Sri K B Kumar Vs State of Karnataka

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE TENDER ENQUIRY BEARING NO. MI/202425/LI/ WORK-INDENT 2515 ISSUED BY THE R2 (ANNX-B) AND CONSEQUENTLY CALL FOR FRESH TENDER IN SO FAR AS PETITIONER IS CONCERNED; QUASH THE UPLOADING THE INTIMATION UNDER THE CAPTION BID RECEIVED FOR THE TENDER (ANNX-A) IN RESPECT OF TENDER EQNUIRY BEARING NO. MI/2024-25/LI/WORKINDENT 2515 ISSUED BY THE R2 IN SO FAR AS PETITIONER IS CONCERNED.

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IN W.P.No.12725/2025

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BETWEEN

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SRI.K.B. KUMAR SON OF BUDE GOWDA,

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AGED ABOUT 58 YEARS, I GRADE CONTRACTOR, RESIDING AT NO. 155, 4^TH MAIN, MOKSHA MARGA, SIDDARTHANAGR, MYSURU - 570001.

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...PETITIONER

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(BY SRI. MADHUKAR DESHPANDE., ADVOCATE)

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AND:

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1 . STATE OF KARNATAKA DEPARTMENT OF MINOR IRRIGATION AND GROUND WATER DEVELOPMENT, VIKASA SOUDHA, DR. AMBEDKAR VEEDHI ROAD, BENGALURU 560001. REPRESENTED BY ITS PRINCIPAL SECRETARY.

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2 . EXECUTIVE ENGINEER, MINOR IRRIGATION AND GROUND WATER DEVELOPMENT DIVISION, OFFICE AT NAZARABAD, MYSURU-570010.

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…RESPONDENTS

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(BY SRI. K. SHASHIKIRAN SHETTY, ADVOCATE GENERAL A/W SMT. NAVYA SHEKHAR, ADDITIONAL GOVERNMENT ADVOCATE AND

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KUM. RACHEL RAJU ALICE, ADVOCATE FOR R1)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE TENDER ENQUIRY BEARING NO. MI/202425/LI/WORK-INDENT2516 ISSUED BY THE R-2 (ANNX-B) AND CONSEQUENTLY CALL FOR FRESH TENDER; QUASH THE UPLOADING THE INTIMATION UNDER THE CAPTION BID RECEIVED FOR THE TENDER (ANNX-A) IN RESPECT OF TENDER ENQUIRY BEARING NO. MI/202425/LI/WORK-INDENT2516 ISSUED BY THE R-2; DIRECT THE R-1 AND 2 TO CONDUCTED TENDER PROCESS AS PER THE PROVISION OF KARNATAKA TRANSPARENCY IN PUBLIC PROCUREMENT ACT, 1999.

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THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, B.M. SHYAM PRASAD J., PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD

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CAV ORDER

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The Minor Irrigation and Ground Water Development Department, Mysuru [the Department] has, on 12.09.2024, floated Tenders in Nos.MI-2425/L1/Work Indent/2515 and MI-24-25/L1/Work Indent/2516 for construction of the facilities for Lift

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Irrigation near Devanuru Village, Nanjangud Taluk and Kesthuru Koppalu, K R Nagara Taluk as a Turnkey Project . The Department has issued a Corrigendum on 25.09.2024 [ the Corrigendum ] extending the last date for submission of bids and modifying the eligibility criteria/ altering the scope of work. The petitioner, who had offered bids [Bids] in response, has challenged the Corrigendum in the writ petitions in W.P. Nos.27111/2024 and 27103/2024.

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This Court has dismissed these petitions on 22.04.2025, and a day after i.e. on 24.04.2025 the petitioner has filed the present two petitions contending that though his revised Bids [ submitted on 27.09.2024 ] are received, his uploads on 30.09.2024 for certain corrections in the Bids have failed . The petitioner contends that the respondents did not disclose that his Bids had failed or was otherwise outside the purview of evaluation. The petitioner has now challenged:

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[i] The publication on the Karnataka Public Procurement Portal [the Portal] of information on successful submissionsthe bids that are Received [ Annexure-A ], and

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[ii] The publication on the Portal of the time timelines, which includes the timelines that would be consequent to the Corrigendum dated 25.09.2024 [ Annexure B ]¹ .

