Karnataka High Court
M/S. Himagiri Sree Electricals vs Chief Commissioner on 15 November, 2024
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. N. V. ANJARIA, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT APPEAL No.1397 of 2024(GM-TEN)
BETWEEN:
M/S. HIMAGIRI SREE ELECTRICALS,
HAVING OFFICE AT No.77,
3RD CROSS, VITTAL NAGAR,
CHAMARAJPET,
BENGALURU 560 018.
REPRESENTED BY ITS PROPRIETOR,
SRI. DR. SREEDHARA.
...APPELLANT
(BY SRI SHRIDHAR PRABHU, ADVOCATE)
AND:
1. CHIEF COMMISSIONER,
BRUHAT BENGALURU MAHANAGARA PALIKE,
N. R. SQUARE,
BENGALURU 560 002.
2. EXECUTIVE ENGINEER (ELE),
CHAMARAJPET DIVISION,
BBMP ANGANWADI CENTRE,
2ND MAIN, TR MILL ROAD,
BENGALURU 560 018.
3. M/S. ASHPRA INFRA ENGINEERS PVT. LTD.,
No. 287, 3RD FLOOR,
NANDA KRISHNA ENCLAVE,
4TH PHASE, 7TH BLOCK,
100 FT ROAD,
2
BEGNALURU 560 085.
(REPRESENTED BY ITS DIRECTOR).
...RESPONDENTS
(BY SRI S.J. PURANIK, ADVOCATE FOR C/R1 & 2;
SRI SURESH S. LOKRE, SENIOR ADVOCATE A/W
SRI T.P. PRAMODA GOWDA, ADVOCATE FOR R3)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER DATED 29TH JULY 2024 PASSED IN WP No. 13733/2024
(GM-TEN).
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,
JUDGMENT WAS PRONOUNCED UNDER:
CORAM: HON'BLE THE CHIEF JUSTICE MR. JUSTICE
N. V. ANJARIA
and
HON'BLE MR. JUSTICE K. V. ARAVIND
C.A.V. JUDGMENT
(PER: HON'BLE MR. JUSTICE K. V. ARAVIND)
Heard learned advocate Mr. Shridhar Prabhu for the
appellant, learned advocate Mr. S.J. Puranik for respondent Nos.1
and 2 and learned Senior Advocate Mr. Suresh S. Lokre assisted
by learned advocate Mr. T.P. Pramoda Gowda for respondent
No.3.
2. This intra-court appeal under Section 4 of the High Court Act,
1961, aggrieved against the order in Writ Petition No.13733 of
2024 dated 29.07.2024.
3. The brief facts from the pleadings are that, the respondent-
Bruhat Bengaluru Mahanaraga Palike (BBMP) issued a tender
notification dated 24.01.2024 inviting bids for the construction of a
library building, shops, comprehensive development of roads,
beautification of parks, provision of Gym equipment, CCTV
cameras in Chamarajpet Assembly Constituency. Further, the
tender work includes improvement to the median under the BGS
flyover, provision of street name boards, LED street lights and bus
shelters in Chamarajpet.
4. The appellant-petitioner challenged the tender notification
alleging non-compliance with the Karnataka Transparency in Public
Procurement Act, 2000 (for short 'KTPP Act') and various other
defects in the tender document concerning the estimate for
electrical works. It was further challenged that the composite
tender, including electrical and civil works, is not in accordance with
law. Merging of two works would hinder fair and equal opportunity
to the petitioner.
5. The learned Single Judge, considering the nature of the work
and also having regard to the fact that 60% of the entrusted work
was completed, dismissed the writ petition. The writ petition was
dismissed for one more reason that the tender notification was
published on 21.04.2024, the petitioner approached the Court on
22.05.2024 on completion of the tender process and issue of work
order.
6. Learned advocate Mr. Sridhar Prabhu, appearing for the
appellant-original writ petitioner, submits that the work order was
issued on 16.03.2024 on the same day when elections to the
Parliament were notified. As per the communication of the Election
Commission of India dated 16.03.2024, no work orders should
have been issued. Even if the work order was issued as no work
was started and no work would have started during the operation of
the Election Code of Conduct, 60% of the work being completed is
unacceptable.
6.1. Learned advocate further submits that the conditions
imposed in the tender document that the tenderer shall be
registered with BBMP/BDA/NHAI/PWD/CPWD or other
Central/State agency is irrational and to ward off the competition. It
is further submitted that the tender work in question is subject to
PMC services, including supervision, quality control for the
improvement to the median under BGS flyover and providing street
name boards, LED street lights and bus shelters in Chamarajpet
Assembly Constituency.
6.2 The agreement for PMC services was entered into on
04.06.2024. It is the specific assertion of learned advocate that
when PMC service agreement in relation to the tender work in
question was entered on 04.06.2024, the contention that 60% of
the work was completed is without any basis.
6.3. It is further submitted that the electrical work included in the
composite tender lacks the skill and expertise that the successful
bidder to execute. The entrustment of electrical work to the civil
contractor contravenes the law.
6.4. Learned advocate further contended that the successful
bidder has no competence. It is submitted that the individual's
work experience has been assigned in favour of respondent No.3
Company, which would not comply with the qualifying conditions.
Learned advocate further submits that the second bidder is not
bona fide, made to believe arrangement to demonstrate that work
awarded in favour of respondent No.3 is on competitive selection.
