
Patil would vehemently refute the submissions to contend that all
was well all along. There were no complaints about authorization
letter not being present. For the first time a complaint is registered
and therefore, authorization letter was sought. Since the petitioner
has failed to get the authorization letter, the drastic step of
cancelling the tender was taken by the Company. He would submit
that when the Company visited the website of the supplier from
whom the petitioner procured perfume and distributed it does not
show that they are the manufacturers. The learned senior counsel
would submit that only for the reason that the petitioner has failed
to adhere to the tender conditions of authorization letter, the tender
is cancelled. All other facts are admitted.
6.1. The learned senior counsel would further submit that if
the tender condition of submission of authorization letter is not
complied with, it would amount to non-fulfilling of conditions of
tender. Therefore, the Tender Inviting Authority was left with no
choice but to cancel the tender. Even after the order was passed
by this Court where the petitioner was directed to secure the
certificate, upon which the Company was directed to reconsider also
does not reveal that the manufacturer's certificate is available.
Therefore, no fault can be found with the action of the Company.
7. In reply, the learned senior counsel for the petitioner would
contend that the manufacturer has issued the certificate. It is clear
they are the largest manufacturers and they have been supplying to
the Company up to 2016-17. Therefore, he would submit that this
is deliberately done only to favour some tenderer.
8. I have given my anxious consideration to the submissions
made by the respective learned senior counsel and have perused
the material on record.
9. The afore-narrated facts are not in dispute. The notice
inviting tender was for procurement of perfume by name
'Sandranol' for the purpose of preparation of perfumeries in the
Company. 4 tenderers submit their bids. They are as follows:
(1) Vinay Sampath Raj (1) (Karnataka Aromas). -
Impleading Applicant
(2) Bangalore Srinivasmurthi Gururaj (1) (Chemixil
Corporation)
(3) Raju Gowda C (Bannari Constructions) - Petitioner
(4) Rajendra Raghavan Nair (Khyathi Advisary Services
Limited).
(Emphasis added)
Out of four tenderers two tenderers at Sl.Nos.1 and 3 emerge as
successful in the technical scrutiny. The petitioner and a Company
by name Karnataka Aromas emerge as successful bidders on the
technical side. The financial bids of both were to be on the web
portal and the documents of the portal are appended to the
petition. A perusal at the documents in the portal would clearly
indicate that the price of the petitioner is close to 4 crores less than
the next person i.e., Karnataka Aromas. From this it is clearly
understandable that the petitioner was the lowest bidder. After
emerging as the lowest bidder, the petitioner was called for
negotiations. These are admitted facts.
10. In the negotiation, the petitioner is informed that they
would require manufacturer's authorization in terms of Condition
No.29. This was sought for by the Company on 02-03-2024 and
the petitioner was called on 05-03-2024 to produce the same. It
appears that the petitioner did not attend the said meeting on
05-03-2024. On 07-03-2024 the tender itself was cancelled by
recalling the tender and a decision was taken to call for a fresh
tender. The petitioner knocks at the doors of this Court with the
present petition. This Court on 13-03-2024 passes the following:
"ORDER
The petitioner is before this Court calling in question an
order of cancellation of tender dated 07.03.2024.
The petitioner along with three others participate
pursuant to a Notice Inviting Tender on 14.10.2023. The tender
was for procurement of Sandronol, a component used in the
perfumery for manufacture of the soap. A pre-bid meeting was
held on 23.12.2023 and the second on 11.01.2024. It transpires
that certain amendment in so far as the timeline for bid
submission was the deliberation in the pre-bid meeting. On
23.01.2024, the tender stood modified in terms of the
deliberations in the pre-bid meeting between the tenderers and
the Tender Inviting Authority. The last date for submission of
the tenders was on 29.01.2024.
The opening of the technical bid happens on 30.01.2024.
The petitioner is technically qualified along with one other, out
of the four, two thus qualified technically after the technical
evaluation. The next day, the financial bid of the two is opened.
The petitioner in terms of what was depicted in the financial bid
is the lowest bidder. Therefore, he is L1. All these things
happened on 30.01.2024. Long after the opening of the financial
bid, comes an amendment to the tender. The amendment is
communicated through electronic mail to the tenderers. The
amendment is as follows:
"Trader/Agent should compulsorily upload
Manufacturer Authorization letter (in original) in
tender document while participating in the bid,
failure of which will lead to bid rejection."
A new clause is brought up after opening of the financial
bid that the Trader/Agent should compulsorily approve
manufactured authorization letter with the tender document
while participating in the bid, the failure of which, will lead to
bid rejection.