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This Court, on 26.04.2025, considering the petitioner’s request for an interim order, has stipulated that the further proceedings in the tender shall remain stayed, and this interim order has been continued from time to time.

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1 The petitioner has described Annexure B as “Tender Enquiry Document"

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3. A précis of facts

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3.1 The second respondent [ the Executive Engineer, Minor Irrigation and Ground Water Development Division, Mysuru ] has floated tenders for construction of the facilities for lift irrigation on 12.09.2024. The second respondent has stipulated 17.09.2024 for the pre-bid meeting and 24.09.2024 as the last date for submission of queries on the tender document; and further, the second respondent has stipulated 25.09.2024 and 27.09.2024 as the last dates for submission of bids and opening of the Technical Bids. The petitioner, a Grade–I Contractor, has participated in the Pre-Bid Meeting.

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3.2 The petitioner has uploaded his Bids on 25.09.2024. The second respondent vide the order dated 21.09.2024 has extended the timelines for submission of bids and for opening of technical

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bids/financial bids, and the second respondent has subsequently issued the Corrigendum extending the timelines. The details of these changes are:

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Sl No.	Description	Date as notified in the tender document dated 12.09.2024	Date as notified in the Corrigendum dated 25.09.2024
1	Pre-bid meeting	17.09.2024	-
2	Last date for Queries/Clarification	24.09.2024	-
3	Last date for submission of bids	25.09.2024	30.09.2024
4	Date for opening of Technical bids	27.09.2024	03.10.2024
5	Date for opening of Financial bids	-	05.10.2024

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In issuing this corrigendum, the second respondent has also changed the scope of work and eligibility criteria, but these aspects are decided in the earlier petitions in WP Nos. 27111/2024 and 27103/2024 and are not in issue in these petitions.

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The decision in the earlier writ petitions in WP Nos. 27111/2024 and 27103/2024

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3.3 The petitioner has challenged the

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Corrigendum issued to extend the time for submission of the bids with the consequential additional timelines for opening of technical/financial bids with certain alterations on scope of work and eligibility criteria. However, this Court, while answering questions² such as whether issuing the Corrigendum has vitiated the entire tender process, has opined that [a] the issuance of Corrigendum modifying the terms of the tender notifications has not vitiated the process because the changes are prior to the opening of the technical and the financial bids, [b] the Corrigendum is issued on the last date of the tender [on 25.09.2024 ] but the petitioner has re-submitted his tender thereafter, and

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2 This Court has also considered the petitioner’s grievance with the time allowed for submissions based on Rule 17 of the Karnataka Transparency in Public Procurement Rules, 2000.

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[c] the petitioner, after having availed the benefit of this change, cannot make 'a hue and cry'.

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4. The petitioner’s case in these petitions in a nutshell

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4.1 The petitioner submitted his Bids on 25.09.2024, but with the Corrigendum he was unsuccessful in his attempt to resubmit his Bids with certain corrections. The authorities [ the respondents ] contested his earlier petitions in WP No 27111/2024 and 27103/2024 asserting that he had resubmitted his Bids. After this Court’s order dated 22.04.2025, he has learnt that the respondents have excluded his Bids removing him from the tender process.

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4.2 The petitioner’s exclusion is demonstrated by Annexure A , which mentions only the bids by the other bidders/contractors as 'Received' . The respondents have excluded his Bids only because he has approached this Court with the writ petitions in WP

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Nos. 27111/2024 and 27103/2024, and the respondents, who have specifically pleaded in the Statement of Objections in the earlier writ petitions that the petitioner has resubmitted his Bids on 27.09.2024, have deliberately excluded his Bids.

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5. The respondent’s case in a nutshell

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The petitioner has suppressed the fact that [a] he submitted his Bids on 25.09.2024 which he cancelled on 27.09.2024 to submit revised Bids on 27.09.2024, [b] he cancelled even these Bids on 30.09.2024 and [c] as seen even from the documents annexed by him, his attempt to re-submit his Bids on 30.09.2024 was a failure. The petitioner cancelled his Bids both on 27.09.2024 and 30.09.2024 because he wanted to alter his Bids, and therefore, his Bids remained incomplete. The petitioner has no locus to challenge the tender notifications or the outcome, especially after this Court’s order dated 22.04.2025 in the earlier writ petitions.

