Ajish Bhanu vs. The Executive Engineer - Kerala High Court, 01 October 2018

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY ,THE 01ST DAY OF OCTOBER 2018 / 9TH ASWINA, 1940 WP(C).No. 31807 of 2018 PETITIONER: AJISH BHANU AGED 39 YEARS S/O UDAYA BHANU, MALATHARAYIL HOUSE, SEETHATHODU PO, SEETHATHODU VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT PIN 689 667 BY ADVS. SRI.M.N.RADHAKRISHNA MENON ARJUN RAJA CHANDRAN SRI.JOSEPH SEBASTIAN (PARACKAL) K.R.PROMOTH KUMAR VISHNU S. RESPONDENTS: 1 THE EXECUTIVE ENGINEER SABARIMALA DEVELOPMENT PROJECT, TRAVANCORE DEVASWOM BOARD BUILDING, KUMBAZHA ROAD, PATHANAMTHITTA 689 645 2 KERALA STATE IT MISSION REPRESENTED BY AUTHORIZED REPRESENTATIVE DEPARTMENT OF ELECTRONICS AND TECHNOLOGY ICT CAMPUS, VELLAYAMBALAM, THIRUVANANTHAPURAM-695033. OTHER PRESENT: SR. GP SRI.K.V.MANOJKUMAR, SRI.S.RAJMOHAN, SC,TDB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.31807 of 2018 2 P.R.RAMACHANDRA MENON & DEVAN RAMACHANDRAN, JJ. -------------------------------------------------- W.P.(C)No.31807 of 2018 -------------------------------------------------- Dated this the 1st day of October, 2018

JUDGMENT Devan Ramachandran

, J. The petitioner claims to be a contractor engaged in various works contracts. According to him, he is registered as a works contractor under the provisions of the GST Act and he has produced on record his license as Ext.P1 in substantiation of this. He further says that he is registered as a Class B contractor under the Travancore Devaswom Board ('TDB' for short) and a copy of this certificate of registration has been produced as Ext.P2. 2. According to the petitioner, the 1st respondent, the Executive Engineer of the Sabarimala Development Project under the T.D.B, issued Ext.P3 notification inviting e-tenders from registered C Class contractors of the TDB, having valid and active registration and who possesses digital signature certificates. As per the petitioner, he had made his bid on the basis of a login ID and a password that he had obtained under the Central Public Procurement System through its dedicated portal and he says that he had uploaded all the documents in his own name, including his digital signature in support of his tender. The petitioner asserts that under the Central Public Procurement System, and in particular the website maintained by it, the screenshot of which is Ext.P10, only a Company can apply for a digital ID and a password and therefore, that even though he is an individual contractor, he had shown the name 'Sabari Group' as being an entity; but that all the credentials of the said 'Sabari Group' are those which belong to him personally.

The petitioner's contention is that even though his login ID has been created in the name of 'Sabari Group', the credentials are in his individual name, which are recognised by the TDB.

The grievance of the petitioner shown in this writ petition is that when he made his online bids to the TDB in pursuance of Ext.P1, the officials of the TDB objected to it, finding that his login Id is in one name and the credentials are in his personal name. He says that on this basis the Board has now refused to accept his bids. The petitioner, therefore, prays that the TDB be directed to accept his tenders and to award him the contracts since he asserts that he is the lowest tenderer, which he asserts has been disclosed because all the tenders were opened on 11.09.2018. 5. The learned Standing Counsel for the TDB submits that the petitioner's contentions cannot hold water because, as is clear from his own admission, his login Id is in the name of 'Sabari Group' whereas all the credentials produced in support of the tender are in his individual name. The learned Standing Counsel says that therefore, the tender itself is invalid and that the Board would have no latitude or leeway in deviating from the terms of the notification and in granting any benefit to any tenderer even if he is the lowest.

