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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2024 BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 497 OF 2024 (GM-TEN)
BETWEEN:
1. R NAGARAJU S/O RAMEGOWDA, AGED ABOUT 46 YEARS, R/A NO.18/A, HOSMALANGI V AND P, KOLLEGALA TALUK, CHAMARAJANAGARA DISTRICT - 571442
2. K MALLU S/O LATE KARAGAIAH, AGED ABOUT 55 YEARS, R/A: HOSAPURA, MAGURU HOBBALI, T NARASIPURA TALUK, HIRIYURU, MYSORE - 571124
3. C MANTHAPPA Digitally signed S/O CHINNAPPA by NAGAVENI AGED ABOUT 61 YEARS, Location: HIGH R/A: KHP COLONY, COURT OF T NARASIPURA TOWN, KARNATAKA TIRUMAKUGALANARASIPURA, MYSORE - 571124
4. P VENKATAREDDY S/O P N VENKATAREDDY, AGED ABOUT 68 YEARS, R/A NO.144, VIVEKANANDA NAGARA, NARASIPURA TOWN, BYRAPUR, MYSORE 571124
5. M NANDISH S/O MARISWAMY AGED ABOUT 52 YEARS, R/A VIVEKANANDA NAGARA, T NARASIPURA TOWN, BEHIND POLICE COLONY, BYRAPURA, MYSORE - 571124
6. K SRINIVASA REDDY S/O K VENKATA SUBBA REDDY, AGED ABOUT 44 YEARS, R/A NO.7, REDDY COLONY, VIVEKANANDA NAGARA, T NARASIPURA, MYSORE 571124
7. K S NAGARAJA MURTHY S/O LATE K B SHIVARUDRAPPA, AGED ABOUT 62 YEARS, R/A NO.134, VIVEKANANDA NAGARA ROAD, REDDY COLONY, T NARASIPURA TOWN, MYSORE - 571124
8. C POTI REDDY S/O LATE C RAMI REDDY, AGED ABOUT 58 YEARS, R/A: VIVEKANANDA NAGARA, WARD NO.5, T NARASIPURA TALUK, MYSORE - 571124
9. V C BASAVANNA S/O VADAREGOWDA, AGED ABOUT 51 YEARS, R/A: ALAHALLI VILLAGE POST, KOLLEGALA TALUK, CHAMARAJANAGARA DISTRICT - 571442 …PETITIONERS (BY SRI. RAKSHITHA D J., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA REPRESENTED BY THE ADDITIONAL SECRETARY, DEPARTMENT OF WATER RESOURCES, VIKASA SOUDHA, BANGALORE - 560001
2. CAUVERY NEERAVARI NIGAMA LTD.
REPRESENTED BY ITS MANAGING DIRECTOR, ANAND RAO CIRLCE, SHESHADRI ROAD, GANDHI NAGAR, BANGALORE - 560001 (GOVERNMENT COMPANY UNDER THE COMPANIES ACT)
3. EXECUTIVE ENGINEER CAUVERY NEERAVARI NIGAMA LTD., NO.2, VCC DIVISION, MYSORE - 577 701
4. EXECUTIVE ENGINEER CAUVERY NEERAVARI NIGAMA LTD., KABINI CANALS DIVISION, NANJANGUD, MYSORE DISTRICT - 571 301
5. EXECUTIVE ENGINEER CAUVERY NEERAVARI NIGAMA LTD., KRS DIVISION, KRISHNARAJASAGARA - 571 604
6. EXECUTIVE ENGINEER CAUVERY NEERAVARI NIGAMA LTD., KABINI CANAL DISTRIBUTARY DIVISION, T NARASIPURA - 571 124
7. THE STATE OF KARNATAKA REPRESENTED BY THE PRINCIPAL SECRETARY, PUBLIC WORKS DEPARTMENT VIKASA SOUDHA, BANGALORE - 560001 …RESPONDENTS (BY SRI. SPOORTHY HEGDE, HCGP FOR R1 AND R7;
SRI. SANDESH J. CHOUTA, SENIOR ADV. FOR SRI. K.S.BHEEMAIAH, ADV. FOR R2 TO R6)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS LEADING TO THE NOTIFICATIONS DATED 21/12/2023 AND a) QUASH i) CCNL NO.2 VCC DIV MYSORE BEARING NO.CNNL/2023- 24/CN/WORK_INDENT575 (ANNEXURE-E). ii) CCNL NO.2 VCC DIV MYSORE BEARING NO.CNNL/2023-24/CN/WORK_INDENT618 (ANNEXURE-E1). iii) CCNL NO.2 VCC DIV MYSORE BEARING NO. CNNL/2023-24/CN/WORK_INDENT566 (ANNEXURE-E2). iv)CCNL NO.2 VCC DIV MYSORE BEARING NO.CNNL/2023- 24/CN/WORK_INDENT621 (ANNEXURE-E3).v) CCNL NO. 2 VCC DIV MYSORE BEARING NO. CNNL/2023-24/CN/WORK_INDENT573 (ANNEXURE-E4). vi) CCNL NO. 2 VCC DIV MYSORE BEARING NO. CNNL/2023-24/CN/WORK_INDENT616 (ANNEXURE-E5). vii) CCNL NO.2 VCC DIV MYSORE BEARING NO.CNNL/2023- 24/CN/WORK_INDENT617 (ANNEXURE-E6). viii) CCNL KC DIVNANJUNGUD BEARING NO.CNNL/2023-24/RD/WORK_INDENT702 (ANNEXURE-E7). ix) CCNL KC DIVNANJUNGUD BEARING NO.CNNL/2023-24/OW/WORK_INDENT622 (ANNEXURE-E8). x) CCNL KC DIVNANJUNGUD BEARING NO.CNNL/2023-24/OW/WORK_ INDENT620 (ANNEXURE-E9). xi) CCNL KC DIVNANJUNGUD BEARING NO.CNNL/2023-24/OW/WORK_INDENT623 (ANNEXURE-E10). xii) CCNL KC DIVNANJUNGUD BEARING NO.CNNL/2023- 24/CN/WORK_INDENT619 (ANNEXURE-E11). xiii)CCNL KC DIVNANJUNGUD BEARING NO.CNNL/2023-24/OW/WORK_ INDENT614 (ANNEXURE-E12). xiv) CCNL KC DIVNANJUNGUD BEARING NO.CNNL/2023-24/OW/WORK_INDENT624 (ANNEXURE- E13). xv) CCNL KC DIVNANJUNGUD BEARING NO.CNNL/2023- 24/OW/WORK_INDENT678 (ANNEXURE-E14). xvi)CCNL KC DIVNANJUNGUD BEARING NO.CNNL/2023-24/RD/WORK_INDENT651 (ANNEXURE-E10). xvii) CCNL KRS DIV KR SAGAR BEARING NO. CNNL/2023-24/IW/WORK_INDENT633 (ANNEXURE-E16). xviii) CCNL KRS DIV KR SAGAR BEARING NO.CNNL/2023- 24/IW/WORK_INDENT632 (ANNEXURE-E17). xix) CCNL KRS DIV KR SAGAR BEARING NO.CNNL/2023-24/IW/WORK_INDENT630 (ANNEXURE-E18). xx) CCNL KRS DIV KR SAGAR BEARING NO. CNNL/2023-24/IW/WORK_INDENT641 (ANNEXURE-E19). xxi) CCNL KRS DIV KR SAGAR BEARING NO.CNNL/2023- 24/IW/WORK_INDENT602 (ANNEXURE-E20). xxii) CCNL KCD DIV T NARSIPUR BEARING NO.CNNL/2023-24/IW/WORK_INDENT703 (ANNEXURE-E21). xxiii) CCNL KCD DIV T NARSIPUR BEARING NO.
