M/S. PANCHAMUKHI BOREWELLS v. THE SECRETARY

SRI VENKATESHWARARAO POLINETTY 6 NO.56, 1ST CROSS, 6TH MAIN, J.P.NAGAR, KURUBARAHALLI BENGALURU – 560 086 REPRESENTED BY ITS PROPRIETOR. 17 . M/S.SALEEM ELECTRICALS AND BOREWELLS SRI HAJIMALANG M. ATTAR, NO. 43-56, BEHIND K.E.B OFFICE SHANTINAGAR, JEWARGI, KALBURGI – 586 319, REPRESENTED BY ITS ROPRIETOR. 18 . M/S.KARNATAKA BOREWELLS AND DRILLERS KUDRI SALAWADI BASAVANA BAGEWADI TALUK, BIJAPUR DISTRICT – 586 203, REPRESENTED BY ITS PROPRIETOR. 19 . S.V.B. BOREWELLS B.T.PATIL NAGAR KUSHTAGI ROAD, KOPPAL – 583 231 REPRESENTED BY ITS PROPRIETOR SRI VEERABASAPPA V.NEREGAL. ... RESPONDENTS (BY SRI SPOORTHY HEGDE, HCGP FOR R-1; SRI SHISHIRA AMARNATH, ADVOCATE FOR R-2 AND R-4; R-3, 5, 6, 7, 8, 9, 10,12,13, 14, 16, 17 AND 18 ARE SERVED; SRI D.R.RAVISHANKAR, SR.ADVOCATE A/W SRI MUNIRAJA M., ADVOCATE FOR R-11, 15 AND 19) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 23.06.2022 PASSED IN PROCEEDINGS BEARING NO.SWD/232/SDC/2020-22 BY THE APPELLATE AUTHORITY CUM 7 PRINCIPAL SECRETARY, SOCIAL WELFARE DEPARTMENT, THE R-1 HEREIN VIDE ANNX-Z. IN WRIT PETITION No.29265 OF 2023 BETWEEN: 1 . M/S. SHREE ARIHANT SUBMERSIBLE PUMPS NO.19, 1ST MAIN, P.P.INDUSTRIAL ESTATE, DEEPANJALI NAGAR, MYSORE ROAD, BENGALURU - 560 056. REPRESENTED BY ITS PROPRIETOR, SRI KARPESH REGISTERED UNDER PROPRIETORSHIP ACT. 2 . M/S. K.M.P. INDUSTRIES NO.32/1, NEAR C.M.KALYANA MANTAPA P.N.PALAYAM ROAD, COIMBATORE – 641 006 REPRESENTED BY ITS PROPRIETOR, SRI RANGA RAJAN. REGISTERED UNDER PROPRIETORSHIP ACT. 3 . M/S. M.P.P.ENTERPRISES NO. 90/1-23, 2ND MAIN, VITTAL NAGAR, MARKHANDAIAH LAYOUT, MYSURU ROAD, BENGALURU 560 026. REPRESENTED BY ITS PROPRIETOR, SRI SHANKAR. REGISTERED UNDER PROPRIETORSHIP ACT. 4 . M/S.UNITED ENGINEERING WORKS NO.235/1, HONGASANDRA, BEGURU ROAD, 8 BENGALURU - 560 068 REPRESENTED BY ITS PROPRIETOR, SRI ALTAFF. REGISTERED UNDER PROPRIETORSHIP ACT. 5 . M/S. AMRUT ENGINEERING PVT. LTD. REG. NO. 4141, 2ND STAGE, MOTILAL CENTRE, N.R.DINESH HALL, SHRAMA ROAD, AHMEDABAD - 380 009 REPRESENTED BY ITS PROPRIETOR, SRI VEERABASAPPA V. NERAGAR. REGISTERED UNDER PROPRIETORSHIP ACT. 6 . M/S. VINAYAK ELECTRICALS VIGNESHWARA NILAYA, NO.315, 6TH CROSS, 2ND STAGE, H.M.T. LAYOUT, NAGASANDRA, BENGALURU – 560 073 REPRESENTED BY ITS PROPRIETOR, SRI VEDAMURTHY. REGISTERED UNDER PROPRIETORSHIP ACT. 7 . M/S. MANJUNATH BOREWELL (SIDLAGHATTA) SRI M.N.MANJUNATH ABLUDU SIDLAGHATTA TALUK CHIKKABALLAPURA – 562 102 REPRESENTED BY ITS PRORPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 8 . M/S. KAVYARIG SERVICE SRI H.M.KOTRESH NO. 01, 1ST CROSS 3RD MAIN NEAR SBM BANK BEHIND HEBASURU HOSTEL DESHPANDE NAGAR HUBBALLI - 580 021 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 9 9 . M/S. KARNATAKA AGRO AGENCY SRI B.M.DESAI K.SALAVADAGI BASAVANA BAGEWADI VIJAYAPURA - 586 208 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 10 . M/S. MANJUNATH BOREWELLS SRI B.C.RAMAKRISHNA NO.56, 1ST CROSS, 6TH MAIN J.P.NAGAR, KURUBARAHALLI MAHALAKSHMIPURAM, BENGALURU – 560 086 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 11 . M/S. RAVI BOREWELLS SRI R.V RAVI N.H.206, KADUR – 577 518 CHIKKAMAGALURU DISTRICT. REPRESENTED BY ITS PROPRIETOR REGISTERED UNDER PROPRIETORSHIP ACT. 12 . M/S. SAI BABA ROCKDRILLERS SRI VENKATESHWARARAO POLINETTY NO.56, 1ST CROSS, 6TH MAIN J.P.NAGAR, KURUBARAHALLI BENGALURU - 560 086 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 13 . M/S. SALEEM ELECTRICAL AND BOREWELLS SRI HAJIMALANG M. ATTAR NO.43-56, BEHIND K.E.B OFFICE SHANTINAGAR, JEWARGI KALBURGI - 585 310 10 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 14 . M/S KARNATAKA BORWELLS AND DRILLERS KUDRI SALAWADI BASAVANA BAGEWADI TALUK BIJAPUR DISTRICT REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 15 . M/S.S.V.B.BOREWELLS B.T.PATIL NAGAR KUSTAGI ROAD KOPPAL - 583 231 REPRESENTED BY ITS PROPRIETOR SRI VEERABASAPPA V. NEREGAL. ... PETITIONERS (BY SRI ARUN A., ADVOCATE) AND: 1 . THE STATE OF KARNATAKA DEPARTMENT OF SOCIAL WELFARE DEPARTMENT, VIKASA SOUDHA, DR.AMBEDKAR ROAD, BENGALURU - 560 001. REPRESENTED BY ITS SECRETARY. 