R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.53676 OF 2017(GM-TEN) BETWEEN:
1. MR.LOHITH M AGED 27 YEARS S/O K MALLESH RESIDING AT BAZAR LINE, JOG FALLS SAGAR TALUK SHIVAMOGGA DISTRICT-577435 2. JOGALLS CHAYAGRAHAKARA SANGHA FALLS AREA, BAZAR LINE JOG FALLS, SAGARA TALUK SHIVAMOGGA DISTRICT-577435 REPRESENTED BY ITS SECRETARY SRI RAGHAVENDRA SON OF K MALLESH AGED ABOUT 29 YEARS REISIDING AT BAZAR LINE JOG FALLS, SAGAR TALUK SHIVAMOGGA DISTRICT-577435 (By Mr.P.P.HEGDE, ADV.) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF INFORMATION TOURISM AND DEVELOPMENT M S BUILDING BENGALURU-560001 … PETITIONERS 2. THE JOG FALLS MANAGEMENT AUTHORITY REPRESENTED BY ITS MEMBER SECRETARY EX-OFFICIO, DEPUTY COMMISISONER SHIVAMOGGA-577435 3. THE DEPUTY COMMISSIONER SHIVAMOGGA DISTRICT SHIVAMOGGA-577435 4. THE ASSISTANT COMMISSIONER SHIVAMOGGA DISTRICT SHIVAMOGGA-577435 5. BINUMON S/O FRANCIS AGED 36 YEARS NO.4/A, HENNI ROAD, BRIDGE CAMP, JOG, JOG FALLS, SAGAR TALUK, SHIVAMOGGA DISTRICT - 577435 6. SUDHEER MARAKALA S/O THIMMA MARAKALA AGED ABOUT 42 YEARS CHANDRAMAVINAKOPPA, SUBASH NAGARA, SORABA ROAD, SAGAR, SHIVAMOGGA DISTRICT 577401 [AMENDED VIDE ORDER DATED 04.12.2018] … RESPONDENTS (By Mr.VIJAY KUMAR A. PATIL AGA FOR R1 TO R4 MR.PRUTHVI WODEYAR ADV. FOR R5 MR.S.SHEKAR ADV. FOR R6) - - -
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DTD:28.10.2017 VIDE ANNEXURE-A BEARING TENDER NOTIFICATION ISSUED BY THE R-2 AND ALL FURTHER PROCEEDINGS THERETO.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.P.P.Hegde, learned counsel for the petitioners. Mr.Vijay Kumar A. Patil, learned Additional Government Advocate for the respondent. No.1 to 4.
Mr.Pruthi Wodeya, learned counsel for respondent No.5 Mr.S.Shekar, learned counsel for respondent No.6 2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition filed under Articles 226 & 227 of the Constitution of India the petitioner inter alia has prayed for a writ of certiorari seeking quashment of the Tender Notification dated 28.10.2017 issued by respondent No.2. The petitioners also seeks a declaration that respondent No.1 has no authority to call for tenders or issue contracts or sell the right to take photographs or deal in the business of photography in jog falls area. In order to appreciate the petitioners’ grievance, few facts needs mention, which are stated infra.
4. The Jog falls which is one of the prominent tourist destinations is situated in Shivamogga District. The petitioner No.2 is a Society registered under the Societies Registration Act, 1860. The photographers who are engaged in taking photographs of the tourist who visit jog falls are the members of the petitioner No.2-Society. The members of the petitioner No.2- Society earn their livelihood by taking the photographs of the tourist. The State Government by a cabinet decision dated 05.07.2001 has passed an order dated 02.01.2002, by which Jog Management Authority was constituted. The aforesaid authority issued a tender Notification dated 31.07.2015 for contracting out the job of undertaking photographs in the jog falls area. Eventually, the aforesaid tender notification was cancelled on 16.03.2016 by the Director of Tourism. Thereafter another tender Notification dated 28.10.2017 was issued, by which tenders have been invited to photograph jog falls as per the wishes of the tourist for a period of three years. In the aforesaid factual background, petitioners have approached this court seeking the reliefs as under:
(i) Issue a writ of certiorari quashing the notification dated 28.10.2017 vide Annexure-A bearing Tender Notification No.Jo.ni.pra/shi/c.r/02/2017-18, issued by respondent No.2 and all further proceedings thereto.