It is un-understandable as to how this condition could
emerge long after the opening of the financial bid while the
said amendment takes the clock back to the submission of the
bid. The petitioner's claim is rejected on 07.03.2024 by
posting it on the web portal showing it as rejected. The reason
for rejection is produced by way of a memo by the learned
counsel for respondent No.2. The reason is that the
manufacturers authorization is not produced. If that was not a
condition at the beginning and the condition is emerged at the
end, time atleast should have been granted to the petitioners
to file such authorization on 07.03.2024. The tender of the
petitioner is rejected and on 07.03.2024, a fresh tender is
notified. The breakneck speed at which the respondents have
proceeded the matter would completely be contrary to tenets
of Article 14 of the Constitution of India.
Therefore, there shall be an interim order of stay of the
fresh tender and all further proceedings taken thereto, till the
filing of the statement of objections by the respondents.
The interim order will not come in the way of
consideration of the authorization certificate if submitted by
the petitioner.
List the matter on 22.03.2024."
The order is extended from time to time and on 27-03-2024 on the
submission of the learned counsel for the Company this Court
passed the following order:
"ORDER
Smt. Manjula D., learned counsel for respondents -
Karnataka Soaps and Detergents Ltd. submits that if
authorization letter as is required is submitted, they would
consider the case of the petitioner as admittedly the petitioner is
the lowest bidder - L1.
Interim order granted by this Court will not come in the
way to consider the case of the petitioner.
Subject to the aforesaid consideration of the case of the
petitioner, the interim order shall continue, till the next date of
hearing.
List this matter on 15.04.2024, in the fresh matters list."
It was directed that if authorization is submitted, they would
consider the case of the petitioner, as admittedly the petitioner is
the lowest bidder. Therefore, it is not in dispute that the petitioner
is the lowest bidder even according to the Company. What is the
authorization letter that is sought for is also extracted in the interim
order supra. I deem it appropriate to re-notice the same, which
reads as follows:
"Trader/Agent should compulsorily upload
Manufacturer Authorization letter (in original) in tender
document while participating in the bid, failure of which
will lead to bid rejection."
Condition No.29 indicates that the Trader/Agent should
compulsorily upload Manufacturer Authorization letter (in original)
in the tender document while participating in the bid, otherwise it
would lead to bid rejection. This is the stage at which the tender
would commence. If any default were to be found of the petitioner,
it would have technically been disqualified and it is not. This is a
condition that has been existing in all the tenders that were called
by the Company for the last 5 years. Every time when the
petitioner emerged as the successful bidder, the authorization letter
is submitted. The authorization letter reads as follows:
"Date: 15-01-2024
To
Karnataka Soaps & Detergents Ltd.,
PB No.5531,
Bangalore Pune Highway,
Bangalore-560 055.
Sub: Authorization letter.
Dear Sir,
We are pleased to note that in the event that M/s
Bannari Constructions, Mysore bearing address No.4,
Giridarshini Layout, Alanhalli T.Narasipura Road, Mysuru,
Mysore-570 028 successfully wins the bid against your
tender 2024-2025, we will be pleased to supply the
material to them for the orders placed by them further to
supply Karnataka Soaps & Detergents Limited for the
tender period.
Thanking you,
Yours Faithfully,
For Associate Allied Chemicals India Pvt. Ltd.,
Sd/-
SATISH GANDHI "
(Emphasis added)
The learned senior counsel for petitioner submits that this is the
authorization letter being submitted for the last 5 years, which is
admitted by the learned senior counsel for the Company.
11. The defence of Sri Jayakumar S.Patil, learned counsel
appearing for Company is that there were no complaints till now
and, therefore they had accepted such authorization letter. It now
becomes necessary to notice the complaint and when the complaint
has emerged. The complainant is from the 2nd lowest bidder. The
complaint is not any time earlier. The moment financial bid is
notified on the web portal which happens on 24-02-2024, the
complaint is written on 25-02-2024. Therefore, the foundation for
an arbitrary action is laid on 24-02-2024 by the second lowest
bidder to register the complaint. This trivial complaint is taken
forward. The reason is even today an enigma as it was never the
issue. On the submission made by the learned senior counsel for
the Company, assessment was directed to be made if the petitioner
would produce the authorization certificate. The petitioner
produces authorization certificate. The authorization certificate
submitted on 19-03-2024 to the petitioner reads as follows:
"Date 19-03-2024
To
Bannari Construction,
Mysore.
Sub: Self-declaration
--
We are the largest manufacturer and trader of various
perfumery chemicals in Indian and we are marketing our
product in all over the world and we are also customer
for some of perfumery chemicals to china-based
companies (Letter enclosed of china company)
We are going to supply perfumery chemicals like SANDACANOL
and other products to M/s Bannari construction, Mysore as their
requirements.
