Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 28TH DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944 WP(C) NO. 36720 OF 2022 PETITIONER/S:
SHANVIKA INDUSTRIES AND BEARINGS PVT. LTD. NO.51, ARIYAMANGALAM AREA, ANNA NAGAR, CAUVERY NAGAR, THIRUCHIRAPPALLI, TAMIL NADU-620010, REPRESENTED BY ITS MANAGING DIRECTOR, SRUTHI R., AGED 28 YEARS, W/O.RAVI JAISWAL, POOKAT HOUSE, THEKKINIYEDATH PARAMBU, MUKKATHAKADAVU, MANNUR P.O., KOZHIKODE-673328.
BY ADVS.
R.SANJITH SIDHI K. KUTTY SURAJ KRISHNAN C.S.SINDHU KRISHNAH
RESPONDENT/S:
1 TRAVANCORE DEVASWOM BOARD - TDB DEVASWOM BOARD HEAD QUARTERS, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM-695003, REPRESENTED BY ITS SECRETARY.
2 THE SECRETARY, TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD HEAD QUARTERS, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM-695003.
3 EXECUTIVE ENGINEER, SABARIMALA DEVELOPMENT PROJECT, TRAVANCORE DEVASWOM BOARD, PATHANAMTHITTA -689101.
4 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE (DEVASWOM) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695001.
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5 ADDL.R5. P.M.SIVADAS AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER PANTHAPLACKAL, CHIRAKADAVU.P.O., KOTTAYAM-686520.
(IS IMPLEADED AS ADDL.R5 AS PER ORDER DATED 21- 11-2022 IN IA 2/2022).
6 ADDL.R6.
CHIEF VIGILANCE SECURITY OFFICER (SUPERINTENDENT OF POLICE – VIGILANCE), TRAVANCORE DEVASWOM HEAD QUARTERS, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM – 695 003 IS SUO MOTU IMPLEADED AS PER ORDER DATED 28.11.2022.
BY ADVS.SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD C.S.MANILAL S.NIDHEESH
OTHER PRESENT:
SRI S.RAJMOHAN- SR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Anil K. Narendran, J.
The petitioner, who participated in the e-tender by the 1st respondent Travancore Devaswom Board, pursuant to Ext.P2 notification dated 05.11.2022 for the work SDP–Nilakkal–Mandala Makaravilakku Festival in 1198 ME - Rendering services by way of public conveyances [SAC-9994] Operation and Maintenance of departmental container toilets and bathrooms at Nilakkal, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to take steps to complete the proceedings pursuant to the said notification and issue confirmation in favour of the petitioner, in accordance with the procedure contemplated under law. The petitioner has also sought for a writ of mandamus commanding respondents 1 and 2 to process the application preferred by the petitioner, for registration as a contractor in the Travancore Devaswom Board.
2.
On 16.11.2022, when this writ petition came up for admission, after arguing for some time, the learned counsel for the petitioner sought time to place on records some additional documents.
The learned Standing Counsel for the Travancore Devaswom Board was directed to get a specific instructions with reference to ‘active registration’ insisted in the first paragraph of Ext.P2 notification.
3.
On 17.11.2022, when this writ petition came up for
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consideration, the petitioner filed I.A.No.1 of 2022 seeking an order to accept Exts.P8 to P15 as additional documents. The learned Standing Counsel for the Travancore Devaswom submitted that the contract to conduct 130 bio toilets and 30 bathrooms at Nilakkal, which is the subject matter of this writ petition, has already been awarded to one P.M. Sivadas and the toilets are operational from 17.11.2022. The learned counsel for the petitioner sought time to file an application to amend the writ petition or to implead the contractor as an additional respondent. By the order dated 17.11.2022, the learned Standing Counsel was directed to make available for the perusal of this Court the files relating to the tender in question.
4.
By the order dated 21.11.2022 in I.A.No. 2 of 2022, the contractor was impleaded as additional 5th respondent. This Court issued notice to the said respondent by special messenger, returnable by 23.11.2022. The learned Standing Counsel for the Travancore Devaswom Board took notice for respondents 1 to 3 and the learned Senior Government Pleader took notice for the 4th respondent. By the order dated 21.11.2022, the 3rd respondent Executive Engineer, Sabarimala Development Project was directed to conduct an inspection of the toilet block in question, on 21.11.2022 itself, and submit a report before this Court, with specific reference to the photographs placed on record as Ext.P17.
5.
On 23.11.2022, when this writ petition came up for
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consideration, the additional 5th respondent entered appearance through counsel. In terms of the order this Court, the learned Standing Counsel for the Travancore Devaswom has made available for the perusal of this Court file No.SDP/EE/N/29/2022 and ROC.9095/22/M.
