Writ Petition No. 9975 of 2025 · The High Court
Case Details
- 1 - NC: 2025:KHC:17351 WP No. 9975 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2025 R BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 9975 OF 2025 (GM-TEN) BETWEEN: M/S. SREE BHYRAVESHWARA ELECTRICAL WORKS PROPRIETORSHIP CONCERN REPRESENTED BY ITS MANAGING PARTNER, SMT. ROOPA B.L., W/O. ANAND MUDDAIAH AGED ABOUT 38 YEARS, BUILDING FLAT NO.: SPL 3, LOKIKERE ROAD, INDUSTRIAL AREA, DAVANAGERE – 577 005. (BY SRI VIJAYA RAGHAVA SARATHY H.M., ADVOCATE) …PETITIONER Digitally signed by NAGAVENI Location: High Court of Karnataka AND: 1. THE BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (BESCOM) REPRESENTED BY ITS MANAGING DIRECTOR, CORPORATE OFFICE, K.R.CIRCLE, BENGALURU – 560 001. 2. THE DEPUTY GENERAL MANAGER (OPERATIONS-1), THE BENGALURU ELECTRICITY SUPPLY COMPANY LIMITED (BESCOM) - 2 - NC: 2025:KHC:17351 WP No. 9975 of 2025 CORPORATE OFFICE, K.R. CIRCLE, BENGALURU – 560 001. (BY SRI S.SRIRANGA, SR.ADVOCATE FOR SMT. SUMANA NAGANAND, ADVOCATE) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING TENDER NOTIFICATION BEARING BESCOM/2024- 25/SEO203, DTD. 24.10.2024 (ANNX-B) ISSUED BY THE R-2 DEPUTY GENERAL MANAGER AND ETC., THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioner is before this Court calling in question a notification of tender dated 24-10-2024 and seeks a consequential mandamus seeking issuance of a fresh tender notification.
Legal Reasoning
2. Heard Sri Vijaya Raghava Sarathy H M, learned counsel appearing for petitioner and Sri S Sriranga, learned senior counsel appearing for respondents. - 3 - NC: 2025:KHC:17351 WP No. 9975 of 2025 3. Facts in brief, germane, are as follows: A notice inviting tender is issued by the BESCOM calling for tenders from eligible tenderers for the purpose of repairs and reconditioning of 11 KV class single coil/multi coil conventional (Aluminium wound) and 3, 4, 5 star rated failed Distribution Transformers of various capacities from 25 to 250 KVA and conversion of CSP to conventional bolt and nut type on lumpsum rate basis at Transformer repair center in Davanagere Taluk.. The petitioner does not participate in the tender, files the subject petition on the score that, the action of opening of the technical bid or the financial bid is contrary to Rule 22 of the Karnataka Transparency in Public Procurements Rules, 2000 ([‘*KTPP Rules, 2000’ for short). This Court, accepting the submission of the learned counsel for the petitioner that the tender period was 90 days and after 90 days the respondents/BESCOM is wanting to open the technical bid or the financial bid as the case would be, grants interim order of stay. The matter is thus heard with the consent of the parties. * Corrected vide chamber order dated 14.07.2025. - 4 - NC: 2025:KHC:17351 WP No. 9975 of 2025 4. The learned counsel Vijaya Raghava Sarathy H M appearing for the petitioner would submit that the tender ought to have been completed on or before 90 days of issuance of the tender in terms of the circular dated 29-11-2021. The tender, in the case at hand, is admittedly issued on 24-10-2024. Therefore all the proceedings of the tender should have concluded within 23-10-2024. That having not been done, the learned counsel submits that the only option to the respondents is to issue a fresh tender. 5. Per contra, the learned senior counsel Sri S Sriranga appearing for the respondents would submit that Rule 22 nowhere prescribes the period. It would direct that as far as possible the tender should be concluded within the validity period notified in the tender. He would submit that the validity period notified in the subject tender is 180 days, which would come to an end on 20-05-2025. The extension is now granted of 100 days as an abundant caution and not that the validity of the tender is over. Above all, the learned senior counsel would submit that the petitioner has not participated in the tender, - 5 - NC: 2025:KHC:17351 WP No. 9975 of 2025 therefore, he cannot challenge any of the clauses or action of the document of tender. 6. I have given my anxious consideration to the submissions made by the learned senior Counsel and other respective learned counsel and have perused the material on record. 7. The afore-narrated facts are not in dispute. Rule 22 of the *KTPP Rules forms the fulcrum of the lis. I therefore, deem it appropriate to notice Rule 22. It reads as follows: “22. Time taken for evaluation and extension of tender validity:- (1) The evaluation of tenders and award of contract shall be completed, as far as possible, within the period for which the tenders are held valid. (2) The Tender Accepting Authority shall seek extension of the validity of tenders from the tenderers for the completion of evaluation, if it is not completed within the validity period of tender. (3) In case the evaluation of tenders and award of contract is not completed within extended period, all the tenders shall be deemed to have become invalid and fresh tenders may be called for.” (Emphasis supplied) Rule 22 deals with time taken for evaluation and extension of validity of tenders. Sub-rule (1) of Rule 22 mandates that tenders and award of contract shall be completed within the * Corrected vide chamber order dated 14.07.2025. - 6 - NC: 2025:KHC:17351 WP No. 9975 of 2025 period for which the tenders are held valid. Therefore, the completion of tenders is linked to the validity of tender; Sub- Rule (2) permits to seek extension of validity of tender, if it is not completed within the period of validity and Sub-Rule (3) observes that if it is not completed even in the extended period, all the tenders are deemed to have