The learned Senior Government Pleader appearing on behalf of the State agencies submits that the issues raised by the petitioner is covered against him by the Hon'ble Supreme Court in Maharashtra Housing Development Authority v. Shapoorji Pallonji and Company - [(2018) 3 SCC 13]. According to him, the Hon'ble Supreme Court has already declared that errors in tenders made pursuant to notifications would make them invalid and that it would not be within the capacity or province of the tendering Authority to change any of the terms or to give any benefit to a tenderer who has made a mistake in such process.

In answer to the afore submissions the learned counsel appearing for the petitioner cites M/s. Poddar Steel Corporation v. M/s. Ganesh Engineering Works - [1991 3 SCC 273]. We have examined this judgment, but we are afraid that this will not come to the aid of the petitioner because the Hon'ble Supreme Court has in the said case found factually that the petitioner therein had, instead of issuing a cheque in the name of State Bank of India issued it in the name of Union Bank of India and that, therefore, there was substantial compliance.

The facts we have noticed in this case are completely different and cannot, by any stretch of imagination, be seen to be analogous to the facts noticed by the Hon'ble Supreme Court in M/s. Poddar Steel Corporation (supra). In the case at hand, the petitioner himself concedes that his login Id is one name and that the credentials are in another. This certainly is a reason why the Board would be justified in not considering his tenders and even to disqualify it, holding it to be invalid in law.

In the afore circumstances, we see no reason to interfere in the tendering process at this stage and we leave liberty to the T.D.B to take a decision on all the tenders, including that of the petitioner in terms of law, taking note of our observations above. This writ petition is thus disposed of. P.R.RAMACHANDRA MENON, JUDGE DEVAN RAMACHANDRAN, JUDGE rp-01.10 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1OF GST REGISTRATION CERTIFICATE BEARING NO.32 APTPA4885MIZC. EXHIBIT P2OF THE CONTRACTOR LICENSE ISSUED BY THE TRAVANCORE DEVASWOM BOARD. EXHIBIT P3OF THE NOTICE INVITING E- TENDER DATED 22.8.2018. EXHIBIT P4OF THE PRINT OUT FROM THE WEBSITE DETAILS OF BID SUBMITTED BY THE PETITIONER REGARDING TENDER REFERENCE NO. P/EE/ET-30/2018-19. EXHIBIT P5OF THE PRICE SCHEDULE SUBMITTED BY THE PETITIONER. EXHIBIT P6OF THE PRINT OUT OF DETAILS OF BID SUBMITTED BY THE PETITIONER REGARDING TENDER REFERENCE NO. P/EE/ET-33/2018-19. EXHIBIT P7OF THE PRICE SCHEDULE SUBMITTED BY THE PETITIONER WITH REGARD TO TENDER REFERENCE NO. P/EE/ET-33/2018-19. EXHIBIT P8OF THE PRINT OUT OF DETAILS OF BID SUBMITTED BY THE PETITIONER REGARDING TENDER REFERENDE NO. P/EE/ET-34/2018-19. EXHIBIT P9OF THE PRICE SCHEDULE SUBMITTED BY THE PETITIONER WITH REGARD TO TENDER RERERENCE NO. P/EE/ET-34/2018-19. EXHIBIT P10OF THE PRINTOUT OF THE WEB PAGE OF ONLINE ENROLMENT OF CORPORATE/BIDER FROM THE E-PROCUREMENT PORTAL. EXHIBIT P11OF BIDDER ENROLMENT ACKNOWLEDGMENT WITH REGARD TO CREATION OF AN E-PROCUREMENT ID IN THE E- PROCUREMENT PORTAL OF THE GOVERNMENT. EXHIBIT P12OF THE COMPUTER PRINTOUT WITH REGARD TO REGISTRATION OF DITIGAL SIGNATURE CERTIFICATE IN THE GOVERNMENT E-PROCUREMENT PORTAL. EXHIBIT P13OF THE BID SUBMITTED BY THE PETITIONER FOR TENDER REF NO. P/EE/ET-09/2018-09. EXHIBIT P14OF THE WORK ORDER PLACED BY THE TRAVANCORE DEVASWOM BOARD ON PETITIONER.