7. Mr. S.J. Puranik, learned advocate appearing for the BBMP
would submit that the tendered work substantially involves civil
work. The work relating to street lights is an integral part of civil
work. Considering the nature of work, entrusting the work splitting
into civil and electrical is difficult. Coordination between the
persons carrying on civil and electrical work is extremely
necessary, but for the composite contract, it would be practically
challenging to get the work executed.
7.1 Learned advocate for the BBMP further contended that the
grounds urged relating to Election Code of Conduct, PMC services
and other aspects raised in the appeal are fresh pleadings. The
appellant is not entitled to raise any additional grounds. While
aggrieved by the impugned order, the grounds not pleaded in the
writ petition resulting in the impugned order cannot be permitted.
7.2 Learned advocate for the BBMP asserting the petitioner's
locus standi, submitted that the petitioner has not participated in
the tender process. The person who remained outside the tender
process cannot allege illegalities and cannot challenge the tender.
7.3 Learned advocate further submitted that tender process were
started in January 2024, the work order was issued much prior to
the code of conduct comes into operation. It is submitted that the
substantial work was completed when the petitioner challenged the
tender process. It is further submitted that the tender notification
scrutiny and award of the contract are as per the provisions of the
KTPP Act.
8. Having considered the contentions and grievance, it may be
stated that the appellant preferred the instant Writ Petition
No.13733 of 2024 questioning the tender notification dated
24.01.2024 (Annexure-A). The grounds urged, firstly regarding
merging the electrical and civil works. Secondly, certain defects
were pointed out in the estimate for electrical work. Learned
Single Judge rejected the petition on the ground of delay. The
tender notification was dated 24.01.2024, the work order was
issued on 16.03.2024. The writ petition is dated 22.05.2024. On
the above sequence of events, the learned Single Judge concluded
that the petitioner had approached the Court belatedly.
9. The appellant has filed an application in I.A.No.2 of 2024 for
additional documents. There is no reference in the pleadings in the
writ petition to the additional documents sought to be brought on
record.
10. However, the grounds relating to the model code of conduct,
joint venture tender submission, licence qualification, fraud
perpetrated by the respondents, and consideration of a single bid
are fresh grounds in this appeal. The fresh grounds are opposed
by the respondents on its maintainability.
11. Before considering the fresh grounds raised in the appeal, it
is necessary to determine whether the appellant has made out a
case for interference with the impugned order of the learned Single
Judge.
12. Respondent No.3 has raised a contention regarding locus
standi of the petitioner in maintaining the writ petition and the
appeal. The precise contention is that the petitioner has not
participated in the tender, is not aggrieved, and lacks locus standi
to maintain the writ petition.
13. To consider the above aspect, it would be relevant to refer to
the judgment of this Court in Larsen and Toubro Limited vs. The
Karnataka Power Corporation Limited and another, Writ
Appeal No.381 of 2024, DD on 25.04.2024. This Court has
extensively examined the scope of judicial review and the extent of
intervention. This Court also considered the locus standi to
maintain writ petition when not participated in the tender process.
It is held that while examining any administrative decision or action,
the judicial review power is to be confined to the examination of
decision making process and not the decision itself. This Court
has further held that it is entirely the domain of the tender inviting
authority as to which conditions are to be attached to the tender
notice and with which conditions it would accept the offers from the
intending bidders. It is not permissible for the intending bidder to
dictate its own terms to the tender inviting authority.
14. When the petitioner herein has not participated in the tender
process and has remained outsider, the petitioner has no right to
challenge the process. Subsequent change of mind will not crave
to be excused.
15. This Court has further held that the person keeping himself
away from tender participation cannot make suggestions about the
conditions considering the negotiation with the expert partners for
the technical part of the project. It is held that the person
challenging the tender process and indulging in suggestions, none
other than the fence-sitters cannot be allowed to interfere in the
tender process or in the proceedings challenging such process.
16. While examining the locus standi, the petitioner's conduct is
also of serious concern. If the third parties are allowed to
challenge the tender process and entertain, the entire work to be
achieved in the tender would seriously affect the process and the
public interest. It will further lead to the abuse of the process, even
at the instance of the interested person.
17. The time at which a challenge is posed to the tender is also
highly relevant. As evident from the record, the tender notification
was published on 24.01.2024, work order is issued on 16.03.2024.
Whereas, the writ petition is preferred on 22.05.2024 after a lapse
of four months. No justification has been submitted for the delay.
In the absence of any justifiable reasons for delay, the theory of
fence-sitter would reasonably apply.
18. Further, the fresh grounds are urged to be without any
substance and pleadings to that effect. The contention that no
work was commenced until the election code of conduct expires is
without any substance. Another contention that the law prohibits
the entrustment of electrical work to civil contractors merits no
consideration.
19. The petitioner has neither placed reliance nor invited the
attention of the Court to any of the provisions imposing such a
statutory bar. The contention that work could not have commenced
before the signing of PMC services is without merit and has no
significance on the issue, as it is factual.
20. Be that as it may, in view of the finding herein above that the
writ petitioner has no locus standi to maintain the writ petition and
the conduct of the petitioner is not bonafide, the conclusion
reached by the learned Single Judge while dismissing the writ
petition cannot be faulted and interfered with. In that view, other
contentions renders academic, the same do not merit
consideration.
21. No error can be booked from the order of learned Single
Judge. Accordingly, the appeal is dismissed.
In view of dismissal of the main appeal, pending interlocutory
applications do not survive for consideration and they stand
disposed of.
Sd/-
(N. V. ANJARIA)
CHIEF JUSTICE
Sd/-
(K. V. ARAVIND)
JUDGE
MV