The learned Standing Counsel sought time to file the counter affidavit of the 1st respondent Board explaining the eligibility criteria insisted for registration of contractors with the Board. The learned Senior Government Pleader was directed to get instructions regarding the eligibility criteria for registration of contractors with the Public Works Department.
6.
The 2nd respondent has filed a counter affidavit dated 02.11.2022, opposing the reliefs sought for in this writ petition, producing therewith Exts.R2(a) to R2(i) documents. The document marked as Ext.R2(a) is a copy of the proceedings dated 15.11.2022 awarding the work to the additional 5th respondent. Paragraphs 5 to 13 of that counter affidavit read thus:
''5. It is submitted that the 3rd respondent invited Exhibit P2 e-tender notification dated 05.11.2022 for the operation and maintenance of 130 departmental container toilets and 30 container bathrooms at Nilakkal. The tender conditions prescribes that only those bidders having valid and active registration issued by PWD and Travancore Devaswom Board or equivalent can participate in the tender. The pre- qualifications prescribed are (i) one year experience in the sanitation industry and (ii) the bidder should provide
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vacuum suction tankers to transport the sewage from container toilets to the treatment plant. The special condition prescribes that the contractor should register themselves as a contractor in Travancore Devaswom Board before executing the agreement. The special condition is provided because, in case the lowest bidder is having only PWD or equivalent registration and not having Travancore Devaswom Board registration, he can apply and obtain registration as a contractor in Travancore Devaswom Board before executing the agreement.
6. It is submitted that five bids were received pursuant to Exhibit P2 e-tender notification. The tender was opened on 10.11.2022. The name of the bidders and their quoted rates are as follows: (1) M/s. Shanvika Industries and bearings Pvt. Ltd. - 56.5% below SER, (2) Sri.PM. Sivadas- 52.33% below SER, (3) Sri. Ajish Bhanu-37.17% below SER, (4) M/s. Srishti Constructions 12% below SER and (5) M/s. Indian Centrifuge Engineering Solutions Pvt. Ltd.- 5% below SER.
7. The 3rd respondent reported that the lowest bidder, M/s.
Shanvika Industries and Bearings Pvt. Ltd. did not submit a valid contract license issued by TDB/PWD or equivalent which is mandatory for participating in the tender as per Exhibit P2 tender notification. Hence the second lowest bidder, Sri P.M. Sivadas was invited for negotiation and he agreed to execute the work at 57% below the SER, which is 0.5% below the rate quoted by M/s. Shanvika Industries and Bearings Pvt. Ltd. The Chief Engineer forwarded the tender documents to the Board for further orders. The Board considered the entire proceedings and accorded sanction to award the work in favour of Sri.P.M.Sivadas at
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57% below the Sanctioned Estimate Rate. True copy of the proceedings of the Travancore Devaswom Board dated 15.11.2022 granting contract sanction to award the work in favour of Sri P.M. Sivadas is produced herewith and marked as Exhibit R2(a). Pursuant to getting contract sanction, selection notice was issued to Sri P.M. Sivadas asking him to execute the agreement. True copy of the selection notice dated 15.11.2022 issued to Sri P.M.
Sivadas by Travancore Devaswom Board is produced herewith and marked as Exhibit R2(b). The contractor executed the agreement on 16.11.2022 and started work on the same day.
8. It is submitted that the petitioner is not qualified to participate in Exhibit P2 tender proceedings since it does not have the requisite registration from TDB/PWD or equivalent, as stipulated in the tender notice. The registration of the contractor is mandatory for submitting tenders for works. The registration will be given considering the financial stability, previous experience, ability to take up work in a particular category, production of solvency certificate, payment of registration fee, etc. True copy of the relevant portion of the Kerala PWD Manual providing Rules for registration of contractors for executing works in Kerala PWD is produced herewith and marked as Exhibit R2(c). The Travancore Devaswom Board is also following the above Rules for Registration of contractors. The Government issued G.O.(Ms).No.21/2022/PWD dated 29.07.2022, which stipulates that a valid contract license from Kerala PWD or from any State or Central Government Engineering Departments which are having similar functionalities like Kerala PWD, is mandatory to participate
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in the bids of PWD. Licenses issued by other Central/State agencies or authorities are not accepted in this regard. True copy of G.O.(Ms).No.21/2022/PWD dated 29.07.2022 is produced herewith and marked as Exhibit R2(d). Therefore Exhibit P1 produced by the petitioner cannot be accepted.
