Full Judgment
-1- IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 31ST DAY OF JANUARY, 2024 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO.100576 OF 2024 (GM-TEN) C/W WRIT PETITION NO.100525 OF 2024 IN WP.NO.100576/2024 BETWEEN: THE REEF ADVENTURES, BY ITS PROPRIETOR, SRI ABU ZUHEB S/O. MOHAMMED SALEEM HEGDE, AGE: 38 YEARS, OCC: AGRICULTURE, R/O. “THE REEF ADVENTURES”, D NO. 411, NEAR V.R. TEMPLE, POST OFFICE ROAD, MAVALLI 1 MURDESHWAR, BHATKAL TALUK, UTTAR KANNADA DISTRICT, KARNATAKA -581350. …PETITIONER (BY SRI. ROHIT L. SHEELVANTH & SRI. V.M. SHEELVANTH, ADVOCATES) AND: YASHAVANT NARAYANKAR
1. THE STATE OF KARNATAKA, Digitally DEPARTMENT TOURISM, signed by YASHAVANT NARAYANKAR R/BY IT’S SECRETARY, VIKASA SOUDHA, BENGALURU-560001.
2. DEPUTY COMMISSIONER AND PRESIDENT OF DISTRICT TOURISM DEVELOPMENT COMMITTEE, KARWAR-581301, DIST. UTTAR KANANDA.
3. DEPUTY DIRECTOR AND MEMBER SECRETARY, DIST TOURISM DEVELOPMENT COMMITTEE, KARWAR-581301, DIST. UTTAR KANNADA. …RESPONDENTS (BY SRI. GANGADHAR J.M., AAG FOR SRI. PRAVEEN UPPAR, AGA FOR R1 TO R3) -2- THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT,
ORDER OR DIRECTION AND QUASH THE ORDER VIDE ORDER
BEARING NO. PRA.E/U.NI.KA/KAA/2023-24/714 DATED 23-01-2024 PRODUCED AT ANNEXURE-D IN THE INTEREST OF JUSTICE AND EQUITY; ISSUE A WRIT IN THE NATURE OF MANDAMUS OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION DIRECTING THE RESPONDENTS TO PERMIT THE PETITIONER TO RUN THE SCUBA DIVING ACTIVITIES AT NETARNI ISLAND UNTIL ISSUANCE OF FRESH
TENDER NOTIFICATION AND FINALIZATION OF THE WORK ORDER
AS PER REPRESENTATION PRODUCED AT ANNEXURE-C IN THE INTEREST OF JUSTICE AND EQUITY. WP NO.100525/2024 (GM-TEN) BETWEEN: NETRANI ADVENTURES BY ITS PROPRIETOR, SHRI GANESH HARIKANTH, S/O. MANJUNATH HARKANTH, AGE: 40 , OCC: BUSINESS, SONARKERI MAVALI, 1ST MURUDESHWAR, TQ: BHATKAL, DIST: UTTARA KANNADA-581350. …PETITIONER (BY SMT. VIDYAVATI M. KOTTURURSHETTAR, ADVOCATE) AND:
1. THE STATE OF KARNATAKA, DEPARTMENT TOURISM, R/BY ITS SECRETARY, VIKASA SOUDHA, BENGALURU-560001.
2. DEPUTY COMMISSIONER AND PRESIDENT OF DISTRICT TOURISM DEVELOPMENT COMMITTEE, KARWAR-581301, DIST: UTTAR KANNADA.
3. DEPUTY DIRECTOR AND MEMBER SECRETARY,
DISTRICT TOURISM DEVELOPMENT COMMITTEE, KARWAR-581301. DIST: UTTARKANNADA. …RESPONDENTS (BY SRI. GANGADHAR J.M., AAG FOR SRI. PRAVEEN UPPAR, AGA FOR R1 TO R3) -3- THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING ISSUE A WRIT IN
NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER
ANNEXURE-F VIDE NO.NOTICE/ORDER PRA.E/U.NI.KA/KAA/2023WRIT OF MANDAMUS DIRECTING THE RESPONDENTS TO PERMIT THE PETITIONER TO RUN THE SCUBA DIVING ACTIVITIES AT NETRANI ISLAND UNTIL ISSUANCE OF FRESH TENDER NOTIFICATION AND FINALIZATION OF THE WORK ORDER AS PER REPRESENTATION DATED 18.01.2024 ANNEXURE-E IN THE INTEREST OF JUSTICE AND EQUITY. THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioners in both the matters are before this court seeking for the following reliefs. IN WP.NO.100576/2024 i. Issue a writ in the nature of certiorari or any other appropriate writ, order or direction and quash the
order vide order bearing No.