CNNL/2023-24/IW/WORK_INDENT637 (ANNEXURE-E22) AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court calling in question the tender notifications issued in respect of 28 tenders and has sought certain consequential relief.
2. Heard Smt.Rakshitha D.J., appearing for the petitioners, the learned Senior counsel Sri. Sandesh J. Chouta, representing respondent Nos.2 to 6 and the learned High Court Government Pleader, Sri.Spoorthy Hedge, appearing for respondent Nos.1 and 7.
3. The facts, adumbrated are as follows:
The petitioners claim to be a Class-I license contractors in the business of performing the work, for which the contract is now called. It is the case of the petitioners that the second respondent - Cauvery Neeravari Nigama Limited has notified tender packages on the Karnataka Public Procurement Portal in each division by way of separate notifications. The petitioners have now rushed to this Court calling in question the very act of calling the tender by way of packages, which according to the averments in the petition causes great prejudice to them. It is the case of the petitioners that the tenders to which the Scheduled Caste and Scheduled Tribe can participate are called individually and the other tenders are called by way of packages. It is therefore they have rushed to this Court on the last day of submission of bids on the said tenders.
4. The learned counsel appearing for the petitioners would contend in vehemence that the second respondent has practiced discrimination, as those tenders which are meant for Scheduled caste and Scheduled Tribe are called individually or they are individual tenders and the other tenders are package system. She would submit that the State Contractors Association has explained by way of plethora of representations, as to why the package system will kill the small tenderers like the petitioners. It is the further case that the State Government is also of the opinion that the package system should be abolished. It is the contention that the package system notified for the subject tender has denied participation of these petitioners in the tender.
5. Per contra, the learned Senior counsel Sri.Sandesh J. Chouta would refute the submissions of the learned counsel for the petitioners contending that all the contentions that the petitioners seek to urge cannot be considered, as the petitioners have not participated in the tender. Not participating in the tender, the petitioners cannot challenge any condition of the tender. The learned Senior counsel would place reliance upon several judgment of this Court, which would bear consideration during the course of the order. He would further contend that it is for the tender inviting Authority to choose its method of calling for tenders and not for the petitioners to seek the conditions to be in the manner that it would suite their need.
6. The learned counsel appearing for the petitioners would again contend that if the petitioners participate in the tender, they cannot turn around and challenge and if it is that, they does not participate in the tender, they cannot challenge, will leave them high and dry, as they are estopped from challenging. If they participate, cannot challenge, if they does not, will give arbitrary power to the tender inviting Authority to keep out few tenderers.
7. I have given my anxious consideration to the contentions of respective learned counsel and have perused the material on record.
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 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.
This Court in the case of M/s Sri Nanjundeshwara Traders vs. Karnataka Food and Civil Supplies C
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