Karnataka High Court
Jayaraj S/O Narayanappa Sangapur vs The Executive Officer on 17 January, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 107460 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 17TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
WRIT PETITION NO.107460 OF 2024 (GM-TEN)
BETWEEN:
JAYARAJ S/O. NARAYANAPPA SANGAPUR,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: WARD NO.1, SANGAPUR - 583 227,
TQ: GANGAVATHI, DIST: KOPPAL.
...PETITIONER
(BY SRI V. S. KALASURMATH, ADVOCATE)
AND:
1. THE EXECUTIVE OFFICER,
TALUKA PANCHAYAT, ANEGUNDI,
GANGAVATHI - 583 227,
TQ: GANGAVATHI, DIST: KOPPAL.
2. THE PANCHAYAT DEVELOPMENT OFFICER,
GRAM PANCHAYAT, ANEGUNDI,
ANEGUNDI - 583 227,
VISHAL TQ: GANGAVATHI, DIST: KOPPAL.
NINGAPPA
PATTIHAL
Digitally signed by
VISHAL NINGAPPA
PATTIHAL
3. T. S. GOPIKRISHNA
S/O. T. S. RAMACHANDRA ACHAR,
Location: High Court of
Karnataka Dharwad Bench
Date: 2025.01.22 10:57:26
+0530
AGE: MAJOR, OCC: BUSINESS,
R/O: ANEGUNDI - 583 227,
TQ: GANGAVATHI, DIST: KOPPAL.
...RESPONDENTS
(BY SRI BHUSHAN B. KULKARNI, ADVOCATE FOR R1 AND R2;
SRI V.P.VADAVI, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT IN
THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER
BEARING NO. GRA PAM.AA/2024-25 PASSED BY THE RESPONDENT
NO. 2 DATED 02-12-2024 AND CONSEQUENTIAL ORDER BEARING
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WP No. 107460 of 2024
NO. NO. GRA PAM/NO/2024-25 DATED 30-11-2024 VIDE
ANNEXURE- A AND B RESPECTIVELY AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA)
The petitioner is before this Court seeking the following
prayer:
a) Issue a writ in the nature of certiorari quashing the
impugned order bearing no. gra pam.aa/2024-25
passed by the respondent no. 2 dated 02-12-2024
and consequential order bearing no. no. gra
pam/no/2024-25 dated 30-11-2024 vide Annexure- A
and B respectively.
b) Grant such other relief/s as deems fit in the
circumstances of the case and allow the writ petition
with costs in the interest of justice and equity.
2. Heard Sri V.S. Kalasurmath, learned counsel for
petitioner, Sri Bhusan B. Kulkarni, learned counsel for
respondents No.1 and 2 and Sri V.P. Vadavi, learned counsel
for respondent No.3.
3. The petitioner calls in question an order dated
02.12.2024, by which, work order is issued to the private
respondent herein. A notice inviting tender becomes the subject
matter of the proceedings before this Court in Writ Petition
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No.102822/2024 filed by one V H Nikhil who was a participant
in the tender. Another petition by the third respondent herein in
Writ Petition No.103474/2024. The Coordinate Bench
answering his claim, passes the following order :
i. This petition is allowed.
ii. The impugned order at Annexure-A dated
05.04.2024 is hereby quashed.
iii. A writ of mandamus is issued directing the
respondents to consider the requisition made by
the petitioner vide Annexures-D and D1 dated
19.06.2024 and if the petitioner is eligible and
fulfils all the requirements, suitable orders shall
be passed in accordance with law within the
time frame of three weeks from the date of
receipt of copy of the order.
4. Pursuant to the said order, it transpires that the
tender scrutiny committee or the tender inviting authorities has
issued the impugned order in favour of the third respondent.
The petitioner is wanting to challenge it. The issue is "who is
the petitioner". The petitioner is neither participant in the
tender nor is a party to the proceedings in both the cases
referred to herein above. He admits that he is a stranger.
