M/S Shri Veerabhadreshwar Agency Inamdyamanakoppa vs. The State Of Karnataka

Heard the petitioner’s counsel and also the learned AGA appearing for the respondents.

The prayer sought in the present petition is to issue writ or order or direction in the nature of mandamus directing the respondents to issue work order for two years in favor of the petitioner for Hanagal, Shiggaon and Savanur taluks by considering clarification dated 26.06.2024 vide Annexure-C and also to issue writ or order or direction in the nature of mandamus directing the respondents to open the petitioners bids for Byadagi, Hirekerur and Ranebennur Taluks and evaluate the same along with other bids and grant such as a relief as deems fit in the circumstances of the case. NC: 2024:KHC-D:13461

The factual matrix of case of petitioner before this Court is that;

This petitioner became successful L-1 bidder and he is supplying food items to the hostels without any blemish. The respondents invited tenders in March 2023 but the said tender was cancelled in the month of March 2023. Thereafter recalled the aforesaid tender in September 2023 but they said tender also cancelled in the month of September 2023. The respondents invited tenders and the said tender notification clarifies that priority will be given to local bidders as per Annexure-A dated 13.03.2024. The petitioner made a detailed representation and requested to modify some conditions on 19.03.2024. 3. 2. The petitioner submitted its bids and requested the respondents to consider the local bidders and accordingly the second respondent sought a clarification from the first respondent NC: 2024:KHC-D:13461 regarding local bidder as per Annexure-B. Last date for submission of tenders was 16.4.2024. The first respondent directed that those who have got Local Trade License and GST Registration shall be considered as Local Bidder as per Annexure-C dated 26.06.2024. 3. 3. The respondents opened the financial bids, wherein the petitioner stood as L-1 successful bidder for Haveri, Hangal, Shiggaon and Savanur Taluks. However, the financial bids of the petitioner for Byadagi, Hirekerur and Ranebennur Taluks were not opened till date and on enquiry learnt that they will open the said bids later, when an enquiry was made in the month of July 2024. 3. 4. It is contended that, though the respondents have already opened the financial bids in July, 2024, they prepared a proceedings depicting that the financial bids were opened only on 01.08.2024. As per the said proceedings, the NC: 2024:KHC-D:13461 petitioner stood as L-1 successful bidder for Haveri, Hanagal, Shiggaon and Savanur Taluks. However, the financial bids of the petitioner for Byadagi, Hirekerur and Ranebennur Taluks were not opened till date and on enquiry learnt that they will open the said bids also later.

It is contended that, though there is a clear direction from the first respondent way back on 26.06.2024 regarding local bidders, the second respondent, with a male fide intention to add non-local bidders, has illegally again sought a clarification from the first respondent regarding local bidders in terms of Annexure-D on 03.08.2024. This Court disposed of W.P.No.22089/2024, observing that the authorities will proceed with Haveri Taluk Tender Process as per Annexure-F on 23.08.2024. NC: 2024:KHC-D:13461

Learned counsel appearing for the petitioner referring to Annexures A to F, would vehemently contend that;

The petitioner is not having any efficacious remedy and hence invoked the writ juri iction. It is contended that, the first respondent by a communication dated 26.06.2024, has clarified the fact that the bidders who are having local Trade Registration and GST are Local Bidders. When such being the case, the second respondent ought to have proceeded and completed the tender process, but not completed the same. The second respondent ought not to have sought the clarification again and the same is done only with an intention to accommodate others and making illegal efforts to cause loss to the petitioner. It is contended that respondents are duty bound to issue work order to the petitioner for Haveri, Hanagal, Shiggaon and Savanur Taluks and has to open NC: 2024:KHC-D:13461 bids for Byadagi, Hirekerur and Ranebennur Taluks, but not authorized to seek second clarification by abusing its power despite lapse of 140 days. The counsel would contend that, the respondents being quasi-judicial bodies, ought to have followed the minimum requirement of law before seeking any clarification and seeking of further clarification is erroneous.

In the instant case, the second respondent sought clarification with an evil intention to deprive the petitioner of his constitutional right. The respondents do not have any authority to protect the tender process and lame excuses. It is contended that, as per Rule 22 of Rules the Karnataka Transparency in Public Procurements Rules, 2000, the entire tender process shall be completed within 91 days from the last date of tender submission. Despite lapse of 118 days, respondents failed to finalize the tender process NC: 2024:KHC-D:13461 and hence this Court has to issue writ of mandamus directing to issue work order and also direct respondents to open petitioner’s bids for Byadagi, Hirekerur and Ranebennur Taluks.

The counsel also brought to the notice of this Court the Annexure-A, wherein it is very clear that preference will be given to those registered traders in the districts. Instructions to the bidders is also very clear that the bidders should have supplied food materials to an amount of 40% amount put in to tender in any two financial years among last three financial years i.e., 2021-21, 2021-22 and 2022-23 to Government hostels/Institutions. The said condition will not come into force before issuance of the work order and the same will be considered only after the issuance of the work order. The supplier should submit the satisfactory certificate of the mentioned amount and work order to the respective Government NC: 2024:KHC-D:13461 hostiles/Institutions as per the eligibility criteria.

The petitioner’s counsel also vehemently contended that, the very contention of the State that the said criteria to be considered at the time of opening of the technical bid and on opening of the technical bid they came to know that they are not eligible for three Taluks and only eligible for four Taluks has been considered, is not correct. Hence this Court has to issue writ of mandamus.