Moreover Exhibit P1 registration is in respect of manufacture of bearings, gears, gearing and driving elements, etc. and its activity/area of operation is revealed from its name itself.
9. It is respectfully submitted that there are 933 toilets, 70 showers and 30 bathrooms, thus totaling 1033 numbers in Nilakkal. Out of the above, 470 are container toilets and 30 are container bathrooms. 123 integrated toilets are available in the new toilet block, 340 permanent toilets are there in 8 blocks.
10. It is submitted that 240 container toilets were auctioned during last festival season for an amount of Rs.63,92,875/- to M/s. Indian Centrifuge Engineering Solutions Pvt. Ltd. This year 130 container toilets and 30 container toilets are ordered to be e-tendered by the Chief Engineer for the use of police officials and other departmental staff. The remaining 340 container toilets are ordered to be auctioned by the Devaswom Commissioner for the use of the pilgrims. The 130 container toilets and 30 container toilets are now tendered for an amount of Rs.16,49,325/-, i.e., 57% below the SER. The remaining 340 container toilets are put up for open auction at Pamba on 14.11.2022 and at Devaswom Head Quarters, Nanthencode on 15.11.2022 and there was no response.
True copy of the relevant portion of the auction notice dated 11.11.2022 issued by Travancore Devaswom Board is
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produced herewith and marked as Exhibit R2(e). Again the 340 container toilets are put for open auction scheduled on 19.11.2022 at Sabarimala Sannidhanam and on that day also there was no response. True copy of the relevant portion of the auction notice dated 17.11.2022 issued by Travancore Devaswom Board is produced herewith and marked as Exhibit R2(f).
11. It is submitted that though the 123 integrated toilets are auctioned, the successful bidder did not turn up to operate the same. Hence the same is being cleaned and operated with the help of the Sabarimala Sanitation Society workers and given for free use to the pilgrims. The 340 permanent toilets are also being cleaned and operated by the Sabarimala Sanitation Society workers and given for free use to the pilgrims. The remaining 340 container toilets are also presently cleaned and operated by the Sabarimala Sanitation Society workers and given for free use to the pilgrims. But the sewage from the container toilets have to be removed periodically using vacuum suction tankers, which facility is not available with TDB or the SSS workers. Hence once the effluent tank of the container toilets becomes full, it could not be used further in the present system without removing the sewage. The above operation is an interim arrangement to provide sufficient toilet facilities to the pilgrims.
12. In the meanwhile Sri P.M. Sivadas, who was awarded the operation and maintenance of 130 container toilets and 30 container bathrooms submitted an offer letter to the Board stating that he will undertake the operation and maintenance of remaining 340 toilets in the same rate proportionate to the work awarded to him. He also offered
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that he will do the cleaning and operation of the 340 permanent toilets free of cost as a service to the pilgrims, provided the water, cleaning materials, etc. are provided.
True copy of the offer letter submitted by Sri. P.M. Sivadas is produced herewith and marked as Exhibit R2(g). The Board considered the proposal and is of the view that the remaining container toilets also should be given for free use to the pilgrims. The Board resolved that a decision in the matter will be taken subject to the outcome of the writ petition. True copy of proceedings of the Travancore Devaswom Board, ROC No.11314/22/M dated 15.11.2022 is produced herewith and marked as Exhibit R2(h), Now all toilets in Nilakkal are being operated and given for free use of the pilgrims.
13. It is submitted that the 3rd respondent has conducted an inspection of the toilet blocks in Nilakkal as directed by this Hon'ble Court on 22.11.2022. The 3rd respondent reported that at present no damages are seen in the drainage pipes and the dislocation of the pipeline was already rectified. True copy of the report of inspection dated 22.11.2022 submitted by the 3rd respondent is produced herewith and marked as Exhibit R2(i).''
7.
The additional 5th respondent has also filed a counter affidavit dated 24.11.2022, producing therewith Ext.R5(a) certificate dated 11.11.2022 issued by the President of Mundakkayam Grama Panchayat. The said counter affidavit is yet to be incorporated. The learned counsel for the petitioner has made available for the perusal of this Court a copy of the counter affidavit filed by the additional 5th respondent.
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8.
Heard the learned counsel for the petitioner, the learned Standing Counsel for Travancore Devaswom Board for respondents 1 to 3 and additional 6th respondent, the learned Senior Government Pleader for the 4th respondent and also the learned counsel for the additional 5th respondent.
9.