become invalid and fresh tenders may be called. The unmistakable inference can be drawn from the said Rule is that, the tender should be completed within the period of validity of a tender or the extended period as the case would be. If it is not complete, the tender is deemed shelved. The subject tender is notified on 24.10.2024. The opening of the technical bid takes place on 21.11.2024. Clause 7 of the tender depicts bid validity. It reads as follows: “7.0 Bid validity Bids shall be valid for 180 the date of days techno- of opening commercial bids” from (Emphasis added) Clause 7 depicts the validity of the tender to be 180 days from the date of opening of the techno-commercial bids. Therefore, it is 180 days from the date of opening of the technical bid, - 7 - NC: 2025:KHC:17351 WP No. 9975 of 2025 which is on 21.11.2024 and if 180 days is calculated from 21.11.2024, the Tender Accepting Authority can scrutinise the tender and take to its logical conclusion on or before 20.05.2025, this would be 180 days from 21.11.2024. Thus, the scrutiny of the tender documents now being done at the hands of the Tender Accepting Authority is clearly within the validity period of 180 days. Therefore, there is no violation of Rule 22 as is contended by the learned counsel appearing for the petitioner. 8. Heavy reliance is placed by the petitioner upon a circular of the Government issued on 29.11.2021, which deals with opening and processing of tenders – specifying the timelines. The circular reads as follows: “Sub: Opening and Processing of tenders - Specifying the timelines. **** 1. The Procurement Entity as defined under Section 2(d) of Karnataka Transparency in Public Procurements Act, 1999 is required to procure goods and services only by inviting the tenders as per the procedure outlined in the Karnataka Transparency in Public Procurements Act, 1999 and Rules, 2000. Rule 28 of KTPP Rules, 2000 prescribes that evaluation of tenders and award of contract shall be completed as far as possible, within the period for which the tenders are held valid. Hence, in order to complete the evaluation of technical and financial bids in a time bound manner and to ensure transparency in the procurement process, it - 8 - NC: 2025:KHC:17351 WP No. 9975 of 2025 has been felt necessary to prescribe the timelines for each stage of the evaluation of the tender. 2. In view of the above, the detailed timelines for each activity are prescribed as bellow; Activity Sl. No. 1 2 3 4 5 6 7 Opening of technical bid Evaluation of Technical Bid to be completed Opening of Financial Bid Evaluation of Financial Bid to be completed Awarding of contract and Issue of Lol Furnishing of performance security and entering into agreement Issue order/purchase order work of Timeline from the last date for submission of tender Within 48 hours On or before 30th day On or before 35th day On or before 50th day On or before 70th day On or before 90th day On or before 91st day 3. Any relaxation in the above timelines shall be specifically authorised by the authority superior to the Tender Accepting Authority for the reasons to be recorded in writing.” The circular is said to be interpreting the Rule. While so interpreting, draws up certain illustrative timeline. The illustrative timeline fixes 90 days as the maximum period in which the tender should be taken to the logical conclusion. This can at best be considered to be an illustration. An illustration by way of a circular cannot override the purport of the Rule. The Rule nowhere depicts that the tender should - 9 - NC: 2025:KHC:17351 WP No. 9975 of 2025 conclude within 90 days. The circular depicts so. The circular at best can be applicable to the cases where the validity of a tender notified is 90 days but the validity of the tender is beyond 90 days. The circular would not become applicable to those tenders, which have the validity period beyond 90 days. In the case at hand, the validity period is 180 days, therefore, the Tender Scrutiny Authority has timeline of 180 days to scrutinise the tender and take it to its logical conclusion. The 180 days as observed hereinabove would end on 20.05.2025. Therefore, no fault can be found with the action of the respondent in continuing the tender beyond the period of 90 days. 9. I therefore, declare that Rule 22 is applicable qua the validity of the tender document. If the validity is 90 days, the tender should be completed within 90 days, likewise, if the validity is 180 days, the tender should be completed within 180 days. A circular interpreting otherwise, will have no legs to stand in the teeth of the Rule. At best, it would be a restrictive application where the validity period of any tender would be 90 days. Thus, tumbles down the imaginary statutory aberration. - 10 - NC: 2025:KHC:17351 WP No. 9975 of 2025 10. Having answered the interpretation of Rule 22, I now deem it appropriate to notice the locus of the petitioner. The petitioner is not a participant in the tender and non-participant cannot challenge the clauses of tender, is by now a too well settled principle of law. This Court in the case of MAHALAKSHMI ENGINEERING WORKS V. BESCOM1 considering the judgments of the Apex Court and the division bench of the High Court of Calcutta, has held as follows: “Issue No. 2: (ii) Whether petitioners have any locus to question any act of BESCOM qua the tender notified, notwithstanding their non-participation in the tender process? 