(ii) Issue appropriate directions or orders or writs, declaring that respondent No.1 has no right to call for tenders or issue contracts or sell the right to take photographs or deal in the business of photography in the Jog Falls area and allow this writ petition with cost.
(iii) Grant such other and further reliefs as this Hon’ble Court deems fit to grant under the circumstances of the case, in the interest of justice and equity.
4. Learned counsel for the petitioner submitted that respondent No.2 is set up by way of executive order dated 02.01.2002 and the aforesaid order does not vest any power on the respondent No.2-Authority in respect of any property and therefore, respondent No.2- Authority does not have any power to collect any charges. It is further submitted that respondent No.2 has no power to lease any portion of the land or any right including the right to take photographs. It is further submitted that respondent No.2 has no authority to auction the right to take photographs of jog falls. It was also pointed out that jog falls fall within the territorial jurisdiction of Alagiri Grama Panchayath of Karwar District and therefore, respondent No.2 has no authority to collect any fee, in respect of an area which falls within the territorial jurisdiction of the aforesaid Grama Panchayat. It is also submitted that in respect of other tourist places, a statutory authority has been constituted. In this connection, reference has been made to the Hampi World Heritage Area Management Authority Act, 2002 as well a decision of Supreme Court in case of ‘G.,J.FERNANDEZ VS STATE OF MYSORE AND OTHERS’, AIR 1967 SC 1753.
5. On the other hand, learned counsel for the respondent Nos.1 to 4 submitted that the tenders have been invited by the Deputy Commissioner through its Member Secretary of the Jog Management Authority, which has been constituted by the order passed by the cabinet dated 05.07.2001. It is further submitted that the aforesaid Authority has been constituted with an object to regulate and maintain the activity in the tourist spot. Learned counsel has also invited the attention of this Court to the objects and powers and functions of the Authority. It is also submitted that the complaints were received by the Authority especially from foreigners that the local photographs were misbehaving with tourists particularly the foreigners and subjecting them to exorbitant charges. Therefore, the notice inviting tender was issued to regulate the activity of taking photographs. It is further submitted that judicial review of the administrative action of respondent No.2 in inviting tender is not called for in the fact situation of the case. Learned counsel for the respondent Nos.5 and 6 have supported the submissions made by learned counsel for the respondent Nos.1 to 4 and have submitted that the petitioners have not assailed the constitution of respondent No.2-Authority and therefore, no relief in this regard can be granted.
6. I have considered the submissions on both the sides and have perused the record. I may refer to the well settled legal principles delineated by catena of decisions of the supreme court. In ‘RAUNAQ INTERNATIONAL LTD., VS. IVR CONSTRUCTION LTD’, (1999) 1 SCC 492, it has been held that Court should not interfere in exercise of power of judicial review in dispute between the two rival tenderers in the absence of public interest. Similarly view was taken in ‘SANJAY KUMAR SHUKLA VS. BHARAT PETROLEUM CORPN. LTD’, (2014) 3 SCC 493, and it has been held that the Court should be vigilant against agitation of private disputes under the writ jurisdiction when there is no improper exercise of power on the part of public authority. It has further been held that power of judicial review has to be exercised only when justified by public interest having due regard to the fact situation of the case. In ‘BAKSHI SECURITY AND PERSONNNEL SERVICES (P) LTD. VS. DEV KISHAN COMPUTED (P) LTD’, (2016) 8 SCC 446, the Supreme Court summarized the principles with regard to interference in contractual matters and it was held that power of judicial review cannot be invoked to protect the private interest over the public interest or to decide contractual disputes. It has been further held that before exercising the power of judicial review, the Court must pose to itself the questions, namely, whether process adopted or decision made is mala fide or intended to favour someone, whether process adopted or decision made is so arbitrary and irrational that no responsible authority acting reasonably in accordance with law could have reached such a decision and whether public interest is affected.