2 . DR.B.R.AMBEDKAR DEVELOPMENT CORPORATION, LIMITED REGISTERED UNDER COMPANIES ACT, 1956 9TH AND 10TH FLOOR, VISHWESHWARAIAH MINI TOWERS DR. AMBEDKAR VEEDHI BENGALURU – 560 001 REPRESENTED BY ITS 11 MANAGING DIRECTOR. REGISTERED UNDER PROPRIETORSHIP ACT. 3 . KARNATAKA MAHARSHI VALMIKI SCHEDULED TRIBES DEVELOPMENT CORPORATION LTD., REGISTERED UNDER COMPANIES ACT, 1956 NO.10, 3RD FLOOR, KHADI BHAVAN JASMA DEVI BHAVAN ROAD VASANTNAGAR, BENGALURU - 560 052 REPRESENTED BY ITS MANAGING DIRECTOR. REGISTERED UNDER PROPRIETORSHIP ACT. 4 . KARNATAKA ADIJAMBAVA DEVELOPMENT CORPORATION LIMITED REGISTERED UNDER COMPANIES ACT, 1956 NO. 17/5, OBLONG BLOCK, 2ND FLOOR UNITY BUILDING, J.C.ROAD BENGALURU – 560 002 REPRESENTED BY ITS MANAGING DIRECTOR. REGISTERED UNDER PROPRIETORSHIP ACT. 5 . M/S. SRI LAKSHMI BOREWELL AGENCY PRO.: DEVENDRAGOWDA PATIL NO. 256, AMARESHWARA NILAYA NEAR ONKARESHWARA TEMPLE GUMAGERA, KUSHTAGI KOPPAL - 583 277 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 6 . M/S. SRI BALAJI BOREWELL SERVICES PRO.: M. SHASHIKUMAR NO. 8-9-208, NEAR GANESH TEMPLE GURUNAGAR BIDAR – 585 401 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 12 7 . M/S. CHANDRADAYA BORWELLS PRO.: ANIL KUMAR A.C. HARINAHALLI KASABA HOBLI, K.R.PET TALUK MANDYA – 571 426 M/S. K.S.BORWELLS COM. PRO.: K.M.DHAMANEKAR FLAT NO.07, 2ND MAIN, 9TH CROSS NEAR ANANDA APARTMENT SADASHIVANAGAR, BELGAVI - 590 002 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 8 . M/S.SRI PANCHAMUKHI BOREWELLS PRO.: SRI CHANDRASHEKAR NAYAK NO.6-2-125 NEAR B.R.B COLLEGE KHADRARGONDA, RAICHUR - 584 101 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 9 . SRI B.K.MANCHEGOWDA RAITHA BANDU BOREWELLS B. BACHAHALLI, BUKANAKERE HOBLI K.R.PET TALUK, MANDYA - 571 812 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 10 . M/S. SRI DHANALAKSHMI ENTERPRISES (SRI METI PAQTIL NAGARAJGOWDA) SIRIWARA POST, MANVI TALUK RAICHUR - 584 129 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 11 . SRI VEERABHADRAPPA CLASS-1 CONTRACTOR NEAR VASAVI SCHOOL, BANDESHWARA NILAYA VASAVI NAGAR 13 P.W.D CAMP, SINDHANUR RAICHRU - 584128 REPRESENTED BY ITS PROPRIETOR. 12 . M/S. PATIL BOREWELLS PRO: NATARAJ, C.M.C COMPLEX ASHOK CIRCLE, KOPPAL - 583 231 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 13 . M/S SRI MARUTHI ROCK DRILLERS PRO SHARAVANAN FLAT NO.5034, PRESTIGE WESTWOOD 3RD FLOOR, 5TH TOWER BEHIND MAHENDRA MILLS GOPALANPURA BENGALURU - 10 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 14 . SRI SRINIVASA GODVARTI NO.2-6-151, GALIB NAGAR BEHIND GESCOM OFFICE BUS STOP ROAD RAICHUR - 584 101. 15 . M/S. BALAJI BOREWELLS (N.T.RAGHAVENDRA) NO. 231/3, LAKSHMI NIVASA, S.C.ROAD ANANDARAO ROAD, NEAR HOTEL KAPILA BENGALURU - 560 009 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 16 . M/S. SRI LAKSHMIVENKATESHWARA BORWELLS (K.V. SRINATH) KONDARAJANAHALLI GANGIGUNTE POST, SIDLAGHATTA TALUK CHIKKABALLAPUR – 562 105 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 14 17 . M/S. GEO CONSULTANCY SERVICES (Y.M. MUNIRAJU) NO.485, 10TH CROSS, 8TH MAIN SADASHIVANAGAR BENGALURU - 560 080 REPRESENTED BY ITS PROPRIETOR. 18 . M/S. OM ROCK DRILLERS AND ELECTRICAL (SHANKARAGOWDA S. PATIL) NO.45/01, DATTA NAGAR JEWARGI TALUK, KALBURGI – 585 310 REPRESENTED BY ITS PROPRIETOR. 19 . M/S. SRI VENKATESHWARA TUBE WELLS (A. NAGESH) PARASHURAMAPUR CHALLAKERE TALUK CHITRADURGA - 577 538 REPRESENTED BY ITS PROPRIETOR. 20 . M/S. SRI LAKSHMIVENKATESHWARA BOREWELLS (T. YOGIRAJ) 9TH WARD, PARVATI NAGAR SIRAGUPPA, BELLARI – 583 121 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 21 . SRI Y.N.JAYANNA CLASS 1 CONTRACTOR YACHENAHALLI, KASABA HOBLI ADAGURU POST, CHANNARAYAPATANA TALUK HASSAN – 573 116 22 . SRI CHENNAKESHAVA N.C., NAGUGANAHALLI GULURU HOBLI TUMAKUR TALUK AND DISTRICT. 15 23 . M/S. RAJALAKSHMI ROCK DRILLERS (NAGASANDRA SHYAMAMMA RAMARAO) RUKMINI NAGAR, NAGASANDRA TUMAKURU ROAD, BENGALURU- 560 073 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 24 . SRI VEERAIAH HIREMATH CLASS 1 CONTRACTOR HIRURU, GANGAVATI TALUK KOPPAL - 583 227. 25 . M/S. SHAKTI BOREWELLS (N. RANGASWAMY) NEAR MINI VIDHANA SOUDHA KUVEMPUNAGAR, HASSAN - 573 201 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. 26 . M/S. SATYA BOREWELLS AND CLEANING NO. 110, 1ST FLOOR N.S.RAMRAO BUILDING, VIDHYANAGAR T.DASARAHALLI, BENGALURU - 560 057 REPRESENTED BY ITS PROPRIETOR. REGISTERED UNDER PROPRIETORSHIP ACT. (BY SRI SPOORTHY HEGDE, HCGP FOR R-1) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO A) QUASH THE IMPUGNED ORDER DATED 23/06/2022 PASSED BY THE HONB’LE APPELLATE AUTHORITY, THE SECRETARY SOCIAL WELFARE DEPARTMENT IN CASE NO. SWD 232 SDC 2020-22 FOR PARTLY ALLOWING THE APPEAL ON ERRONEOUS FINDINGS AS PER ANNEXURE-A AND ETC., 16 THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 05.01.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER In Writ Petition No.13024 of 2022, the petitioners are before this Court calling in question an order dated 23-06-2022 passed by the Appellate Authority cum Principal Secretary, in the Social Welfare Department leading to the effect of cancellation of tenders qua the petitioners. Writ Petition No.29265 of 2023 is preferred by the petitioners/complainants (hereinafter referred ‘the complainants’) pursuant to the aforesaid appeal proceedings taking place, seeking a direction to the Social Welfare Department to cancel the tenders issued in favour of the petitioners in the aforesaid petition and consider their cases in accordance with law.

