1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.26089 OF 2023 (GM – TEN) C/W WRIT PETITION No.21940 OF 2022 (LB – BMP) WRIT PETITION No.2935 OF 2023 (GM – TEN) WRIT PETITION No.4301 OF 2023 (GM – TEN) WRIT PETITION No.4308 OF 2023 (GM – TEN) WRIT PETITION No.4477 OF 2023 (GM – TEN) WRIT PETITION No.4698 OF 2023 (GM – TEN) WRIT PETITION No.4987 OF 2023 (GM – TEN) WRIT PETITION No.5071 OF 2023 (GM – TEN) WRIT PETITION No.3913 OF 2024 (GM – TEN) WRIT PETITION No.4069 OF 2024 (GM – TEN) IN WRIT PETITION No.26089 OF 2023 BETWEEN: SREE BANASHANKARI ENTERPRISES NO.341, 11TH CROSS, 7TH MAIN KAVERI NAGAR, BSK 2ND STAGE BENGALURU – 560 070 REPRESENTED BY ITS PROPRIETOR SRI PRASANNA KUMAR M.N., S/O MADILATI NARASAPPA. ... PETITIONER (BY SRI R.S.RAVI, SR. ADVOCATE FOR SRI AKARSH KUMAR GOWDA, ADVOCATE) 2 AND: 1 . THE MANAGING DIRECTOR BANGALORE SOLID WASTE MANAGEMENT LTD., I FLOOR, UNI BUILDING, THIMMAIAH ROAD MILLERS TANK BUND AREA, VASANT NAGAR BENGALURU – 560 052 PUBLIC LIMITED COMPANY REGISTERED UNDER INDIAN COMPANIES ACT, 2013. 2 . THE CHIEF GENERAL MANAGER (TECH) BANGALORE SOLID WASTE MANAGEMENT LTD., I FLOOR, UNI BUILDING, THIMMAIAH ROAD MILLERS TANK BUND AREA, VASANT NAGAR BENGALURU – 560 052 PUBLIC LIMITED COMPANY REGISTERED UNDER INDIAN COMPANIES ACT, 2013. 3 . BRUHATH BENGALURU MAHANAGARA PALIKE PADMANABHA NAGAR DIVISION KUMARASWAMY LAYOUT OPP. SAGAR HOSPITAL – 560 052 REPRESENTED BY ITS EXECUTIVE ENGINEER. ... RESPONDENTS (BY SRI K.SHASHIKIRAN SHETTY, ADVOCATE GENERAL A/W SRI PRASANTH S.H., ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE SHORT TERM TENDER NOTIFICATION DATED 16/11/2023, MADE IN NO.EE(PN)/TEND/09/2023-24, VIDE ANNEXURE-B, ISSUED BY THE R3. 3 IN WRIT PETITION No.21940 OF 2022 BETWEEN: M/S. LAVA KUSHA TRANSPORT BY PROPRIETOR SRINIVASA REDDY K. R., A PROPRIETOR CONCERN S/O RAJAKRISHNA REDDY AGED ABOUT 58 YEARS RESIDENT OF LAVA KUSHA NAGAR KONAPPA AGRAHARA ELECTRONIC CITY POST BENGALURU – 560 100 ... PETITIONER (BY SRI H.V.NAGARAJA RAO, ADVOCATE) AND: 1 . THE COMMISSIONER BRUHAT BENGALURU MAHANAGAR PALIKE N.R.SQUARE, BENGALURU – 560 002. 2 . ASSISTANT EXECUTIVE ENGINEER CHAMARAJPET SOLID WASTE MANAGEMENT DIVISION, MYSURU ROAD NEAR TOLL GATE BENGALURU – 560 018. 3 . M/S. MADHAVA ENTERPRISES BY PROPRIETOR KUSUMA S., A PROPRIETOR CONCERN NO.34, 5TH CROSS, 5TH MAIN RANGANATHPURA, KAMAKSHIPALYA BENGALURU – 560 079. ... RESPONDENTS (BY SRI K.SHASHIKIRAN SHETTY, ADVOCATE GENERAL A/W., SRI PRASHANTH S. H., ADVOCATE FOR R1 AND R2; 4 SRI P.CHANDRASHEKAR, ADVOCATE FOR C/R-3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING ANNEXURE-G VIDE ORDER NO.¸À.PÁ.¤Ã.D(WÀ.vÁå.¤)/ZÁ.¥ÉÃ/¦ Dgï/43/22-23 DATED 13.10.22 CANCELLING THE TENDER AWARDED IN FAVOR OF THE PETITIONER AND AWARDING THE SAME IN FAVOUR OF THE R3 AND ALLOW THE WRIT PETITION. IN WRIT PETITION No.2935 OF 2023 BETWEEN: 1 . H.N.ROOPESHKUMAR S/O H.C.NARAYANA REDDY AGED ABOUT 41 YEARS OCC: PARTNER M/S. ANNAPOORNESHWARI ASSOCIATES A REGISTERED PARTNERSHIP FIRM NO.6/6D, VIVEKANANDA NAGAR BEGUR ROAD, BENGALURU – 560 068. 2 . K.R.SRINIVAS REDDY S/O RAJAKRISHNA REDDY AGED ABOUT 58 YEARS OCC: PROPRIETOR M/S. LAVAKUSHA TRANSPORT GROUND FLOOR, HOSUR ROAD ELECTRONIC CITY ROAD LAVA KUSH NAGAR BENGALURU – 560 100. 3 . H.N.MANJU S/O H.R.NYATH REDDY AGED ABOUT 39 YEARS PROPRIETOR, SHRI LAKSHMI ENTERPRISES NO.5, VMK REDDY BUILDING HONGASANDRA BEGUR ROAD BENGALURU – 560 068. 5 4 . KARTHIK N., S/O NARASIMHA REDDY AGED ABOUT 35 YEARS S.NO.1417, GOVERNMENT HIGH SCHOOL NEAR BEGUR, BENGALURU – 560 068. 5 . S.RAJU AGED ABOUT 49 YEARS S/O SRINIVASULU NAIDU SAPTHAGIRI CLEANING SERVICE NO.7, 1ST CROSS, 24TH MAIN PUTTENAHALLI, J.P.NAGAR 7TH PHASE, BENGALURU – 560 070. 6 . K.O.SRINIVAS S/O LATE K.H.OBALESH AGED ABOUT 49 YEARS NO.42, CORPORATION LAYOUT KASTURIBA NAGARA PIPE LINE MYSORE ROAD, BENGALURU – 560 026. 7 . A.L.SATISHKUMAR S/O LATE ANCHI LINGAPPA AGED ABOUT 48 YEARS OCC: PROPRIETOR S.P.T. ENTERPRISES NO.41, K.H.ROAD (DOUBLE ROAD) BENGALURU – 560 027. 8 . C.RAVI NAIDU S/O C.SRINIVASULU NAIDU AGED ABOUT 59 YEARS NO.1672, 5TH CROSS, 2ND BLOCK BSK 2ND STAGE BENGALURU – 560 050. ... PETITIONERS (BY SRI ASHOK HARANAHALLI, SR. ADVOCATE A/W SRI MAHESH H., ADVOCATE) 6 AND: 1 . THE STATE OF KARNATAKA URBAN DEVELOPMENT DEPARTMENT REPRESENTED BY PRINCIPAL SECRETARY M.S.BUILDING, BENGALURU – 560 001. 2 . BRUHAT BENGALURU MAHANAGARA PALIKE REPRESENTED BY ITS COMMISSIONER N.R.SQUARE, BENGALURU KARNATAKA – 560 002. 3 . BENGALURU SOLID WASTE MANAGEMENT LTD., REPRESENTED BY ITS CHIEF GENERAL MANAGER (TECH) PUBLIC LIMITED COMPANY REG. UNDER INDIAN COMPANIES ACT, 2013 1ST FLOOR, UNI BUILDING THIMMAIAH ROAD MILLERS TANK BUND AREA VASANTH NAGAR BENGALURU – 560 052. 4 . EXECUTIVE ENGINEER-1 SOLID WASTE MANAGEMENT-1 3RD FLOOR, ANNEX-2 BUILDING BBMP HEAD OFFICE PREMISE N.R.SQUARE, BENGALURU – 560 002. 5 . BENGALURU MAHANAGARA SWACHATE MATTU LORRY MALIKARA HAGOO GUTTHIGEDARARA SANGHA (REGD) REG. UNDER THE KARNATAKA SOCIETIES REGISTRATION ACT, 1960 REPRESENTED BY ITS SECRETARY NO.1, AGA GARDEN, FOOD GODOWN ROAD A.T.HALLI LAYOUT, SHANTHINAGAR BENGALURU – 560 027. ... RESPONDENTS 7 (BY SRI K.SHASHIKIRAN SHETTY, ADVOCATE GENERAL A/W., SMT. ANUKANKSHA KALKERI, AGA FOR R1 AND SRI S.N.PRASHANTH CHANDRA, SMT. NAMITHA MAHESH B. G., ADVOCATES FOR R3 AND R4; SRI B.L.SANJEEV, ADVOCATE FOR R2; SRI P.PRASANNA KUMAR, ADVOCATE A/W., SRI RAHUL KRISHNA REDDY, ADVOCATE FOR R5) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED RFP BEARING NO. CGM(TECH)/BSWML/TEND/02/2022-23 CALL-2 DTD. 21.01.2023 ISSUED BY THE R-3 BENGALURU SOLID WASTE MANAGEMENT LTD. (ANNX-A) AND ETC., IN WRIT PETITION No.4301 OF 2023 BETWEEN: 1 . SRP CLEAN ENVIRO ENGINEERS PVT. LTD., NO. 21, 1st ‘B’ CROSS BEHIND SANDHYA THEATRE BENGALURU – 546 068. REPRESENTED BY ITS MANAGING DIRECTOR SRI VASIPALLI LOKESH S/O V.VISHWANATH REDDY REG. UNDER COMPANIES ACT, 1956. 2 . SRI C.V.BHANUMURTHY REDDY S/O C.V.VENUGOPAL REDDY AGED ABOUT 66 YEARS PROPRIETOR SWACHATHA CORPORATION NO. 19, HSR LAYOUT, 2nd SECTOR GARDEN LAYOUT, NEAR PURVA FAIRMONT APARTMENT HSR LAYOUT, 2nd SECTOR 8 BENGALURU – 560 102. 3 . SRI B.S.KIRAN KUMAR S/O B.R.SRINIVAS AGED ABOUT 43 YEARS PROPRIETOR SRI LAKSHMI RANGANATHA SWAMY ENTERPRISES, NO. 2666, GROUND FLOOR 7th MAIN, 17th ‘D’ CROSS OPPOSITE BANASHANKARI POST OFFICE BSK 2nd STAGE, BENGALURU – 560 070. ... PETITIONERS (BY SRI JAYAKUMAR S. PATIL, SR. ADVOCATE A/W., SRI MAHAMMED TAHIR A., ADVOCATE) AND: 1 . THE STATE OF KARNATAKA URBAN DEVELOPMENT AUTHORITY VIKAS SOUDHA BENGALURU – 560 001 REPRESENTED BY ITS PRINCIPAL SECRETARY. 2 . THE MANAGING DIRECTOR BANGALORE SOLID WASTE MANAGEMENT LTD., I FLOOR, UNI BUILDING, THIMMAIAH ROAD MILLERS TANK BUND AREA, VASANT NAGAR BENGALURU – 560 052 PUBLIC LIMITED COMPANY REGISTERED UNDER INDIAN COMPANIES ACT, 2013 3 . THE CHIEF GENERAL MANAGER (TECH) 9 BANGALORE SOLID WASTE MANAGEMENT LTD., I FLOOR, UNI BUILDING, THIMMAIAH ROAD MILLERS TANK BUND AREA, VASANT NAGAR BENGALURU – 560 052 PUBLIC LIMITED COMPANY REGISTERED UNDER INDIAN COMPANIES ACT, 2013. 4 . SRI A.L.SATHISH KUMAR S/O LATE ANCHI LINGAPPA AGED ABOUT 48 YEARS PROPRIETOR, S.P.T ENTERPRISES RESIDING AT NO. 41, K.H.ROAD (DOUBLE ROAD), BENGALURU – 560 027. ... RESPONDENTS (BY SRI K.SHASHIKIRAN SHETTY, ADVOCATE GENERAL A/W., SMT. ANUKANKSHA KALKERI, AGA FOR R1 AND SRI S.N.PRASHANTH CHANDRA, SMT. NAMITHA MAHESH B.G., ADVOCATES FOR R2 AND R3; SRI ASHOK HARANAHALLI, SR. ADVOCATE FOR SRI MAHESH H., ADVOCATE FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECTING THE R-2 AND 3 TO EVALUATE THE BID SUBMITTED BY THE R-4 BY CONSIDERING THE DOCUMENTS PRODUCED AT ANNEXURE-E TO J1 AND ANTI-BLACKLISTING AFFIDAVIT IN APPENDIX-VI OF THE RFP ANNEXURE-C AND ETC., 10 IN WRIT PETITION No.4308 OF 2023 BETWEEN: 1 . MR. P.HARSHA VARDHANA REDDY S/O P.JANARDHANA REDDY AGED ABOUT 49 YERAS NO. 401/4, 14th MAIN ROAD VENKATESHWARA LAYOUT MADIWLA, BENGALURU – 560 068. 2 . SRP CLEAN ENVIRO ENGINEERS PVT. LTD., NO. 21, 1st ‘B’ CROSS BEHIND SANDHYA THEATRE BENGALURU – 560 068 REPRESENTED BY ITS MANAGING DIRECTOR SRI VASIPALLI LOKESH S/O V.VISHWANATHA REDDY REGISTERED UNDER COMPANIES ACT, 1956. ... PETITIONERS (BY SRI JAYAKUMAR S. PATIL, SR. ADVOCATE A/W., SRI MAHAMMED TAHIR A., ADVOCATE) AND: 1 . THE STATE OF KARNATAKA URBAN DEVELOPMENT AUTHORITY VIKAS SOUDHA, BENGALURU – 560 001. REPRESENTED BY ITS PRINICIPAL SECRETARY. 2 . THE MANAGING DIRECTOR BANGALORE SOLID WASTE MANAGEMENT LTD., I FLOOR, UNI BUILDING, THIMMAIAH ROAD MILLERS TANK BUND AREA, VASANTH NAGAR BENGALURU – 560 052. 11 3 . THE CHIEF GENERAL MANAGER (TECH) BANGALORE SOLID WASTE MANGEMENT LTD., I FLOOR, UNI BUILDING, THIMMAIAH ROAD MILLERS TANK BUND AREA, VASANT NAGAR BENGALURU – 560 052. 4 . SRI RAJU S., S/O SRINIVASULU NAIDU AGED ABOUT 49 YEARS PROPRIETOR SAPTHAGIRI CLEANING SERVICE R/AT NO.7, 1st CROSS, 24th MAIN PUTTENAHALLI, J.P.NAGAR 7th PHASE, BENGALURU – 560 027. ... RESPONDENTS (BY SRI K.SHASHIKIRAN SHETTY, ADVOCATE GENERAL A/W., SMT. ANUKANKSHA KALKERI, AGA FOR R1 AND SRI S.N.PRASHANTH CHANDRA, SMT. NAMITHA MAHESH B.G., ADVOCATES FOR R2 AND R3; SRI ASHOK HARANAHALLI, SR. ADVOCATE FOR SRI VINAYAKA B., ADVOCATE FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECTING THE R-2 AND 3 TO EVALUATE THE BID SUBMITTED BY THE R-4 BY CONSIDERING THE DOCUMENTS PRODUCED AT ANNEXURE-F TO G1 AND ANTI-BLACKLISTING AFFIDAVIT IN APPENDIX -VI OF THE RFP AND ETC., IN WRIT PETITION No.4477 OF 2023 BETWEEN: 1 . SRI B.S.KIRAN KUMAR S/O B.R.SRINIVAS AGED ABOUT 43 YEARS PROPRIETOR 12 SRI LAKSHMI RANGANATHA SWAMY ENTERPRISES, NO. 2666, GROUND FLOOR 7th MAIN, 17th ‘D’ CROSS OPPOSITE BANASHANKARI POST OFFICE, BSK 2nd STAGE BENGALURU – 560 070. 2 . C.V.RAJANIKANTH REDDY S/O C.VENUGOPAL REDDY NO. 19, 24th MAIN, GARDEN LAYOUT HSR LAYOUT, 2nd SECTOR BENGALURU – 560 102. ... PETITIONERS (BY SRI JAYAKUMAR S. PATIL, SR. ADVOCATE A/W., SRI MAHAMMED TAHIR A., ADVOCATE) AND: 1 . THE STATE OF KARNATAKA URBAN DEVELOPMENT AUTHORITY VIKAS SOUDHA BENGALURU – 560 001 REPRESENTED BY ITS PRINCIPAL SECRETARY. 2 . THE MANAGING DIRECTOR BANGALORE SOLID WASTE MANAGEMENT LTD., 1st FLOOR, UNI BUILDING THIMMAIAH ROAD, MILLERS TANK BUND AREA VASANT NAGAR, BENGALURU – 560 052. 3 . THE CHIEF GENERAL MANAGER (TECH) BANGALORE SOLID WASTE MANAGEMENT LTD., I FLOOR, UNI BUILDING, THIMMAIAH ROAD MILLERS TANK BUND AREA, VASANT NAGAR BENGALURU – 560 052. 4 . SRI K.R.SRINIVAS REDDY 13 S/O RAJAKRISHNA REDDY AGED ABOUT 58 YEARS PROPRIETOR M/S. LAVAKUSHA TRANSPORT GROUND FLOOR, HOSUR ROAD ELECTRONIC CITY ROAD LAVA KUSH NAGAR BENGALURU – 560 100. ... RESPONDENTS (BY SRI K.SHASHIKIRAN SHETTY, ADVOCATE GENERAL A/W., SMT. ANUKANKSHA KALKERI, AGA FOR R1 AND SRI S.N.PRASHANTH CHANDRA, SMT. NAMITHA MAHESH B.G., ADVOCATES FOR R2 AND R3; SRI ASHOK HARANAHALLI, SR. ADVOCATE FOR SRI VINAYAKA B., ADVOCATE FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECTING THE R-2 AND 3 TO EVALUATE THE BID SUBMITTED BY THE R-4 BY CONSIDERING THE DOCUMENTS PRODUCED AT ANNEXURE-E TO G1 AND ANTI-BLACKLISTING AFFIDAVIT IN APPENDIX-VI OF THE RFP AND ETC., IN WRIT PETITION No.4698 OF 2023 BETWEEN: 1 . SREE BANASHANKARI ENTERPRISES NO. 341, 11TH CROSS, 7TH MAIN KAVERI NAGAR, BSK 2ND STAGE BENGALURU – 560 070 REPRESENTED BY ITS PROPRIETOR SRI PRASANNA KUMAR M. N., S/O MADILATI NARASAPPA. 2 . SRI SAI CHAITHANYA ENTERPRISES NO.111, 8TH CROSS, ANAND NAGAR 14 VENKATAPPA LAYOUT, HOSAKEREHALLI BSK 3RD STAGE, BENGALURU – 560 085 REPRESENTED BY ITS PROPRIETOR SRI K.MADAVARAJU S/O GOPAL. ... PETITIONERS (BY SRI R.S.RAVI, SR. ADVOCATE FOR SRI AKARSH KUMAR GOWDA, ADVOCATE) AND: 1 . THE STATE OF KARNATAKA URBAN DEVELOPMENT AUTHORITY VIKAS SOUDHA BENGALURU – 560 001 REPRESENTED BY ITS PRINCIPAL SECRETARY. 2 . THE MANAGING DIRECTOR BANGALORE SOLID WASTE MANGEMENT LTD., 1ST FLOOR, UNI BUILDING THIMMAIAH ROAD, MILLERS TANK BUND AREA VASANT NAGAR, BENGALURU – 560 052. PUBLIC LIMITED COMPANY REGISTERED UNDER INDIAN COMPANIES ACT, 2013. 3 . THE CHIEF GENERAL MANAGER (TECH) BANGLAORE SOLID WASTE MANAGEMENT LTD., 1ST FLOOR, UNI BUILDING, THIMMAIAH ROAD MILLERS TANK BUND AREA, VASANT NAGAR BENGALURU – 560 052 PUBLIC LIMITED COMPANY REGISTERED UNDER INDIAN COMPANIES ACT, 2013. 4 . M/S. VISION MANPOWER PVT. LTD., NO.1672, 5TH CROSS, 2ND BLOCK BANASHANKARI 1ST STAGE 15 BENGALURU – 560 050 REPRESENTED BY ITS MANAGING DIRECTOR SRI C.RAVINAIDU. ... RESPONDENTS (BY SRI K.SHASHIKIRAN SHETTY, ADVOCATE GENERAL A/W., SMT. ANUKANKSHA KALKERI, AGA FOR R1 AND SRI S.N.PRASHANTH CHANDRA, SMT. NAMITHA MAHESH B. G., ADVOCATES FOR R2 AND R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R- 2 AND R3 TO EVALUATE THE BID SUBMITTED BY THE R-4 BY CONSIDERING THE DOCUMENTS PRODUCED AT ANNEXURE-E TO J1 AND ANTI-BLACKLISTING AFFIDAVIT IN APPENDIX-VI OF THE RFP AND ETC., IN WRIT PETITION No.4987 OF 2023 BETWEEN: 1 . MR. CHANDRA REDDY S/O LATE VENKATARAMA REDDY AGED ABOUT 58 YEARS PROPRIETOR SRI MATHRU ENTERPRISES NO.404/16, 18TH ‘A’ MAIN ROAD 13TH CROSS, VENKATESHWARA LAYOUT MADIWALA, BENGALURU – 560 068. 2 . SRI S.RAMACHANDRA REDDY AGED ABOUT 56 YEARS S/O LATE H.ASHAMANNA REDDY NO.15, GREEN VILLAS HALANAYAKANAHALLI BENGALURU – 560 035. ... PETITIONERS 16 (BY SRI JAYAKUMAR S.PATIL, SR. ADVOCATE A/W., SRI MAHAMMED TAHIR A., ADVOCATE) AND: 1 . THE STATE OF KARNATAKA URBAN DEVELOPMENT AUTHORITY VIKAS SOUDHA BENGALURU – 560 001 REPRESENTED BY ITS PRINCIPAL SECRETARY. 2 . THE MANAGING DIRECTOR BANGALORE SOLID WASTE MANAGEMENT LTD., 1ST FLOOR, UNI BUILDING THIMMAIAH ROAD, MILLERS TANK BUND AREA VASANTH NAGAR, BENGALURU – 560 052 PUBLIC LIMITED COMPANY REGISTERED UNDER INDIAN COMPANIES ACT, 2013. 3 . THE CHIEF GENERAL MANAGER (TECH) BANGALORE SOLID WASTE MANAGEMENT LTD., 1ST FLOOR, UNI BUILDING THIMMAIAH ROAD, MILLERS TANK BUND AREA VASANTH NAGAR, BENGALURU – 560 052 PUBLIC LIMITED COMPANY REGISTERED UNDER INDIAN COMPANIES ACT, 2013. 4 . SRI ANAND REDDY S/O MUNI REDDY AGED ABOUT 44 YEARS PROPRIETOR K.K.ENTERPRIES NO.1668, 21ST MAIN 4TH CROSS ROAD, HSR LAYOUT 1ST SECTOR, BENGALURU – 560 102. ... RESPONDENTS 17 (BY SRI K.SHASHIKIRAN SHETTY, ADVOCATE GENERAL A/W., SMT. ANUKANKSHA KALKERI, AGA FOR R1 AND SRI S.N.PRASHANTH CHANDRA, SMT. NAMITHA MAHESH B.G., ADVOCATES FOR R2 AND R3; SRI MUNIRAJU K., ADVOCATE FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECTING THE R-2 AND 3 TO EVALUATE THE BID SUBMITTED BY THE R-4 BY CONSIDERING THE DOCUMENTS PRODUCED AT ANNX-E TO F2 AND ANTI-BLACKLISTING AFFIDAVIT IN APPENDIX-VI OF THE RFP AND ETC., IN WRIT PETITION No.5071 OF 2023 BETWEEN: MR. P.HARSHA VARDHANA REDDY S/O P.JANARDHANA REDDY AGED ABOUT 49 YEARS NO.401/4, 14TH MAIN ROAD VENKATESHWARA LAYOUT MADIWALA, BENGALURU – 560 068. ... PETITIONER (BY SRI JAYAKUMAR S.PATIL, SR. ADVOCATE A/W., SRI MAHAMMED TAHIR A., ADVOCATE) AND: 1 . THE STATE OF KARNATAKA URBAN DEVELOPMENT AUTHORITY VIKAS SOUDHA BENGALURU – 560 001 REPRESENTED BY ITS PRINCIPAL SECRETARY. 18 2 . THE MANAGING DIRECTOR BANGALORE SOLID WASTE MANAGEMENT LTD., 1ST FLOOR, UNI BUILDING THIMMAIAH ROAD, MILLERS TANK BUND AREA, VASANTH NAGAR BENGALURU – 560 052 PUBLIC LIMITED COMPANY REGISTERED UNDER INDIAN COMPANIES ACT, 2013. 3 . THE CHIEF GENERAL MANAGER (TECH) BANGALORE SOLID WASTE MANAGEMENT LTD., 1ST FLOOR, UNI BUILDING THIMMAIAH ROAD MILLERS TANK BUND AREA VASANTH NAGAR BENGALURU – 560 052 PUBLIC LIMITED COMPANY REGISTERED UNDER INDIAN COMPANIES ACT, 2013. 4 . SRI K.O.SRINIVASA S/O K.OBALESH AGED ABOUT 49 YEARS NO.42, CORPORATION LAYOUT MYSORE ROAD, KASTURBA NAGARA PIPELINE, BENGALURU – 560 026. ... RESPONDENTS (BY SRI K.SHASHIKIRAN SHETTY, ADVOCATE GENERAL A/W., SMT. ANUKANKSHA KALKERI, AGA FOR R1 AND SRI S.N.PRASHANTH CHANDRA, SMT. NAMITHA MAHESH B. G., ADVOCATES FOR R2 AND R3; SRI MUNIRAJU K., ADVOCATE FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECTING THE 19 R-2 AND 3 TO EVALUATE THE BID SUBMITTED BY THE R-4 BY CONSIDERING THE DOCUMENTS PRODUCED AT ANNX-E TO H1 AND ANTI-BLACKLISTING AFFIDAVIT IN APPENDIX-VI OF THE RFP AND ETC., IN WRIT PETITION No.3913 OF 2024 BETWEEN: M/S. BHARATH KUMAR ENTERPRISES PROPRIETORSHIP CONCERN REGISTERED UNDER THE KARNATAKA SHOPS AND COMMERCIAL ESTABLISHMENTS ACT NO.68, MRS PALYA, NANDIDURG ROAD BENSON TOWN, BENGALURU – 560 046 REPRESENTED BY ITS PROPRIETOR A.OBLESH. ... ... PETITIONER (BY SRI N.S.VIJAYANTH BABU, ADVOCATE) AND: 1 . BRUHATH BENGALURU MAHANAGARA PALIKE (BBMP) N.R.SQUARE, BENGALURU – 560 002 REPRESENTED BY ITS COMMISSIONER EMAIL: comm@bbmp.gov.in. 2 . BENGALURU SOLID WASTE MANAGEMENT LIMITED NO.30/1, UNI BUILDING, THIMMAIAH ROAD MILLERS TANK BUND AREA, VASANTH NAGAR BENGALURU – 560 051 REPRESENTED BY ITS CHIEF GENERAL MANAGER (TECH) 3 . SUPERINTENDING ENGINEER (EAST ZONE ) OFFICE OF THE SUPERINTENDING ENGINEER (EAST) BBMP, 18TH FLOOR, SUBHAS CHANDRA BOSE 20 BUILDING, M.G. ROAD, BENGALURU – 560 002. 