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6. The submissions by Sri Madhukar Deshpande, the learned counsel for the petitioner

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6.1 Sri Madhukar Deshpande submits that the petitioner can demonstrate the respondent’s failure to comply with Rule 19 of the Karnataka Transparency in Public Procurement Rules, 2000 [for short, ' the KTPP Rules ' ] and that this aspect did not come up for this Court's consideration in the earlier writ petitions in WP Nos. 27111/2024 and 27103/2024. The learned counsel in elaboration on the alleged failure to comply with the procedure under Rule 19 of the KTPP Rules canvasses thus.

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6.1.1 The petitioner, after the corrigendum dated 25.09.2024, has resubmitted his bid on 27.09.2024 and the petitioner again on 30.09.2024 attempted to make corrections in the bid, but the system did not permit him to complete the submission.

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The Rule 19 of the KTPP Rules stipulates that every bid received, even if incomplete must be shown as ' DRAFT' but in the present case, in terms of the details furnished to this Court during the hearing, the respondents have failed to show that the bids offered by the petitioner was declared 'DRAFTS'.

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6.1.2 The petitioner can thus demonstrate procedural impropriety [non-compliance] in the Portal not reflecting the petitioner's Bids as Drafts, and with the decision of the Apex Court in Subodh Kumar Singh Rathod v. CEO and Others³ , it is no longer Res Integra that this Court must intervene in exercise of the writ jurisdiction when procedural non-compliance is demonstrated.

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6.2 Sri Madhukar Deshpande, on the petitioner’s locus , after the dismissal of his earlier writ petitions in W.P. Nos. 27111/2024 and 27103/2024, to

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3 2024 SCC Online SC 1682

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call in question the exclusion of his Bids and for

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directions to the respondent to consider his Bids, emphasizes that [a] the respondents have resisted the earlier writ petitions contending that the petitioner had re-submitted his Bids without disclosing that his Bids were incomplete and [b] the respondents cannot contend that the petitioner has no locus to challenge the exclusion of his Bids in view of the afore and the fact that the issue of non-compliance with the procedure under Rule 19 of the KTPP Rules was not considered in the earlier writ petitions.

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7. The submissions by Sri Shashi Kiran Shetty, the learned Advocate General

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7.1 Sri Shashi Kiran Shetty, relying upon the

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Communication dated 29.04.2025 addressed by the Project Director, Centre for e-governance to the first respondent and the enclosed Details, rebuts the assertion that there is any violation of Rule 19 of the

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KTPP Rules. The learned Advocate General submits that indeed in compliance with the requirement of Rule 19 of the aforementioned Rules, an incomplete submission must be displayed as a DRAFT on the Portal and that in the present case, the Portal did display, at the relevant time, the status of the petitioner’s Bids as DRAFTS and as such there is no procedural impropriety or noncompliance.

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7.2 Sri Shashi Kiran Shetty details the petitioner’s effort to submit/cancel/resubmit his Bids in response to the Tender Notifications and the Corrigendum thus to support the respondents’ case that the petitioner's Bids were incomplete as of 17:30 on 30.09.2024 [ the last time and date for submission of bids ].

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Reg. Nos. MI-24-25/L1/Work Indent/2515 : The petitioner, who submitted his Bid on 25.09.2024, cancelled the Bid on 27.09.2024 [12:26] as required to

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re-submit/modify his Bid and re-submitted his Bid on 27.09.2024 [12:31], but he also cancelled this Bid on 30.09.2024 [15:13] and he has not resubmitted his Bid before 17:30 on 30.09.2024.

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Reg.Nos.MI-24-25/L1/Work Indent/2516 : The

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petitioner, who submitted his Bid on 25.09.2024, cancelled the Bid on 27.09.2014 [12:32] as required to re-submit/modify and re-submitted his Bid on 27.09.2024 [12:35], but he also cancelled this Bid on 30.09.2024 [15:16] and has not resubmitted his Bid before 17:30 on 30.09.2024.