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5. The contention of the learned counsel for the
petitioner Sri V.S. Kalasurmath with vehemence is that, if the
panchayat would notify a tender, he would become a
participant in the tender and therefore his rights are curtailed
as third respondent has issued the work order contrary to law.
6. It is his submission that this Court directed
consideration of the case, but an order is issued on the ground
that he has been directed to be issued a work order. Be that as
it may.
7. A stranger to the proceedings to the tender who did
not even participate then and is now wanting to participate in
any fresh tender that would be called cannot be termed as
person aggrieved, to see the said person knocking at the doors
of this Court, invoking the jurisdiction under Article 226 of the
Constitution of India. The issue is no longer res integra as this
Court in W.P.No.497/2024 has held as follows:
"8. The afore-narrated facts are not in dispute. The
threshold issue that falls for consideration is whether the
petitioners can raise a challenge to the conditions of the tender
having stayed outside the tender, which would mean whether
the petitioners have locus to challenge to tender. The facts are
afore-narrated. The issue lies in a narrow compass, which need
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not detain this Court for long or delve deep into the matter, as
this has been considered by this Court, in the Apex Court and
several other Courts.
8. This Court in the case of M/s Sri Nanjundeshwara
Traders vs. Karnataka Food and Civil Supplies Corporation
Limited1 , has held as follows:
20. The Apex Court in the case of NATIONAL
HIGHWAYS AUTHORITY OF INDIA v. GWALIOR
JHANSI EXPRESSWAY LIMITED reported in (2018) 8
SCC 243 considering this issue, has held as follows: "
20. While considering the relief claimed by the
respondent (claimant), the same should have been tested
on the touchstone of the principle governing the tender
process, especially when the validity of the tender
document has not been put in issue or challenged before
any competent forum. Going by the terms and conditions
in the tender documents, as already alluded to in para 10
above, there is no title of doubt that the right of the
claimant (respondent) to match the bid of L-1 or to
exercise ROFR would come into play only if the
respondent was to participate in the tender process
pursuant to the notice inviting tenders from the interested
parties. The objective of tender process is not only to
adhere to a transparent mechanism but to encourage
competition and give equal opportunity to all tenderers
with the end result of getting a fair offer or value for
money. The plain wording of the eligibility clause in the
tender documents and the incidental stipulations make it
explicit that the respondent was required to participate in
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the tender process by submitting its sealed bid (technical
and financial). The fact that a deeming clause has been
provided in the tender document that if the respondent
was to participate in the bidding process, it shall be
deemed to fulfill all the requirements of the tender
Clauses 3 to 6 of RFP, being the existing concessionaire of
the project, does not exempt the respondent from
participating in the tender process; rather the tenor of the
terms of the documents made it obligatory for the
respondent to participate in the tender process to be
considered as a responsive bidder, along with others.
Having failed to participate in the tender process and,
more so, despite the express terms in the tender
documents, validity whereof has not been challenged, the
respondent cannot be heard to contend that it had
acquired any right whatsoever. Only the entities who
participate in the tender process pursuant to a tender
notice can be allowed to make grievances about the non-
fulfillment or breach of any of the terms and conditions of
the tender documents concerned. The respondent who
chose to stay away from the tender process, cannot be
heard to whittle down, in any manner, the rights of the
eligible bidders who had participated in the tender
process on the basis of the written and express terms and
conditions. At the culmination of the tender process, if the
respondent had not participated, in law, the offer
submitted by the eligible bidders is required to be
considered on the basis of the stated terms and
conditions. Thus, if the claim of the respondent was to be
strictly adjudged on the basis of the terms and conditions
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specified in the subject tender document, the respondent
has no case whatsoever."