4 . ASSISTANT EXECUTIVE ENGINEER (AEE) SWM, BBMP HEBBAL ZONE V.NAGENAHALLI MAIN ROAD HEBBAL, BENGALURU – 560 032. ... RESPONDENTS (BY SRI K.SHASHIKIRAN SHETTY, ADVOCATE GENERAL A/W., SRI PRASHANTH S.H., ADVOCATE FOR R1, R3 AND R4 AND SRI S.N.PRASHANTH CHANDRA, SMT. NAMITHA MAHESH B.G., ADVOCATES FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE REASON GIVEN, VIDE ENDORSEMENT NO. BSWML/CGM(TECH)/ /2023-24 DATED 22/01/2024 (ANNEXURE-P) FOR DISQUALIFYING THE PETITIONER, IN PACKAGES 11 AND 13 PERTAINING TO THE TENDER NOTIFICATION DATED 21/01/2023, BEARING NO. CGM(TECH)/BSWML/TEND/02/2022-23 CALL-2. IN WRIT PETITION No.4069 OF 2024 BETWEEN: 1 . SRI GANGADHARA SWAMY M., CONTRACTOR C/O MUNIYAPPA AGED ABOUT 49 YEARS RESIDING AT NO.172 ISIRI NILAYA, NTI LAYOUT 1ST PHASE, RAJIV GANDHI NAGARA NEAR NARAYANA OLYMPIAD SCHOOL KODIGEHALLI, BENGALURU NORTH BENGALURU - 560 092. 2 . SRI M.VENKATESH S/O M.MUNISWAMY 21 AGED ABOUT 64 YEARS GOVT. LABOUR LICENCE S W RAILWAY AND BBMP CONTRACTOR NO.1809, 24TH MAIN 13TH CROSS, HSR LAYOUT SECTOR – 1, BENGALURU – 560 102. 3 . SRI KARTHIK N., S/O NARASIMHA REDDY AGED ABOUT 35 YEARS RESIDING AT NO.1417 NEAR GOVERNMENT SCHOOL BEGURU, BENGALURU – 560 068. 4 . SRI K.O.SRINIVAS S/O LATE K.H.OBALESH AGED ABOUT 50 YEARS LABOUR AND VEHICLE SUPPLY CONTRACTOR RESIDING AT NO.42, CORPORATION LAYOUT KASTURBA ROAD, PIPELINE, MYSURU ROAD BENGALURU – 560 026. ... PETITIONERS (BY SRI MITHUN G.A., ADVOCATE) AND: 1 . STATE OF KARNATAKA URBAN DEVELOPMENT DEPARTMENT REPRESENTED BY ITS PRINCIPAL SECRETARY M.S.BUILDNG, BENGALURU – 560 001. 2 . BRUHAT BENGALURU MAHANAGARA PALIKE REPRESENTED BY ITS COMMISSIONER N.R.SQUARE, BENGALURU – 560 002. 3 . CHIEF GENERAL MANAGER (TECH) BENGALURU SOLID WASTE MANAGEMENT LIMITED 22 (B.S.W.M.L.) REGD. OFFICE NO.30/1 1ST AND 2ND FLOOR, UNI BUILDING THIMMAIAH ROAD, MILLERS TANK BUND AREA VASANTH NAGAR, BENGALURU – 560 051. 4 . EXECUTIVE ENGINEER BENGALURU SOLID WASTE MANAGEMENT LIMITED (B.S.W.M.L.) 3RD FLOOR, ANNEX-2 BUILDING BBMP HEAD OFFICE PREMISE N.R.SQUARE, BENGALURU – 560 002. ... RESPONDENTS (BY SRI K.SHASHIKIRAN SHETTY, ADVOCATE GENERAL A/W., SMT. ANUKANKSHA KALKERI, AGA FOR R1 AND SRI PRASHANTH S.H., ADVOCATE FOR R2; SRI S.N.PRASHANTH CHANDRA, SMT. NAMITHA MAHESH B.G., ADVOCATES FOR R3 AND R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ARBITRARY REJECTION OF TECHNICAL BIDS OF THE PETITIONERS BY R-3 BY ITS TENDER EVALUATION COMMITTEE VIDE ANNEXURES-B AND RTI REPLIES MENTIONING THE DATE OF REJECTION OF THE TENDER OF PETITIONERS NO. 2 TO 4 AS 02.12.2023 BEARING NOS. B.S.W.M.L./S.J.M.(T)/95/2023 NOs. B.S.W.M.L/S.J.M. (T)/93/2023 NOs. B.S.W.M.L/S.J.M.(T)/94/2023 DTD 24.01.2024 VIDE ANNEXURES-B2, B4 AND B6 AND ETC., THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- 23 CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV ORDER The petitioners in all these cases are participants in a tender that was notified by the respondent/Bruhat Bengaluru Mahanagara Palike (hereinafter referred to as ‘the BBMP’ for short) for the purpose of solid waste management. 2. Heard Sri R S Ravi, learned senior counsel for petitioners in W.P.Nos.26089 of 2023 and 4698 of 2023; Sri H.V.Nagaraja Rao, learned counsel for petitioner and Sri P Chandrashekar, learned counsel for C/R3 in W.P.No.21940 of 2022; Sri Ashok Haranahalli, learned senior counsel for petitioner and Sri B L Sanjeev for respondent No.2/BBMP in W.P.No.2935 of 2023; Sri Jayakumar S Patil, learned senior counsel for petitioners in W.P.Nos.4301 of 2023, 4308 of 2023, 4477 of 2023, 4987 of 2023 and 5071 of 2023; Sri Ashok Haranahalli, learned senior counsel for respondent No.4 in W.P.Nos.4301 of 2023, 4308 of 2023 and 4477 of 2023; Sri Muniraju K, learned counsel for respondent No.4 in W.P.Nos.4987 of 2023 and 5071 of 2023; Sri N.S.Vijayanth Babu, 24 learned counsel for petitioner in W.P.No.3913 of 2024; Sri Mithun G A, learned counsel for petitioners in W.P.No.4069 of 2024; Sri K Shashikiran Shetty, learned Advocate General for State; Sri S N Prashanth Chandra and Smt Namitha Mahesh B G, learned counsels for Solid Waste Management and Sri P Prasanna Kumar, learned senior counsel for respondent No.5 in W.P.No.2935 of 2023. 3. Facts, in brief, germane are as follows:- The petitioners, in the cases at hand, are all contractors handling collection, transportation and disposal of solid waste in several wards of the BBMP. The Urban Development Department of Government of Karnataka establishes a separate entity called the Bangalore Solid Waste Management Limited, a Public Limited Company (‘the Company’ for short) exclusively for handling solid waste within the limits of BBMP. A request for Proposal (‘RFP’)/tender was notified by the Company on 22-08-2022 inviting applications from service providers for 89 packages on certain terms and conditions. The Company is said to have withdrawn the RFP and notified a fresh RFP on 28-09-2022 for the same purpose. 25 This becomes the subject matter of challenge before this Court in Writ Petition No.21876 of 2022 and connected cases. Validity of the notification comes to be confirmed by this Court and a direction was issued to conclude the tender expeditiously. 4. After the order was passed by this Court, it appears that several of the contractors were blacklisted or their tenders were not accepted on alleged frivolous grounds contrary to the Karnataka Transparency in Public Procurements Act, 1999. All these petitioners are those whose tenders have been declined to be accepted on certain grounds. During the pendency of the subject petitions the tender that was notified comes to be cancelled or withdrawn. On such withdrawal, the learned Advocate General representing the State has contended that no right of any party is taken away, as no contract is awarded to any person. The matter was at the stage of consideration of award of contract and there is an interim order granted in few of the cases before this Court. Therefore, the State thought it not economically viable to continue the tender with the change in prices and wanted to bring a new tender which can also be monitored by the Court. 26 5. The learned senior counsel Sri Jayakumar S. Patil and the learned counsel Sri P.Prasanna Kumar who are participants in the subject tender would vehemently oppose the submissions of the learned Advocate General. The learned senior counsel would contend that the earlier tender was also monitored by the Court. On certain frivolous grounds the tenders were rejected. Those rejections have been stayed and this Court had directed financial bid to be opened and opening of the financial bid was made subject to the result of the petitions. He would contend that this is not the first time that the State is wanting to recall the tender and re-issue the tender. It has been repeated for extraneous reasons. He would contend that economic viability alone cannot be the reason for cancellation of tender. It is a mala fide action on the part of the State. He would, therefore, contend that the subject tender be permitted to be taken to its logical conclusion. The learned counsel Sri P.Prasanna Kumar would also toe the lines of the learned senior counsel. 27 6. Learned senior counsel Sri Ashok Harnahallli and Sri R.S. Ravi would in unison submit that they have no objection for any new tender. It is their submission that a few of the contractors, in the cases at hand, have been blacklisted deliberately and their tenders are cancelled on frivolous grounds. Notwithstanding all these, they must be permitted to participate in the new tenders when notified. If that would be done, these petitioners have no objection for cancellation of tender and issuing of new tender. 7. The learned Advocate General, in reply to the submissions of all the learned senior counsel, would submit that except the orders of blacklisting on gross misconduct or fraud, all other tenderers will be permitted to participate, notwithstanding the orders that are passed by the BBMP declining to accept such tenders. In that light the matters come to be heard and reserved by the following order: “Heard the learned Senior counsel Sri. R.S. Ravi for Sri. Akarsh Kumar Gowda, learned counsel appearing for the petitioners and Sri. K. Shashikiran Shetty, Advocate General along with Sri. Prashanth S.H., learned counsel appearing for the respondents. The matters are reserved only on the issue whether State could have cancelled the tender and also on the question 28 of whether such tender could have been cancelled after notifying, calling for bids and identifying successful bidders. Interim order granted earlier if subsisting in any of these cases, is extended till the disposal of these petitions.” Since the issue is reserved only for the purpose of consideration of tenability of withdrawal of the tender notification and calling for a fresh tender, I deem it appropriate to notice orders passed by this Court from time to time. On 28-11-2023, this Court passed the following order: “This Court in writ petition No.2935/2023 from 07.02.2023 upto 27.02.2023, has passed a slew of orders. They read as follows: The order dated 07.02.2023: “Heard Sri Ashok Haranahalli, learned senior counsel appearing for the petitioners. Learned Additional Government Advocate waives notice for respondent No.1. Learned senior counsel would submit that the issue relates to a notice inviting tender for the solid waste management along with the secondary transportation of waste in segregated manner to designated locations. The earlier tender was notified for the same purpose, which became the subject matter in W.P.No.21876/2022 and the said writ petition came to be dismissed in terms of the order of this Court dated 21.11.2022. 29 The learned senior counsel now takes this Court through the documents to demonstrate that the earlier tender is cancelled and a new tender is in place, having notified on 25.01.2023, for the very same purpose and for the very same packages. Learned Additional Government Advocate to secure instructions as to what are the reasons behind the withdrawal of the tender earlier notified and place on record before this Court on the next date of hearing. List the matter on 08.02.2023, at 2.30 p.m. Respondents are restrained from proceeding further, till 08.02.2023.” The order dated 08.02.2023: “The subject writ petition calls in question a re- tender notification issued for manifold reasons. Learned senior counsel Sri.AshokHaranahalli appearing for petitioners would submit that re-tender is done deliberately and is contrary to law. Learned senior counsel Sri.VikramHuilgol, appearing for respondents 2 and 3 would seek to justify the action of re-tender on several grounds which are to be considered at a later point in time. He would submit that none of the terms and conditions of the tender that was earlier notified and upheld by this Court in W.P.No.21876 of 2022 c/w W.P.No.22412 of 2022 have been changed in the subject tender. The said submission is placed on record. Therefore, the petitioners shall participate in the now notified-impugned tender which would remain subject to the result of the petition. The respondents shall scrutinize the tenders that are received by the tenderers and assess qualification both technical and financial of those tenderers, but not finalize any tender without the leave of the Court. (Emphasis supplied) 30 Learned senior counsel Sri.AshokHaranahalli at this juncture would submit that the last date for filing of tenders is today i.e., 08.02.2023 and would seek extension by atleast 24 hours to submit their tenders. The submission merits acceptance. The petitioners shall submit their tenders on or before 12.00 p.m. tomorrow i.e., 09.02.2023. List the matter on 14.02.2023 at 2.30 p.m. for further hearing.” The order dated 15.02.2023: “This Court by an order dated 08.02.2023 had permitted the petitioners to submit their bids in the wake of the statement made by the learned senior counsel representing the petitioners that extension by 24 hours would enable the petitioners to submit their tenders. Learned senior counsel representing the respondents would submit that the petitioners have not submitted their bids in 24 hours, but other 9 bids manually have been brought into the office of the Authority. The bids that have been filed on their own volition need not be acted upon as they are not pursuant to the order of the Court. The bids of the petitioners if they are filed in accordance with law shall be considered and further proceedings shall be reported to this Court on the next date of hearing. List the matter on 27.02.2023 at 4.00 p.m. for further hearing.” (Emphasis supplied) The order dated 27.02.2023: “Heard the learned counsel for the petitioners. Learned Additional Government Advocate waives notice for respondent No.1. Sri Prashanth Chandra, learned counsel is directed to accept notice on behalf of respondent Nos. 3 and 4. 31 Learned counsel for the petitioners to serve a copy of the petition papers upon the aforesaid learned counsel, forthwith and also permitted to serve a copy of the notice upon the learned counsel who represents respondent Nos.2 and 5. List the matter on 03.03.2023. Interim order granted earlier, is extended till the next date of hearing.” This Court on 17.03.2023 had clarified with regard to the interim order, which reads as follows: “The pendency of this petition will not come in the way of the tender inviting authority proceeding further to evaluate technical bids of all the tenderers. List the matters on 30.03.2023.” In the light of the afore-quoted orders, it was directed the Solid Waste Management Limited, who is the tender inviting authority to evaluate the tenders qua technical bids of the tenderers. All the learned counsel appearing for the petitioners would in unison submit that no technical bids is even evaluated pursuant to the directions of the Court. Sri Vikram Huilgol, learned senior counsel would submit that technical bids are in fact evaluated and evaluation would be placed before this Court in a sealed cover. It is rather surprising that though the direction is issued on 07.02.2023, the tenders so called are not been taken to its logical conclusion, as this Court had not stalled the tender to take to its logical conclusion, while directing evaluation of the technical bids. The issue concerns the clearance of garbage in the city of Bengaluru. Close to a year is now over directions being given by this Court and nothing has proceeded further. 