Karnataka High Court
M/S G S Management Pvt Ltd vs The Commissioner Of Police on 4 February, 2025
Author: R Devdas
Bench: R Devdas
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WP No. 31594 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO. 31594 OF 2024 (GM-TEN)
BETWEEN:
M/S G S MANAGEMENT PVT LTD.,
A COMPANY INCORPORATED UNDE
THE PROVISION FO COMPANIES ACT, 1956
AND REP BY ITS AUTHORIZED SIGNATORY
YASHONANDAN P
HAVING ITS OFFICE NO.1091 2ND FLOOR
SRNG, SAMPANNAPPA CHARITIES
OTC ROAD NAGARAPTHPET
BENGALURU-560002
...PETITIONER
(BY SRI. DEEPAK., ADVOCATE)
AND:
Digitally signed by
DHARMALINGAM 1. THE COMMISSIONER OF POLICE,
Location: HIGH No.1, INFANTRY ROAD BENGALURU,
COURT OF
KARNATAKA BENGALURU CITY
2. THE ADDITIONAL COMMISSIONER OF POLICE
No.1 INFANTRY ROAD BENGALURU
BENGALURU CITY 560 001
3. THE ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT
VIDHANA SOUDHA
BENGALURU CITY-560001
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WP No. 31594 of 2024
4. BVG INDIA LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
AND A COMPANY WITHIN THE MEANING
OF THE COMPANIES ACT, 2013
HAVING ITS REGD. ADDRESS AT
BVG HOUSE, PREMIER PLAZA
PUNE-MUMBAI ROAD, CHINCHWAD
PUNE, MAHARASHTRA-411019
AND BRANCH OFFICE AT
BVG HOUSE, NO.47,
MILLERS TANK BUND ROAD
VASANTHNAGAR, BENGALURU-560052.
5. MERU INFO SOLUTIONS
A REGD. PARTNERSHIP FIRM UNDER
THE INDIAN PARTNERSHIP ACT, 1932
HAVING ITS OFFICE AT NO.07, 2ND FLOOR
OUTER RING ROAD NAGARBHAVI 2ND STAGE
BENGALURU-560072
REP BY ITS PARTNER
MR SRIDHAR KRISHNANIAH
...RESPONDENTS
(BY SRI.NAVEEN CHANDRASHEKAR., AGA FOR R1 TO R3
SRI. PRABHAKAR KULKARNI., ADVOCATE FOR R4
SRI. VISHWAS N., ADVOCATE FOR R5)
THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE
CORRIGENDUM DTD. 08.11.2024 FURNISHED AS ANNX-C
AFTER CALLING FOR ALL THE RECORDS AND GRANT AN
INTERIM ORDER TO STAY THE OPERATION OF CORRIGENDUM
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WP No. 31594 of 2024
DTD. 08.11.2024 FURNISHED AS ANNX-C AND IF THE
PETITIONER BE PERMITTED TO PARTICIPATE, IF FOUND
ELIGIBLE ON THE BASIS OF ORIGINAL TENDER NOTIFICATION
AT ANNX-A TO THIS PETITION.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R DEVDAS
ORAL ORDER
The petitioner, who responded to a tender invitation
at Annexure 'B' dated 25.10.2024, is before this Court
aggrieved of corrigendum dated 08.11.2024 issued at
Annexure 'C'. The petitioner is therefore seeking a writ of
certiorari to quash the corrigendum dated 08.11.2024 and
seeks a direction to the Tender Inviting Authority to
consider the bid submitted by the petitioner. The writ
petition was initially filed against the official respondents
No.1 to 3. However, subsequently, on an application
being filed by respondents No.4 and 5 who had also
submitted their bids, they were permitted to come on
record.
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2. Learned Counsel for the petitioner submits, while
drawing the attention of this Court to Annexure 'C',
corrigendum dated 08.11.2024 that at Sl.No.2 under the
heading 'Eligibility Criteria' what was provided earlier was
that the bidder should have a achieved minimum annual
turnover of Rs.10 crores during any three years out of
preceding five years, specifically for Call Centre, Manpower
Services/Operations. However, as per the corrigendum,
the stipulation has been enhanced to Rs.18 crores during
any two years out of the preceding five years. The other
area of dispute is at Sl.No.3 under the same heading
'Eligibility Criteria', which originally provided that the firm
should have liquid funds in the form of Cash in hand/Cash
at Bank/Bank Deposits/Mutual Funds or available
Overdraft limit, to the extent of Rs.2.50 crores, as on
31.03.2024 (to meet the expenditure on salary obligations
of atleast three months). However, after corrigendum, the
words 'mutual funds' which were found earlier have been
deleted.