PRA.E/U.NI.KA/KAA/2023-24/714 dated 23-01- 2024 produced at Annexure-D in the interest of justice and equity.
ii. Issue a writ in the nature of Mandamus or any other appropriate writ, order or direction directing the respondents to permit the petitioner to run the scuba diving activities at Netarni island until issuance of fresh tender notification and finalization of the work order as per representation produced at Annexure-C in the interest of justice and equity.
iii. Grant such other reliefs as deemed fit in the circumstances of the case and in the interest of justice and equity. -4- IN WP.NO.100525/2024 i. Issue a writ in nature of certiorari quashing the impugned order Annexure-F vide No.notice/order PRA.E/U.NI.KA/KAA/2023-24/714 dated 23.01.2024 issued by 3rd Respondent. ii. Issue a writ of mandamus directing the Respondents to permit the petitioner to run the scuba diving activities at Netrani Island until issuance of fresh
tender notification and finalization of the work order
as per representation dated 18.01.2024 Annexure-E in the interest of justice and equity. iii. Pass such other orders as this Hon’ble Court deems fit in the facts and circumstances of the case, including costs, in the interest of justice and equity.
2. The petitioners in both the matters are running scuba diving activities at Netarni Island, they being successful bidders in terms of the tender notification issued by respondent Nos.2 and 3.
3. The term of the petitioner in W.P.No.100576/2024
was from 24.01.2022 to 23.01.2024. The term of the petitioner in W.P.No.100525/2024 was from 24.01.2022 to 23.01.2024. The petitioners are before this Court contending that terms having expired as aforesaid, no new tender having been called for, the petitioners ought to be permitted to continue the -5- activity until a new tender is called for and a work
order is allotted to the successful tenderer.
4. The submission of both Sri. Sheelvant and
Smt.Vidyavati M. Koturushettar, learned counsel for the petitioners is that the time period from the expiry of the tender to the finalization of new tender, there would be no revenue earned by the State, apart there from the petitioners have also taken on bookings for scuba diving. There being many persons dependent on the activities of the petitioners. If they are not permitted to continue such activities, they would suffer irretrievably and as such, they be permitted to continue the activities until a new tender is finalized. The further submission made is that there are huge amounts of money which have been invested and if the petitioners are permitted to continue the activities, they will be able to recover some more of the investment made. -6-
5. Learned Additional Advocate General, however,
would submit that the term having expired, the State is in the process of issuing tenders, which they will do forthwith, the petitioners being at liberty to participate in the said new tender process. If they are successful, they would be issued with the work order. His submission is that once the tender period has come to an end, the commercial terms will apply and therefore, the petitioners cannot contend that after the expiry of the term of the tender any loss would be caused to them. His last submission is that there is a discretion of the State as to whether to issue a tender or not, and whether any extension is to be granted or not, and the same cannot be interfered with by this court.
6. Heard Sri. Sheelvant, Smt. Vidyavati M. Kotturshettar, learned counsel appearing for the petitioners, learned Additional Advocate General for respondents-State and perused the papers. -7-
7. Admittedly, the work order has been issued for
carrying of scuba driving etc., The term of the tender/work order which had been issued to the petitioners has expired in the last week of January- 2024. A term of the tender for both the petitioners was a period of two years and it is during this period that the petitioners could carry on their activities. Now, merely because a new tender has not been issued, the petitioners cannot be heard to contend that their interest would suffer and for that reason, the petitioners should be allowed to continue with their work. There is no vested right which is created in favour of the petitioners to carry on the work under said expired work order/tender. It is only in the event of the petitioners being successful in the new tender issued that a work order would be issued to them.
8. Such being the case, the relationship between the
petitioner and the State being contractual and -8- commercial in nature, it is the terms of the said contract which would be applicable and govern the parties to the dispute. The petitioners cannot now claim equity after the expiry of the term to contend that they would be put to a loss and/or that they have made huge investments in respect to the contract, which was a time bound one and which has already expired. At the most, the petitioners will have a right to participate in a fresh tender as and when issued by the State.
9. The submission of learned Additional Advocate
General that the tender would be issued within a period of one week and the entire process of receiving the bids, evaluating the technical and financial bids and issuing work orders will be completed within one month thereafter, would answer the grievance of the petitioners.
10. The manner in which the above tenders have been
called for would also require this court to issue -9- general directions. In that, the State knowing fully well that a tender would come to an end on a particular date. It was but required for the State to take into consideration the time period, which would be taken for issuance and finalization of a new tender and issue such a tender within the said time period before the term of the contract expired. It is on account of the State not having issued such tender that the petitioners have also continued with their business activities and they hope for the same to be continued until a new tender is issued. If at all a tender had been issued within the time frame of the old tender continuing, then the petitioner could have participated in such tenders and if successful, continue their business activities. As such, the 1st respondent is directed to ensure that in future whenever the term of the contract were to end on a particular date or month, a new tender to be issued at least 45 days before such expiry so that the entire tender process could be completed before contract - 10 - period comes to an end. An affidavit of compliance in this regard to be filed by the 1st respondent within three weeks from today. In view of the above discussion, I pass the following:
ORDER
i) Both the writ petitions are dismissed on account of the submission and undertaking of the learned Additional Advocate General.
ii) Respondent Nos.2 and 3 are directed to issue a necessary tender notification within 7 days from today and complete the entire process within 30 days thereafter. Since, the order is passed in the presence of learned Additional Advocate General, the learned Additional Advocate General is directed to inform the concerned about the present order, who shall act on the same without insisting on a copy of the order/certified copy thereof.
Sd/- JUDGE AM List No.: 1 Sl No.: 49