2. Brief facts germane, are as follow:- Three Corporations - (i) Dr. B.R. Ambedkar Development Corporation Limited, (ii) Karnataka Maharshi Valmiki Scheduled Tribes Development Corporation Limited and (iii) Karnataka 17 Adijambava Development Corporation, concerning in this lis comes within the jurisdiction of Social Welfare Department of the State. The issue concerns three tender notifications issued by the aforesaid Corporations independently. The 1st Corporation - Dr. B.R. Ambedkar Development Corporation Limited issued a notice on 15-01-2021 inviting tender in respect of 30 packages for the work of drilling of irrigation borewells of 165 mm diameter on ‘no water no money basis’ and further for supply, installation, electrification of irrigation submersible pump sets and accessories suitable for the said 165 mm diameter of borewells. This is under the Ganga Kalyana Scheme for the financial years 2019-20 and 2020-21. Similarly, on 21-01-2021, the 2nd Corporation - Karnataka Maharshi Valmiki Scheduled Tribes Development Corporation Limited issues a notice inviting tender for 27 packages for the similar work as that of the 1st Corporation. This is also under Ganga Kalyana Scheme. The 3rd Corporation - Karnataka Adijambava Development Corporation on 22-01-2021 issues a tender notification for 7 packages for the similar purpose and on the same conditions. Therefore, the three Corporations coming under the Social Welfare Department issue tender notifications to 64 18 packages all for drilling borewells and all on ‘no water no money basis’ under Ganga Kalyana Scheme.

3. The petitioners in Writ Petition No.13024 of 2022 finding themselves eligible to be considered as successful bidders, applied pursuant to the said notices inviting tender in respect of different packages. The Tender Scrutiny Committee (‘the Committee’ for short) of the 1st Corporation holds its meeting on 27-10-2021, considers technical bids received from several tenderers and treats the petitioners in Writ Petition No.13024 of 2022 to be technical qualified. After such technical qualification being assessed, on 30-10-2021 the financial bids of successful tenderers who had passed through technical qualification were opened in respect of 15 packages. The petitioners were found to be the lowest bidders and eligible for awarding of contract. The contract was not awarded despite the petitioners being found to be eligible. Owing to the fact that there was delay in awarding contract, the Tender Scrutiny Committee again met on 05-01-2022 and 18-01-2022 in respect of those 15 packages and considered issuance of award and contract in favour of the petitioners in respect of few packages. The decision 19 of the Tender Scrutiny Committee was accepted by the Tender Accepting Authority. Each of the petitioners were awarded contract of 13 packages in the aforesaid tender notification by the 1st Corporation.

4. Likewise, the Tender Scrutiny Committee of the 2nd Corporation in its meeting held on 07-10-2021 declared the technical bid of the petitioners in W.P.No.13024/2022 to be responsive and on 21-10-2021, holds that the financial bid of the petitioners was also responsive qua few packages and decided to issue the work orders in favour of each of the petitioners in respect of 16 packages. In the same manner, the 3rd Corporation also declared the technical bid of the petitioners responsive on 29-10-2021 and resolved to award the contracts to the petitioners in respect of one package. Therefore, the petitioners emerge as the lowest bidders and a decision was taken by all the three Corporations to award contracts in favour of the petitioners by individual decisions.

