Rahmathulla K.K. vs. State Of Kerala - Kerala High Court, 23 March 2021

WP(C).No.16002 OF 2020(A) 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE SMT. JUSTICE P.V.ASHA TUE AY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943 WP(C).No.16002 OF 2020(A) PETITIONER/S: RAHMATHULLA K.K. AGED 56 YEARS KANICHADI KUZHIYIL HOUSE, CHERUVADI.P.O., MAVOOR, KOZHIKODE-673661, KERALA. BY ADVS. SRI.V.K.PRASAD SRI.M.PRAVEESH RESPONDENT/S: 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, IRRIGATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 SUPERINTENDING ENGINEER, MINOR IRRIGATION CIRCLE, KAVERI HOUSE, WEST HILL.P.O., KOZHIKODE-673005. 3 THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, OFFICE OF THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, CIVIL STATION, KOZHIKODE-673020. 4 M.M.BALAKRISHNAN, CHERIYAMADATHIL HOUSE, KALPATHOOR, MEPPAYYUR, PINCODE-673524, KOZHIKODE. R4 BY ADV. SRI.K.B.ARUNKUMAR OTHER PRESENT: SMT.VINITHA.B, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.16002 OF 2020(A) 2 JUDGMENT Dated this the 23rd day of March 2021 The petitioner challenges finalisation of the tender in favour of the 4th respondent.

Ext.P1 notice inviting tender was issued on 06.03.2020 by the Minor Irrigation Department under the Kerala State Irrigation Department for construction of the check dam across Vencheri river at Chambanmuzhi Kaipram in Puthuppadi Panchayath under Thiruvambady Legislative Assembly of Kozhikkode District. The time for completion fixed was ten months. It is stated that 4 bidders participated in the tender and petitioner came out successful as per Ext.P2 proceedings. Three remaining bidders did not qualify since they failed to pay GST under reverse mechanism. It was under those circumstances, the petitioner was declared as L-1. It is stated that despite this petitioner was not awarded the work and he submitted Ext.P3 representation and 2nd respondent as per Ext.P4 letter informed the petitioner that files were returned to the office of the 3rd respondent. It is stated that the petitioner thereafter approached this Court in WP(C) No.14413 of 2020 and this Court directed the respondents to take a decision. As per Ext.P5 letter the 3rd respondent informed that after the petitioner was declared as L-1, the matter was considered and it was found that there was a difference of Rs.8,30,485/-. It was stated that the tender

WP(C).No.16002 OF 2020(A) 3 submitted by other three persons were rejected on the ground that they did not remit the sum of Rs.502/- towards GST and the entire documents of the petitioner were forwarded to the Superintending Engineer as per letter dated 18.05.2020. Seeing that there was a difference of Rs.8,30,485/- between the amount quoted by the petitioner and the 4th respondent, respondents called for clarification from the Commercial Taxes Department and it was informed that the tenders for which tender fee is less than Rs.5,000/- are exempted from realization of GST and therefore it was decided that the 4th respondent who quoted the lowest amount be awarded the work. The petitioner is challenging Ext.P5 letter. According to the petitioner tender conditions cannot be varied.

The 3rd respondent has filed a counter affidavit reiterating the contents of Ext.P5 letter. It is stated that as per the GST S.11(1) of the GST Rules 2017, if the tender fee amount is less than Rs.5,000/- it is exempted from the GST and in the present case the tender fee is only Rs.2,790/- and all the bidders are eligible for exemption from paying GST @ 18%. It is stated that the Technical Evaluation Committee which met on 23.06.2020 considered the tenders in the light of the clarification and the petitioner became L-4. The 2nd respondent directed to take a suitable decision in the matter in order to see that no loss is sustained by the Government. Thereafter the 3rd respondent approved the lowest tender and issued selection

WP(C).No.16002 OF 2020(A) 4 notice to the 4th respondent. He signed the agreement with the 3rd respondent on 09.07.2020. The site of the said work has been handed over to the contractor on 15.07.2020 and he has started the work from 15.07.2020. It is stated that the petitioner was informed about all these in the letter dated 13.07.2020. 4. The 4th respondent also filed a counter affidavit stating that he is eligible for exemption from payment of GST and being L-1 he is entitled to be awarded the work.

The petitioner has filed a reply affidavit pointing out that the work is not started and he is entitled to be awarded the work.

Admittedly the bid amount quoted by the petitioner is Rs.69,97,656. 8. It is only because the tender evaluation committee initially did not consider the relevant rules under the GST which provides for exemption from payment of GST where the tender fee is below Rs.5,000/- that petitioner was treated as L-1 though he quoted the highest amount and was actually L-4 among the 4 bidders. In the aforesaid circumstances, respondents have awarded the work in public interest in order to see that the Government does not sustain any loss in the process of tender and also to see that the selection is made in accordance with the rules. What the respondents have done is in accordance with law.

Just because the respondents have issued a selection notice and the petitioner was treated as L-1 without noticing

WP(C).No.16002 OF 2020(A) 5 the relevant provisions under the GST Rules, petitioner cannot have any right to insist that he should be given the work and the person who would be quoted at the lowest amount should be given the work. It is settled law that even if there are certain minor variations from the tender conditions, interference by courts under Article 226 of the Constitution of India is uncalled for except in cases of arbitrariness and malafides. No such allegation is raised in this Writ Petition. Therefore, petitioner does not deserve any relief. The Writ Petition is accordingly dismissed. P.V.ASHA rkc JUDGE

WP(C).No.16002 OF 2020(A) 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 AOF THE TENDER NOTICE BEARING NO.EE MI/ET-42/2019-20 DATED 6.3.2020 INVITING TENDERS ISSUED BY 2ND RESPONDENT MINOR IRRIGATION DEPARTMENT UNDER 1ST RESPONDENT STATE IRRIGATION DEPARTMENT. EXHIBIT P2 AOF THE TECHNICAL EVALUATION REPORT DATED 16.6.2020 DOWNLOADED FROM THE WEBSITE OF 1ST RESPONDENT SHOWING PETITIONER AS L1. EXHIBIT P3 AOF THE REPRESENTATION DATED 17.6.2020 SUBMITTED BY PETITIONER AT THE OFFICE OF 2ND RESPONDENT. EXHIBIT P4 AOF THE COMMUNICATION FROM THE OFFICE OF THE 2ND RESPONDENT BEARING NO.DB10-2019/7212/1A DATED 23.6.2020. EXHIBIT P5 AOF

LETTER

BEARING NO.D2/2019/7212/1A DATED 13.7.2020 SENT BY 3RD RESPONDENT THAT WAS RECEIVED BY THE PETITIONER ON 18.7.2020. EXHIBIT P6 AOF THE LETTER DATED 5.10.2018 SENT

BY DEPUTY

COMMISSIONER

SGST DEPARTMENT, PALAKKAD, PALAAKKD DISTRICT COMMITTEE OF ALL KEARALA GOVERNMENT CONTRACTORS ASSOCIATION STATED IN EXHIBIT P5 COMMUNICATION. EXHIBIT P7 AOF THE TENDER NOTICE DATED 27/07/2020 ISSUED BY RESPONDENT 3. EXHIBIT P8OF THE PHOTOGRAPHS OF THE TENDER SITE TAKEN ON 24/02/2021.