(Emphasis supplied)
The judgment of the Apex Court has been followed by
the Division Bench of the High Court of Calcutta in the
case of SUBIR GHOSH v. STATE OF WEST BENGAL AND
OTHERS reported in 2020 SCC OnLine Cal 2213. The
Division Bench of the High Court of Calcutta also
considers the fact that a tenderer who participates in the
pre-bid meeting ought to have submitted his tender along
with the documents to raise a challenge to the tender or
the tender conditions at the later point in time. "
The Apex Court, in the later judgment, in the case of
Airport Authority of India vs. Centre for Aviation Policy, Safety
& Research (CAPSR) & Others, has held as follows:
25. We have heard learned counsel for the respective
parties at length.
26. At the outset, it is required to be noted that
respondent No. 1 claiming to be a non-profit organisation
carrying out research, advisory and advocacy in the field
of civil aviation had filed a writ petition challenging the
tender conditions in the respective RFPs. It is required to
be noted that none of the GHAs who participated in the
tender process and/or could have participated in the
tender process have challenged the tender conditions. It
is required to be noted that the writ petition before the
High Court was not in the nature of Public Interest
Litigation. In that view of the matter, it is not appreciable
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how respondent No. 1 - original writ petitioner being an
NGO would have any locus standi to maintain the writ
petition challenging the tender conditions in the
respective RFPs. Respondent No. 1 cannot be said to be
an "aggrieved party". Therefore, in the present case, the
High Court has erred in entertaining the writ petition at
the instance of respondent No. 1, challenging the
eligibility criteria/tender conditions mentioned in the
respective RFPs. The High Court ought to have dismissed
the writ petition on the ground of locus standi of
respondent No. 1 - original writ petitioner to maintain
the writ petition.
27. Even otherwise, even on merits also, the High
Court has erred in quashing and setting aside the
eligibility criteria/tender conditions mentioned in the
respective RFPs, while exercising the powers under
Article 226 of the Constitution of India. As per the settled
position of law, the terms and conditions of the Invitation
to Tender are within the domain of the tenderer/tender
making authority and are not open to judicial scrutiny,
unless they are arbitrary, discriminatory or mala fide. As
per the settled position of law, the terms of the
Invitation to Tender are not open to judicial scrutiny, the
same being in the realm of contract. The Government/
tenderer/ tender making authority must have a free
hand in setting the terms of the tender."
9. The other contention of the learned counsel for the
petitioners is that the packaging system forms the tender only
to suite certain tenderers or is tailor made to help certain
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tenderers. The contention is again unacceptable. As unless the
petitioners demonstrate arbitrariness in the action of the
respondent qua the tender conditions, entertainment of such
submission under Article 226 of the Constitution of India,
becomes unacceptable. It becomes opposite to refer to the
three judge Bench Judgment of the Apex Court in the case of
Tata Motors Limited vs. Brihan Mumbai Electric Supply &
Transport Undertaking (BEST) and Others3 , wherein it has
held has follows:
48. This Court being the guardian of fundamental
rights is duty-bound to interfere when there is
arbitrariness, irrationality, mala fides and bias. However,
this Court has cautioned time and again that courts
should exercise a lot of restraint while exercising their
powers of judicial review in contractual or commercial
matters. This Court is normally loathe to interfere in
contractual matters unless a clear-cut case of
arbitrariness or mala fides or bias or irrationality is made
out. One must remember that today many public sector
undertakings compete with the private industry. The
contracts entered into between private parties are not
subject to scrutiny under writ jurisdiction. No doubt, the
bodies which are State within the meaning of Article 12
of the Constitution are bound to act fairly and are
amenable to the writ jurisdiction of superior courts but
this discretionary power must be exercised with a great
deal of restraint and caution. The courts must realise
their limitations and the havoc which needless
interference in commercial matters can cause. In
contracts involving technical issues the courts should be
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even more reluctant because most of us in Judges' robes
do not have the necessary expertise to adjudicate upon
technical issues beyond our domain. The courts should
not use a magnifying glass while scanning the tenders
and make every small mistake appear like a big blunder.