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7.3 Sri Shashi Kiran Shetty submits that every

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bidder will have an option to submit a bid on the Portal from the day the concerned tender notification is published, and the bidder can modify/alter/change the bids and produce additional documents but for such modification/alteration, the bidder will have to cancel

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the bid submitted. The learned Advocate General further submits that, however at the time of such cancellation, the bidder will have to accept a Declaration of Cancellation acknowledging that the details of the commercial offer will be removed, and once the bidder accepts the Declaration of Cancellation canceling the bid, the bid which was RECEIVED is displayed as a DRAFT because the submission of the bid at this stage will be incomplete [as required under Rule 19 of the KTPP Rules] and an incomplete bid will not be taken up for evaluation.

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7.4 Sri Shashi Kiran Shetty canvasses that the petitioner, having failed in the writ petitions in WP Nos. 27111/2024 and 27103/2024, is trying to resurrect a cause of action alleging procedural impropriety , but this Court must opine that there is no violation of the procedure under Rule 19 of the KTPP Rules or there is need to apply the proposition enunciated by the Apex

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Court in Subodh Kumar Singh Rathod v. CEO and

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Others [supra]. The learned Advocate General also submits that this Court must dismiss these petitions on the grounds of locus and abuse of judicial process because the petitioner, who cannot deny knowledge of his efforts to cancel the Bids on terms and his failure to re-submit the same within time, is repeatedly approaching this Court impeding a lift irrigation project.

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8. The reasoning

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8.1 This Court, before examining the rival submissions, must refer to the decision of the Apex Court in Subodh Kumar Singh Rathod v. CEO and

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Others [supra]. The Apex Court, while examining the scope of judicial review of the State’s actions in the matters relating to contract/tender disputes under writ jurisdiction, has held that an action under a writ will lie even at the stage prior to the award of contract when such award is imbued with procedural impropriety or

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arbitrariness or favouritism, and even when there is no application of mind, referring to its earlier decision in Tata cellular v Union of India⁴ . The exposition by the Apex Court is thus:

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"…… An action under a writ will lie even at the stage prior to the award of a contract by the State wherever such award of contract is imbued with procedural impropriety, arbitrariness, favouritism or without any application of mind. In doing so, the courts may set aside the decision which is found to be vitiated for the reasons stated above but cannot substitute the same with its own decision. The relevant observations read as under:

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82.4. An action will lie, undoubtedly, when the State purports to award any largesse and, undoubtedly, this relates to the stage prior to the contract being entered into (see Ramana Dayaram Shetty [supra]). This scrutiny, no doubt, would be undertaken within the nature of the judicial review, which has been declared in the decision in Tata Cellular v. Union of India.

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(emphasis supplied) "

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4 (1994) 6 SCC 651

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8.2 The respondents cannot dispute this

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proposition, and in fact, they do not, but they contend that the facts and circumstances of the case must be examined to hold that this proposition cannot be applied as there is no procedural impropriety in the petitioner’s Bids being shown as DRAFTS asserting that the petitioner, who cannot deny that he could not upload/submit his revised [changed] Bids within the time stipulated, is contriving a cause.

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8.3 This Court must refer to the decision of the

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Apex Court in Krishnadatt Awasthy v. State of M.P. & Ors.⁵ The Apex Court, referring to Lord Diplock’s decision in Council of Civil Service Unions v. Minister for Civil Service⁶ and considering aspects such bias and whether the demonstration of prejudice is mandatory for raising a claim of violation of right of hearing, has underscored that the procedural impropriety is the

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5 (2025) 7 SCC 545

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6 1985 AC 374.

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impediment of a right resulting from the failure to observe procedural rules that are expressly laid down in the legislative instrument. This Court opines that the petitioner to succeed on the ground of procedural impropriety , must establish a failure to observe procedure under the KTPP Rules and a resultant injury, and that if the petitioner does not satisfy these requirements, he cannot succeed on this ground. Additionally, the Petitioner must establish his locus with the decision of this Court in his petitions in W.P. Nos. 27111/2024 and 27103/2024.