The petitioner submitted tender pursuant to Ext.P2 e-tender notification dated 05.11.2022 for the work operation and maintenance of 130 departmental container toilets and 30 container bathrooms at Nilakkal, during Mandala Makaravilakku festival season of 1198 ME (2022-23). As per Ext.P2 e-tender notification, only those bidders having valid and active registration issued by PWD and Travancore Devaswom Board or equivalent can participate in the tender. The pre- qualifications prescribed are one year experience in the sanitation industry and the bidder should provide vacuum suction tankers to transport the sewage from container toilets to the treatment plant. The special condition prescribed in Ext.P2 is that PWD contractors/firms should register themselves as a contractor in Travancore Devaswom Board before executing the agreement. As rightly contended by the Travancore Devaswom Board, in view of the special condition, in case the lowest bidder is having only PWD or equivalent registration, he can apply and obtain registration as a contractor in Travancore Devaswom Board before executing the agreement. Admittedly, the petitioner does not have the required registration as per the condition stipulated in
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Ext.P2 e-tender notification. The said fact is not in dispute. If that be so, the petitioner cannot seek any relief, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, in respect of award of work covered by Ext.P2 e-tender notification dated 05.11.2022.
10.
The learned counsel for the petitioner, after referring to Ext.R2(b) selection notice dated 15.11.2022 issued to the additional 5th respondent and Ext.R2(g) offer letter dated 15.11.2022 of the said respondent, would point out that even before the issuance of Ext.R2(b) selection notice, the additional 5th respondent has taken over the container toilets in question and completed all cleaning works by 15.11.2022.
11.
As rightly pointed out by the learned counsel for the petitioner, even before the issuance of Ext.R2(b) selection notice dated 15.11.2022, the additional 5th respondent has taken over the container toilets in question and completed its cleaning by 15.11.2022, as evidenced by Ext.R2(g) offer letter dated 15.11.2022. During the course of arguments, the learned Standing Counsel for Travancore Devaswom Board and also the learned counsel for the additional 5th respondent could not offer a proper explanation on the said aspect. The averments in paragraph 10 to 12 of the counter affidavit filed by the 2nd respondent would indicate cartel formation by the contractors during the tender process. Award of contracts based on offer letters by the contractors is
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not a proper procedure that can be followed by the Travancore Devaswom Board, while conducting auction of kuthaka items during Mandala Makaravilakku festival season. Such a procedure adopted by the Board will certainly be in violation of the law laid down by this Court in Abu K.S. v. Travancore Devaswom Board and others [2022 SCC OnLine Kerala 1642] and Suneesh K.S. v. Travancore Devaswom Board and others [ILR 2022 (1) Ker.1091].
In the above circumstances, this writ petition is disposed of by directing additional 6th respondent Chief Vigilance Security Officer (Superintendent of Police) to conduct an enquiry into the award of contracts in respect of toilets at Nilakkal, Pamba and Sannidhanam during Mandala Makaravilakku festival season of 1198 ME (2022-23) and submit a report before the 1st respondent Travancore Devaswom Board on or before 31.03.2023. Based on that report, the 1st respondent Travancore Devaswom Board shall take necessary action, in case any irregularities are detected, and the decision taken by the Board shall be brought to the notice of this Court through the Special Commissioner, Sabarimala.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
Dxy
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APPENDIX OF WP(C) 36720/2022
PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE UDYAM REGISTRATION CERTIFICATE BEARING NO.UDYAM-TN-27-0036753.
Exhibit P1(A) TRUE COPY OF THE GST REGISTRATION CERTIFICATE BEARING NO.32ABHCS6264MIZ.
Exhibit P2 TRUE COPY OF THE NOTICE INVITING E-TENDER DATED 5.11.2022.
Exhibit P3 TRUE COPY OF THE BILL OF QUANTITIES OF THE PETITIONER DATED NIL.
Exhibit P3(A) TRUE COPY OF THE BILL OF QUANTITIES OF THE 2ND LOWEST BIDDER DATED NIL.
Exhibit P4 TRUE COPY OF THE E-MAIL ON 10.11.2022 FROM THE 3RD RESPONDENT.
Exhibit P5 TRUE COPY OF THE REPLY E-MAIL DATED 12.11.2022 ISSUED BY THE PETITIONER.
Exhibit P6 TRUE COPY OF THE E-MAIL ON 13.11.2022 ISSUED BY THE PETITIONER.
Exhibit P7 TRUE COPY OF THE OFFICE MEMORANDUM DATED 25.7.2016.
