IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA W.P.No.30244/2017 (GM-TEN) & W.P.Nos.30057-30072/2019 c/w W.P.Nos.31590-31594/2017 IN W.P.No.30244/2017 & W.P.Nos.30057-30072/2019 BETWEEN:
DUBARE RAFTING ASSOCIATION (R) REPRESENTED BY ITS PRESIDENT KRISHNAPPA S/O LATE SHANAKAPPA AGED ABOUT 58 YEARS R/AT DUBARE ROAD NANJARAYAPATNA VILLAGE SOMAWARPET TALUK KODAGU DISTRICT PIN:571234. ... PETITIONER (BY SRI. N. DILLI RAJAN, ADVOCATE FOR SRI. SUBBA REDDY K N, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY VIDHANA SOUDHA AMBEDKAR VEEDHI BENGALURU-560001.
2. THE SECRETARY DEPARTMENT OF TOURISM VIDHANA SOUDHA AMBEDKAR VEEDHI BENGALURU-560001.
3. THE DIRECTOR PORTS AND INLAND WATER TRANSPORT DEAPRTMENT KARWAR, UTTARA KANNADA DISTRICT PIN:581301.
4. THE DEPUTY COMMISSIONER KODAGU DISTRICT MADIKERI, PIN:571201.
5. THE ASSISTANT COMMISSIONER SOMAWARPET TALUK SOMAWARPET KODAGU DISTRICT PIN:571236.
6. THE TAHSILDAR SOMAWARPET TALUK SOMAWARPET KODAGU DISTRICT PIN:571236.
7. NANJARAYAPATTANA VILLAGE PANCHAYATH REPRESENTED BY ITS PANCHAYATH DEVELOPMENT OFFICER NANJARAYAPATTANA KUSHALANAGARA HOBLI SOMAWARPET TALUK KODAGU DISTRICT PIN:571236. … RESPONDENTS (BY MS. NILOUFER AKBAR, AGA FOR R1 TO R6) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED RFQ REFERENCE DATED 28.6.2017 REQUEST FOR QUOTATIONS (RFQ) TO ARRIVE THE BID AMOUNT TO CARRY OUT WHITE RIVER RAFTING FOR A PERIOD OF 12 MONTHS IN CAUVERY RIVER AT DUBARE, SOMWARPET TALUK, KODAGU DISTRICT, KARNATAKA STATE ISSUED BY R-4 I.E., AT ANNEX-A AND ETC.
IN W.P.Nos.31590-31594/2017 BETWEEN:
1. M R UTTAPPA S/O LATE RAMAPPA AGED ABOUT 44 YEARS GUDDEHUSUR VILLAGE AND POST KUSHALNAGAR, SOMWARPET TQ, KODAGU DISTRICT-571 236.
2. M S JAGADISH S/O LATE SOMAIAH AGED ABOUT 38 YEARS BYCHANALLI VILLAGE KUSHALNAGAR, SOMWARPET TQ, KODAGU DISTRICT-571 236.
3. HANIKUMAR B G S/O GANESH B AGED ABOUT 36 YEARS HOSAKAADU, BASAVANAHALLI VILLAGE, KUSHALNAGAR, SOMWARPET TQ, KODAGU DISTRICT-571 236.
4. MANJUNATHA H S S/O SANNAIAH AGED ABOUT 32 YEARS R/AT BASAVANAHALLY VILLAGE KUSHALNAGAR, KODAGU DISTRICT-571 236.
5. B Y DEVENDRA AGED ABOUT 24 YEARS S/O D N YADAVA R/AT BASAVANAHALLI VILLAGE AND POST KUSHALNAGAR KODAGU DISTRICT-571 236. ... PETITIONERS (BY SMT. S SUMATHI, ADVOCATE FOR SRI. SURYA PRAKASH A M, ADVOCATE) AND:
1. THE STATE OF KARNATAKA CHIEF SECRETARY GOVERNMENT OF KARNATAKA BANGALORE-560 001.
2. THE PRINCIPAL SECRETARY REVENUE DEPARTMENT GOVERNMENT OF KARNATAKA BANGALORE-560 001.
3. THE SECRETARY DEPARTMENT OF TOURISM GOVERNMENT OF KARNATAKA VIDHANA SOUDHA, BANGALORE-560 001.
4. THE DEPUTY COMMISSIONER KODAGU DISTRICT MADIKERI-571 201.
5. THE SECRETARY DEPARTMENT OF PORTS AND INLAND WATERWAYS, GOVERNMENT OF KARNATAKA BANGALORE-560 001. ... RESPONDENTS (BY MS. NILOUFER AKBAR, AGA) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RELEVANT RECORDS; QUASH ANNEX-T TENDER NOTIFICATION DATED 28.6.2017 PASSED BY R-4 AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The above writ petitions are filed by the petitioner seeking to issue writ of certiorari to quash the impugned RFQ reference bearing No.DTC-KODAGU/RFQ-01/2017-
18 dated 28.06.2017, Request for Quotations (RFQ) to arrive the Bid amount to carryout White River Rafting for a period of 12 months in Cauvery River at Dubare, Somwarpet Taluk, Kodagu District, Karnataka State, issued by the fourth respondent-Deputy Commissioner, Kodagu District, Madikeri, vide Annexure-A; issue writ of mandamus directing the respondent-Authorities not to interfere with river rafting activities carried out by the Members of the Petitioner’s Association in Cauvery river at Dubare of Somwarpet Taluk, Kodagu District and direct the fourth respondent to consider the Members of the Petitioner’s Association representation dated 12.4.2017 vide Annexure-N.
2. In writ petition No.30244/2017 & & writ petition Nos.30057-30072/2019, it is the specific case of the Members of the Petitioner’s Association that they have obtained the permission from the concerned Gram Panchayath on 19.8.2011 to conduct river rafting activities in Cauvery River. The third respondent-Ports and Inland Water Transport Department issued a letter dated 05.9.2011 stating that they have no objection for conducting river rafting activities and on 18.9.2015 the Fire Department has also permitted the Members of the Petitioner’s Association to conduct river rafting activities. The fourth respondent conducted a meeting on 05.4.2016 at his office and decided to invite tender to conduct river rafting activities in Cauvery River, without issuing any notice and without giving an opportunity to the Members of the Petitioner’s Association and the said decision was published in the daily local newspaper called “SHAKTHI” on 06.4.2016. Soon after, the Members of the Petitioner’s Association have given representation dated 11.4.2016 to respondent No.4 stating that they are conducting the river rafting activities in Cauvery River by obtaining required permissions and paying taxes to the concerned Authorities and requested to reconsider his decision and permit them to continue river rafting activities. However, the fourth respondent did not consider the representation made by the Members of the Petitioner’s Association.
3. On 12.5.2016, the fourth respondent-Authority issued E-Tender Notification bearing No.DTC/Kodagu/rafting/2016-17/1 to carry out the white river rafting activities. Aggrieved by the same, the Members of the Petitioner’s Association and others filed writ petition No.30247/2016 & connected matters before this Court. The said writ petitions came to be dismissed as having become infructuous on 20.1.2017. However, the submission of the respondents in the said writ petitions has been recorded that they have no objection to the Members of the Petitioner’s Association responding to the fresh tender notification if, as and when it is issued. Subsequently, on 28.6.2017, the Deputy Commissioner- respondent No.4 issued notification-Request for Quotations (RFQ) to arrive the Bid amount to carryout White River Rafting for a period of 12 months in Cauvery River at Dubare, Somwarpet Taluk, Kodagu District, Karnataka State. Hence, the petitioners are before this Court.