32 Therefore, the Management Director of the Solid Waste Management Limited shall file an affidavit before this Court as to why the tenders that are called could not be taken to its logical conclusion. The timeline be specifically made known in the affidavit. The affidavit shall be filed by the next date of hearing. While the affidavit is filed, the concerned shall bear in mind all the orders passed this Court in any of these petitions from time to time. List the matter on 13.12.2023, at 2.30 p.m.” (Emphasis supplied) The afore-quoted order captures all the earlier orders that were passed. Again on 10-01-2024, this Court passed the following order: “W.P.No.2935 of 2023: This petition is preferred calling in question a tender notification dated 21.1.2023 and seeks a direction by issuance of a writ in the nature of mandamus to declare the result of the technical bid in terms of Request for Proposal (‘RFP’ for short) dated 28.09.2022 and proceed with the tender on the said basis. Learned senior counsel Sri.AshokHaranahalli representing certain tenderers who have called in question certain articles of RFP would submit that the petitioners are disqualified in the technical stage itself on certain frivolous grounds. He would submit that the grounds inter alia are that there is no remittance of provident Fund and ESI contributions to the respective authorities by the tenderers. The learned senior counsel would submit that it is not the tenderers fault, but the Corporation is responsible for delayed 33 payment of contribution to the provident fund and ESI. The said submission would be considered at a later point in time. The other submission of the learned senior counsel is that the other grounds on which certain petitioners are now sought to be non-suited at the technical stage are also untenable. He would submit that the untenability is demonstrated in the pleadings and the documents appended to the petition. Even this ground would merit consideration at a later stage. All other petitions are in support of the subsequent tender so notified by the Corporation. This Court permitted all the present petitioners who are tenderers to participate in the tender i.e., the subsequent tender. The petitioners have all participated in the tender and the technical evaluation is placed in a sealed cover before this Court by the learned Advocate General. The learned Advocate General would submit that let the Corporation be permitted to proceed further with the tender qua financial evaluation on the strength of the technical evaluation that has happened. The submission merits acceptance. The Corporation or the respondents shall continue processing of the tender qua the second tender notification impugned in W.P.No.2935 of 2023 to be taken to its logical conclusion. The logical conclusion shall stop a step before it, which would mean that the respondents are at liberty to assess the tender qua the financial bid, but not issue the work order without the leave of the Court and place the financial bids also before this Court in a sealed cover. The contentions of the learned senior counsel Sri.AshokHaranahalli would be considered prior to the permission for declaration of issuance of work orders to the respectful successful tenderers. In the light of the few of the petitioners being disqualified on reasons which the learned senior counsel Sri.Ashok Haranahalli would submit, the State shall file a supporting document or affidavit with regard to the 34 reasons for such disqualification of few of the petitioners in the said petition by the next date of hearing. List the matters on 09.02.2024 at 2.30 p.m. The evaluation of the final bid shall be undertaken by the said date and placed before the Court. This would, however be, without prejudice to the rights of the petitioners in W.P.No.2935 of 2023 or any other petitioners who are calling in question the subsequent tender process. The work orders be issued only after seeking leave from the hands of this Court. Interim order, granted earlier and if subsisting in any of these cases, shall stand extended till the next date of hearing.” (Emphasis supplied) On 09-07-2024, the following order came to be passed: “Learned Advocate General, on instructions, would submit that the BSWML has decided to withdraw the subject tender and call for fresh tender. He would submit that if fresh tender is permitted to be called, the process of tender, awarding of contract and beginning of execution of work will all begin within three months from the date of notification of the said tender. He would also submit that he would place on record the decision to call off tender which is subject matter of the petition and notify fresh tender and all other incidental or attendant decision taken thereto by the BSWML. List the matters on 11.07.2024 at 4.00 p.m. 35 Interim order, granted earlier, if subsisting in any of these cases, is extended till the next date of hearing.” (Emphasis supplied) On 09-07-2024 the learned Advocate General on instructions submitted that the Company has decided to withdraw the subject tender and call for a fresh tender. After this date, on several occasions, the matter was heard. On 03-12-2024 the matter was reserved on the issue as afore-quoted. 8. In the light of the afore-quoted orders, what would unmistakably emerge is, that the tender was not taken to its logical conclusion when the matter was pending before this Court. The respondent/BBMP then resolve to recall the tender and in furtherance of which a Government Order comes to be issued on 02-09-2024. The Government Order reads as follows: “ಕಾಟಕ ಸಾರದ ನಡವಗಳ ಷಯ: ಬೃಹ ಬೃಹ ಬೃಹ ಬೃಹ ೆಂಗಳರು ೆಂಗಳರು ೆಂಗಳರು ೆಂಗಳರು ಮಾನಗರ ಮಾನಗರ ಮಾನಗರ ಮಾನಗರ ಾ!ೆ ಾ!ೆ ಾ!ೆ ಾ!ೆ "ಾ#$%ಯ!& "ಾ#$%ಯ!& "ಾ#$%ಯ!& "ಾ#$%ಯ!& Appointment of Concessionaire on tipping fee basis to execute the Comprehensive Integrated Solid Waste Management (ISWM) facilities including Collection & Transportation of MSW from door to door to the designated Secondary Transfer stations and secondary transportation from transfer stations to designated Processing Centers and 36 further processing the same in four packages" ಾಮ'ಾ('ೆ ಾಮ'ಾ('ೆ ಾಮ'ಾ('ೆ ಾಮ'ಾ('ೆ ಸಾರದ ಸಾರದ ಸಾರದ ಸಾರದ ಅನು*ೕದೆ ಅನು*ೕದೆ ಅನು*ೕದೆ ಅನು*ೕದೆ ,ೕಡುವ ,ೕಡುವ ,ೕಡುವ ,ೕಡುವ ಬ'ೆ- ಬ'ೆ- ಬ'ೆ- ಬ'ೆ-. ಓದ/ಾ01ೆ: 1) ವ#ವ2ಾ3ಪಕ ,1ೇಶಕರು, ೆಂಗಳರು ಘನ7ಾ#8ಯ ,ವಹ9ಾ ,ಯ:ತ ಇವರ ಪತ= ಸಂ?ೆ#: ವ#.,(ೆಂ.ಘ.7ಾ#.,)/ $ಆA-263/23-24, ¢£ÁAPÀ: 27-02-2024. 2) ಸಾರದ ಪತ= ಸಂ?ೆ#: ನಅಇ 155 ಎಂಎCªÉÊ 2024(ಇ)(Dಾಗ-2), ¢£ÁAPÀ: 25.03.2024. 3) ಮುಖ# ಆಯುಕ%ರು, FFಎಂ$ ಇವರ ಪತ= ಸಂ?ೆ#: ಮು.ಆ/$ಎG Dgï/39/2024-25, ¢£ÁAPÀ :15-05-2024. ******* ಪ=2ಾ%ವೆ: ಬೃಹ ಬೃಹ ಬೃಹ ಬೃಹ ೆಂಗಳರು ೆಂಗಳರು ೆಂಗಳರು ೆಂಗಳರು ಮಾನಗರ ಮಾನಗರ ಮಾನಗರ ಮಾನಗರ ಾ!ೆ ಾ!ೆ ಾ!ೆ ಾ!ೆ (FFFF.FFFF.ಎಂ ಎಂ ಎಂ ಎಂ.$$$$) "ಾ#$%ಯು "ಾ#$%ಯು "ಾ#$%ಯು "ಾ#$%ಯು ಸುHಾರು ಸುHಾರು ಸುHಾರು ಸುHಾರು 714 ಚಚಚಚ.JJJJ.:ೕ :ೕ :ೕ :ೕ. ೊಂLದುM ೊಂLದುM ೊಂLದುM ೊಂLದುM, ಪ=ಸು%ತ ಪ=ಸು%ತ ಪ=ಸು%ತ ಪ=ಸು%ತ ಒಟುO ಒಟುO ಒಟುO ಒಟುO 1.44 ೋP ೋP ೋP ೋP ಜನಸಂ?ೆ# ಜನಸಂ?ೆ# ಜನಸಂ?ೆ# ಜನಸಂ?ೆ# ಇರು ಇರು ಇರು ಇರುತ%1ೆ ತ%1ೆ ತ%1ೆ ತ%1ೆ. ಾ!ೆಯ!& ಾ!ೆಯ!& ಾ!ೆಯ!& ಾ!ೆಯ!& ಒಟುO ಒಟುO ಒಟುO ಒಟುO 8 ವಲಯಗದುM ವಲಯಗದುM ವಲಯಗದುM ವಲಯಗದುM, 225 "ಾS "ಾS "ಾS "ಾS ಗಳನುT ಗಳನುT ಗಳನುT ಗಳನುT ೊಂLರುತ%1ೆ ೊಂLರುತ%1ೆ ೊಂLರುತ%1ೆ ೊಂLರುತ%1ೆ. ಸುHಾರು ಸುHಾರು ಸುHಾರು ಸುHಾರು 28 ಲUದಷುO ಲUದಷುO ಲUದಷುO ಲUದಷುO ವಸV ವಸV ವಸV ವಸV ಸಮುಚWಯ ಸಮುಚWಯ ಸಮುಚWಯ ಸಮುಚWಯ ಾಗೂ ಾಗೂ ಾಗೂ ಾಗೂ ಸುHಾರು ಸುHಾರು ಸುHಾರು ಸುHಾರು 5 ಲUದಷುO ಲUದಷುO ಲUದಷುO ಲUದಷುO "ಾXಜ# "ಾXಜ# "ಾXಜ# "ಾXಜ# ಮ'ೆಗರುತ%"ೆ ಮ'ೆಗರುತ%"ೆ ಮ'ೆಗರುತ%"ೆ ಮ'ೆಗರುತ%"ೆ. ನಗರದ!& ನಗರದ!& ನಗರದ!& ನಗರದ!& ಉತZV%[ಾಗುV%ರುವ ಉತZV%[ಾಗುV%ರುವ ಉತZV%[ಾಗುV%ರುವ ಉತZV%[ಾಗುV%ರುವ ಘನ7ಾ#ಜ#ವನುT ಘನ7ಾ#ಜ#ವನುT ಘನ7ಾ#ಜ#ವನುT ಘನ7ಾ#ಜ#ವನುT "ೈ]ಾ,ಕ"ಾ0 "ೈ]ಾ,ಕ"ಾ0 "ೈ]ಾ,ಕ"ಾ0 "ೈ]ಾ,ಕ"ಾ0 ಸಂಗ=ಹ9ೆ ಸಂಗ=ಹ9ೆ ಸಂಗ=ಹ9ೆ ಸಂಗ=ಹ9ೆ, 2ಾ'ಾXೆ 2ಾ'ಾXೆ 2ಾ'ಾXೆ 2ಾ'ಾXೆ ಮತು% ಮತು% ಮತು% ಮತು% ಸಂಸ^ರ9ೆ ಸಂಸ^ರ9ೆ ಸಂಸ^ರ9ೆ ಸಂಸ^ರ9ೆ Hಾ_ Hಾ_ Hಾ_ Hಾ_ /ೇ"ಾ /ೇ"ಾ /ೇ"ಾ /ೇ"ಾ(((( Hಾಡುವ`ದು Hಾಡುವ`ದು Hಾಡುವ`ದು Hಾಡುವ`ದು FFFF.FFFF.ಎಂ ಎಂ ಎಂ ಎಂ.$$$$.ಯ ಯ ಯ ಯ ಪ=ಮುಖಜ"ಾಾM([ಾ0ರುತ%1ೆ ಪ=ಮುಖಜ"ಾಾM([ಾ0ರುತ%1ೆ ಪ=ಮುಖಜ"ಾಾM([ಾ0ರುತ%1ೆ ಪ=ಮುಖಜ"ಾಾM([ಾ0ರುತ%1ೆ. 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It reads as follows: “NODGM-1/BSWML/TEND/08/2024-25 Date: 07.11.2004 41 INVITATION FOR BIDS (IFT) (Only through GOK KPP Portal Only) 1. The Deputy General Manager-1 (Technical), Bengaluru Solid Waste Management Limited (BSWML), on behalf of Managing Director BSWML invites proposals for "Appointment of Concessionaire on Tipping Fee basis to execute the Comprehensive integrated Solid Waste Management facilities including Collection and Transportation of MSW from Door-to-Door to designated Secondary Transfer Stations, Secondary Transportation from Transfer Stations to designated Processing Centrse and further Processing and Disposal of the same in following packages" (herein referred as "The Project") of BBMP and Bengaluru Urban District jurisdiction by seeking private sector participation on Public Private Partnership ["PPP mode-DBFOT Model). Approx. Estimated capital cost of the project in INR in Crores (Excluding GST) Sl. No. Name of the work For Collection & Transporta tion (C&T) For Processing & Disposal (P&D) EMD (Armount in Rs.) Stipulated completion period (including monsoon period) 01 Appointment of Concessionaire on Tipping Fee Basis to Execute the Comprehensive Integrated Solid Waste Management (ISWM) including collection & transportation of MSW From door- to door to the designated secondary Transfer station and secondary transportation from transfer 134.95 523.00 Rs.1,00,000/ through e- payment under one of the following i.e., online/RTGS/ NEFT/ OTC and the balance Rs.3,28,00,0 00/- by Bank Guarantee/ FDR issued by Nationalized/ Scheduled Bank 24 Months 42 station to designated processing centres and further processing in Package 1 (Yelahanka & Desarahalli Zone) 02. Appointment of Concessionaire on Tipping Fee Basis to Execute the Comprehensive integrated Solid Waste Management (ISWM) including collection & transportation of MSW From door- to door to the designated secondary transfer station and secondary transportation, from transsfer station to designated processing centres and Further processing in Package 2 (RR Nagar zone & West Zone) 204.68 378.00 Rs.1,00,000/ - through e- payment under one of the following i.e., online/RTGS /NEFT/OTC and the balance Rs.2.91,00,0 00/- by Bank Guarantee/ FDR issued by Nationalized / Scheduled Bank 24 Months 03. Appointment of Concessionaire on Tipping Fee Basis to Execute the Comprehensive Integrated Solid Waste Management (ISWM) including 160.22 500.00 Rs. 1,00,000/- through e- payment under one of the following i.e., online/RTGS /NEFT/OTG 24 Months 43 collection & transportation of MSW From 03. door- to door to the designated secondary transfer station and secondary transportation from transter station to designated processing centres and further processing in Package 3 (Esat zone & Mahadevapura Zone) and the balance Rs.3,75,00, 000/- by Bank Guarantee / FDR issued by Nationalized /Scheduled Bank 04 Appointment of Concessionaire on Tipping Fee Basis to Execute the Comprehensive Integrated Solid Waste Management (ISWM) including collection & transportation of MSW From door- to door to the designated secondary transfer station and secondary transportation from transfer station to designated processing centres and further processing in Package 4 [South zone & 201.42 656.00 Rs.1,00,000/ - through e- payment under one of the following.i.e. , online/RTGS /NEFT/OTC and the balance Rs 4,28,00,000/ - by Bank Guarantee /FDR issued by Nationalized /Scheduled Bank 24 Months 44 Bommanahalli Zone) NOTE: 1) RFP documents may be downioaded from Government of Karnataka Portal website http://kppp.karnataka.gov.in/#/portal/portal-home under tenders’ section. The tender document can be downloaded in the portal as per prescribed date and time published in the portal. Only Interested Service Provider who wishes to participate should remit online transaction fee for tender after registering in the portal. The transaction fee /Bid document/Tender Document fee is non- refundable. 2) Bidders shall quote & submit the bids only online. 3) The quoted rates of tipping fee shall be excluding GST. 4) The BSWML, has invited separate tenders for appointment of agencies for Collection and Transportation of MSW from the BBMP limits (225 wards). Hence, the scope of work of Collection and Transportation of MSW mentioned in article 2 of DCA (Draft Concessionare Agreement) will be executed through such agencies for whom work order will be issued in future. These shall be valid for a period of 5 years only from the date of award of work. Soon after expiry of 5 years period or in cases of early termination of any of such other agencies of C & T due to any reasons, the package agencies of this tender shall take over the work of C&T immediately. Hence, the bidders of the ISWM packages shall critically review the scope mentioned in Article 2 of DCA and submit their bids accordingly. 5) Other details can be seen in the RFP/Tender documents, 6) Calendar of events: Pre Bid meeting 25.11.2024 at 15:00 hrs at above mentioned office Last date of Receipt of Tender 24.12.2024 at 16:00 hrs Opening of Technical Bid 26.12.2024 after 16:30 hrs More detaile can be downloaded from website- http://kppp.kamataka.gov.in Sd/- Deputy General Manager-1 BSWML” (Emphasis supplied) 45 9. The issue now would be, whether the tender that came up to the stage of identification of successful tenderer could be cancelled and a fresh tender could be notified? 10. The reason for issue of fresh notification is borne out in the affidavit filed by the Chief Engineer and Chief General Manager (Technical), on behalf of the Company. I deem it appropriate to quote the reasons so rendered in the affidavit. They read as follows: “…. …. …. 6. I state that, accordingly, the first tender was issued on 28.09.2022 vide Tender Notification No: CGM (TECH)/ TEND/02/2022-23. The scope of work of the said tender mainly included the following: • Door to Door Collection & Transportation of Wet / Dry and Sani waste from House Holds and small commercial establishments (up to 100 Kgs) in a single Auto Tipper with Compartments for Wet Waste/ Dry waste /Sanitary waste collection to ensure proper segregation at waste generation itself. • Transfer the segregated waste to secondary transfer points/Transfer stations and tipping to Compactors. The compactors to transport the collected solid waste to the waste processing plants assigned to a particular compactor or to the landfill in case its mixed waste. 46 • Clearing of Litter bins from road sides and small commercial establishments • Clearing of Garbage Vulnerable points form road sides etc • Collection and transport of tree/ shrub cuttings from de-weeding operation. • Collection & Transportation of dead animals as needed. 7. I state that, the aforesaid tender also contemplated use of following different type of vehicles for collection of dry, wet and sanitary waste in segregated manner separately which will run every day. • Push cart with 3-4 Bins for smaller lanes where auto cant move; • 1 Cum 3-wheeler Auto Tipper (Compartmentalized for collection of both Wet & Dry waste); • 2 Cum 4-Wheeler vehicle (Compartmentalized for collection of both Wet & Dry waste); • 5 Cum 4-Wheeler vehicle (Compartmentalized for collection of both Wet & Dry waste) and • 5 Cum 4-Wheeler open type vehicle for Street swept, C & D and Black spot waste collection. • Brand New Compactor with 14 cum capacity BS-VI Engine (Diesel) Vehicles for secondary transport vehciles. 8. I state that, upon issuing such tender dated 28.09.2022, no competitive bids came to be received in the first call and many agencies did not submit proper documents for technical qualifications, and therefore, the tender was recalled. 47 9. I further state that, the second call for the same tender was called vide Notification dated 21-01-2023 and the technical bids of second call tender were opened on 10-02-2023. 10. I state that, in the meantime, some of the contractors/ agencies have approached this Hon'ble Court by filing a Writ Petition in WP No. 2935/2023 seeking for declaration of result of the technical bid in terms of Request for Proposal ('RFP' for short) dated 28.09.2022 and proceed with the tender on the said basis. Subsequently, many other connected cases were bought under WP No. 2935/2023. 11. I state that, subsequent to the above cases being filed in the High Court, the technical bids of the aforementioned tender were subjected to a detailed evaluation process. The evaluation statement was presented before the Technical and Financial Evaluation Committee of BSWML. The proceedings of the committee were submitted to the Hon'ble High Court in a sealed cover for consideration on 10/02/2023. 12. I state that, thereafter, few of the technically disqualified agencies have filed appeals before the appellant authority challenging the technical evaluation proceedings. There are about 17 appeals filed before the tender appellate authority. The hearing for the same by the appellant authority i.e. Urban Development Department is pending because the matter is still being heard by this Hon'ble Court and may become sub-judice. 13. I state that, further this Hon'ble Court vide its Order dated 10.01.2024 held as follows: "This petition is preferred calling in question a tender notification dated 21.1.2023 and seeks a direction by issuance of a writ in the nature of mandamus to declare the result of the technical bid in terms of Request for Proposal ('RFP' for short) dated 28.09.2022 and proceed with the tender on the said basis. Learned senior counsel Sri. Ashok Haranahalli representing certain tenderers who have called in question 48 certain articles of RFP would submit that the petitioners are disqualified in the technical stage itself on certain frivolous grounds. He would submit that the grounds inter alia are that there is no remittance of provident Fund and ESI contributions to the respective authorities by the tenderers. The learned senior counsel would submit that it is not the tenderer's fault, but the Corporation is responsible for delayed payment of contribution to the provident fund and ESI. The said submission would be considered at a later point in time. The other submission of the learned senior counsel is that the other grounds on which certain petitioners are now sought to be non-suited at the technical stage are also untenable. He would submit that the untenability is demonstrated in the pleadings and the documents appended to the petition. Even this ground would merit consideration at a later stage. All other petitions are in support of the subsequent tender so notified by the Corporation. This Court permitted all the present petitioners who are tenderers to participate in the tender i.e., the subsequent tender. The petitioners have all participated in the tender and the technical evaluation is placed in a sealed cover before this Court by the learned Advocate General. The learned Advocate General would submit that let the Corporation be permitted to proceed further with the tender qua financial evaluation on the strength of the technical evaluation that has happened. The submission merits acceptance. The Corporation or respondents shall continue processing of the tender qua the second tender notification impugned in W.P.No.2935 of 2023 to be taken to its logical conclusion. The logical conclusion shall stop a step before it, which would mean that the respondents are at liberty to assess the tender qua the financial bid, but not issue the work order without the leave of the Court and place the financial bids also before this Court in a sealed cover. The contentions of the learned senior counsel Sri.Ashok Haranahalli would be considered prior to the permission for declaration of issuance of work orders to the respectful successful tenderers. In the light of the few of the petitioners being disqualified on reasons which the learned senior counsel Sri. Ashok Haranahalli would submit, the State shall file a supporting document or affidavit with regard to the reasons for such disqualification of 49 few of the petitioners in the said petition by the next date of hearing. List the matters on 09.02.2024 at 2.30 p.m. The evaluation of the final bid shall be undertaken by the said date and placed before the Court. This would, however be, without prejudice to the rights of the petitioners in W.P.No.2935 of 2023 or any other petitioners who are calling in question the subsequent tender process. The work orders be issued only after seeking leave from the hands of this Court. Interim order, granted earlier and if subsisting in any of these cases, shall stand extended till the next date of hearing". 