Yours faithfully,
For Associate Allied Chemicals India Pvt. Ltd.,
Sd/- SATISH GANDHI
(MANAGING DIRECTOR)"
(Emphasis added)
The petitioner communicates the same to the Company by the
following communication dated 12-04-2024:
"Date:12-04-2024
To
The Managing Director,
Karnataka Soaps and Detergents Ltd.,
Rajajinagar, Bangalore.
Sir,
Sub: Submission of Authorization letter and Self
Declaration Letter against Order of Honourable
High Court of Karnataka vide WP No.7700 of 2024
dated 27-03-2024.
--
With respect above order of Honourable High Court of
Karnataka vide WP No.7700 of 2024, dated 27-03-2024, we
hereby submitting the Authorization Letter and Self
Declaration Letter of M/s Associate Allied Chemicals
(India) Pvt. Ltd., Mumbai for your consideration.
We request your good self to issue Purchase Order for the
perfumery chemicals of "Sandranol" to our firm as directed by
the Honourable High Court of Karnataka.
Thanking you,
Yours faithfully,
For Bannari Constructions,
Sd/- Partner"
(Emphasis added)
Enclosing two documents - one authorization letter by the
manufacturer to the Company itself and the other to the petitioner.
They are dated 15-01-2024 and 06-04-2024. All these are
communicated by the Manufacturer to the Company and to the
petitioner.
12. It is rather surprising that a submission is still made that
Associate Allied Chemicals India Private Limited who has been
manufacturing and supplying "Sandranol" is not a manufacturer and
there is no communication that it is the manufacturer. The
documents themselves would belie such submission. The Associate
Allied Chemicals India Private Limited clearly indicates that it is the
largest manufacturer and trader of various perfumery chemicals
and it has supplied perfumery chemicals like Sandranol to the
petitioner and the petitioner to the Company. If this would not
suffice, it is ununderstandable even to this Court as to what is
necessary for the Company. A successful bidder is trying to be
driven away by an action which on the face of it is arbitrary. This
triviality which is also complied with by the petitioner has not been
looked into. The defence is that the website of Associate Allied
Chemicals India Private Limited does not indicate that it is
manufacturer. But, in the same breath the Company admits that
Associate Allied Chemicals India Private Limited is itself
manufacturing Sandranol. Therefore, the action on the face of it is
arbitrary.
13. It is trite law that this Court would not sit in the arm chair
of experts like Tender Scrutiny Committee or Tender Inviting
Authority to tinker with the conditions. But that would not mean
that there should be no judicial review of any administrative action,
even if it is in the realm of contract. The decision is not what is
challenged, but what is challenged is the decision making process.
The decision making process is clearly a flaw, as the petitioner
admittedly emerged as the successful bidder - L1. L2 who was 4
crores higher than the petitioner, after getting to know the financial
credentials, resisters the complaint. The complaint is shrouded with
triviality and improbability. Therefore, such arbitrary action would
necessarily entail judicial review and obliteration of such arbitrary
action. This view of mine is fortified by the judgments rendered by
the Apex Court from time to time. It is apt to notice three Judge
Bench judgment of the Apex Court in the case of TATA CELLULAR
v. UNION OF INDIA1 -wherein the Apex Court holds as follows:-
".... .... ....
68. Having regard to the above arguments we propose to
deal with the matter from the following five aspects:
1. The scope of judicial review in matters of this kind.
2. Whether the selection is vitiated by arbitrariness? --
(a) regarding financial projection and (b) regarding
rental.
3. Bias of Mr Nair -- whether affected the selection?
4. Whether the Apex Committee has been bypassed?
5. Evolving of hidden criteria -- whether valid?
1. Scope of Judicial Review
69. A tender is an offer. It is something which invites and
is communicated to notify acceptance. Broadly stated, the
following are the requisites of a valid tender:
1. It must be unconditional.
2. Must be made at the proper place.
3. Must conform to the terms of obligation.
4. Must be made at the proper time.
5. Must be made in the proper form.
6. The person by whom the tender is made must be able and
willing to perform his obligations.
7. There must be reasonable opportunity for inspection.
8. Tender must be made to the proper person.
9. It must be of full amount.
70. It cannot be denied that the principles of judicial
review would apply to the exercise of contractual powers by
Government bodies in order to prevent arbitrariness or
favouritism. However, it must be clearly stated that there are
inherent limitations in exercise of that power of judicial
review. Government is the guardian of the finances of the State.
It is expected to protect the financial interest of the State. The
right to refuse the lowest or any other tender is always available
(1994) 6 SCC 651
to the Government. But, the principles laid down in Article 14 of
the Constitution have to be kept in view while accepting or
refusing a tender. There can be no question of infringement of
Article 14 if the Government tries to get the best person or the
best quotation. The right to choose cannot be considered to be
an arbitrary power. Of course, if the said power is exercised for
any collateral purpose the exercise of that power will be struck
down.