4. In writ petition Nos.31590-31594/2017, it is the case of the petitioners that the first petitioner has obtained the license from the concerned Authority i.e., Ports and Inland Water Transport Department, Government of Karnataka for running river rafting, similarly the other petitioners also obtained license and were operating river rafting activities, the license of the petitioners was renewed from time to time every year. After instructions by the concerned Authorities, the license obtained by the petitioners is valid till 2018; there are about 20 licenses of the petitioners for operating river rafting activities in Cauvery River. It is further case of the petitioners that the Deputy Commissioner-respondent No.4 on 12.5.2016 has issued the notification inviting tender to carryout the river rafting for the first time without giving notice to the Members of the Petitioner’s Association. Therefore, the petitioners were constrained to file writ petition No.30043/2016 before this Court and obtained interim order on 23.5.2016. Subsequently, the writ petition was disposed off in view of the submission made by the respondents that tender process was not finalized; hence the writ petition became infructuous reserving liberty to the petitioners to initiate proceedings if any tender notification is called for. Thereafter, the Deputy Commissioner-respondent No.4 issued the present notification on 28.6.2017. Hence, the petitioners filed the present writ petitions as relief sought for.
5. The proposed respondent i.e., respondent No.8 also filed applications for impleading and vacating interim order. The statement of objections has been filed on behalf of respondents-State in writ petition Nos.31590- 94/2017 & connected matters, contending that the petitioners have not obtained any valid license from the concerned Authorities for running river rafting activities in Cauvery River. The said claimed licenses in the petitions marked at Annexures-A to G are issued by the Department of Ports and Inland Water Transport, Government of Karnataka only for the purpose of River worthiness and it is not a license for running the river rafting activities as alleged in the writ petitions. It is further contended that it is false to say that the license is valid till 14.11.2017 as alleged in the petitions. It is also false to say that the petitioners 2 to 4 are also having license valid till 31.10.2017 and 10.5.2018 respectively as alleged in the petitions. The petitioners have not obtained any valid license for conducting river rafting activities from the appropriate Authority as required under law and therefore the petitioners are not entitled to run any river rafting activities in Cauvery River. It is further contended that the payment of taxes to the concerned Gram Panchayath and Commercial Tax offices cannot be treated as permission for running any river rafting activities in Cauvery River. The Gram Panchayath and Commercial Tax Department are not authorized to issue any certificate with regard to running river rafting activities in Cauvery River.
6. It is further contended that the Deputy Commissioner-respondent No.4 is an Authority who has right to invite quotations in respect of river rafting activities and the same has been done. The question of issuing notice to the petitioners and providing an opportunity of hearing them by the respondents as alleged does not arise at all for consideration and therefore the respondents have not violated the principles of natural justice as alleged by the petitioners. No licenses came to be issued in favour of the petitioners and therefore the allegations made by the them are false and fictitious and the respondents invited quotations to arrive at the bid amount for river rafting activities and have not called for tender as alleged by the petitioners and as such there is no illegality in the notification issued by respondent Nos.3 & 4. It is further contended that the petitioners are at liberty to participate in the quotation called for, pertaining to the river rafting activities and therefore the question of causing inconvenience to the petitioners is totally uncalled for and incorrect.
7. It is further contended that the petitioners are operating river rafting activities in Cauvery River without holding any valid license and no security to the Tourists, the said acts are illegal and they are not entitled to operate any such activities. It is false to say that because of the tender the petitioners would remain unemployed as alleged in the petitions and the said question does not arise at all for consideration. Since the petitioners have obtained No Objection Certificate from the Department of Ports and Inland Water Transport, the said Department is not the licensing Authority to issue license to conduct river rafting activities in Cauvery River but on the other hand the said Department has only issued certificate of River worthiness. It is further contended that the State Government in the larger interest of all tourists and public safety has organized way planning to call for tender in accordance with KTPP Act from the professional river rafting agencies to conduct rafting activities after the quotations are finalized. Therefore, sought for dismissal of the writ petitions.