5. The 1st Corporation enters into an agreement with the petitioners pursuant to the decision of award of contracts and 20 generates work orders to them on 13-01-2022. The 2nd Corporation also generates work order in favour of the petitioners on 20-12-2021 and the 3rd Corporation resolved to issue work orders on 18-02-2022.

6. The petitioners in terms of the work orders so issued, mobilized equipments and funds to execute the contracts which had to be done at an outer limit of six months. Fifty percent of the work was completed in respect of each of the packages awarded to them, is what is averred in the writ petition.

7. When things stood thus, the private respondents 11, 15 and 19 challenged the tender notifications so issued by the 1st Corporation before the Dharwad Bench of this Court in Writ Petition No.100450 of 2021 and connected cases. They come to be dismissed by a learned single Judge holding that there was no error in the tender notifications so issued under ‘Ganga Kalyana Scheme’. All the three Corporations were the respondents in the said petitions. The private respondents herein called that in question before the Division Bench in Writ Appeal No.100143 of 2021. The Division Bench upholds the order of the learned single Judge in 21 terms of its judgment dated 15-12-2021 by considering all the submissions. Thus, ended the litigation of the private respondents against the petitioners and others.

8. After dismissal of the writ petition and writ appeal, respondents 5 to 19 register a complaint before the Principal Secretary of the Social Welfare Department alleging irregularity in the award of tenders by all the three Corporations. The said complaint was considered to be an appeal under Section 16 of the Karnataka Transparency in Public Procurements Act, 1999 (‘the Act’ for short). Based upon the said decision of construing the complaint as an appeal, a Government order comes to be issued on 31-03- 2022 appointing a Chief Engineer as the Inquiry Officer to conduct an inquiry with regard to the allegations made in the complaint. The Chief Engineer conducts an inquiry and submits a report to the 1st respondent / Appellate Authority. The Appellate Authority on an analysis of the report passes the impugned order. In the impugned order, the Appellate Authority declines to accept any of the allegations against the petitioners but holds the appeal against the petitioners on a different footing. On a point that was not in the 22 complaint, the Appellate Authority holds against the petitioners. The point that was not in the complaint was, whether the petitioners had the capacity to bid in the tenders, which has been answered in the negative. The effect of this is effaced the right of the petitioners. It is, therefore, the petitioners are before this Court in the subject petition – Writ Petition No.13024 of 2022. This Court on entertaining the petition on 01-07-2022 directed the parties to maintain status quo as on 01-07-2022. The said order is in operation even as on date.

9. Then comes the companion petition – W.P.No.29265 of 2023 filed by the complainants on 27-12-2023 long after grant of interim order of status quo in W.P.No.13024 of 2022. Therefore, both the petitions are taken up together, heard and considered by this common order.

10. Heard Sri Udaya Holla, learned senior counsel appearing for the petitioners, Sri Spoorthy Hegde, learned High Court Government Pleader appearing for respondent No.1, Sri Shishira Amarnath, learned counsel appearing for respondents 2 and 4 and Sri D.R. Ravishankar, learned senior counsel appearing 23 respondents 11, 15 and 19 in Writ Petition No.13024 of 2022 and Sri A. Arun, learned counsel appearing for the petitioners and Sri Spoorthy Hegde, learned High Court Government Pleader appearing for respondent No.1 in Writ Petition No.29265 of 2023.

11. The learned senior counsel, Sri Udaya Holla appearing for the petitioners would vehemently contend that the order in appeal goes beyond the scope of the appeal, even if it is construed to be an appeal while it is not. But, the bidding capacity of the petitioners was never in doubt as the Committee had considered the entire issue and had awarded contracts to the petitioners. The private respondents are chronic litigants. The attempt made to challenge the tender notifications fails, after which the complaint is generated, which has ultimately resulted in passing of the impugned order. He would submit that the petitioners had complete capacity to bid and had completed 50% of the work in terms of the notifications of tender. It is his emphatic submission that the entire proceedings are taken up at the behest of rival tenderers, who failed to succeed in the tenders so issued by the Corporations and, therefore, their complaint was without any 24 substance as every submission as is made herein was made while challenging the tender notifications before this Court in the aforesaid writ petition and writ appeal. He would seek quashment of the order and continuance of the work that is entrusted to the petitioners by the Corporations.

12. Per contra, learned senior counsel Sri D.R.Ravishankar representing the complainants would submit that the Corporations had played fraud. They have deliberately reduced the bid capacity favour the petitioners W.P.No.13024/2022 to keep out competition. They have breached the tender conditions to be in consonance with that of the requirement of the petitioners with regard to financial capacity and therefore, killed the competition. He would contend that the Officers involved in awarding of contract to the petitioners have all been proceeded against. Investigation is pending and criminal cases are registered which is a vindication of the stand of the complainants in the complaint. He would submit that there is no fault in the order passed by the Appellate Authority as the petitioners did not have the capacity to bid, but the capacity was 25 tweaked in their favour. He would seek dismissal of the petition – W.P.No.13024/2022.

13. The learned counsel appearing for the Corporations and the State would however, support the award of works contracts in favour of the petitioners.

14. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

15. Tenders were invited by all the three Corporations on different dates for the same purpose under the same scheme as narrated hereinabove, which would not require any reiteration. As an illustration, the tender floated by the 1st Corporation is required to be noticed. Clause 3 of the tender deals with the qualification of the tenderer. It reads as follows: “3. Qualification of the Tenderer

3.1. All Tenderers shall provide the required information in Section 3: accurately and sufficient details Qualification information. 26

3.2. To qualify for award of this contract, Tenderer in his name should have in the last five years, i.e., from Financial Year 2015-2016 to 2019-2020:

3.2.1 The Tenderer should have achieved in at least financial years a minimum annual turnover not less than two times the amount put to the tender. Notarized copy (preferably) of Annual Turnover Statement for preceding five financial years issued by Chartered Accountant with UDIN should be uploaded. For the financial year 2019-2020, in view of the pandemic, the Tenderers can submit provisional annual turnover certified by Chartered Accountant. Annual turnover of previous year shall be given a weight of 10% per year to bring them to the price level of the financial year in which the tenders are invited.