Exhibit P8 TRUE COPY OF DOCUMENT ISSUED BY THE SIBP LIMITED CERTIFYING MR RAVI JAISWAL AS THE HEAD OF THE BIO- TOILETS PROJECT DATED 7/11/2022 Exhibit P9 TRUE COPY OF THE DOCUMENT ISSUED BY LUBRITECH INDUSTRIES PVT.LTD.DATED 26/4/2019, REF NO.LIP/0426 CERTIFYING MR.RAVI JAISWAL AS THE REGIONAL MANAGER OVERSEEING THE BIO-TOILETS PROJECTS Exhibit P10 TRUE COPY OF DOCUMENT DTAED 14/8/2013 EVINCING THE EXPERTISE ACQUIRED THROUGH THE PROJECT UNDERTAKEN IN ASSOCIATION WITH STEEL INDUSTRIALS KERALA LIMITED (GOVERNMENT OF KERALA UNDERTAKING) Exhibit P11 TRUE COPY OF THE TECHNICAL EVALUATION OF THE SHE TOILET UNIT BY TECHNICAL COMMITTEE ISSUED BY THE KERALA STATE WOMEN'S DEVELOPMENT CORPORATION LTD, DATED 4/9/2013 Exhibit P12 TRUE COPY OF THE PERFORMANCE CERTIFICATE DATED 27/10/2012 ISSUED BY THE FOREST INDUSTRIES (TRAVANCORE) LIMITED CERTIFYING THE CONSTRUCTION QUALITY AND MANAGEMENT OF THE "GREEN TOILET" PROJECT.
Exhibit P13 TRUE COPY OF THE DOCUMENT DATED 6/7/2022 SUBSTANTIATING THE ASSOCIATION OF THE PETITIONER WITH M/S. MAHAJAN POLYMER INDUSTRIES JALNA, A TOT HOLDER OF DRDO"S BIODIGESTER TECHNOLOGY Exhibit P14 TRUE COPY OF THE CERTIFICATE DATED 30/6/2015 ISSUED BY DRDO, MINISTRY OF DEFENCE TO M/S. MAHAJAN POLYMER INDUSTRIES JALNA.
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Exhibit P15 TRUE COPY OF THE PERFORMANCE CERTIFICATE DATED 9/11/2022 ISSUED BY PNP CONSTRUCTIONS TO THE PETITIONER COMPANY REGARDING CONSTRUCTION OF BIO TOILETS AT BPCL COCHIN REFINERY.
Exhibit P16 TRUE COPY OF THE EXPERIENCE CERTIFICATE OF P.M.
SIVADAS, THE SECOND LOWEST BIDDER ISSUED BY PATHANAMTHITTA MUNICIPALITY DATED 08.11.2022.
Exhibit P17 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE VISHUDI SENA MEMBERS AT WORK FOR THE PROPOSED ADDITIONAL RESPONDENTS AND THE DISMANTLED DRAINAGE PIPES RESPONDENT EXHIBITS Exhibit R2(A) TRUE COPY OF THE PROCEEDINGS OF THE TRAVANCORE DEVASWOM BOARD DATED 15/11/2022 GRANTING CONTRACT SANCTION TO AWARD THE WORK IN FAVOUR OF SRI. P.M.
SIVADAS Exhibit R2(B) TRUE COPY OF THE SELECTION NOTICE DATED 15/11/2022 ISSUED TO SRI. P.M SIVADAS BY TRAVANCORE DEVASWOM BOARD.
Exhibit R2(C) TRUE COPY OF THE RELEVANT PORTION OF THE KERALA PWD MANUAL PROVIDING RULES FOR REGISTRATION OF CONTRACTORS FOR EXECUTING WORKS IN KERALA PWD.
Exhibit R2(D) TRUE COPY OF THE G.O (MS) NO.21/2022/PWD DATED 29/07/2022 Exhibit R2(E) TRUE COPY OF THE RELEVANT PORTION OF THE AUCTION NOTICE DATED 11/11/2022 ISSUED BY TRAVANCORE DEVASWOM BOARD .
Exhibit R2(F) TRUE COPY OF THE RELEVANT PORTION OF THE AUCTION NOTICE DATED 17/11/2022 ISSUED BY TRAVANCORE DEVASWOM BOARD.
Exhibit R2(G) TRUE COPY OF THE OFFER LETTER SUBMITTED BY SRI. P.M SIVADAS TO PRESIDENT, TRAVANCORE DEVASWOM BOARD.
Exhibit R2(H) TRUE COPY OF THE PROCEEDINGS OF THE TRAVANCORE DEVASWOM BOARD, ROC NO.11314/22/M DATED 15/11/2022.
Exhibit R2(I) TRUE COPY OF THE REPORT OF INSPECTION DATED 22/11/2022 SUBMITTED BY THE 3RD RESPONDENT.
Exhibit R5 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE PRESIDENT OF THE MUNDAKAYAM GRAMA PANCHAYATH.