14. I state that, thereafter, the financial bids of the technically qualified bidders were opened on 15/02/2024. The statements of financial bids, along with comparisons and identification of the lowest bidders, were placed before the Hon'ble High Court in a sealed cover. Copy of the Chart showing the Range of Financial Bids as compared to Amount put to Tender (for the 89 packages) is attached herewith as Document No. 1. 15. I state that, after evaluating the financial bids, it was observed that the financial quotes of the lowest bidders ranged from 12% above to 82% above the amount put to bid, averaging approximately 45% above the tendered amount. This significant increase over the approved rates would result in substantial financial implications for the State, rendering the bids financially unviable. Moreover, the percentages, when compared with the amount put to bid in each package as per the tender and the amounts quoted by agencies, were higher by more than 40% to 50% in almost all packages. Hence, BBMP/Govt may not be in a position to either negotiate or approve such high Tender premium tenders which may again delay the whole process. 16. I state that, furthermore, the financial bids which was produced to the Hon'ble Court is re-produced herewith. The said chart of financial bid-evaluation clearly shows that in each of the 50 packages, the lowest bidder is on a higher side to an extent of 40-45% (average). Upon a detailed examination of the financial bids, the distribution of the percentage increases over the amount put to bid across the various packages is as follows: • Range greater than 10% and less than 20% above the tendered amount: There are 5 packages in this category. • Range greater than 20% and less than 30% above the tendered amount: There are 3 packages. • Range greater than 30% and less than 40% above the tendered amount: There is 1 package in this category. • Range greater than 40% and less than 50% above the tendered amount: This is the largest category, comprising 43 packages. • Range greater than 50% and less than 60% above the tendered amount: There are 31 packages in this category. • Range greater than 60% and less than 70% above the tendered amount: There are 3 packages in this category. • Range greater than 80% above the tendered amount: There is 1 package in this category. • No technically qualified bids received: There are 2 packages, being Package Numbers 63 and 89. 17. I further state that, from the above data, it is evident that a substantial majority of the packages-77 out of 89-have bids that are more than 40% above the amount put to bid. Specifically, 43 packages fall within the 40% to 50% range, and 31 packages fall within the 50% to 60% range. This clustering of bids within narrow percentage ranges indicates a consistent pattern of high overbidding across most packages. 51 Thus, making it unviable to disqualify all of these and consider only those bids in the greater than 10% and lesser than 20% range above the tendered amount, as there are only 5 such bids, and no packages with bids less than 10% above the tendered amount. 18. I further state that such uniformity in the percentage increases is atypical in competitive bidding processes. In a normal scenario, one would expect a wider dispersion of bid percentages due to variations in bidders' cost structures, operational efficiencies, and strategic pricing. The lack of significant variance suggests that the bidders may not have prepared their bids independently based on their actual costs and capabilities. this unusual pattern raises serious concerns about the competitiveness and fairness of the bidding process. The close proximity of bid percentages across numerous packages could potentially indicate the bids having been placed within the same ring, coordinating their bid prices to artificially inflate the costs and eliminate genuine competition. Such practices are detrimental to the principles of transparency and fairness in public procurement and can lead to substantial financial losses for the State. 19. I hence state that, accepting these inflated bids would result in the State incurring costs significantly higher than the estimated budget, which is neither sustainable nor in the public interest. The average increase of approximately 45% over the tendered amount across the packages would impose an undue financial burden on the State exchequer, diverting resources that could be utilized for other essential public services. 20. I further state that, as per Clause 2.17 of the tender document, which reads as follows, "The Bid shall be valid for a period not less than 180 days (One hundred and eighty) days from the Bid Due Date. The Validity of the Bids may be extended by mutual consent of the respective Bidders and the Authority." The bid validity of all the packages was 180 days from the date of opening of the tenders and the same has already expired, and after opening of the technical bids on 10.02.2023 till now i.e. 08.07.2024 more 52 than 500 days have elapsed, and the rates quoted or bid itself may become invalid. Copy of Relevant Clauses of Tender Document dated 21.01.2023 as issued by the BSWML during the 2nd Call for Tender is produced herewith as Document No. 2. 21. I further state that, as per the Circular dated 30.07.2022 as issued by the Department of Finance, Government of Karnataka, the Tender issuing authority cannot accept the bids quoting more than 5% of the tender premium amount, and hence, on this ground also the bids as received under the tender in question could not have been accepted. Copy of the Circular dated 30.07.2022 as issued by the Department of Finance is produced herewith as Document No. 3. 22. I further state that, the contractual framework established by the tender document itself provides a solid foundation for BSWML's decision. Clause 2.5.1 of the tender document explicitly states as follows "2.5.1. Notwithstanding anything contained in this RFP, the Authority reserves the right to accept or reject any Bid and to annul the Bidding Process and reject all Bids, at any time without any liability or any obligation for such acceptance, rejection or annulment, and without assigning any reasons therefore. In the event that the Authority rejects or annuls all the Bids, it may, in its discretion, invite all eligible Bidders to submit fresh Bids." Thus, Clause 2.5.1 of the tender document establishes BSWML's right to annul the bidding process and reject all bids at any time, without the obligation to provide reasons. This clause effectively grants BSWML the contractual authority to cancel the tender, a provision that is standard in public procurement processes and are designed to protect the public interest by allowing authorities the flexibility to respond to changing circumstances or unforeseen issues that may arise during the tender process. Copy of the Tender Document dated 21.01.2023 as issued by the BSWML during the 2nd Call for Tender is produced herewith as Document No. 2. 23. I further state that, the reasoning provided in the Board Resolution dated 06/07/2024 (signed on 53 08/07/2024) offers a comprehensive rationale for the tender cancellation. The Board's decision (as extracted above), was informed by several critical factors, including the significant time elapsed since the initiation of the tender process, the excessively high tender premiums quoted by bidders (ranging from 12% to 82% above the tendered amount), the expiry of the bid validity period, changes in market conditions rendering initial quoted rates potentially invalid, and the pressing need for timely and effective solid waste management. Copy of the aforesaid Board Resolution dated 06/07/2024 (signed on 08/07/2024) and Subsequent Office Order dated 08.07.2024 cancelling the 2nd Tender Notification, as issued by the BSWML is produced herewith as Document No. 4 & 5. 24. I further state that, it is pertinent to note that BSWML has promptly bought its decision to cancel the tender to the attention of the Hon'ble High Court. As evidenced by the interim order of the Hon'ble High Court on 09/07/2024 in WP No. 26089/2023 wherein it is shown to have been formally submitted to the court that BSWML had decided to withdraw the subject tender and call for fresh tenders. The same is recorded as follows: “09/07/2024 Learned Advocate General, on instructions, would submit that the BSWML has decided to withdraw the subject tender and call for fresh tender. He would submit that if fresh tender is permitted to be called, the process of tender, awarding of contract and beginning of execution of work will all begin within three months from the date of notification of the said tender. He would also submit that he would place on record the decision to call off tender which is subject matter of the petition and notify fresh tender and all other incidental or attendant decision taken thereto by the BSWML. List the matters on 11.07.2024 at 4.00 p.m. 54 Interim order, granted earlier, if subsisting in any of these cases, is extended till the next date of hearing.” (Emphasis added) The affidavit captures in great detail as to why the tender had to be recalled. One such reason was validity of the tender itself was for 180 days. The affidavit also narrates the nuances of execution of new tender. The affidavit insofar as the commitment to conclude the tender within a time frame is germane to be noticed. It reads as follows: “…. …. …. 26. I further state that, BSWML is committed to conducting the new tender process within a strict timeframe and in an organized and expedited manner to ensure the timely implementation of effective solid waste management services. To this end, a tentative revised schedule for the new tender has been formulated as follows: • Revision of Rates based on Present Schedule of Rates (SR)/Market Rates and Approval: This initial phase involves updating the rates to reflect current market conditions and obtaining the necessary administrative approvals. This will be completed within 30 days, bringing the cumulative timeline to 30 days. • Invitation of Tenders, Pre-Bid Meeting, Proceedings of Pre-Bid, and Receipt of Tenders: The tender will be officially invited, and a pre-bid meeting will be held to address any queries from potential bidders. Proceedings from the pre- 55 bid meeting will be documented, and tenders will be received. This phase will also take 30 days, cumulative 60 days. • Evaluation of Tenders-Technical Evaluation: All submitted tenders will undergo a thorough technical evaluation, including confirmation of certificates and compliance with tender requirements. The evaluation results will be placed before the relevant committees for approval. This stage will be completed in the next 30 days, cumulative 90 days. • Financial Bid Evaluation and Submission to Government for Approval: The financial bids of technically qualified bidders will be evaluated, and the results will be forwarded to the Government for approval. This will take an additional 30 days, cumulative 120 days. • Approval of Tenders at Government Level: The Government will review and approve the tender evaluations. This is scheduled to be completed within the next 30 days, cumulative 150 days. • Issuance of Work Order: Following Government approval, work orders will be issued to the successful bidders. This final phase will be completed within 30 days, bringing the total cumulative timeline to 180 days. 27. Thus, I state that the approximate total time required for the award of the new tender is six months. BSWML will adhere strictly to this schedule to ensure that the new tendering process is conducted efficiently and without unnecessary delays. This structured timeline reflects our commitment to expediting the procurement process while maintaining transparency, fairness, and compliance with all legal and regulatory requirements. By doing so, we aim to facilitate the commencement of improved solid waste management services at the 56 earliest, thereby serving the larger interest of the city and its residents.” (Emphasis added) Various other assurances are held out in the affidavit with regard to conclusion of tender. Admittedly, the participants in the tender have not been awarded any contract. Their final bids were opened and placed before this Court. It was not even notified. Who was the successful bidders was again in the sealed cover and not notified, but the process had gone up to that stage. In the light of the issue that requires determination, it is necessary to notice the stream of judgments of the Apex Court or other High Courts with regard to cancellation of tender. 11. The learned senior counsel for the petitioners have relied upon judgments in the cases of: (i) SUBODH KUMAR SINGH RATHOUR v. CHIEF EXECUTIVE OFFICER1, (ii) S.N. CHANDRASHEKAR v. STATE OF KARNATAKA2, (iii) KISHORE KUMAR KHAITAN v. PRAVEEN KUMAR SINGH3, (iv) ABL INTERNATIONAL LIMITED v. EXPORT CREDIT GUARANTEE 1 2024 SCC OnLine SC 1682 2 (2006) 3 SCC 208 3 (2006) 3 SCC 312 57 CORPORATION OF INDIA LIMITED4, (v) STATE OF UTTAR PRADESH v. DEOMAN UPADHYAYA5 and (vi) LACHHMAN DASS v. STATE OF PUNJAB6. The latest of the judgment relied on is, in the case of SUBODH KUMAR SINGH RATHOUR supra. The Apex Court, in the said judgment, has held as follows: “…. …. …. 35. Earlier, the position of law was that any dispute arising out of a contract entered into with the State or its instrumentalities could not be adjudicated by the court under its writ jurisdiction, as in all such cases, it could be said that the ‘real grievance’ was essentially only one being that of breach of a contract for which the appropriate remedy would be an ordinary suit and not a writ petition. One of the earliest judicial pronouncements in this regard is the decision of this Court in Radhakrishna Agarwal v. State of Bihar reported in (1977) 3 SCC 457 wherein the following relevant observations were made:— “19. […] None of these cases lays down that, when the State or its officers purport to operate within the contractual field and the only grievance of the citizen could be that the contract between the parties is broken by the action complained of, the appropriate remedy is by way of a petition under Article 226 of the Constitution and not an ordinary suit. There is a formidable array of authority against any such a proposition. […]” (Emphasis supplied) 36. It was further explained by this Court in Radhakrishna Agarwal (supra) that once the State or its instrumentalities enter into a contract, any dispute arising out of that contract cannot be decided in writ jurisdiction as their relations no longer remain governed by the constitutional 4 (2004) 3 SCC 553 5 AIR 1960 SC 1125 6 1962 SCC OnLine SC 33 58 provisions, and it is only the contract which thereafter determines the rights and obligations of the parties. Any claim to a right flowing from a contract cannot be redressed through the writ jurisdiction except where some statute steps in and confers some special statutory power or obligation on the State in the contractual field or if the agreement is in the nature of a statutory contract. The relevant observations read as under:— “10. […] But, after the State or its agents have entered into the field of ordinary contract, the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. No question arises of violation of Article 14 or of any other constitutional provision when the State or its agents, purporting to act within this field, perform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from contract. 