3.2.2. The Tenderer should have Liquid assets and or available of credit facilities of not less than 40% of the amount put to the tender (Credit lines/Letters of Credit/Certificates from Nationalized/Scheduled Banks) for meeting the fund requirement. installation

3.2.3 Satisfactorily completed in any one year, at least one similar drilling of borewell along with supply, Electrification (Energization) of pumpsets work, with any government department/government under- taking of value not less than 50% of amount put to the tender. Certificate issued by the employer not below the rank of Executive Engineer shall be uploaded. The value of the completed works shall be given a weight of 10% per year to bring them to the price level of the financial year in which the tenders are invited.

3.2.4 Executed in any one year, minimum 80% quantities of drilling of borewell along with Electrification supply, (Energization) of pumpsets work, with any installation 27 government department/government under- taking. Certificate issued by the employer, not below the rank of Executive Engineer shall be uploaded.” Based upon the qualification of tenderers, the documents submitted by the tenderers were scrutinized and the petitioners were found to be technically and financially responsive in respect of several packages. After declaration of the petitioners being responsive both technically and financially, work orders come to be issued by 1st Corporation on 13-01-2022. The work orders were for the purpose of drilling of borewells of 165 diameter on a ‘No water no money basis’. Pursuant to the work order so issued on 13-01-2022, a contract was also executed between the Corporation and the petitioners for the said execution of the packages. Just before issuance of the work order, the complainants/respondents 5 to 19 preferred writ petition before the Dharwad Bench of this Court in Writ Petition No.100450 of 2021 and connected cases. The challenge was to the very tender notification issued by the Corporations under the Ganga Kalyana Scheme. All the contentions that forms the contents of the impugned complaint were more or 28 less urged before the learned single Judge. The learned single Judge rejects the writ petitions by the following observations: “…. …. …. In the case on hand, the respondents have filed a counter and contended that the tender process involves estimation of more than 400 crores. Hence, the financial stability and capacity of the tenderer is a basic requirement for effective implementation of the project by the capable tender and also the tenderer who has undertaken the work under State Government and State Government undertaking in the similar projects have successfully completed the project. Therefore, in the public interest, the respondent has incorporated such conditions in the tender notification. It is further stated that 5 Corporations have invited a tender for 78 packages. For that 43 bidders have submitted 343 bids. It is clear that it is an open-Tender procedure. It is not an act of creating monopoly. Therefore, the contention of the petitioners that the large number of tenderers has been excluded is not correct. The petitioners in W.P.No.100450 of 2021 are the only 4 tenderers who have registered under MSMEs and it is also very clear from the tender conditions that there is no restriction for the tenderer to purchase the pump set from the petitioners and it is only that the manufacturer has to maintain certain standard as specified in the tender condition. Therefore, the conditions incorporated by the respondent are not unreasonable or arbitrary or vitiated by legal malice. Even the similar tender notification issued by Dr. Ambedkar Development Corporation was challenged before this Court in W.P.no.53791 of 2018 disposed on 22-02-2019 wherein this Court has held that the conditions are not either onerous or unreasonable or vitiate by legal malice and rejected the writ petition. In respect of the Government Order at Annexure-Q is concerned, the Government by order dated 21-07-2020 has relaxed the condition of prior turnover and prior experience for Micro and Small enterprises for procurement of goods and equipments. 29 In this case, tender has been called for procuring goods, service and civil works. The definition of “Construction works, Goods and Services” as defined under Section 2 of in Public Procurements Act, 1999 is as under: the Karnataka Transparency

2. Definitions.- In this Act, unless the context otherwise requires.- a) b) ‘Construction Works’ means putting up, demolishing, repairs or renovation of buildings, roads, bridges or other structures including fabrication of steel structures and all other civil works; raw materials, ‘Goods’ means Machinery, Motor Vehicles, Equipment, Furniture, Articles of Stationary, textiles scientific instruments, chemicals, food grains, oil and oil seeds or other commodity consumption, use or distribution by a Procurement Entity in discharge of its public duties; required drugs, f) ‘Services’ means the action of serving, attending upon, helping or benefiting a Procurement Entity in the course of discharging its public duties and includes construction works; The tender notifications Annexure-N is issued for “the work of Drilling of Irrigation Bore Wells of 165 MM DIA on “No Water No Money Basis” and supply, installation and Irrigation Submersible Electrification Pumpsets with Accessories suitable for 165 MM DIA borewells under “Ganga Kalyana Scheme” for the years 2019-20 and 2020-21”. (Energization) of It is very clear from the tender documents that, drilling borewell and supplying, installation pump sets are covered under definition of “Goods and Service”. The electrification is a civil work. As per the definition of KTTP Act “Construction Work” it includes all “civil works”. The 30 definition of “Service” means it includes construction works. Hence, the Government order dated 21-07-2020 is applicable only to the tender for procurement to goods and equipment. Under the facts and circumstances of the case, this Court incorporation of the impugned tender conditions in tender documents.” finds no arbitrariness or legal malice The complainants did not stop at that. They tossed the order passed by the learned single Jude without any loss of time before the Division Bench in Writ Appeal No.100143 of 2021. The Division Bench rejects the writ appeal in terms of its judgment dated 15-12-2021 by the following judgment: …. “…. …. 44. In the light of the discussion made above, we find that no grounds are made out for interference with the order of the learned single Judge. It needs to be kept in mind that the learned single Judge has considered all aspects of the matter in detail including as regards the power of the State as a tendering authority to prescribe eligibility, scope of interference in matter of formulating conditions of tender document by reference to the principles laid down in the case of Michigan Rubber (India) Ltd. (supra). The learned single Judge has also observed that while arriving at commercial decision, the State can choose its own method to arrive at a decision. While referring to the case of Rashbihari Panda etc. (supra) and Air India Ltd. (supra), the learned single Judge has also considered the limited scope of judicial review while referring to the decision in the case of Tata Cellular (supra). Accordingly, the conclusion arrived at by the learned single Judge by itself being in consonance with the settled principles of judicial review in contractual matters, this court sitting in appeal while considering the intra Court appeal, does not find any 31 ground calling for interference in the well considered order and it would not be open for reappreciation of the arguments of the petitioners and to arrive at a conclusion which this Court feels is plausible and different. The conclusion arrived at by the learned single Judge does not have any such legal defect calling for interference. Accordingly, the appeal is rejected.