8. I have heard the learned counsels for the parties to the lis.
9. Sri. N. Dilli Rajan, learned counsel for the petitioners in writ petition No.30244/2017 & connected matters, contended that the impugned notification issued by the Deputy Commissioner on 28.6.2017 is illegal and arbitrary. He further contended that the notification has been issued without issuing any notice and without providing an opportunity of hearing to the petitioners, the same cannot be sustained under law. He further contended that the Members of the Petitioner’s Association are involved in river rafting activities by following all the required formalities. Behind the back of the petitioners without affording any opportunity of hearing or issuing any notice, the impugned vide Annexure-A cannot be sustained. He further contended that the Members of the Petitioner’s Association spent huge amount by availing loan from Banks to purchase Boats and to appoint drivers of the Boats, guides. It is further stated that around 40 to 50 family members are involved in river rafting activities for their livelihood and have invested huge amount to run the said activities. Therefore, the impugned action taken by the fourth respondent issuing Request for Quotations (RFQ) to arrive the Bid amount to carryout White River Rafting for a period of 12 months in Cauvery River at Dubare, Somwarpet Taluk, Kodagu District, Karnataka State on 28.6.2017 is utter violation under Articles 14 & 21 of the Constitution of India. Therefore, sought to allow the writ petitions.
10. Smt. S. Sumathi, learned counsel for the petitioners in writ petition Nos.31590-94/2017 reiterating the grounds urged in the writ petitions has contended that the impugned notification issued by the Deputy Commissioner-respondent No.4 is utter violation under Articles 14 & 21 of the Constitution of India. She further contended that the petitioners have obtained a valid license from the concerned Authorities and remitted tax to the Panchayath and also paid commercial Tax to operate river rafting activities in Cauvery River. Therefore, the impugned notification issued by the fourth respondent- Deputy Commissioner is bad in law and liable to be quashed. She further contended that respondent Nos.3 & 4 have admitted that there is no jurisdiction even to issue license/permit vide Annexure-S. Hence, there is no power to invite tender for river rafting vested with respondent Nos.3 & 4. Therefore, the impugned notification is illegal and same is liable to be quashed and sought to allow the writ petitions.
11. Per contra, Ms. Niloufer Akbar, learned Additional Government Advocate reiterating the averments made in the statement of objections vehemently contended that very writ petitions filed by the petitioners challenging the notification bearing No.DTC-KODAGU/RFQ-01/2017-18 dated 28.06.2017, Request for Quotations (RFQ) are not maintainable either in law or on facts and hence the same are liable to be rejected. She further contended that the last date for uploading quotations in e-Procurement portal was fixed on or before 19.7.2017 upto 5:00 PM. Admittedly, all these petitioners have not uploaded their quotations in response to the notification issued by the fourth respondent. She further contended that all these petitioners based on the ‘No Objection Certificate’ issued by the Ports and Inland Water Transport Department, Fire Department and by paying tax in Gram Panchayath and Commercial Tax offices have assumed that they are license holders but either one of the above Departments are not authorized to issue any license with regard to the river rafting activities in Cauvery River. Admittedly, the petitioners have not produced any valid license to run river rafting activities in Cauvery River in the present writ petitions. Therefore, the question of granting relief would not arise. She further contended that payment of tax to Gram Panchayath and Commercial Tax Department will not get any right for the petitioners to continue their illegal activities. Therefore, sought to dismiss the writ petitions.
12. Sri. B.A.Belliappa, learned counsel for the impleading applicant (respondent No.8) submits that he has already filed his objections along with others. The said submission is placed on record.