Per contra, learned AGA appearing for the respondents State produced the memo along with documents i.e., the technical bid proceedings dated 27.06.2024 passed by the Executive Officer, Zilla Panchayat, Haveri and also the Finance Proceedings passed on 01.08.2024 by the Deputy Commissioner and Chairman, District Level Food Tender Committee, Haveri and Tender Notification and NC: 2024:KHC-D:13461 clarification letter by the Government dated 26.06.2024 and 13.08.2024 and would vehemently contend that;

If the petitioner is eligible, the proceedings would be adopted as per the instructions to the bidders. The eligibility criteria (m) is very clear that, in case the rate quoted by more than one bidder are equal in the financial bid of the tender, the decision of District Level Food Purchase Committee will be final in the process of selecting the successful tenderer.

Learned AGA also brought to the notice of this Court, Annexure-C filed by the petitioner as well as subsequent clarification letter dated 13.08.2024 and contend that, though earlier directions are given as per letter dated 26.06.2024 and subsequent direction dated 13.08.2024 is very clear that, if any persons having the GST registration of other districts, the same are also to be treated as local traders. NC: 2024:KHC-D:13461 Learned AGA also brought to the notice of this Court the list of tenderers who have been participated in the year 2024-25 and contend that, four persons are eligible, that is tenderer No.1, 3, 5 and 7 and they are also having trade license of Haveri District. Hence among them, in terms of Clause (m), the Committee has to take a decision.

Learned AGA also contended that, in respect of other three Taluks are concerned, when the technical bid was opened 18.04.2024, the eligibility criteria of 30% has not been complied and hence in respect of other three districts, the name of the petitioner has not been considered. In respect of other Taluks is concerned, the Committee is going to take decision and the question of issuance of work order does not arise, as the same is subject to the decision of the Committee. NC: 2024:KHC-D:13461

Having heard the petitioner’s counsel and also the learned AGA appearing for the respondents and also taking into consideration the material on record, it is not in dispute that the petitioner is engaged in supply of food materials to the hostel. Earlier also the petitioner was the successful bidder in 2022 and also he had supplied the food items to the hostels without any blemish as contended by the petitioner. It is also not in dispute that, earlier in the month of March, 2023 and September, 2023 also tenders have been invited and the same have been cancelled. However, it is not in dispute that the petitioner also submitted its bids and made a request to the respondents to consider the local bidders. In this regard clarification is also sought and now there are two clarifications. One is dated 26.06.2024 as per Annexure-C and another document is also now produced by the learned AGA dated 13.08.2024. Though the earlier clarification dated 26.06.2024 stipulates with regard to the local bidders, in the NC: 2024:KHC-D:13461 subsequent document dated 13.08.2024, it is stated that other persons who are having the GST registration can be considered as the local traders.

Now the very contention of the petitioner’s counsel that, once it is already clarified on 26.06.2024, there cannot be a second clarification and seeking of clarification for second time is illegal. It has to be noted that, when once the tender is called and technical bid is also opened, the respondents have to follow the instructions given by the Government and the clarification dated 13.08.2024 have also to be considered. There is a force in the contention of the learned AGA that, in terms of the same there are four persons eligible, who are having the trade license of Haveri district.

When such being the case and when Clause (m) also says that, in case the rate quoted by more than one bidder are equal in the financial bid of the tender, the decision of District Level Food Purchase Committee NC: 2024:KHC-D:13461 will be final in the process of selecting the successful tenderer and process has to go on. The very contention of the petitioner that this Court has to issue writ of mandamus directing the respondents to issue work order for two years in favor of the petitioner for Hanagal, Shiggaon and Savanur Taluks by considering the clarification dated 26.06.2024 vide Annexure-C cannot be accepted, as there are two clarifications, one is dated 26.06.2024 and another is dated 13.08.2024. Hence the very contention of the petitioner with regard to issuance of mandamus to issue work order cannot be accepted.

Insofar as the other prayer of the petitioner for issue of mandamus directing the respondents to open the petitioner’s bids for Byadagi, Hirekerur and Ranebennur Taluks and evaluate the same along with other bids is concerned. The very contention of the petitioner that, in respect of those Taluks have not NC: 2024:KHC-D:13461 been considered. The learned AGA also brought to the notice of this Court, Annexure-A, wherein also date is fixed for opening of technical bid dated 18.04.2024. The counsel appearing for the petitioner would contend that the same cannot be done and the same cannot be evaluated before issuance of work order. But the tender instructions are very clear as per Annexure-A and there is Clause(c) that the supplier should have an annual business turnover of 40% amount put in to tender in any two financial years. No doubt the counsel appearing for the petitioner would vehemently contend that preference will be given to those registered traders in the districts, but the fact that the other four eligible persons are also from the same district having trade license registered, but the reason assigned by the State that the petitioner is eligible for only four Taluks and not in respect of other three Taluks as his financial year turnover is not more than 30%. The contention of the petitioner that the same cannot be NC: 2024:KHC-D:13461 considered at the time of opening of technical bid and the same has to be considered only at the time of issuance of work order cannot be accepted, as the same is the eligibility criteria and instructions to the bidders are also very clear in Annexure-A.

When such being the material on record, the contention of the petitioner cannot be accepted in respect of other three taluks is concerned. During the turnover of three financial years, it does not cross 30% and the respondents have taken note of the turnover in respect of other four taluks is concerned and not considered in respect of other three taluks and when such being the circumstances, question of directing and issuing a writ of mandamus directing the respondents to open the petitioner’s bid for Byadagi, Hirekerur and Ranebennur taluks does not arise since they are not eligible for the same. Hence, I do not find any merit in the writ petition to issue a writ of direction as sought in the petition. NC: 2024:KHC-D:13461

In view of the discussions made above, I pass the following: ORDER The writ petition is dismissed. (H.P.SANDESH) JUDGE