Hangal Taluka Civil Contractors Association (R) v. State Of Karnataka
2022-12-01
N.S.SANJAY GOWDA
body2022
DigiLaw.ai
ORDER : In all these petitions the petitioners are challenging the tender notifications issued by the District Urban Development Cell in respect of works to be undertaken under the Nagarothana phase-IV work in various Talukas. 2. It is their case that the notifications cannot be sustained in view of the circular dated 11.05.2022, which mandates that in respect of the works at the Taluka level, the tender should be so packaged so as to have a maximum value of Rs.1,00,00,000/-. However, it is their contention that despite this bar to package a tender in excess of Rs.1,00,00,000/-, the State by the impugned tenders had prescribed a package value in excess of Rs.1,00,00,000/-. 3. The petitioners contend that this Court in Writ Petition No.11604/2022 while dealing with a similar challenge to similar notifications issued for execution of Nagarothana works had held that the tenders in question in those writ petitions had been issued pursuant to approvals granted prior to 11.05.2022 and therefore could not be struck down. It is submitted that therefore the applicability of the circular dated 11.05.2022 to Nagarothana works cannot be in dispute at all. 4. Learned counsel for the petitioners also submits that a clear and categorical statement was made by the State, that in future, while inviting tenders, the circular dated 11.5.2022 would be strictly adhered to and this statement was taken on record by this Court and therefore the bar provided under the said circular cannot be avoided. It is submitted that in all these cases, the administrative approvals were granted after 11.05.2022 and tender notifications had been issued thereafter and this therefore clearly contravened the limit of Rs.1 crore set in the circular dated 11.05.2022 and were therefore liable to be struck down. 5. Learned AAG, on the other hand, contended that the Nagarothana Scheme was a completely different scheme and the circular dated 11.05.2022 had no application to it. She submitted that it would be impossible for the works to be undertaken under the Nagarothana Scheme if the limit of Rs.1 crore were to be applied as per the circular dated 11.05.2022. Learned AAG also submitted that the circular dated 11.05.2022 would not be applicable to a scheme such as the Nagarothana Scheme and this circular can be made applicable only to the other tenders called by the State in respect of other works.
Learned AAG also submitted that the circular dated 11.05.2022 would not be applicable to a scheme such as the Nagarothana Scheme and this circular can be made applicable only to the other tenders called by the State in respect of other works. She therefore submitted that the writ petitions are liable to be dismissed. 6. She submitted that under the Nagarothana Scheme, the scheme contemplated that the minimum value of works ought to be Rs.1 crore and obliviously in view of this minimum value prescribed under the scheme, the maximum limit of Rs.1 crore cannot be applied as had been prescribed under the circular dated 11.05.2022. 7. She also submitted that under the Nagarothana Scheme, the works could be undertaken in one and two packages and this also indicated that the circular dated 11.05.2022 had no application for these works. She also submitted that a post facto approval had been granted by Finance Department on 11.07.2022 and the Department chose not to modify Clause 16 relating to the prescribed minimum tender value of Rs.1 crore and therefore, the circular dated 11.05.2022 would have no application. She lastly submitted that since the Finance Department which had issued the circular dated 11.05.2022 had itself granted approval to the Nagarothana Scheme, by clear implication, the bar under circular dated 11.05.2022 cannot be applied. 8. Admittedly, in W.P.No.11604/2022, this Court was dealing with a challenge to tender notifications relating to works under the Nagarothana Scheme itself. In that case, the specific contention advanced was that the tender notifications were in total violation of the circular dated 11.05.2022 and the specific argument advanced was that the very object of issuing a circular dated 11.05.2022 was to encourage small contractors and if despite the circular, at the Taluka level, if works in excess of Rs.1 crore were invited, the very object of the circular dated 11.05.2022 would be defeated. 9. In that case, the State, despite the specific plea being taken relating to the circular dated 11.05.2022, did not put forth the plea that the circular dated 11.05.2022 would have no applicability to the Chief Minister’s, Amrut Nagarothana (Municipality) Project, Phase-4. In fact, the only contention urged before this Court was that the circular dated 11.05.2022 was inapplicable since the Government had granted administrative approvals to the work prior to 11.05.2022.