45. In view of disposal of the appeal on merits, all pending applications also stand disposed off.” Having failed in the challenge to the tender process after awarding of contracts, the complainants begin the saga of registering the complaint before the Government. Immediately thereafter, on 04-01-2022 a complaint comes to be registered before the Principal Secretary of the Social Welfare Department by respondents 11, 15 and 19. Based upon the said complaint, the Principal Secretary appoints the Chief Engineer to go into the veracity of the complaint and submit a report after due inquiry. It appears that the Chief Engineer records several aspects, does not even issue any notice to the petitioners and draws up a report, gist of which reads as follows: “ªÀgÀ¢AiÀÄ ¸ÀAQë¥ÀÛ ¸ÁgÁA±À vÀ¤SÁ vÀAqÀªÀÅ ªÉÄÃ¯É w½¹zÀ ªÀgÀ¢AiÀÄ£ÀÄß ¸À°è¸À®Ä ¥ÀÆgÀPÀªÁV £Á®ÄÌ ¤UÀªÀÄUÀ¼À MlÄÖ 66 ¥ÁåPÉÃdÄUÀ½UÉ «ªÀgÀUÀ¼À£ÀÄß «±ÉõÀ GzÉÝñÀPÉÌ gÀavÀªÁzÀ JPïì¯ï £ÀªÀÄÆ£É-2gÀ°è D¼ÀªÁzÀ «±ÉèõÀuÉ ªÀiÁrgÀÄvÀÛzÉ. 1) vÀAqÀªÀÅ gÁåAqÀªÀiï ¸ÁåA¦èAUï DzsÁgÀzÀ ªÉÄÃ¯É 28 ¥ÁåPÉÃdÄUÀ¼À£ÀÄß ¥Àj²Ã®£ÉUÉ ¥ÀjUÀt¹gÀÄvÀÛzÉ. 32 2) ªÀiË®å ªÀiÁ¥À£À ¥ÀæQæAiÉÄAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è l£ïð NªÀgï£À zÁR¯ÁwUÀ¼À zÀÈrüÃPÀgÀtªÀ£ÀÄß ¸ÀA§AzsÀ¥ÀlÖªÀjAzÀ ¥ÀqÉ¢gÀĪÀÅ¢®è zÀÆgÀÄ §AzÀ £ÀAvÀgÀ zÀÈrüÃPÀgÀtPÁÌV ¥ÀvÀæ §gÉ¢gÀÄvÁÛgÉ UDIN £À°è ¥Àj²Ã°¹zÁUÀ PÉ®ªÀÅ UÀÄwÛUÉzÁgÀgÀ PÉ®ªÀÅ DyðPÀ «ªÀgÀUÀ¼À zÁR¯ÉUÀ¼ÀÄ ºÉÆðPÉAiÀiÁUÀĪÀÅ¢®è. 3) ¨ÉÃgÉ ¨ÉÃgÉ PÀgÁj£ÀrAiÀÄ°è ¤ªÀð»¸À¯ÁzÀ PÁªÀÄUÁjUÀ¼À£ÀÄß KPÀ PÁªÀUÁj JAzÀÄ MUÀÆÎr¹, KW-4/Section-2(ITT)3.2.3£ÀÄß G®èAX¸À¯ÁVzÉ. ¥ÀjªÀiÁtUÀ¼À (Quantity) ¥ÀæªÀiÁtPÁÌV PÀÆqÀ C£ÉÃPÀ ªÀµÀðzÀ PÁªÀÄUÁjUÀ¼À ¥ÀjªÀiÁtUÀ¼À£ÀÄß MUÀÆÎr¹ KW-4/Section-2(ITT)3.2.4£ÀÄß G®èAX¸À¯ÁVzÉ. 4) UÀÄwÛUÉ PÀgÁj£À°è AiÀıÀ¹é UÀÄwÛUÉzÁgÀgÀÄ PÀqÁØAiÀĪÁV 5/4 ¸ÁÖgï gÉÃnAUï ºÉÆA¢zÀ ¸À¨ïªÀĹð§¯ï ¥ÀA¥ÀÄUÀ¼À£ÀÄß C¼ÀªÀr¸À¨ÉÃPÉA§ µÀgÀvÀÄÛ EgÀÄvÀÛzÉ. UÀÄwÛUÉ ¥ÀqÉzÀ AiÀıÀ¹é UÀÄwÛUÉzÁgÀgÀÄ ¤UÀ¢üvÀ ¸ÁÖgï gÉÃnAUïªÀżÀî ¥ÀA¥ï¸Émï C¼ÀªÀr¸ÀvÀPÀÌzÉA§ µÀgÀwÛ£ÉÆA¢UÉ UÀÄwÛUÉ C£ÀĪÉÆâ¸À§ºÀÄzÁVgÀÄvÀÛzÉ. ªÉÄÃ¯É «ªÀj¹zÀ CA±ÀUÀ¼À DzsÁgÀzÀ ªÉÄÃ¯É vÀ¤SÁ vÀAqÀªÀÅ DgÉÆÃ¥À ¸ÀASÉå:3 ¤gÁzsÁgÀ ªÁzÀÄzÉAzÀÄ C©ü¥ÁæAiÀÄ¥ÀnÖgÀÄvÀÛzÉ.” The report is that there has been certain violation in the award of contract to the petitioners. The report is placed before the 1st respondent and the 1st respondent in turn, communicates it to the Corporations seeking their reply. The 1st Corporation replies to every one of the query that is raised by the 1st respondent on the strength of the report of the Chief Engineer. In all these proceedings, the petitioners were not heard in the matter is a matter of record.