11. In the cases before us the contracts do not contain any statutory terms or obligations and no statutory power or obligation which could attract the application of Article 14 of the Constitution is involved here. Even in cases where the question is of choice or consideration of competing claims before an entry into the field of contract facts have to be investigated and found before the question of a violation of Article 14 could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by talking detailed evidence, involving examination and cross- examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. Such proceedings are summary proceedings reserved for extraordinary cases where the exceptional and what are described as, perhaps not quite accurately, “prerogative” powers of the Court are invoked. We are certain that the cases before us are not such in which powers under Article 226 of the Constitution could be invoked.” (Emphasis supplied) 37. Similar view as above, was reiterated by this Court in Premji Bhai Parmar v. Delhi Development reported in (1980) 59 2 SCC 129 at para 8 and in Divisional Forest Officer v. Bishwanath Tea Co. Ltd. reported in (1981) 3 SCC 238 wherein it was held that any right to relief flowing from a breach of contract cannot be entertained under the extraordinary writ jurisdiction of the court, even if the action of the State or its instrumentality was unauthorized in law. The relevant observations read as under:— “9. Ordinarily, where a breach of contract is complained of, a party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed, or the party may sue for damages. Such a suit would ordinarily be cognizable by the civil court. The High Court in its extraordinary jurisdiction would not entertain a petition either for specific performance of contract or for recovering damages. A right to relief flowing from a contract has to be claimed in a civil court where a suit for specific performance of contract or for damages could be filed. This is so well-settled that no authority is needed. 10. In substance, this was a suit for refund of a royalty alleged to be unauthorisedly recovered and that could hardly be entertained in exercise of the writ jurisdiction of the High Court.” (Emphasis supplied) 38. We do not propose to dwell any further, on the position of law that existed earlier, and leave it at rest with one last reference to the decision of this Court in Bareilly Development Authority v. Ajai Pal Singh reported in (1989) 2 SCC 116, wherein this Court once again reiterated that no writ can be issued in contractual disputes between the State and an aggrieved party where the rights or claims arise or stem only from the terms of the contract. The relevant observations read as under:— “22. There is a line of decisions where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple […]” (Emphasis supplied) 60 39. Thus, for a period of time the courts recognized that there was a clear brightline distinction between when a State or its instrumentalities could be said to be acting in its executive capacity and when it could be said to be acting in its private capacity, with the existence of a ‘contractual relation’ inter- se the parties being the determinative factor. Wherever, there was a contract, the State's relations and all its actions were said to be within the field of a contract i.e., within the realm of private law, and the courts would resile from interfering with the same under their writ jurisdiction or embarking upon a judicial review of such actions. 40. Such reluctance on the part of the courts stemmed from its understanding that State or any of its instrumentalities must have the flexibility or the discretion to take decisions that are in the best interest of the public and efficient governance. Government being the decision-maker of the State is said to be the best judge of when a contract or an agreement is in its interest and by its extension in the interest of the public, and as such the courts should not interfere in the State's discretion to award or terminate contracts. One another reason why contractual disputes were precluded from being espoused under the writ jurisdiction of the courts was due to the summary nature of such proceedings, which do not allow for an exhaustive review unlike civil suits. [See : Radhakrishna Agarwal (supra) at para 11] 41. This simplistic approach of the courts in deeming every act and action of the State which was complained of as nothing more than a ‘contractual dispute’ or a case of ‘breach of contract’ often led to the State abusing its position and acting unfairly under the misconceived notion, that all its actions such as award of contracts or tenders were nothing but a ‘largess’ - a generosity bestowed upon its citizens, which it can at its own whims choose to deny, alter, modify, or take away without any consequences. This often led to a conflation of power with duty, and resulted in every arbitrary exercise of power by the State under the guise of a ‘contractual dispute’ to remain unchecked and undisputable before the courts and out of the reach of judicial review, undermining the rights of the citizen to have their interests safeguarded and protected. We may in this 61 regard refer to Indian Medicines Pharmaceuticals Corp Ltd. v. Kerala Ayurvedic Co-operative Society Ltd. reported in 2023 SCC OnLine SC 5 wherein this Court speaking eruditely through one of us, Dr. D.Y. Chandrachud, CJI made the following pertinent observations:— “11 The welfare State plays a crucial role in aiding the realisation of the socioeconomic rights which are recognised by the Constitution. Social welfare benefits provided by the State under the rubric of its constitutional obligations are commonly understood in the language of ‘largesse’, a term used to describe a generous donation. Terming all actions of government, ranging from social security benefits, jobs, occupational licenses, contracts and use of public resources - as government largesse results in doctrinal misconceptions. The reason is that this conflates the State's power with duty. The Constitution recognises the pursuit of the well-being of citizens as a desirable goal. In doing this the Constitution entrusts the State with a duty to ensure the well-being of citizens. Government actions aimed at ensuring the well- being of citizens cannot be perceived through the lens of a ‘largess’. The use of such terminology belittles the sanctity of the social contract that the ‘people of India’ entered into with the State to protect and safeguard their interests. xxx xxx xxx 13. In the early 1950', judicial review of the process of concluding contracts by government was limited. The courts allowed the State due deference on the ground of governmental policy. In C.K Achuthan v. State of Kerala, AIR 1959 SC 490 a Constitution Bench of this Court held that it is open to the Government ‘to choose a person to their liking, to fulfil contracts which they wish to be performed.’ The Court observed that when one party is chosen over another, the aggrieved party cannot claim the protection of Article 14 since the government has the discretion to choose with whom it will contract.” (Emphasis supplied) 42. Before proceeding further to discuss how the scope of judicial review came to be evolved, we would like to refer to the observations made by this Court in M.C. Mehta v. Union of 62 India reported in (1987) 1 SCC 395 which are significant, and read as under:— “31. […] Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy. […]” (Emphasis supplied) b. Concept of ‘Public Law’ Element : Scope of Judicial Review in Contractual Matters. 43. Over a period of time the courts recognized the crucial role of judicial oversight in preventing the abuse of power and maintaining public confidence in the administrative process. Courts developed various doctrines and principles to guide their review, such as the principles of natural justice, reasonableness and proportionality. These principles ensured that the administrative actions are not arbitrary, discriminatory or capricious. By enforcing such standards, the courts also ensured that the rule of law was maintained and the individual rights were protected. 44. The interplay between judicial review and administrative discretion has been a dynamic process. As new challenges and complexities kept on arising before the courts as regards the State's actions and governance, it continued to refine its approach. This ongoing dialogue between the courts and the executive branch contributed to the development of a more accountable and transparent administrative framework, paving the way for the exercise of judicial review even in the realm of contractual disputes to achieve a fine balance between efficiency and fairness in policy decisions on the one hand and the rights of individuals and overall public interest on the other. 63 45. In Mahabir Auto Stores v. Indian Oil Corporation reported in (1990) 3 SCC 752, this Court expressed doubts over the correctness of the earlier position of law, that actions of the State in the private contractual field cannot be questioned in writ jurisdiction. This Court further held that even if the inter-se relation of parties with the State is governed purely by a contract, the method, motive and decision of the State would be subject to judicial review on the grounds of relevance and reasonableness, fair play, natural justice, equality and non-discrimination. The relevant observations read as under:— “12. […] It appears to us that rule of reason and rule against arbitrariness and discrimination, rules of fair play and natural justice are part of the rule of law applicable in situation or action by State instrumentality in dealing with citizens in a situation like the present one. Even though the rights of the citizens are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play, natural justice, equality and non- discrimination in the type of the transactions and nature of the dealing as in the present case. 13. The existence of the power of judicial review however depends upon the nature and right involved in the facts and circumstances of the particular case. It is well settled that there can be “malice in law”. Existence of such “malice in law” is part of the critical apparatus of a particular action in administrative law. Indeed “malice in law” is part of the dimension of the rule of relevance and reason as well as the rule of fair play in action. Xxx xxx xxx 20. […] we are of the opinion that it would be appropriate to state that in cases where the instrumentality of the state enters the contractual field, it should be governed by the incidence of the contract. It is true that it may not be necessary to give reasons but, in our opinion, in the field of this nature fairness must be there to the parties concerned, and having regard to the large number or the long period and the nature of the dealings between the parties, the appellant should have been taken into 64 confidence. Equality and fairness at least demands this much from an instrumentality of the State dealing with a right of the State not to treat the contract as subsisting. We must, however, evolve such process which will work.” (Emphasis supplied) [See also : DwarkadasMarfatia& Sons v. Board of Trustees of the Port of Bombay, (1989) 3 SCC 293 at para 27.] 46. In LIC v. Consumer Education & Research Centre reported in (1995) 5 SCC 482, the Court held that the law as it stood earlier that a State or its instrumentality whose action is hedged with public element cannot be called into question because such action was in the field of private law is no longer a good law. The relevant observations read as under:— “23. Every action of the public authority or the person acting in public interest or any act that gives rise to public element, should be guided by public interest. It is the exercise of the public power or action hedged with public element (sic that) becomes open to challenge. If it is shown that the exercise of the power is arbitrary, unjust and unfair, it should be no answer for the State, its instrumentality, public authority or person whose acts have the insignia of public element to say that their actions are in the field of private law and they are free to prescribe any conditions or limitations in their actions as private citizens, simpliciter do in the field of private law. Its actions must be based on some rational and relevant principles. It must not be guided by irrational or irrelevant considerations. Every administrative decision must be hedged by reasons. […] xxx xxx xxx 26. This Court has rejected the contention of an instrumentality or the State that its action is in the private law field and would be immuned from satisfying the tests laid under Article 14. The dichotomy between public law and private law rights and remedies, though may not be obliterated by any strait-jacket formula, it would depend upon the factual matrix. The adjudication of the dispute arising out of a contract would, therefore, depend upon facts and circumstances in a given case. The distinction between public law remedy and private law field cannot be demarcated with precision. Each case will be examined on its facts and circumstances to find out the nature of the 65 activity, scope and nature of the controversy. The distinction between public law and private law remedy has now become too thin and practicably obliterated.” (Emphasis supplied) 47. This Court in Consumer Education & Research Centre (supra) further held that the writ jurisdiction of the courts cannot be shackled by technicalities and that any action of the State which has a public law element or a public character, such actions by their nature are required to be just, fair, reasonable & in the interest of public, and as such they would be amenable to judicial review. As to what is meant by actions bearing insignia of public law element, this Court held that wherever the action of a State or its instrumentality in the sphere of contractual relations is enjoined with a duty or an obligation to the public, such actions could be said to bear the insignia of a public element. The relevant observation reads as under:— “27. In the sphere of contractual relations the State, its instrumentality, public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good and in general public interest and it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision. Duty to act fairly is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty or obligation must be informed by reason and guided by the public interest. xxx xxx xxx 29. […] The arms of the High Court are not shackled with technical rules or procedure. The actions of the State, its instrumentality, any public authority or person whose actions bear insignia of public law element or public character are amenable to judicial review and the validity of such an action would be tested on the anvil of Article 14. While exercising the power under Article 226 the Court would be circumspect to adjudicate the disputes arising out 66 of the contract depending on the facts and circumstances in a given case. The distinction between the public law remedy and private law field cannot be demarcated with precision. Each case has to be examined on its own facts and circumstances to find out the nature of the activity or scope and nature of the controversy. The distinction between public law and private law remedy is now narrowed down. […]” (Emphasis supplied) 48. In another decision of this Court in ShrilekhaVidyarthi (Kumari) v. State of U.P. reported in (1991) 1 SCC 212 it was held that every action of the State that has some degree of impact on the public interest, can be challenged under writ jurisdiction to the extent that they are arbitrary, unfair or unreasonable, irrespective of the fact that the dispute falls within the domain of contractual obligations. It was further held, that it is the nature of a government body's personality which characterizes the action as having a public law element, and not the field of law where such action is taken. The relevant observation reads as under:— “22. There is an obvious difference in the contracts between private parties and contracts to which the State is a party. Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. However, to the extent, challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article 14. To this 67 extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions. Xxx xxx xxx 24. The State cannot be attributed the split personality of Dr. Jekyll and Mr. Hyde in the contractual field so as to impress on it all the characteristics of the State at the threshold while making a contract requiring it to fulfil the obligation of Article 14 of the Constitution and thereafter permitting it to cast off its garb of State to adorn the new robe of a private body during the subsistence of the contract enabling it to act arbitrarily subject only to the contractual obligations and remedies flowing from it. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters. There is a basic difference between the acts of the State which must invariably be in pubic interest and those of a private individual, engaged in similar activities, being primarily for personal gain, which may or may not promote public interest. Viewed in this manner, in which we find no conceptual difficulty or anachronism, we find no reason why the requirement of Article 14 should not extend even in the sphere of contractual matters for regulating the conduct of the State activity. Xxx xxx xxx 28. Even assuming that it is necessary to import the concept of presence of some public element in a State action to attract Article 14 and permit judicial review, we have no hesitation in saying that the ultimate impact of all actions of the State or a public body being undoubtedly on public interest, the requisite public element for this purpose is present also in contractual matters. We, therefore, find it difficult and unrealistic to exclude the State actions in contractual matters, after the contract has 68 been made, from the purview of judicial review to test its validity on the anvil of Article 14.” (Emphasis supplied) 49. In Verigamto Naveen v. Govt. of A.P. reported in (2001) 8 SCC 344 this Court held that where a breach of contract involves the decision-making authority exceeding its power or violating the principles of nature justice or its decision being borne out of perversity, then such cancellation of contract can certainly be scrutinized under the writ jurisdiction. This is because such an exercise of power by the authority is apart from the contract. The relevant observation reads as under:— “21. […] Though there is one set of cases rendered by this Court of the type arising in Radhakrishna Agarwal case [(1977) 3 SCC 457 : AIR 1977 SC 1496] much water has flown in the stream of judicial review in contractual field. In cases where the decision-making authority exceeded its statutory power or committed breach of rules or principles of natural justice in exercise of such power or its decision is perverse or passed an irrational order, this Court has interceded even after the contract was entered into between the parties and the Government and its agencies. […] Where the breach of contract involves breach of statutory obligation when the order complained of was made in exercise of statutory power by a statutory authority, though cause of action arises out of or pertains to contract, brings it within the sphere of public law because the power exercised is apart from contract. The freedom of the Government to enter into business with anybody it likes is subject to the condition of reasonableness and fair play as well as public interest. After entering into a contract, in cancelling the contract which is subject to terms of the statutory provisions, as in the present case, it cannot be said that the matter falls purely in a contractual field. Therefore, we do not think it would be appropriate to suggest that the case on hand is a matter arising purely out of a contract and, therefore, interference under Article 226 of the Constitution is not called for. This contention also stands rejected.” (Emphasis supplied) 50. Similarly in Binny Ltd. v. Sadasivan reported in (2005) 6 SCC 657 this Court in view of the increasing trend of the State and its instrumentalities to use contracts as a 69 means for dispensing their regulatory functions, held that whenever a contract is used for a public purpose, it will be amenable to judicial review. The relevant observations read as under:— “30. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. But nevertheless, it may be noticed that the Government or government authorities at all levels are increasingly employing contractual techniques to achieve their regulatory aims. It cannot be said that the exercise of those powers are free from the zone of judicial review and that there would be no limits to the exercise of such powers, but in normal circumstances, judicial review principles cannot be used to enforce contractual obligations. When that contractual power is being used for public purpose, it is certainly amenable to judicial review. The power must be used for lawful purposes and not unreasonably.” (Emphasis supplied) 51. The decision of this Court in ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. reported in (2004) 3 SCC 553 is significant and was the turning point in the scope of judicial review in contractual matters. In this landmark ruling, this Court decisively laid down and approved that a relief against a State or its instrumentalities in matters related to contractual obligations can be sought under the writ jurisdiction. The relevant observations read as under:— “23. It is clear from the above observations of this Court, once the State or an instrumentality of the State is a party of the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India. Therefore, if by the impugned repudiation of the claim of the appellants the first respondent as an instrumentality of the State has acted in contravention of the abovesaid requirement of Article 14, then we have no hesitation in holding that a writ court can issue suitable directions to set right the arbitrary actions of the first respondent. xxx xxx xxx 70 27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition: (a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. (b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. (c) A writ petition involving a consequential relief of monetary claim is also maintainable.” (Emphasis supplied) 52. At the same time, this Court in ABL (supra) cautioned that the power to issue writs under Article 226 being discretionary and plenary, the same should only be exercised to set right the arbitrary actions of the State or its instrumentality in matters related to contractual obligations. The relevant observations read as under:— “28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction.” (Emphasis supplied) 71 53. In Noble Resources Ltd. v. State of Orissa reported in (2006) 10 SCC 236 this Court for the purposes of judicial review of contractual disputes recognized a distinction between a matter where the contract is at the threshold and at the stage of breach. It held that at the threshold, the court's scrutiny is more intrusive & expansive while at the stage of breach it is discretionary except where the action is found to be arbitrary or unreasonable. The relevant observations read as under:— “15. It is trite that if an action on the part of the State is violative of the equality clause contained in Article 14 of the Constitution of India, a writ petition would be maintainable even in the contractual field. A distinction indisputably must be made between a matter which is at the threshold of a contract and a breach of contract; whereas in the former the court's scrutiny would be more intrusive, in the latter the court may not ordinarily exercise its discretionary jurisdiction of judicial review, unless it is found to be violative of Article 14 of the Constitution. While exercising contractual powers also, the government bodies may be subjected to judicial review in order to prevent arbitrariness or favouritism on their part. Indisputably, inherent limitations exist, but it would not be correct to opine that under no circumstances a writ will lie only because it involves a contractual matter.” (Emphasis supplied) 54. The law on the subject with which we are dealing was laid down exhaustively by this Court in its decision in Joshi Technologies International Inc. v. Union of India reported in (2015) 7 SCC 728, and the position was summarised as under:— “69. The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, “normally”, the Court would not exercise such a discretion: 72 69.1. The Court may not examine the issue unless the action has some public law character attached to it. 69.2. Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration. 69.3. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination. 69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances. 70. Further, the legal position which emerges from various judgments of this Court dealing with different situations/aspects relating to contracts entered into by the State/public authority with private parties, can be summarised as under: 70.1. At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness. 70.2. State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practise some discriminations. 70.3. Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 of the Constitution could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases the Court can direct the aggrieved party to resort to alternate remedy of civil suit, etc. 73 70.4. Writ jurisdiction of the High Court under Article 226 of the Constitution was not intended to facilitate avoidance of obligation voluntarily incurred. 70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the licence if he finds it profitable to do so : and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business. 70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages. 70.7. Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if it can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice. 70.8. If the contract between private party and the State/instrumentality and/or agency of the State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court under Article 226 of the Constitution of India and invoking its extraordinary jurisdiction. 70.9. The distinction between public law and private law element in the contract with the State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract, this Court has maintained the position that writ petition is not maintainable. The dichotomy between public law and private law rights and remedies would depend on the factual matrix of each case and the distinction between the public 74 law remedies and private law field, cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision making process or that the decision is not arbitrary. 70.10. Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness. 70.11. The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes.” (Emphasis supplied) 55. Thereafter, this Court in its decision in M.P. Power Management Co. Ltd., Jabalpur v. Sky Power Southeast Solar India Pvt. Ltd. reported in (2023) 2 SCC 703 exhaustively delineated the scope of judicial review of the courts in contractual disputes concerning public authorities. The aforesaid decision is in the following parts:— […](i) Scope of Judicial Review in matters pertaining to Contractual Disputes:— This Court held that the earlier position of law that all rights against any action of the State in a non-statutory contract would be governed by the contract alone and thus not amenable to the writ jurisdiction of the courts is no longer a good law in view of the subsequent rulings. Although writ jurisdiction is a public law remedy, yet a relief would still lie under it if it is sought against an arbitrary 75 action or inaction of the State, even if they arise from a non- statutory contract. The relevant observations read as under:— “53. […] when the offending party is the State. In other words, the contention is that the law in this field has witnessed an evolution and, what is more, a revolution of sorts and a transformatory change with a growing realisation of the true ambit of Article 14 of the Constitution of India. The State, he points out, cannot play the Dr. Jekyll and Hyde game anymore. Its nature is cast in stone. Its character is inflexible. This is irrespective of the activity it indulges in. It will continue to be haunted by the mandate of Article 14 to act fairly. There has been a stunning expansion of the frontiers of the Court's jurisdiction to strike at State action in matters arising out of contract, based, undoubtedly, on the facts of each case. It remains open to the Court to refuse to reject a case, involving State action, on the basis that the action is, per se, arbitrary. i. It is, undoubtedly, true that the writ jurisdiction is a public law remedy. A matter, which lies entirely within a private realm of affairs of public body, may not lend itself for being dealt with under the writ jurisdiction of the Court. ii. The principle laid down in Bareilly Development Authority (supra) that in the case of a non statutory contract the rights are governed only by the terms of the contract and the decisions, which are purported to be followed, including Radhakrishna Agarwal (supra), may not continue to hold good, in the light of what has been laid down in ABL (supra) and as followed in the recent judgment in Sudhir Kumar Singh (supra). iii. The mere fact that relief is sought under a contract which is not statutory, will not entitle the respondent-State in a case by itself to ward-off scrutiny of its action or inaction under the contract, if the complaining party is able to establish that the action/inaction is, per se, arbitrary.” (Emphasis supplied) (ii) Exercise of Writ Jurisdiction in disputes at the stage prior to the Award of Contract:— 76 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:— iv. 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 R.D. 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.” (Emphasis supplied) (iii) Exercise of Writ Jurisdiction after the Contract comes into Existence:— This court held that even after the contract comes into existence an action may lie by way of a writ to either (I) obviate an arbitrary or unreasonable action on part of the State or (II) to call upon it to honour its obligations unless there is a serious or genuine dispute as regards the liability of the State from honouring such obligation. Existence of an alternative remedy or a disputed question of fact may be a ground to not entertain the parties in a writ as long as it is not being used as smokescreen to defeat genuine claims of public law remedy. The relevant observations read as under:— “v. After the contract is entered into, there can be a variety of circumstances, which may provide a cause of action to a party to the contract with the State, to seek relief by filing a Writ Petition. vi. Without intending to be exhaustive, it may include the relief of seeking payment of amounts due to the aggrieved party from the State. The State can, indeed, be called upon to honour its obligations of making payment, unless it be that there is a serious and genuine dispute raised relating to the liability of the State to make the payment. Such dispute, ordinarily, would include the contention that the aggrieved party has not fulfilled its obligations and the Court finds that such a contention by the State is not a mere ruse or a pretence. 