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9. Questions for consideration

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The present petitions are in the common context, and the submissions are also common, but the petitioner has filed separate petitions because they relate to his grievance with his inability to upload the changed/ altered Bids in response to the two tender notifications issued by the same authority [ the second

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respondent ] for similar work. In the light of the factual matrix, the rival submissions and the afore proposition, this Court is of the view that the following questions must be considered for a decision on merits in these petitions:

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[a] Whether this Court must opine that the petitioner has contrived a cause of action for these petitions after having failed in the earlier writ petitions in WP Nos. 27111/2024 and WP 27103/2024 and hence lacks locus.

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[b] Whether the petitioner has established that Rule 19 of the KTPP Rules is violated and that he is entitled for a declaration that the respondents have denied him an opportunity to submit “Corrected Bids” on 30.09.2024 and for issuance of directions to the respondents to consider his Bids .

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10. Reg. Question No. 1

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10.1 In the petitions in WP Nos. 27111/2024 and 27103/2024, the petitioner was aggrieved by the second

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respondent’s decision to issue the Corrigendum extending the time for submission of the Bids with the consequential additional timelines for opening of technical/financial Bids with certain alterations on eligibility criteria and other parameters. This Court has concluded that issuing the Corrigendum modifying the terms of the tender notifications has not vitiated the process because the changes are prior to the opening of the technical and the financial bids and that the petitioner has ' re-submitted his tender' .

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10.2 This Court has also opined that it will be open to a Tender Inviting Authority to make changes before the bids are opened, and crucially, this Court has observed thus:

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“………………..It is to be noticed that after the last date of submission of tender the petitioner on 27-09-2024 has resubmitted his tender but perhaps forgotten to change the price cannot

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raise a hue and cry that the corrigendum is contrary to law

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8. As observed, making changes in the tender document before opening of the bid is a legally permissible exercise. The only condition is that every tenderer who has participated should be made known of those modifications brought out in the document of tender. It is undoubtedly made known to all, in the case at hand. Therefore, the exercise undertaken by the Authorities is not only within the ambit of law, but also intended to foster greater competition and prevent a single–bid scenario. Thus, the allegation of arbitrariness fails to withstand scrutiny and the claim that the corrigendum vitiates the tender process is devoid of merit. The issue is answered accordingly against the petitioner.”

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10.3 This Court must, in the light of the above, opine that the outcome in the writ petitions in WP Nos. 27111/2024 and 27103/2024 has turned on the footing that the petitioner has re-submitted his Bids with this Court concluding that after such re-submission, the

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petitioner is raising a ' hue and cry' over issuing the Corrigendum. The petitioner’s present case is that the only information available to him about the status of the Bids as of 30.09.2024 [as part of the submissions by Sri Madhukar Deshpande] is as per Annexure-F, which only showed that the re-submission of the Bids were failures .

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10.4 The respondents contend that all the information was available to the petitioner and that the petitioner cannot dispute that he has cancelled his earlier Bids to change/ alter the terms of his Bids. This controversy between the petitioner and the respondents is not decided in the earlier petitions in WP Nos. 27111/2024 and 27103/2024. Therefore, this Court can neither opine that the petitioner has contrived a cause of action nor conclude that the petitioner must be non-suited on the ground of locus . The first question is answered accordingly.

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11. Reg. Question No. 2

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11.1 The petitioner’s grievance hinges on the

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assertion that the tender process is not according to the procedure under Rule 19 of the KTPP Rules, but before this Rule is examined to decide on whether the respondents have adopted a procedure that is contrary to this Rule, this Court must advert to the admitted facts. The petitioner has submitted his Bids on 25.09.2024 [ the last date for submission in terms of the original Tender Notifications ]. After the Corrigendum of the even date with the extension of time for submission of the bids with certain changes in the tender terms, the petitioner has submitted his next Bids [on 27.09.2024]. The petitioner has cancelled even these Bids on 30.09.2024 at 15:13 and 15:16 respectively. The details of the submissions/ cancellation/ resubmissions are as follows.

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The details of t	he submission t	s/re-submissio he petitioner	ns/cancellati	on of Bids by
Tender Details Nos.MI-24- 25/L1/Work Indent	The First Submission	Cancellation of the First Submission	Next Submission	The Cancellation of the next Submission
2515	25.09.2024 [10:03]	27.09.2024 [12:26]	27.09.2024 [12:31]	30.09.2024 [15:13]
2516	25.09.2024 [10:06]	27.09.2024 [12:32]	27.09.2024 [12:35]	30.09.2024 [15:16]

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The petitioner has uploaded no Bids after 15:13 and 15:16 on 30.09.2024.