16. On the basis of the reply submitted by the Corporations defending their actions, the 1st respondent/Principal Secretary, 33 Social Welfare Department issues notice to all the petitioners directing them to appear before him for an enquiry. The complaint or the report of the Chief Engineer was not furnished to the petitioners. The complaint was to the Principal Secretary, Social Welfare Department but the notice springs from him acting as an Appellate Authority. Who preferred the appeal is still a mystery. On 14-06-2022, the 1st respondent conducts the proceedings in which the petitioners seek a copy of the complaint and report by the Chief Engineer so as to file objections. The very next day, the hearing before him is concluded and the petitioners file detailed objections on the said date i.e., 15-06-2022. On 23-06-2022, the impugned order is passed by the 1st respondent terming himself to be the Appellate Authority in an appeal preferred by no person.

17. The Appellate Authority can entertain an appeal under Section 16 of the Act. Section 16 of the Act reads as follows: “16. Appeal.-

1. Any tenderer aggrieved by an order passed by the Tender Accepting Authority Government under section 13 may appeal to the prescribed authority within “fifteen” days from the date of receipt of the order: 34 Provided that the prescribed authority may, in its discretion allow further time not exceeding “fifteen” days for preferring any such appeal, if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time. The prescribed authority may after giving opportunity of being heard to both the parties pass such order thereon as it deems fit and such order shall be final. The prescribed authority shall as far as possible dispose of the appeal within thirty days from the date of filing thereof.”

3. For an appeal to be preferred under Section 16 there must be some proceeding under Section 13 of the Act. There was no proceeding under Section 13 of the Act for the 1st respondent to act as an Appellate Authority on the complaint. However, the 1st respondent - Appellate Authority frames the following issues: “(19) After such detailed hearings, I proceed to form the following questions that come for my consideration:

1. Whether the petitioners have proved the documents submitted by the respondents is false/forged?

2. Whether the 5 Star or 4 Star rating pump sets is relevant to this issue?

3. Whether there is any error in deciding the annual turnover of the respondent Companies?

4. Whether there is any error in deciding the work done experience of the respondent companies? 35

5. Whether there is any error in deciding the Bid Capacity of the respondent’s companies?

6. What order?” and answers them in the following manner: “(20) My Answer to the above issues as under: Issue-1: Negative Issue-2: This issue is irrelevant at this stage. Issue-3: Negative Issue-4: Negative Issue-5: Affirmative Issue-6: As per the final order.” The allegations of the complainants in the complaint were that the petitioners had forged documents while submitting their tenders. This is held in the negative. Therefore, there was no forgery. The complaint insofar as alleged forgery was contrary to the facts. Whether 5 Star or 4 Star rating pump sets was relevant to the issue? It is an issue that is held to be irrelevant. Whether there was any error in deciding the annual turnover by the respondents - companies that is the petitioners? It is held in the negative, that there was no error in the annual turnover. To the issue whether there was any error in deciding the work done experience of the 36 petitioners and the like, it is again held that there was no error. The 5th issue is framed by the Appellate Authority himself when there was no allegation of that kind. The issue is whether there was any error in deciding the bid capacity of the petitioners? This is held in the affirmative in the following manner: “29) Issue: 5 On the issue of Bid capacity, the opinion of the Chief Engineer was not countered by the respondents. The respondents agreed that the total works they got is more than the bid capacity, but argued that they submitted the correct figures as on the date of tendering the bid. The bid capacity is calculated adding the total capacity of the bidder with the annual turnover and then deducting the work in hand and works committed. It is clear from the documents that the bid capacity of certain bidders is low, compared to the work entrusted to them. Upon questioning, the officers did not have any satisfactory answer. The calculation of Bid capacity and the excess work given are as under: List of excess packages given under Ganga Kalyana Scheme Sl. No Name of the contractors Corporations Amount in lakhs 1 2 3 4 Dr. B.R. Ambedkar Development Corporation Limited Veerabhadrappa Sri Maruthi Rock Drillers (M.Saravanan) Sri Balaji Borewell Service (M. Shaseekumar) Sri Lakshmi Borewell Excess packages 2 3 1 1 1,293.00 1,708.92

482.22

344.00 37 Agencies (Devendragouda) Sri Panchamukhi Borewells (K. Chandrashekar Nayak) Venkatshwara Tubewells 5 6

7. Maharshi Valmiki Scheduled Tribes DC 1,341.04

803.70

654.00 538.62 649.74 2 2 1 1 1 Total 14 7,815.24 30) The bid capacity is a factor that decides how much work a bidder can take. So, the bidder has to disclose the work in hand so that his current capacity to do a work is appreciated by the tender authority before issuing the work order. 31) In our case, the following bidders have been issued work orders, by the three corporations, without considering the bid capacity carefully. Seen from individual corporations’ point of view, the bid capacity looks adequate. But, seen from totality of all three corporations, is not adequate compared to the bids they have won. the bid capacity

32. The table showing the bid capacity and the bids won by them in each corporation and the total bids won by them has been enclosed as Annexure-2.