13. Having heard the learned counsels for the parties, it is the specific case of the petitioner that the Members of the Petitioner’s Association have obtained valid license from the Department of Ports and Inland Water Transport to run a river rafting activities in Cauvery River. It is specific case of the State Government that the Members of the Petitioner’s Association are not holding any valid license issued by the concerned or an appropriate Authority as required under law and they are running river rafting activities illegally in Cauvery River. Therefore, the Members of the Petitioner’s Association are not entitled to run any river rafting activities in Cauvery River. By careful perusal of the notification-Request for Quotations (RFQ) to arrive the Bid amount to carryout White River Rafting for a period of 12 months in Cauvery River at Dubare, Somwarpet Taluk, Kodagu District, Karnataka State, issued by the fourth respondent-Deputy Commissioner, Kodagu District, Madikeri, the last date and time for uploading quotations in e-Procurement portal was fixed on or before 19.7.2017 upto 5:00 PM. Admittedly, in the present petitions, none of the Members of petitioner’s Association have uploaded their quotations or filed applications within time stipulated i.e., on or before last date fixed on 19.7.2017 and they have not responded to the notification issued by the Deputy Commissioner. The notification has been issued by the Deputy Commissioner applying the provisions of KTPP Act, 1999 and Rules thereunder. The main grievance of all these Members of petitioner’s Association is that before issuing the notification-Request for Quotations (RFQ) on 28.6.2017, the Deputy Commissioner has not issued notice to them and an opportunity of hearing was also not provided to them. The notification issued by the Deputy Commissioner in view of the State Government following the procedure as contemplated under the KTPP Act and admittedly, as on the date of notification issued, the Members of Petitioner’s Association were not holding any valid license issued by the concerned Authorities to run river rafting activities in Cauvery River. The petitioner has not shown any provisions either under KTPP Act or under law that the Ports and Inland Water Transport Department and Gram Panchayath are the only Authorities to issue license to run river rafting activities in Cauvery River. The State Government by filing statement of objections has specifically contended that the said claimed licenses in the petitions marked at Annexures-A to G are issued by the Department of Ports and Inland Water Transport, Government of Karnataka only for the purpose of River worthiness and it is not a license for running the river rafting activities as alleged by the petitioner and it is not denied by filing rejoinder to the applications in the categorical terms. The State Government contended that all the Members of the Petitioner’s Association have not obtained any valid license to run river rafting activities from appropriate Authority as required under law. The same is not denied by the petitioners in the present petitions. Merely because they are running river rafting business without obtaining any license cannot be a ground to challenge the notification unless the petitioners have to show its legal enforceable right to question notification. Therefore, the prayers sought cannot be granted exercising the powers under Articles 226 & 227 of the Constitution of India.
14. For the reasons stated above, the petitioners have not made out any good ground to interfere with the notification dated 28.6.2017 issued by the Deputy Commissioner-respondent No.4 Request for Quotations (RFQ) to arrive the Bid amount to carryout White River Rafting for a period of 12 months in Cauvery River at Dubare, Somwarpet Taluk, Kodagu District, Karnataka State. Accordingly, writ petitions are dismissed.
15. In writ petition No.30244/2017 & connected matters, the petitioner’s second prayer to issue writ of mandamus directing respondent-Authorities not to interfere with the river rafting activities carried out by the Members of Petitioner’s Association in Cauvery River and representation submitted to the Deputy Commissioner dated 12.4.2017 directing Authority not to call for any tenders pertaining to river rafting activities also cannot be accepted. It is for the State Government to follow the procedure under the provisions of KTPP Act and Rules thereunder and in the statement of objections it is specifically stated that the State Government has invited request for quotations which was made in accordance with provisions of the KTPP Act. Therefore, the writ of mandamus cannot be granted. The petitioner has not made out any ground to interfere with the extraordinary jurisdiction before this Court. Accordingly, writ petitions are dismissed.
16. In view of the main disposal of the writ petitions on merits, considering impleading application would not arise. However, it is open for him to work out his remedy in accordance with law. It is needless to observe in future the petitioners can participate in the tender process in accordance with law.
Sd/-
JUDGE SMJ