In fact, the courts must give "fair play in the joints" to
the government and public sector undertakings in
matters of contract. Courts must also not interfere where
such interference will cause unnecessary loss to the
public exchequer. (See: Silppi Constructions Contractors
v. Union of India, (2020) 16 SCC 489).
51. We are of the view that the High Court should
have been a bit slow and circumspect in reversing the
action of BEST permitting EVEY to submit a revised
Annexure Y. We are of the view that the BEST committed
no error or cannot be held guilty of favoritism, etc. in
allowing EVEY to submit a revised Annexure Y as the
earlier one was incorrect on account of a clerical error.
This exercise itself was not sufficient to declare the entire
bid offered by EVEY as unlawful or illegal.
52. Ordinarily, a writ court should refrain itself from
imposing its decision over the decision of the employer
as to whether or not to accept the bid of a tenderer
unless something very gross or palpable is pointed out.
The court ordinarily should not interfere in matters
relating to tender or contract. To set at naught the entire
tender process at the stage when the contract is well
underway, would not be in public interest. Initiating a
fresh tender process at this stage may consume lot of
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time and also loss to the public exchequer to the tune of
crores of rupees. The financial burden/implications on
the public exchequer that the State may have to meet
with if the Court directs issue of a fresh tender notice,
should be one of the guiding factors that the Court
should keep in mind. This is evident from a three-Judge
Bench decision of this Court in Association of Registration
Plates v. Union of India, reported in (2005) 1 SCC 679.
53. The law relating to award of contract by the State
and public sector corporations was reviewed in Air India
Ltd. v. Cochin International Airport Ltd., reported in
(2000) 2 SCC 617 and it was held that the award of a
contract, whether by a private party or by a State, is
essentially a commercial transaction. It can choose its
own method to arrive at a decision and it is free to grant
any relaxation for bona fide reasons, if the tender
conditions permit such a relaxation. It was further held
that the State, its corporations, instrumentalities and
agencies have the public duty to be fair to all concerned.
Even when some defect is found in the decision-making
process, the court must exercise its discretionary powers
under Article 226 with great caution and should exercise
it only in furtherance of public interest and not merely on
the making out of a legal point. The court should always
keep the larger public interest in mind in order to decide
whether its intervention is called for or not. Only when it
comes to a conclusion that overwhelming public interest
requires interference, the court should interfere.
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54. As observed by this Court in Jagdish Mandal v.
State of Orissa, reported in (2007) 14 SCC 517, that
while invoking power of judicial review in matters as to
tenders or award of contracts, certain special features
should be borne in mind that evaluations of tenders and
awarding of contracts are essentially commercial
functions and principles of equity and natural justice stay
at a distance in such matters. If the decision relating to
award of contract is bona fide and is in public interest,
courts will not interfere by exercising powers of judicial
review even if a procedural aberration or error in
assessment or prejudice to a tenderer, is made out.
Power of judicial review will not be invoked to protect
private interest at the cost of public interest, or to decide
contractual disputes."
10. The Apex Court in the afore-extracted judgment
considers the entire spectrum of the law with regard to
interference in tender/contractual matters. The Apex Court holds
that the tender inviting Authority is at liberty to choose its own
method and the only permissible judicial review would be in the
decision making process. The decision making process in the case
at hand cannot be challenged by the petitioners, as the
petitioners have not even participated in the tender. Despite the
vehement efforts and submission of the learned counsel for the
petitioners, the petition is sans entertainment."
9. In the light of aforesaid facts and the law as
considered by this Court in the aforesaid judgment, the petition
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wanting in merit, deserves to be rejected and is accordingly
rejected.
10. The interim order, if any, stands dissolved.
11. The respondent would be entitled to all benefits that
would flow from the dismissal of the petition.
Sd/-
(M.NAGAPRASANNA)
JUDGE
NAA/CT-ASC