11. The afore-narrated facts with regard to issuance of notice inviting tender for the works notified therein are not in dispute. The petitioners though belong to Scheduled Castes/Scheduled Tribes and reservation of 10 tenders being accorded thereto out of 50 tenders, did not participate in the tender process, are all a matter of record. The notice inviting tender did no where restrict any tenderer to participate in any tender on the NIT dated 28.03.2022. Though reservation was stipulated qua 10 to Scheduled tenderers belonging tenders, Castes/Scheduled Tribes were not precluded from participating in the tenders of general category. As a matter of fact, there were several tenderers who did participate in both the tenders reserved for Scheduled Castes/Scheduled Tribes and in the general category. The the 1 2022 SCC OnLine Kar 1719 - 11 - NC: 2025:KHC:17351 WP No. 9975 of 2025 petitioners chose to sit on the fence, did not participate in the tender process at all, neither in the 10 reserved tenders nor in the 40 unreserved tenders. Therefore, the petitioners now seek to point out lacunae in the tenders, sitting outside throughout. Whether that would be permissible is the question? 12. A tenderer who remains outside and then seeks to question the tender process or conditions stipulated in the tender notification would not get locus to challenge and condition of tender. This issue need not detain this Court for long or delve deep into the matter. The Apex Court in the case of NATIONAL HIGHWAYS AUTHORITY OF INDIA (supra) considering this issue, has held as follows: inviting tenders “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 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 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 - 12 - NC: 2025:KHC:17351 WP No. 9975 of 2025 in the terms the express participate in the tender process and, more so, despite 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 specified in the subject tender document, respondent has no case whatsoever.” the (Emphasis supplied) 13. The Apex Court clearly holds that the tenderer who would chose to stay away from the tender process cannot he heard to whittle down the rights of eligible bidders who had participated in the tender process on the basis of written and express terms and conditions. At the culmination of the tender process, if the tenderer had not participated in law, he cannot be scen to question the terms and conditions. The petitioners, in the case at hand, have admitted their non participation in the tender. Staying away from the tender, they cannot now seek to challenge the tender. It is further germane to notice a similar view taken by the Calcutta High Court. A Division Bench of the High Court of Calcutta in the case of SUBIR GHOSH v. STATE OF WEST BENGAL2 has held as follows: “4. The more important factor is that the tender process in this case opened sometime in March, 2019 and the closing date for submitting online bids was April 1, 2019. The writ petition was filed in January, 2020, Though it is submitted on behalf of the writ petitioner - 13 - NC: 2025:KHC:17351 WP No. 9975 of 2025 that the time to submit the bids was extended, no specific date in such regard is indicated. What is
Decision
apparent is that the writ petitioner did not participate in the bidding process and yet chose to challenge the same. 5. It is possible that a prospective bidder finds the terms of the tender documents to be unfair or illegal and challenges the same; but such challenge has to be before the time to put in the bids is closed. At any rate, if a bid is made and the bid is thrown out on an illegal or unfair ground contained in the tender documents, even then, a challenge can be fashioned. But a person who has not participated in the bidding process at all cannot challenge the tender conditions on any ground whatsoever. This admitted aspect of the matter escaped the attention of the Single Bench while passing the impugned order of January 15, 2020. 6. For the reasons aforesaid, the order dated January 15, 2020 cannot be sustained and the same is set aside. Since the best arguable case of the writ petitioner will not result in any of the tender terms being altered as the writ petitioner did not participate in the process at all, the writ petition itself is dismissed. Nothing in this order will be construed to be an approval of the terms and conditions of the tender document and in an appropriate challenge, the same may be considered in accordance with law.” 14. In the light of the judgments of the Apex Court in the case of NATIONAL HIGHWAYS AUTHORITY OF INDIA and the Division Bench of the Calcutta High Court in the case of SUBIR GHOSH holding that only a participant can question the tender, the challenge raised by the petitioners who are not the participants in the subject tender, would thus tumble down. Therefore, the second issue that fell for consideration which concerns locus of the petitioners to challenge the tender process being held against the petitioners, the first issue with - 14 - NC: 2025:KHC:17351 WP No. 9975 of 2025 to tender process would not arise for regard consideration, as it is trite law, that if a writ petitioner has no locus to raise a challenge to the subject matter, no other ground on merit of the challenge need be considered.” In the light of the admitted fact that the petitioner has not participated in the tender and wanting to call in question the process of tender cannot be seen to possessing locus to challenge the same, as a tenderer cannot stay outside the tender and seek to throw a spanner in the spoke of the tender. Therefore, on both the counts, the petition deserves to be dismissed, as being devoid of merit. It is accordingly, dismissed. Interim order, if any subsisting, shall stand dissolved. I.A.No.1 of 2025 also stands disposed. Sd/- (M.NAGAPRASANNA) JUDGE bkp List No.: 1 Sl No.: 23