In fact, the only contention urged before this Court was that the circular dated 11.05.2022 was inapplicable since the Government had granted administrative approvals to the work prior to 11.05.2022. This Court taking note of that fact proceeded to dismiss the writ petition on the ground that the circular dated 11.05.2022 had no application. Thus, the applicability of the Circular dated 11.05.2022 to works under the Nagarothana Scheme was not disputed by the State at all. 10. The crucial aspect to be considered is that though this Court dismissed the writ petition, the State made a clear and categorical statement that in future while inviting the tenders, the circular bearing 11.05.2022 would be strictly adhered to. This statement was also taken on record by this Court. Thus, it was the clear and categorical case of the Government itself that even in respect of the Chief Minister’s, Amrut Nagarothana (Municipality), Phase-4, the provisions of the circular dated 11.05.2022 would be applied in future. The State having taken up the clear stand that even in respect of the Nagarothana Scheme, the circular dated 11.05.2022 would be applicable, would be estopped from putting forth the plea that the circular dated 11.05.2022 will have no application. If, really the circular dated 11.05.2022 had no application to the Nagarothana Scheme, the State would not have made the categorical statement that they would apply the circular dated 11.05.2022 in all future tenders. It is therefore clear that the applicability of the circular dated 11.05.2022 cannot be avoided by the State especially after the stand it took in the earlier round of litigation. 11. Learned AAG however sought to contend that the Nagarothana Scheme was a special scheme for which specific provisions were made and as a consequence the circular dated 11.05.2022 cannot be applied to those works. 12. She laid the great emphasis on the fact that the Finance Department had approved the scheme and also to the amendments made to the said scheme. According to her, since the Finance Department had approved the scheme which contained the clause that the works with minimum value of Rs.1 crore had to be executed, the circular which prescribed a maximum of Rs.1 crore would impliedly be inapplicable. 13. This argument of the learned AAG could have been accepted in the normal course but for the stand taken by the State in W.P.No.11604/2022.
13. This argument of the learned AAG could have been accepted in the normal course but for the stand taken by the State in W.P.No.11604/2022. The State having taken a stand and assured this Court that in future the circular dated 11.05.2022 would be applicable to all further works and that too when the Court was considering the validity of a tender notification issued in favour Nagarothana schemes itself, cannot be allowed to resail from the said stand. 14. The State despite being aware of these batch of litigation has also not taken any steps to seek for modification or clarification of the order passed in W.P.No.11064/2022. Thus, in the light of the statement made in W.P.No.11064/2022 which was accepted and taken on record by this Court, even in respect of Chief Minister’s, Amrut Nagarothana (Municipality), Phase-4, the conditions contained in circular dated 11.5.2022 would be applicable. 15. In the instant case, it is not in dispute that administrative approvals were granted for the works only after 11.5.2022. The dates on which the administrative approval was granted and the date on which the notifications were issued are herewith stated in a tabular column for the purpose of clarity. Sl.No. W.P.No. Date of Administrative approval Date of notification 1. 103437/2022 03/06/2022 20/08/2022 2. 104822/2022 03/06/2022 21/10/2022 3. 104013/2022 18/05/2022 02/09/2022 4. 103755/2022 02/06/2022 29/07/2022 5. 104062/2022 13/05/2022 July-2022 6. 103745/2022 03/06/2022 06/07/2022 7. 104163/2022 10/10/2022 11/10/2022 8. 105424/2022 15/10/2022 29/10/2022 16. As could be seen from the above tabular column, administrative approvals were granted for the issuance of the tender notification only after 11.05.2022. In view of the statement made by the State in W.P.No.11604/2022 regarding adherence to the circular dated 11.05.2022 the said circular stand automatically attracted. Further, as the tender notifications impugned in these writ petitions are in clear contravention of the maximum limit of Rs.1 crore prescribed under the circular dated 11.05.2022 and admittedly the works are in respect of works at the Taluka level, the impugned tender notifications cannot be sustained. They are accordingly quashed. 17. The writ petitions are accordingly allowed in so far as the tenders to which a challenge has been made by the petitioners in this batch of writ petitions only.