77 vii. The existence of an alternate remedy, is, undoubtedly, a matter to be borne in mind in declining relief in a Writ Petition in a contractual matter. Again, the question as to whether the Writ Petitioner must be told off the gates, would depend upon the nature of the claim and relief sought by the petitioner, the questions, which would have to be decided, and, most importantly, whether there are disputed questions of fact, resolution of which is necessary, as an indispensable prelude to the grant of the relief sought. Undoubtedly, while there is no prohibition, in the Writ Court even deciding disputed particularly when questions the dispute of fact, surrounds demystifying of documents only, the Court may relegate the party to the remedy by way of a civil suit. viii. The existence of a provision for arbitration, which is a forum intended to quicken the pace of dispute resolution, is viewed as a near bar to the entertainment of a Writ Petition (See in this regard, the view of this Court even in ABL (supra) explaining how it distinguished the decision of this Court in State of U.P. v. Bridge & Roof Co., by its observations in paragraph-14 in ABL (supra)]. ix. The need to deal with disputed questions of fact, cannot be made a smokescreen to guillotine a genuine claim raised in a Writ Petition, when actually the resolution of a disputed question of fact is unnecessary to grant relief to a writ applicant. x. The reach of Article 14 enables a Writ Court to deal with arbitrary State action even after a contract is entered into by the State. A wide variety of circumstances can generate causes of action for invoking Article 14. The Court's approach in dealing with the same, would be guided by, undoubtedly, the overwhelming need to obviate arbitrary State action, in cases where the Writ remedy provides an effective and fair means of preventing miscarriage of justice arising from palpably unreasonable action by the State.” (Emphasis supplied) (iv) Exercise of Writ Jurisdiction after Termination or Breach of the Contract:— A relief by way of a writ under Article 226 of the Constitution will also lie against a termination or a breach of a 78 contract, wherever such action is found to either be palpably unauthorized or arbitrary. Before turning away the parties to the remedy of civil suit, the courts must be mindful to see whether such termination or breach was within the contractual domain or whether the State was merely purporting to exercise powers under the contract for any ulterior motive. Any action of the State to cancel or terminate a contract which is beyond the terms agreed thereunder will be amenable to the writ jurisdiction to ascertain if such decision is imbued with arbitrariness or influenced by any extraneous considerations. The relevant observations read as under:— xi. Termination of contract can again arise in a wide variety of situations. If for instance, a contract is terminated, by a person, who is demonstrated, without any need for any argument, to be the person, who is completely unauthorised to cancel the contract, there may not be any necessity to drive the party to the unnecessary ordeal of a prolix and avoidable round of litigation. The intervention by the High Court, in such a case, where there is no dispute to be resolved, would also be conducive in public interest, apart from ensuring the Fundamental Right of the petitioner under Article 14 of the Constitution of India. When it comes to a challenge to the termination of a contract by the State, which is a non-statutory body, which is acting in purported exercise of the powers/rights under such a contract, it would be over simplifying a complex issue to lay down any inflexible Rule in favour of the Court turning away the petitioner to alternate Fora. Ordinarily, the cases of termination of contract by the State, acting within its contractual domain, may not lend itself for appropriate redress by the Writ Court. This is, undoubtedly, so if the Court is duty-bound to arrive at findings, which involve untying knots, which are presented by disputed questions of facts. Undoubtedly, in view of ABL Limited (supra), if resolving the dispute, in a case of repudiation of a contract, involves only appreciating the true scope of documentary material in the light of pleadings, the Court may still grant relief to an applicant. We must enter a caveat. The Courts are today reeling under the weight of a docket explosion, which is truly alarming. If a case involves a large body of documents and the Court is called upon to enter upon findings of facts and involves merely the construction of the document, it may not be an unsound discretion to relegate the party to the alternate remedy. This is not to deprive the Court of its constitutional power as laid down in ABL (supra). It all depends upon the facts of each case as 79 to whether, having regard to the scope of the dispute to be resolved, whether the Court will still entertain the petition. xii. In a case the State is a party to the contract and a breach of a contract is alleged against the State, a civil action in the appropriate Forum is, undoubtedly, maintainable. But this is not the end of the matter. Having regard to the position of the State and its duty to act fairly and to eschew arbitrariness in all its actions, resort to the constitutional remedy on the cause of action, that the action is arbitrary, is permissible (See in this regard Kumari ShrilekhaVidyarthi v. State of U.P.). However, it must be made clear that every case involving breach of contract by the State, cannot be dressed up and disguised as a case of arbitrary State action. While the concept of an arbitrary action or inaction cannot be cribbed or confined to any immutable mantra, and must be laid bare, with reference to the facts of each case, it cannot be a mere allegation of breach of contract that would suffice. What must be involved in the case must be action/inaction, which must be palpably unreasonable or absolutely irrational and bereft of any principle. An action, which is completely malafide, can hardly be described as a fair action and may, depending on the facts, amount to arbitrary action. The question must be posed and answered by the Court and all we intend to lay down is that there is a discretion available to the Court to grant relief in appropriate cases.” (Emphasis supplied) (v) Other relevant considerations for Exercise of Writ Jurisdiction:— Lastly, this Court held that the courts may entertain a contractual dispute under its writ jurisdiction where (I) there is any violation of natural justice or (II) where doing so would serve the public interest or (III) where though the facts are convoluted or disputed, but the courts have already undertaken an in-depth scrutiny of the same provided that the it was pursuant to a sound exercise of its writ jurisdiction. The relevant observations read as under:— xiii. A lodestar, which may illumine the path of the Court, would be the dimension of public interest subserved by the Court interfering in the matter, rather than relegating the matter to the alternate Forum. xiv. Another relevant criteria is, if the Court has entertained the matter, then, while it is not tabooed that the Court should not relegate the party at a later stage, 80 ordinarily, it would be a germane consideration, which may persuade the Court to complete what it had started, provided it is otherwise a sound exercise of jurisdiction to decide the matter on merits in the Writ Petition itself. xv. Violation of natural justice has been recognised as a ground signifying the presence of a public law element and can found a cause of action premised on breach of Article 14. [See Sudhir Kumar Singh (supra)].” (Emphasis supplied) 56. What can be discerned from the above is that there has been a considerable shift in the scope of judicial review of the court when it comes to contractual disputes where one of the parties is the State or its instrumentalities. In view of the law laid down by this Court in >ABL (supra), Joshi Technologies (supra) and in M.P. Power (supra), it is difficult to accept the contention of the respondent that the writ petition filed by the appellant before the High Court was not maintainable and the relief prayed for was rightly declined by the High Court in exercise of its Writ jurisdiction. Where State action is challenged on the ground of being arbitrary, unfair or unreasonable, the State would be under an obligation to comply with the basic requirements of Article 14 of the Constitution and not act in an arbitrary, unfair and unreasonable manner. This is the constitutional limit of their authority. There is a jural postulate of good faith in business relations and undertakings which is given effect to by preventing arbitrary exercise of powers by the public functionaries in contractual matters with private individuals. With the rise of the Social Service State more and more public-private partnerships continue to emerge, which makes it all the more imperative for the courts to protect the sanctity of such relations.” (Emphasis supplied) The Apex Court considers entire spectrum of law and holds that the scope of judicial review of the action of the State in the realm of contract is extremely limited, except in cases where the action of the State would depict arbitrariness. The Apex Court would hold 81 that every action of public Authority or acting in public interest that gives rise to public element should be guided by public interest. While there can be no qualm about the principles so laid down by the Apex Court in the afore-quoted judgment, since the contract is not awarded to any person today, no right of any person has got crystallized for a contention that the contract should be awarded to him. While it is no law that the contract should be awarded to the highest bidder or the lowest bidder as the case would be, the action of the State must not be arbitrary. This is only golden thread that runs through the entire tender process as observed in plethora of judgments of the Apex Court. 12. On the issue whether cancellation could be done or not and can such cancellation could have attributes of arbitrariness, the Apex Court in a later judgment in the case of INDORE VIKAS PRAADHIKARAN v. SHRI HUMUD JAIN SAMAJ TRUST7 has held as follows: “…. …. …. 3. The facts of the case reveal that the appellant Indore Vikas Praadhikaran (IDA), hereinafter referred to as “IDA” 7 2024 SCC OnLine SC 3511 82 issued an advertisement inviting bids for leasing out land admeasuring 3382 sq. meters situated at Scheme No. 74-C, Sector C, Indore, on 17.07.2020 and the terms and conditions were specified in the Notice Inviting Tender (NIT). The reserve price was fixed at Rs. 21,120/- per square meter. The IDA pursuant to the NIT dated 17.07.2020 received three bids and the bid of respondent No. 1-Shri Humud Jain Samaj Trust was the highest as a bid of Rs. 25,671.90/- per square meter was offered in the matter. The bids were opened on 09.09.2020. The Tender Committee while it was finalizing the bids noticed that in respect of the land in question, a property tax demand to the tune of Rs. 1.25 crores was outstanding and the same was not taken into account while fixing the base price and, therefore, the Tender Committee arrived at a conclusion not to accept any of the bids and to issue a fresh tender with a reserve price of Rs. 26,000/- per square meter. The matter was placed before the Board of IDA and on 27.07.2021, the Board accepted the recommendation of the Tender Committee. The bid of respondent No. 1 was rejected and it was resolved to issue a fresh NIT in the matter. Respondent No. 1 was informed on 23.08.2021 about the rejection of bid of respondent No. 1 and on 01.10.2021, the earnest money was also refunded. On 18.10.2021, the IDA passed a resolution for issuance of a fresh NIT with a reserve price of Rs. 26,000/- per square meter and thereafter, a fresh NIT was issued on 17.11.2021. Respondent No. 1 after issuance of the fresh NIT preferred a writ petition on 24.11.2021 before the High Court of Madhya Pradesh, inter alia, challenging resolution dated 27.07.2021 rejecting the bid as well as being aggrieved by the issuance of fresh NIT dated 17.11.2021. 4. It is pertinent to note that respondent No. 1 did not participate in the subsequent NIT issued on 17.11.2021. Respondent No. 1 before the High Court stated that by no stretch of imagination, his bid could have been cancelled as he was the highest bidder. It was further stated by respondent No. 1 before the learned Single Judge that he is ready to negotiate in the matter and the bid has been cancelled without assigning any reason. 83 5. The IDA did file a detailed and exhaustive reply before the learned Single Judge and reliance was placed upon the terms and conditions of the NIT. Heavy reliance was placed upon Condition No. 6 which empowered the IDA to accept or reject any or all bids. Learned Single Judge after hearing the parties at length arrived at the conclusion that the petitioner Trust is not entitled to any relief as no contract was executed at any point of time nor any letter of allotment was issued in its favour. Learned Single Judge also held that the highest bidder does not acquire any vested right to have the auction concluded in his favour and the IDA was justified in issuing fresh NIT in the matter. 6. Respondent aggrieved by the orders passed by the learned Single Judge preferred a writ appeal and the Division Bench of the High Court of Madhya Pradesh at Indore Bench allowed the writ appeal directing the IDA to allot the plot to respondent in case he is ready to pay the price of the land in question at Rs. 26,000/- per square meter. Para 6, 7 and 8 of the order passed by the Division Bench of the High Court reads as under: “6. The dates and events of the case are not in dispute. In the first NIT, the base price of the land was Rs. 21,000/- per sq. meter as fixed by the Indore Development Authority. Out of three bidders, the petitioner offered the highest bid. Rs. 25671.90/-. The property tax on land to the Municipal Corporation is payable by IDA. The resolution has been passed with the hope that the IDA might fetch higher prices than the price received in the first round of NIT. Unfortunately in the second round not, a single bidder had participated and the tender proceedings have resulted in an unsuccessful attempt. In all bona fide, the petitioner has submitted that the petitioner is still ready to match the base price fixed by the Indore Development Authority in the second tender by paying the amount of Rs. 26,000/- per sq. meter. 7. Had the Indore Development Authority received an offer in the second NIT more than Rs. 26,000/- per sq. meter certainly the petitioner would not have any case before this court. But in the second round of NIT, the Indore Development Authority has failed to receive any bid hence the right of the petitioner is still survived to claim the allotment being a successful bidder. The petitioner had 84 approached this court by way of the writ petition before issuance of the second NIT and immediately after dismissal of the writ petition the writ appeal has been filed therefore, the cause for the petitioner is still survived. The Indore Development Authority has wasted public money by cancelling the first NIT and going for the second NIT. Learned counsel or the Indore Development Authority submitted that has the petitioner/appellant participated in the subsequent tented process the allotment would have been done on quoting the price of Rs. 26000/- it means the Indore Development Authority has no issue in giving the land to the petitioner/appellant but same will not be given through the court as it is beyond judicial review. For this approach of the Indore Development Authority, a cost is liable to be imposed. 8. Accordingly, the writ appeal is allowed, and the order passed by the writ court is set aside. If the petitioner is ready to pay the price of the in question land @Rs. 26,000/- per sq. meter the land in question be allotted to the appellant.” 7. Hon'ble Division Bench while allowing the writ appeal has held that the respondent was the highest bidder as in the first round of the tendering process, the base price of the land was fixed at Rs. 21,120/- per square meter and the respondent No. 1 offered a bid of Rs. 25,671.90/- per square meter. In the second round while issuing fresh NIT, the IDA has fixed the base price at Rs. 26,000/- per square meter and no offer was received by the IDA in the second round of more than Rs. 26,000/- per square meter and, therefore, the Division Bench held that in case the respondent is willing to pay the amount at the rate of Rs. 26,000/- per square meter, the land in question should be allotted to the respondent No. 1. 8. The IDA being aggrieved by the order passed by the Division Bench of the High Court of Madhya Pradesh at Indore, dated 08.02.2022, has preferred the present appeal…. …. …. …. 