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11.2 The undisputed process of submitting a bid on the Portal is this. The portal enables cancelling/ altering/modifying a bid submitted until the last date of submission, and a bidder who proposes to cancel/alter/modify the bid submits a Declaration of Cancellation acknowledging that the commercial offer will be removed from the Portal. This Court opines that when the bidder accepts such cancellation, the bid’s status changes from being a bid Received to being a

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Draft. The bidder, because the bid is a Draft , can modify or change it. The bid with this change in status will be an incomplete [a draft ] bid with the option to make changes. If this bidder, who has thus changed the status of the bid, does not alter or modify the bid within the time allowed [ the last date/time for submission ], the incomplete bid cannot be evaluated.

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11.3 The petitioner does not dispute this procedure or that the cancellation of his Bids submitted on 25.09.2024 and 27.09.2024 is based on the acceptance of the afore procedure. The petitioner, notwithstanding the reasons that could be, has not uploaded the modified Bids after the cancellation of the Bids at 15:13 and 15:16, respectively, on 30.09.2024. Therefore, the status of his Bids remained incomplete/ DRAFTS as on 17:30 on 30.09.2024. This status is seen in the details furnished by the respondents, and these details are:

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11.4 The question for consideration is whether this Court in the afore factual background must opine that the respondents have violated Rule 19 of the KTPP Rules. The Rule 19 read as under:

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"19. Procedure to be followed at tender opening: - the following procedure shall be followed at the tender opening: -

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(a) List of submitted tenders termed as RECEIVED and list of incomplete tenders termed as DRAFT shall be displayed.

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(b) All tender payments successfully received shall be displayed.

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[c] The Tenders which have been submitted in Karnataka Public Procurement Portal and whose tender

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payments were successfully received shall be opened.

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(d) The name of the tenderers shall be published in the Karnataka Public Procurement Portal.

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(e) The fact whether earnest money deposit has been made and other documents required have been produced may be indicated, but this shall be merely an examination of the documents and not an evaluation;

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(f) [Omitted]"

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The only stipulation under this Rule is that an incomplete bid termed a DRAFT shall be displayed on the Portal as such.

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11.5 When the petitioner canceled the Bids [ submitted on 27.09.2024 ] on 30.09.2024, he rendered those Bids incomplete which are displayed as DRAFTS on the Portal. The Bids continued to be as DRAFTS at 17:30 on 30.09.2024 because the petitioner did not

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upload the intended changes by then. This Court, in the light of the statutory stipulation and the process as discussed, cannot opine that there is any deviation from the statutorily prescribed procedure to justify that there is a procedural impropriety . Further, the petitioner, without mentioning the process that involves cancellation of the bids submitted earlier, only states that, on 30.09.2024, he attempted to make further corrections to his price bid but he could not make any correction in the bid document and the attempt made by him failed. This must also be held against the petitioner.

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11.6 At this stage, this Court must refer to Rule 15[4][b] of the KTPP Rules which reads as under:

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" 15. Date and time for receipt of tenders:-

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[4] [a] …………………

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[b] It shall be the responsibility of the tenderers to ensure that their tender is submitted in the Karnataka Public

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Procurement Portal within the last date and time specified for the receipt of the tenders.

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The statute enjoins the petitioner with the responsibility to ensure that his tender is submitted on the Portal within the last date/time specified for the submission. The petitioner, who submitted the second Bids on 27.09.2024 [after the Corrigendum] has cancelled these Bids on 30.09.2024 at 15:13 and 15:16 respectively, but has failed in ensuring that the corrected Bids are submitted in time. The onus in law is on the petitioner and he has failed. As such the second question is answered against the petitioner.

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In view of the above, the petitions are rejected.

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Sd/(B.M. SHYAM PRASAD) JUDGE

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nv *****

Sri K B Kumar v. State of Karnataka

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Sri K B Kumar v. State of Karnataka

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