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3. Learned Counsel submits that in terms of the
tender notification pre-bid meeting was fixed on
05.11.2024 at 12 noon and last date and time for
submission of the tender was fixed on 11.11.2024 at 5.00
p.m. The date and time of opening technical bid was
12.11.2024 at 5.30 p.m. On 05.11.2024, the petitioner
participated in the pre-bid meeting. Nothing further
transpired on the said date and intimation was given to
the petitioner to once again appear for pre-bid meeting on
08.11.2024, which was not found in the tender document.
Learned Counsel submits that on 05.11.2024, during the
pre-bid meeting there were only three participants viz.,
the petitioner, respondents No.4 and 5. However, on
08.11.2024 each of the bidders was separately called for a
meeting. Two or three hours after the meeting was
concluded, the impugned corrigendum was issued bringing
in the changes which practically keeps out the petitioner
from the race.
4. Learned Counsel submits that the reason for such
corrigendum being issued may not be too far away to find.
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Respondent No.4 was the successful bidder on the
previous occasion and it continues to provide the services
known as '24 x 7 Dial 112', which is the vision of the
Government to provide an integrated emergency response
system with a signal emergency No.112, to address
different categories of citizens. Dial 112 is designed to
address all emergency signals received from citizens
through voice call, SMS, e-mail, panic SOS signal, web
portal etc. The value of the tender has been fixed at
approximately Rs.10 crores including GST. Learned
Counsel submits that on a plain reading of Annexure 'C',
the impugned corrigendum, it appears that the changes
are brought in, since such requirement would meet the
provisions of The Karnataka Transparency in Public
Procurements Act, 1999 (hereinafter referred to as the
'KTPP Act' for short). Learned Counsel submits that there
is nothing that can be found which would enable such
corrigendum having regard to the provisions contained in
the KTPP Act.
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5. On the other hand, it is now sought to be
contended at the hands of respondent No.4, which is
providing the services at present that the requirement is
probably flowing from a standard document of the
Government of Karnataka known as 'K/W-4', which is filed
by the fourth respondent along with a memo for
production of a document dated 30.12.2024.
6. Learned Counsel for the petitioner would further
submit that at Sl.No.1 in the impugned corrigendum, the
Eligibility Criteria clause 4.1 is sought to be modified to
enable respondent No.5 to participate in the bid process.
Earlier, the requirement was that the bidder should be a
Company registered under the Companies Act, having
minimum three years experience in deployment of
Manpower for 24 x 7 helpline services. However, such a
requirement of the bidder, being a registered Company
has been removed enabling any bidder having minimum
three years experience in deployment of Manpower for
24 x 7 helpline services to participate in the tender
process. Learned Counsel submits that the respondent-
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authorities seems to have given a go-by to a big
requirement of the prospective services provider being a
registered Company and it is taking the risk of having any
person to come and participate in the tender.
7. In this regard, the petitioner had also raised an
objection in the communication dated 20.11.2024 at
Annexure 'E' that since the services are very critical in
terms of managing manpower and their safety, wherein
employees including female employees have to work
during night shifts, and in order to ensure meeting
statutory obligations according to labour laws and the
safety regulations, it is always preferred to have a Private
Limited Company for the said purpose and for
accountability of larger public interest. Nevertheless, the
objections raised by the petitioner have not been adhered
to.
8. Learned Counsel for the petitioner draws the
attention of this Court to a decision of this Court in the
case of Electronic Enterprises Vs. Karnataka Power
Corporation Ltd., reported in ILR 1994 KAR 125, where
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it was held that there is a difference between a case where
a person is excluded from opportunity to carry on a trade
and a case where a person is permitted to enter the
competition in the field of trade. It was held that in the
former case, opportunity is denied, resulting in violation of
Article 14 of the Constitution of India; similarly, exercise of
fundamental right to trade under Article 19(1) is
prevented. This Court therefore held that competition is
inherent in the trade and in fact, efficiency and service to
the general public will be increased only by proper
competition in the trade. That is why, an opportunity
created to extend the scope of competition among the
traders is not restrained in the exercise of writ jurisdiction.
However, if a person is not meted out an equal treatment
and is denied of a fair consideration and opportunity given
to one outweighs the skeleton opportunity given to
another, it may be a case of unfairness inviting judicial
scrutiny under Article 14 of the Constitution. Learned
Counsel would therefore submit that it is not clear as to
how and why the two conditions which earlier enabled the
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petitioner to participate in the tender is now modified in
effect to keep away the petitioner from the competition.
9. During the course of this case, this Court called
upon the learned AGA to furnish the original records so
that this Court could look into the records and find out as
to what went behind the impugned corrigendum.