12. In the present case, the undisputed facts reveal that first NIT was issued on 17.07.2020 and respondent No. 1 was certainly the highest bidder by offering a bid of Rs. 25,671.90/- per square meter. The Tender Evaluation 85 Committee after examining the bid arrived at a conclusion to cancel the tender as it came to its notice that an outstanding property tax demand amounting to Rs. 1,25,82,262/- was not taken into account while fixing the base price. It was resolved to issue a fresh NIT and, therefore, a fresh NIT was issued on 17.11.2021 and for the reasons best known to the respondent No. 1, it did not participate in the second NIT and instead preferred a writ petition on 24.11.2021 before the High Court of Madhya Pradesh. Learned Single Judge was justified in dismissing the writ petition on the ground that merely by offering highest bid, the respondent No. 1 did not acquire any vested right for the execution of the contract in its favour. The Division Bench of the High Court, however, allowed the writ appeal and has gone to the extent in directing the IDA to accept the offer of respondent No. 1 which was made before the Court for an amount of Rs. 26,000/- per square meter in respect of the land in question, and further directing IDA to allot the land in question to respondent No. 1. This Court in the case of State of Jharkhand v. CWE-SOMA Consortium (supra) while dealing with the similar issue of annulment of tender process, in paras 21, 22 and 23 has held as under: “21. Observing that while exercising power of judicial review, the Court does not sit as appellate court over the decision of the Government but merely reviews the manner in which the decision was made, in Tata Cellular v. Union of India [Tata Cellular v. Union of India, (1994) 6 SCC 651], SCC in para 70 it was held as under : (SCC p. 675) “70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no 86 question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.” 22. The Government must have freedom of contract. In Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd. [Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd., (2005) 6 SCC 138], SCC in para 12 this Court held as under : (SCC p. 147) “12. After an exhaustive consideration of a large number of decisions and standard books on administrative law, the Court enunciated the principle that the modern trend points to judicial restraint in administrative action. The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. The Government must have freedom of contract. In other words, fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principles of reasonableness but also must be free from arbitrariness not affected by bias or actuated by mala fides. It was also pointed out that quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. (See para 113 of the Report, SCC para 94.)” The Court does not have the expertise to correct the administrative decision as held in Laxmikant v. Satyawan [Laxmikant v. Satyawan, (1996) 4 SCC 208], the Government must have freedom of contract. 23. The right to refuse the lowest or any other tender is always available to the Government. In the case in hand, the respondent has neither pleaded nor established 87 mala fide exercise of power by the appellant. While so, the decision of the Tender Committee ought not to have been interfered with by the High Court. In our considered view, the High Court erred in sitting in appeal over the decision of the appellant to cancel the tender and float a fresh tender. Equally, the High Court was not right in going into the financial implication of a fresh tender.” 13. This Court in the aforesaid case has held that while exercising power of judicial review, the Court does not sit as an appellate Court over the decision of the government but merely reviews the manner in which the decision was made [Tata Cellular v. Union of India, (1994) 6 SCC 651]. In the considered opinion of this Court, the Division Bench should not have interfered in the matter and could not have gone to the extent of fixing the base price/modifying the offer made by respondent and, therefore, in light of the aforesaid judgment as the High Court has virtually passed an order sitting in appeal over the decision of the government in absence of any mala fide exercise of power by the IDA, the judgment passed by the Division Bench of the High Court deserves to be set aside and is, accordingly set aside. This Court in the case of Haryana Urban Development Authority v. Orchid Infrastructure Developers Pvt. Ltd. (supra) again dealing with the cancellation of a bid of the highest bidder, in paragraphs 12, 13, 14, 15, 16 and 30 has held as under: “12. Firstly, we examine the question whether there being no concluded contract in the absence of acceptance of bid and issuance of allotment letter, the suit could be said to be maintainable for the declaratory relief and mandatory injunction sought by the plaintiff. The plaintiff has prayed for a declaration that rejection of the bid was illegal. Merely by that, the plaintiff could not have become entitled for consequential mandatory injunction for issuance of formal letter of allotment. The court while exercising judicial review could not have accepted the bid. The bid had never been accepted by the authorities concerned. It was not a case of cancellation of bid after being accepted. Thus, even assuming as per the plaintiff's case that the Administrator was not equipped with the power and the Chief Administrator had the power to accept or refuse the bid, there had been no decision by the Chief Administrator. 88 Thus, merely by declaration that rejection of the bid by the Administrator was illegal, the plaintiff could not have become entitled to consequential relief of issuance of allotment letter. Thus the suit, in the form it was filed, was not maintainable for relief sought in view of the fact that there was no concluded contract in the absence of allotment letter being issued to the plaintiff, which was a sine qua non for filing the civil suit. 13. It is a settled law that the highest bidder has no vested right to have the auction concluded in his favour. The Government or its authority could validly retain power to accept or reject the highest bid in the interest of public revenue. We are of the considered opinion that there was no right acquired and no vested right accrued in favour of the plaintiff merely because his bid amount was highest and had deposited 10% of the bid amount. As per Regulation 6(2) of the 1978 Regulations, allotment letter has to be issued on acceptance of the bid by the Chief Administrator and within 30 days thereof, the successful bidder has to deposit another 15% of the bid amount. In the instant case, allotment letter has never been issued to the petitioner as per Regulation 6(2) in view of non-acceptance of the bid. Thus, there was no concluded contract. Regulation 6 of the 1978 Regulations is extracted hereunder: “6. Sale of lease of land or building by auction.—(1) In the case of sale or lease by auction, the price/premium to be charged shall be such reserve price/premium as may be determined taking into consideration the various factors as indicated in sub-regulation (1) of Regulation 4 or any higher amount determined as a result of bidding in open auction. (2) 10 per cent of the highest bid shall be paid on the spot by the highest bidder in cash or by means of a demand draft in the manner specified in sub-regulation (2) of Regulation 5. The successful bidder shall be issued allotment letter in Form CC or C-II by registered post and another 15 per cent of the bid accepted shall be payable by the successful bidder, in the manner indicated, within thirty days of the date of allotment letter conveying acceptance of the bid by the Chief Administrator; failing which the 10 per cent amount already deposited shall stand 89 forfeited to the authority and the successful bidder shall have no claim to the land or building auctioned. (3) The payment of balance of the price/premium, rate of interest chargeable and the recovery of interest shall be in the same manner as provided in sub-regulations (6) and (7) of Regulation 5. (4) The general terms and conditions of the auction shall be such as may be framed by the Chief Administrator from time to time and announced to the public before auction on the spot.” 14. We are fortified in our view by a decision of this Court in U.P. Avas Evam Vikas Parishad v. Om Prakash Sharma [U.P. Avas Evam Vikas Parishad v. Om Prakash Sharma, (2013) 5 SCC 182 : (2013) 2 SCC (Civ) 737], wherein the questions arose for its consideration that : whether there is any vested right upon the plaintiff bidder until the bid is accepted by the competent authority in relation to the property in question? Merely because the plaintiff is the highest bidder by depositing 20% of the bid amount without there being approval of the same by the competent authority and it amounts to a concluded contract in relation to the plot in question; and whether the plaintiff could have maintained the suit in the absence of a concluded contract? Considering the aforesaid questions, this Court has discussed the matter thus : (SCC pp. 195-97, paras 30-31) “30. In support of the said proposition, the learned Senior Counsel for the defendant, Mr. Rakesh Dwivedi has also placed reliance upon another decision of this Court in State of U.P. v. Vijay Bahadur Singh [State of U.P. v. Vijay Bahadur Singh, (1982) 2 SCC 365]. The learned Senior Counsel has rightly placed reliance upon the judgment of this Court in Rajasthan Housing Board case [Rajasthan Housing Board v. G.S. Investments, (2007) 1 SCC 477] which reads as under : (SCC p. 483, para 9) ‘9. This being the settled legal position, the respondent acquired no right to claim that the auction be concluded in its favour and the High Court clearly erred in entertaining the writ petition and in 90 not only issuing a direction for consideration of the representation but also issuing a further direction to the appellant to issue a demand note of the balance amount. The direction relating to issuance of the demand note for balance amount virtually amounted to confirmation of the auction in favour of the respondent which was not the function of the High Court.’ In State of Orissa v. Harinarayan Jaiswal [State of Orissa v. Harinarayan Jaiswal, (1972) 2 SCC 36] case, relevant paragraph of which reads as under : (SCC pp. 44- 45, para 13) ‘13. … There is no concluded contract till the bid is accepted. Before there was a concluded contract, it was open to the bidders to withdraw their bids (see Union of India v. Bhim Sen Walaiti Ram [Union of India v. Bhim Sen Walaiti Ram, (1969) 3 SCC 146] ). [Ed. : The matter between two asterisks has been emphasised in Avam Evam Vikas Parishad case, (2013) 5 SCC 182.] By merely giving bids, the bidders had not acquired any vested rights [Ed. : The matter between two asterisks has been emphasised in Avam Evam Vikas Parishad case, (2013) 5 SCC 182.]’. 31. In view of the law laid down by this Court in the aforesaid decisions, the learned Senior Counsel Mr. Rakesh Dwivedi has rightly placed reliance upon the same in support of the case of the first defendant, which would clearly go to show that the plaintiff had not acquired any right and no vested right has been accrued in his favour in respect of the plot in question merely because his bid amount is highest and he had deposited 20% of the highest bid amount along with the earnest money with the Board. In the absence of acceptance of bid offered by the plaintiff to the competent authority of the first defendant, there is no concluded contract in respect of the plot in question, which is evident from letters dated 26-5-1977 and 8-7-1977 wherein the third defendant had rejected the bid amount deposited by the plaintiff and the same was refunded to him by way of demand draft, which is an undisputed fact and it is also not his case that the then Assistant 91 Housing Commissioner who has conducted the public auction had accepted the bid of the plaintiff.” 15. This Court in Om Prakash Sharma case [U.P. Avas Evam Vikas Parishad v. Om Prakash Sharma, (2013) 5 SCC 182 : (2013) 2 SCC (Civ) 737] has held that in the absence of a concluded contract which takes place by issuance of allotment letter, suit could not be said to be maintainable as there is no vested right in the plaintiff without approval of the bid by the competent authority. Thus, in the wake of the aforesaid decision, in the absence of a concluded contract, the suit could not have been decreed for mandatory injunction. It amounted to enforcing of contract in the absence thereof.” (Emphasis supplied) The Apex Court holds that unless contract is awarded in anybody’s favour, it cannot be said that the Tender Inviting Authority had no right to cancel the tender. The Apex Court elucidates the very issue as the bid of a tenderer could be cancelled, notwithstanding the fact that he was notified to be the highest bidder and the tender was cancelled without assigning any reasons. 13. The Apex Court, in the afore-quoted judgments, reiterates the law laid down in the cases of HARYANA URBAN DEVELOPMENT AUTHORITY and EVA AGRO FEEDS and has held that fixing of price could be a matter on which the tender could be cancelled. No right of any bidder is taken away merely because he 92 has been declared to be the highest bidder or the lowest bidder as the case would be. Unless a contract is signed between the parties, no tenderer would get any right. In the case at hand, still no tenderer was notified to be the successful tenderer. One of the reasons for that is pendency of these petitions and an interim order granted. Therefore, the plea put forth by the learned senior counsel Sri Jayakumar S.Patil and Sri P. Prasanna Kumar is unacceptable , as there is no concluded contract between the parties to contend that tender could not be withdrawn. If the withdrawal was bereft of reasons, it would have been an all together different circumstance. Elaborate deliberation in the meetings held by the BBMP is also placed before Court. It nowhere indicates that it is bereft of reasons or without application of mind. The entire Government order is quoted supra which details reasons to recall or cancel the earlier tender. Therefore, cancellation of tender cannot be held to be arbitrary, as is sought to be contended by the learned counsel. Therefore, the petitions in the form that they are presented before the Court, would be unnecessary to be adjudicated upon, in the light of fresh tender notification. 93 14. As submitted by the learned Advocate General that every tenderer or every contractor who are parties to the present petitions would be eligible to participate in the new tender, I find no reason to obliterate the new tender and permit the old tender to be taken to its logical conclusion, notwithstanding elaborate reasons rendered by the Authorities for recall of the tender. The learned senior counsel Sri Jayakumar S. Patil takes this court through the counter affidavit filed, the affidavit of the State to contend that the reasons projected for cancellation of tender with particular reference to economic viability is a ruse to recall the earlier tender and continue with the fresh tender. He wants this Court to assess the price quoted earlier and now – the reserve price then and the reserve price now. All these would be in the jurisdiction of the Tender Inviting Authority. This Court in exercise of its jurisdiction under Article 226 of the Constitution would not sit in the arm chair of experts to assess the price bids that had come about earlier or the reserve price. The only examination in the cases at hand was qua tenability of cancellation of tender. I find that cancellation of 94 tender is based on sound reasoning and does not suffer from palpable or demonstrable arbitrariness. 15. For the aforesaid reasons, the following: O R D E R (i) All the Writ Petitions stand disposed. (ii) The new tender that is issued during the subsistence of the subject petitions are sustained, finding no illegality. (iii) The petitioners are permitted to participate in the fresh tender that is now notified. (iv) The State shall redraw the timeline for completion of the process of tender at an outer limit of 4 months, if not earlier. The timeline shall be filed before this Court, by way of an affidavit, for its strict adherence. (v) As undertaken by the learned Advocate General, the petitioners who have challenged rejection of their tender or disqualification, would not come in the way their participation in the tender nor that would weigh in the mind of the Tender Scrutiny Committee while scrutinizing the bids of those petitioners. 95 (vi) Liberty is reserved to the petitioners to move the Court in the event of breach of timeline and if there is breach of timeline, the matter would be viewed seriously. Interim order, if any operating in these cases, shall stand dissolved. Pending applications if any, also stand disposed, as a consequence. Sd/- (M. NAGAPRASANNA) JUDGE bkp CT:SS