7. It is well settled in law that discretion to grant largesse including award of jobs, contracts, quotas, license and so on must be structured by rational, relevant and non-discretionary standard or norms. If the Government departs from such standard or norms, its action would be liable to be struck down unless the Government can establish that departure was not arbitrary, but was based on some valid principles which in itself was not irrational, irrelevant, unreasonable or discriminatory (See: NARENDRA KUMAR MAHESHWARI VS. UNION OF INDIA, 1990 (SUPP) SCC 440): (AIR 1989 SC 2138). It is equally well settled legal proposition that it is open to the State to prescribe conditions in the tender, prescribing the eligibility criteria and if the State can justify the tender conditions in the context of particular contract, the Courts will not interfere and whenever there are different alternatives, it is not for the courts to suggest that a particular alternative is justified. IN awarding contract, the public interest is of paramount consideration and there should be no arbitrariness in awarding the contract and all participants in the tender process must be treated alike. IN the celebrated case of ‘TATA CELLULAR VS. UNION OF INDIA (1994) 6 SCC 651: (AIR 1996 SC 11), the Supreme Court while dealing with the scope of judicial power of review held that it would apply to exercise of contractual powers by Government bodies in order to prevent arbitrariness or favoritism. It has been held that the ground upon which the administrative action is subject to control by judicial review is on the grounds of illegality, irrationality and procedural impropriety. It has further been held that terms of the invitation to tender are not open to judicial scrutiny because invitation to tender is in the realm of contract and more often than not, such decision are made qualitatively by experts. It has further been held that the Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative body functioning in an administrative sphere or quasi- administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness but must be free from arbitrariness not affected by bias or actuated by mala fides.
8. The principles regarding award of contract were again reiterated by the Supreme Court in ‘IN DIRECTOR OF EDUCATION VS. EDUCOMP DATAMATICS LIMITED’, (2004) 4 SCC 19: (AIR 2004 SC 1962) and it was held that Government must have a free had in setting the terms of tender and the Courts cannot strike down the terms of tender prescribed by the Government because it feels that some other terms in the tender would have been fairer, wiser or more logical. The courts can interfere only if the policy decision is arbitrary, discriminatory or actuated by malice. In ‘SHAMNIT UTSCH INDIA PRIVATE LIMITED VS. WEST BENGAL TRANSPORT INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED’, (2010) 6 SCC 303: (2010 AIR SCW 3974), the Supreme Court while taking note of the law laid down in ASSN. OF REGISTRATION PLATES VS. UNION OF INDIA’, (2005) 1 SCC 679: (AIR 2005 SC 469), reiterated that State Government has the right to get the right and most competent person and in the matter of formulating conditions of tender documents,, unless the action of tendering authority is found to be malicious and is a misuse of statutory powers, the tender conditions are unassailable. In ‘SIEMENS AKTIENGESELEISCHAFT AND SEIMENS LIMITED VS. DELHI AND SEIMENS LIMITED VS.
DELHI METRO RAIL CORPORATION LIMITED AND OTEHRS’, (2014) 11 SCC 288 : (AIR 2014 SC 1483), it was held that tenders floated by the Government are amenable to judicial review only in order to prevent arbitrariness and favoritism and protect the financial interest of the State and the public interest. Thus, the scope of judicial review is confined as to whether there was any illegality, irrationality or procedural impropriety committed by the decision making authority. It has further been held that the court cannot sit in appeal over the soundness of the decision made by the competent authority and the Court can only examined whether the decision making process fir, reasonable, transparent and bonafide with no perceptible injury to public interest. In ‘CENTRE FOR PUBLIC INTEREST LITIGATION VS. UNION OF INDIA’, (2016) 6 SCC 408; (AIR 2 916 SC 1777) has held minimal interference is called for by the Court of Judicial Review with a decision taken by the technical experts after due deliberations inasmuch as the Courts are not well equipped to fathom into such domain which is left to the discretion of the executive. It has further been held that primary and secondary purpose of review is to ensure that administrative bodies act in efficient, transparent, fair, unbiased manner and keep in forefront public interest. Similar view has been taken in ‘TANGEDCO VS. CSEPDI – TRISHE CONSORTIUM’, (2017) 4 SCC 318: (AIR 2016 SC 4879) AND SAM BUILT WELL (P) LTD. VS. DEEPAK BUILDERS (2018) 2 SCC 176: (AIR 2018 SC 44).