71. Judicial quest in administrative matters has been to
find the right balance between the administrative discretion to
decide matters whether contractual or political in nature or
issues of social policy; thus they are not essentially justiciable
and the need to remedy any unfairness. Such an unfairness is
set right by judicial review.
... ... ...
77. The duty of the court is to confine itself to the
question of legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would
have reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether a
particular policy or particular decision taken in the fulfillment of
that policy is fair. It is only concerned with the manner in which
those decisions have been taken. The extent of the duty to act
fairly will vary from case to case. Shortly put, the grounds upon
which an administrative action is subject to control by judicial
review can be classified as under:
(i) Illegality: This means the decision-maker must
understand correctly the law that regulates his
decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out
addition of further grounds in course of time. As a matter of
fact, in R. v. Secretary of State for the Home Department, ex
Brind [(1991) 1 AC 696] , Lord Diplock refers specifically to one
development, namely, the possible recognition of the principle
of proportionality. In all these cases the test to be adopted is
that the court should, "consider whether something has gone
wrong of a nature and degree which requires its intervention".
... .. ..
94. The principles deducible from the above are:
(1) The modern trend points to judicial restraint in
administrative action.
(2) The court does not sit as a court of appeal but merely
reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the
administrative decision. If a review of the administrative
decision is permitted it will be substituting its own
decision, without the necessary expertise which itself
may be fallible.
(4) The terms of the invitation to tender cannot be open to
judicial scrutiny because the invitation to tender is in the
realm of contract. Normally speaking, the decision to
accept the tender or award the contract is reached by
process of negotiations through several tiers. More often
than not, such decisions are made qualitatively by
experts.
(5) The Government must have freedom of contract. In
other words, a fair play in the joints is a necessary
concomitant for an administrative body functioning in an
administrative sphere or quasi-administrative sphere.
However, the decision must not only be tested by the
application of Wednesbury principle of reasonableness
(including its other facts pointed out above) but must be
free from arbitrariness not affected by bias or actuated
by mala fides.
(6) Quashing decisions may impose heavy administrative
burden on the administration and lead to increased and
unbudgeted expenditure.
Based on these principles we will examine the facts of this case
since they commend to us as the correct principles."
(Emphasis supplied)
The principles that the Apex Court would deduce is that the Court
does not sit as a Court of appeal but merely reviews the manner in
which the decision is made. The said judgment is followed
subsequently in plethora of cases. The Apex Court in the case of
MICHIGAN RUBBER (INDIA) LIMITED v. STATE OF
KARNATAKA2 has 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 must 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 entirely
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;
(c) In the matter of formulating conditions of a
tender document and awarding a contract, greater
(2012) 8 SCC 216
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.
24. Therefore, a court before interfering in tender or
contractual matters, in exercise of power of judicial review,
should pose to itself the following questions:
(i) Whether the process adopted or decision
made by the authority is mala fide or intended to
favour someone; or whether the process adopted or
decision made is so arbitrary and irrational that the
court can say: "the decision is such that no
responsible authority acting reasonably and in
accordance with relevant law could have reached"?
and
(ii) Whether the public interest is affected?
If the answers to the above questions are in the negative,
then there should be no interference under Article 226."
(Emphasis supplied)
The Apex Court holds that basic requirement of Article 14 is fairness
in action by the State and if it is found that the action is arbitrary,
the Apex Court holds that judicial review would be permissible.
14. On the bedrock of the principles laid down by the Apex
Court, the facts narrated hereinabove are noticed, this Court cannot
but put a stamp of arbitrariness on the action of the Company, at
the outset, entertaining the complaint by the second lowest bidder
who failed to emerge as the lowest bidder, as the complaint is
entertained after the financial bids were opened and reputed
manufacturers certificate also being given is deliberately ignored
even when the proceedings were pending before this Court and the
respondents have struck to their stand of recalling the tender and a
decision to re-notify the tender. As submitted by the learned senior
counsel for petitioner, the impugned action and the reason for such
action would run foul of the Karnataka Transparency in Public
Procurements Act and the Rules.
15. The second lowest bidder also has filed an impleading
application to demonstrate that he was the complainant and his
complaint has resulted in the cancellation of tender and, therefore,
he is a necessary party. This submission is noted only to be
rejected and no application of the kind preferred by the intervener
can be entertained. Therefore, the said application is to be rejected
and is accordingly rejected.
16. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) The order dated 07-03-2024 passed by the 1st
respondent stands quashed.
(iii) The respondent/Company is directed to take the tender
notified on 14-10-2023 to its logical conclusion, bearing
in mind that the petitioner has emerged as the lowest
bidder.
(iv) This exercise should be done within a period of 15 days,
if not earlier.
Sd/-
JUDGE
bkp
CT:MJ