Accordingly, the learned AGA has today furnished the
original records and this Court finds that other than what
is found at Annexure 'C', there is nothing more in the
original records. The impugned corrigendum does not
point out to the standard document 'K/W-4' as was sought
to be pointed out by the learned Counsel for respondent
No.4.
10. Learned Counsel for respondent No.4 however
seeks to contend that there is express provision contained
in Rule 14 of the Karnataka Transparency in Public
Procurement Rules, 2000, which clearly provides that at
any time after the uploading of the tender documents and
before the opening of the tender, the Tender Inviting
Authority may make any changes, modifications or
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amendments to the tender documents and these shall be
notified on the Karnataka Public Procurement Portal
through issue of Addendum or Corrigendum or Clarification
and they shall form part of original tender document.
11. In this regard, learned Counsel also sought to
place reliance on some of the recent decisions of co-
ordinate benches which have noticed such a Rule providing
for corrigendum. It is also pointed out from the tender
document itself that at clause 1.6, liberty is reserved to
the Tendering Authority to make any such changes in the
tender document which are in consonance with Rule 14 of
the Rules.
12. Clause 1.6 of the tender document provides that
at any time prior to the last date of receipt of bids, the
Tender Inviting Authority may for any reason, whether on
their own initiative or in response to the queries posed by
the bidders, the tendering authority may modify the RFP
document by a corrigendum. Learned Counsel would
therefore submit that the issuance of the impugned
corrigendum at Annexure 'C' cannot be found fault with,
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having regard to the express provision contained in the
Rules and the tender document. Learned Counsel would
further submit that it is only fourth respondent which is
clearly eligible to participate in the tender, pre-
amendment or post amendment. On the other hand, post
amendment the petitioner will be disqualified and pre-
amendment, respondent No.5 will be disqualified. Learned
Counsel would therefore submit that having regard to the
settled position of law that Courts are required to
undertake judicial review to implement the provisions of
law and it would be impermissible for the Court to allow
such a writ petition which would only pave way for the
tender to be carried out contrary to law. In this regard,
the learned Counsel has drawn the attention of this Court
to several judgments.
13. On the first date of hearing of this petition i.e.,
25.11.2024, this Court had directed the tendering
authority to process the technical bid without reference to
the conditions incorporated in the corrigendum at
Annexure 'C', subject to the outcome of this writ petition.
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On 09.12.2024 it is recorded that the technical bids were
processed. Thereafter, liberty was given to respondent
No.3 to open the financial bid of all the qualified
participants in accordance with the tender document.
14. Learned AGA submitted that the financial bids
were opened after leave was granted by this Court and it
is found that the petitioner is L1 (lowest bidder) and
respondent No.4 is L2 and respondent No.5 is L3. Learned
AGA submits that the services sought under the tender
document viz., '24 x 7 Dial 112' being an emergency
services, it is critical and the results of the tendering
authority should be announced as early as possible to
enable the continuous services to the general public.
15. Learned Counsel for respondent No.5 submits
that the prayer in the writ petition is to quash the
impugned corrigendum dated 08.11.2024 at Annexure 'C'.
If the impugned corrigendum is quashed, the fifth
respondent will become ineligible to participate in the
tender process. On the other hand, if the two clauses that
were pointed out by the learned Counsel for the petitioner
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are permitted to be restored as they were prior to the
corrigendum, it will also enable the fifth respondent to
participate in the tender process. Learned Counsel for
respondent No.5 also adopts the arguments of learned
Counsel for respondent No.4.
16. Having the critical nature of the Tender in mind,
the matter has been taken up at the request of learned
Counsels and the learned AGA, for final disposal.
17. Heard the learned Counsels for the petitioner,
learned AGA for respondents No.1 to 3, learned Counsel
for respondent No.4 and learned Counsel for respondent
No.5 and perused the petition papers.
18. Having regard to the facts narrated hereinabove,
this Court is required to consider as to whether the
impugned corrigendum at Annexure 'C' can be sustained
or it requires to be quashed or whether a portion of the
corrigendum can be directed to be read as they were
before modification. The learned Counsel for the
petitioner is right in his submission that the participation
of respondent No.5 in the tender process should be
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permitted to enable larger competition. This Court should
also notice the fact that respondent No.4 is the present
service provider. This would mean that it has past
experience and in the know of things. The chances of
respondent No.4 faltering are very less and accordingly,
no part of the tender conditions have caused any difficulty
to respondent No.4. On the other hand, a plain reading of
the impugned corrigendum at Annexure 'C' only points out
to the requirement of the provisions of KTTP Act and not
even a reference is made to 'K/W-4' which is a Standard
Document pointed out by the learned Counsel for
respondent No.4. This Court has also looked into the said
document known as 'K/W-4', which was initially notified on
06.08.2005 and modified on 14.10.2008. It is also not
disputed that 'K/W-4' pertains to tenders which are valued
less than Rs.10 crorers and 'K/W-6' would apply to tenders
which are more than Rs.10 crores. Since the value of this
tender is less than Rs.10 crores, 'K/W-4' may apply.