9. In the backdrop of aforesaid well settled legal position, the facts of the case on hand may be seen. The Jog Managing Authority was constituted by the cabinet on 05.07.2001 in exercise of powers under Article 162 of Constitution of India and an order in this regard was issued on 02.01.2002. From perusal of the aforesaid order, it is evident that Jog Managing Authority was constituted with the object to develop the jog fall area and to regulate and maintain the tourist activity in the tourist spot. The relevant extracts of the objects mentioned in the order dated 02.01.2002 reads as under:
1.1. To take up, develop, promote, manage, provide, assist, establish, tourism in and around Jog falls area.
2.1 To enter into agreements and contracts with Indian or Foreign individuals, authorities or other organizations for technical, financial or any other assistance for carrying out all or any of the objects of the authority.
7. To collect fees and charges as may be necessary to augment its resources.
8. To hold properties, movable and immovable belonging to Government or otherwise.
10. To plan and execute any tourism promotional activity limiting the expenditure to Rs.5.00 lakhs per annum.
14. To invest and deal with any moneys of the Authority not immediately required for the purpose thereof upon such security or without security and in such manner as they may think fit and from time to time to vary or realize such investments.
10. Thus from perusal of the aforesaid Government Order, it is evident that the Authority has power to enter into agreements and contracts with Indians or foreign individuals as well as to collect fees and charges as may be necessary to augment its resources and to hold the properties movable and immovable belonging to government or otherwise. Thus, in view of aforesaid cabinet decision, it is evident that the Authority has power to take up any activity so as to develop, promote, manage, assist and establish tourism in and around jog falls area. Besides that, it is pertinent to note that the Government Order dated 02.01.2002, by which the Authority has been constituted is not under challenge in this petition. From perusal of the aforesaid Clauses, it is evident that the Authority has power to collect fee or charges for development and promotion of any activity in and around jog falls. Therefore, the contention of the petitioners that respondent No.2-Authority has no power to collect charges cannot be accepted. Similarly the contention of the petitioner that respondent No.2 has no authority to auction the right to take photographs of jog falls is concerned, suffice it to say that from perusal of the terms and conditions of the tender notification it is evident that right to take photographs of jog falls as per the wishes of the tourist is being auctioned and not the right to take photographs of the jog falls itself.
11. From perusal of Para 11 of the statement of objections filed on behalf of respondent Nos.1 to 4, it is evident that the authority had received complaints that the photographers are exploiting the tourists and are forcing them to take photographs at jog falls and are charging exorbitant amounts without providing quality photographs. It is further stated that crimes have been registered against the local photographers for creating nuisance for foreign tourists and collecting exorbitant amounts. Therefore, bearing in mind the larger public interest, the notice inviting tender has been issued to regulate the activity of photography so as to prevent exploitation and harassment to the tourist. No fault can be found with the aforesaid action as the same has been taken bonafide and in public interest. So far as the apprehension of the petitioners that they will be rendered jobless, suffice it to say under clause 8 of NIT, the successful bidder has to appoint local photographers compulsorily after imparting them necessary training. Therefore, the aforesaid apprehension of the petitioners is baseless. In view of preceding analysis, I do not find any merit in the writ petition, the same fails and is hereby dismissed.
Sd/- JUDGE SS