33. The respondents’ counsel argued vehemently on the following three points:

2. It is not the Respondents’ mistake as they did not expect to win the bids when they submitted their bid capacity. The date of reckoning is the date of submission of the bid and not the date of getting the work order. 38

3. Nothing can be done at this point of time, as the work order has been already issued and there is no provision as per the tender document to cancel or rescind the work already given, unless the performance is bad. 34) The above points may look legally correct. But, condition 31 of the tender document makes a very important point. It talks about the ethics of the bidder. It expects the bidder to show highest ethics. The condition is reproduced as below.

31. Corrupt or Fraudulent Practices

31.1. Dr. B.R.Ambedkar Development Corporation Limited requires the Tenderers/Suppliers/contractors, observe the highest standard of ethics during the procurement and execution of such contracts. In pursuance of this policy, the Corporation:

31.1.1.

31.1.2. will reject a proposal for award if it determines Tenderer recommended for award has engaged in corrupt or completing for the contract in question. fraudulent practices will declare a ineligible, either indefinitely or for a stated period of time, to be awarded a contract if it at any time determines that the firm has engaged in corrupt or competing for, or in executing a contract. fraudulent practices

31.2 Furthermore, Tenderers shall be aware of the provision stated in Clause 49 of the Conditions of Contract. Condition 49.2.7 and the explanation to the main condition 49 of Conditions of Contract are as follows:

49.2.7 if the Contractor, in the judgment of the Employer has engaged in corrupt or 39 fraudulent practices in competing for or in the executing the Contract. Explanation: For the purpose of this paragraph “corrupt practice” means the offering, giving, receiving or soliciting of anything of value to influence the action of a public official in in contract execution. the procurement process or “Fraudulent practice” means a misrepresentation of facts in order to influence a procurement process or the execution of a contract to the detriment of the borrower, and includes collusive practice among Tenderers (prior to or after Tender submission) designed to establish Tender prices at artificial non-competitive levels and to deprive the Borrower of the benefits of free and open competition.” 35) If the bidders are measured on this scale, do they come with flying colors? No they fail to pass this important test. Because, all the six of them, at the time of accepting the tenders were aware that they are getting work orders more than what they are qualified for. So, ideally, as per condition 31, they should have disclosed that they succeeded in other bids and hence, they cannot take the bids, though they are allocated the bids. 36) They failed in this test. So, while the tender process did not have any illegal or malafide, during the time of awarding the work, there have been lapses and latches on both sides, the corporation side and the respondents’ side (six of them). 37) The corporations cannot escape that they were not aware of what is happening in each other corporation, as they are all together in the evaluation committee and they all know what has been happening. So, those officers who have awarded the works need to explain a lot for their apparent lapse. 38) The bidders might have received and done the work. But those bids do not belong to them. So, if they have done the work, then the rest of the work which is above their bid capacity shall not be given to them. The corporations need to work out the extra amount 40 and issue orders asking the bidders not to go forward with it. They shall issue revised work order to them. 39) IAS, Secretary I, Major Manivannan, Government of Karnataka, Social Welfare Department in the powers vested in me under Section 16 of the KTPP Act, 1999, after considering the materials placed before me, after hearing and considering all aspects involved and on application of mind, hereby pass the following order: ORDER 40) The appeal filed by the appellants is partially allowed. The corporations shall rescind those work orders issued to them in excess of their bid capacity, i.e., 14 packages involving 6 bidders. They shall use the date of issuance of work order as the reference for this purpose. The rest of the work orders given are in order and need no interference from this authority. 41) The Corporations are advised to be more circumspect in future while awarding such tenders where tenders are called and work orders are issued in close proximity of time. Order dictated, type corrected and pronounced in the open office on 23rd, June, 2022.” An imaginary appeal is partially allowed. It is directed that the Corporations shall rescind all the work orders issued by them in all the bid capacity in respect of 14 packages involving 6 bidders and further directs that they would issue work order bearing in mind the observations made in the order and directs the Corporations to be more circumspect in future while awarding such tenders where tenders are called and work orders are issued in close proximity of 41 time. The reason to hold issue No.5 against the petitioners is also strange.

18. As observed hereinabove, there were three independent tender notifications issued by three different Corporations. The Appellate Authority holds that if the bid capacity is considered carefully, the petitioners have the bid capacity if it is individual Corporations. But, if all the Corporations are put together their bid capacity is inadequate. The consideration and the observation to say the least is preposterous. If there are independent tender notifications issued by independent Corporations and independent work orders depending upon independent bid capacity, the Appellate Authority after holding them that they were within the bid capacity, if individual Corporations are taken which alone had to be taken, the totality of three Corporations being the foundation for passing the order in appeal is on the face of it, is erroneous. If nothing else is found against the petitioners even by the Appellate Authority, he could not have found what is now considered to be the reason for rescinding the work orders. Since this Court has 42 ordered status quo by grant of an interim order, the rights of the petitioners have been protected.

19. Insofar as the allegations that form certain complaints or cases against Officers, the finding in this order would not come in the way of any of the proceedings which is outside the scope of the subject writ petition. The petition is answered qua the challenge. The challenge is to the order of the Appellate Authority and the Appellate Authority’s order is found to be on the face of it, contrary to law. Therefore, the petitions deserve to succeed qua the challenge to the order of the Appellate Authority.

20. For the aforesaid reasons, I pass the following: O R D E R (i) Writ Petition No.13024 of 2022 is allowed. (ii) The order dated 23-06-2022 passed by the 1st respondent / Appellate Authority-cum-Principal Secretary, Social Welfare Department stands quashed. (iii) The petitioners shall complete the works awarded to them within the time frame stipulated in the contracts. 43 (iv) It is made clear that the observations made in the course of the order or findings rendered are only for consideration of the case of the petitioners qua the order of the Appellate Authority. It does not bind, influence or clothe any other proceedings outside the scope of the writ petition. (v) In view of the findings rendered in Writ Petition No.13024 of 2022, Writ Petition No.29265 of 2023 stands dismissed. Pending application/s, if any, stands disposed, as a consequence. Sd/- JUDGE CT:MJ