Even in K/W-4, clause 3 which pertains to qualification of
the tenderer, it is prescribed that to qualify, each tenderer
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in its name should have in the last five years achieved in
atleast two financial years a minimum financial turnover
(in all cases of civil engineering construction works only)
of the tender value (usually not less than two times the
estimated annual payments under the contract).
19. At clause 3.3(b) it requires that each tenderer
should further demonstrate liquid assets and/or availability
of credit facilities of not less than the value of the tender
(credit lines/letter of credit/certificates from Banks for
meeting the fund requirement etc.). Here again in the
brackets it is provided as :(usually the equivalent of the
estimated cash flow for three months in the peak
construction period).
20. No doubt, learned Counsel for respondent No.4
has pointed out to some decisions of this Court which have
held that this general document would apply to all tenders,
including services. However, it is for the answering
respondents to say as to why such conditions have been
missed out in the tender notification or tender document,
notified earlier. However, this Court has to notice the fact
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that many of the conditions prescribed in the standard
document 'K/W-4' or for that matter 'K/W-6', extensively
refers to construction works and a separate table is given
to meet the requirements of such tender documents
pertaining to construction works. Having regard to the
fact that construction activities are carried on not only by
registered Companies, but by registered partnership firms
and proprietary concerns, no such requirement of
registered companies is found in the document.
Therefore, if at the request of fifth respondent, such a
clause requiring a registered Company only to apply, is
removed, the Tendering Authority is fully justifiable and
reasonable.
21. On the other hand, the tender notification has
been modified by issuance of the impugned corrigendum,
although no one pointed out to the requirement in terms
of 'K/W-4'. As rightly pointed out by the learned Counsel
for the petitioner, respondent No.3-Tender Inviting
Authority has only stated that the corrigendum is issued to
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ensure the document is brought in tune with the
provisions of the KTTP Act.
22. Further, the wisdom falling out from the
judgments cited by the learned Counsel for the petitioner
in the case of Electronic Enterprises (supra) that having
regard to the public interest which should be the
paramount interest of the State and its authorities, it
would not be unreasonable on the part of the Tender
Inviting Authority to have made relevant changes to
expand the scope of the competition.
23. On the other hand, introducing certain conditions
or removing certain conditions which would keep away a
bidder who was otherwise qualified in terms of the original
document, would be counter protective as held by this
Court. If the impugned corrigendum is set aside,
respondent No.5 will be disqualified and if the impugned
corrigendum is upheld, the petitioner will be disqualified.
The fourth respondent will be the only entity in the fray
and continuance of the services at the hands of
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respondent No.4 without any competition, will also not be
in larger public interest.
24. In that view of the matter, this Court is of the
considered opinion that if the third respondent-Tender
Inviting Authority was of the opinion that changes are
required to be brought to the tender document and in the
process, some of the bidders will be kept out of fray, then
it would be prudent on the part of the third respondent to
recall the tender and issue a fresh tender incorporating all
the conditions that would be meeting the prescriptions of
the KTPP Act and 'K/W-4' or 'K/W-6', as the case may be,
while fine tuning the requirement, having regard to the
'services' that are called for under the tender document.
Necessary changes which enable 'play in the joints' is
required to be given to the Tender Inviting Authority to
prescribe conditions which are suitable for the purpose of
the tender document. Such liberty or discretion shall be
exercised by the third respondent and ensure that the
larger public interest is subserved.
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25. In that view of the matter, the writ petition is
partly allowed. The impugned corrigendum dated
08.11.2024 at Annexure 'C' and the tender document itself
at Annexure 'B' are quashed and set aside, while directing
the third respondent-Tender Inviting Authority to issue a
fresh tender, having regard to the observations made by
this Court. Since the tender notification at Annexure 'B' is
quashed and set aside, all further process that has taken
place under the said document also stand quashed. The
third respondent shall call for a fresh tender, having
regard to the observations made by this Court and having
regard to the public interest, as expeditiously as possible
and at any rate within a period of four weeks from the
date of receipt of a copy of this order.
Pending I.As., if any stand disposed of accordingly.
Sd/-
(R DEVDAS)
JUDGE
JT/-
CT: JL
