Reghunathan vs. State Of Kerala - Kerala High Court, 27 June 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THUR AY, THE 27TH DAY OF JUNE 2019 / 6TH ASHADHA, 1941 WP(C).No.13484 of 2019 PETITIONER/S: REGHUNATHAN, AGED 47 YEARS, S/O. SIVARAMAN, KOCHUVEETTIL PADEETTATHIL, ELIPPAKULAM MURI, VALLIKKUNNAM VILLAGE, ELIPPAKULAM P.O., ALAPPUZHA - 690 503. BY ADV. SRI.B.MOHANLAL RESPONDENT/S: 1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE ALAPPUZHA DISTRICT PANCHAYATH, COLLECTORATE, ALAPPUZHA - 690 501, REPRESENTED BY ITS SECRETARY. 3 THE ALAPPUZHA DISTRICT PANCHAYATH COMMITTEE, COLLECTORATE, ALAPPUZHA 690 501, REPRESENTED BY ITS PRESIDENT. 4 THE STANDING COMMITTEE, HEALTH AND EDUCATION, THE ALAPPUZHA DISTRICT PANCHAYATH, COLLECTORATE, ALAPPUZHA - 690 501. 5 THE HEADMSTER, K.K.M. GOVERNMENT VOCATIONAL AND HIGHER SECONDARY SCHOOL, ELIPPAKULAM P.O., ALAPPUZHA 690 503. R1 & R5 BY SMT.PRINCY XAVIER, GOVERNMENT PLEADER R2 TO R4 BY ADV. SRI.V.K.BALACHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C) No.13484 of 2019 2 JUDGMENT This writ petition is filed by the petitioner seeking to quash Ext.P4 minutes of the 2nd respondent i.e., the Alappuzha District Panchayat Committee to cancel Ext.P1 tender notice invited for the demolition of certain old buildings in the compound of K.K.M Government Vocational and Higher Secondary School, Elippakulam, Alappuzha, and for other related and consequential reliefs. Brief material facts for the disposal of the writ petition are as follows:

The 5th respondent i.e., the Headmaster of the K.K.M Government Vocational and Higher Secondary School, Elippakulam, Alappuzha, as per the decision of respondents 1 to 4, invited competent tenders for demolishing old buildings situated in the compound of the school and to remove the articles for construction of new building. Petitioner participated in the bid and the last date for submission of bid was 29.03.2019 at 10.00 a.m., and the date of opening of the tender was on the same day at 11.00 a.m. Petitioner submitted tender application along with documents by quoting the estimate rate of Rs.3,65,000/-. On opening the tenders, petitioner was the successful bidder and the respondents confirmed the tender in favour of the

W.P.(C) No.13484 of 2019 3 petitioner. Accordingly, petitioner has remitted an amount of Rs.2,52,540/- in compliance with the tender conditions, being the half of the amount with GST and Cess, and the 5th respondent has issued Ext.P2 receipt.

It is stated that, the 5th respondent has also forwarded the tender for confirmation before respondents 2 to 4. However, the 2nd respondent as per Ext.P3 order informed the 5th respondent that the tender was conducted at the time of elections and the code of conduct was in force, and therefore, the auction cannot be ratified, and respondents 3 and 4 will place the matter in the meeting of the District Panchayat committee scheduled during April, 2019. When the matter was placed before the District Panchayat committee, Ext.P4 decision was taken to cancel the tender assigning the reason that the tender has taken place during the prevalence of code of conduct for the Parliament Elections and that the Education Standing Committee has recommended to permit the 5th respondent to conduct the auction afresh as per a communication dated 09.04.2019. It is thus challenging Ext.P4, this writ petition is filed.

The main contention advanced by the petitioner is that, the action of the respondents in cancelling

W.P.(C) No.13484 of 2019 4 the tender is totally arbitrary and illegal, since the tender was accepted, and in accordance with the stipulations contained under Ext.P1, money was received from the petitioner in terms of Ext.P1 tender notification. It is also pointed out that, it is clearly discernible from the documents produced by the respondents that altogether 34 persons participated in the tender, and therefore, the contention advanced in the counter affidavit filed by the 2nd respondent that the tender was cancelled in order to make more publicity to get more competent bids, cannot be sustained under law.

Respondents 2, 3 and 4 have filed a joint counter affidavit justifying their stand adopted in Exts.P3 and P4. It is also pointed out that, petitioner was the highest bidder and he has remitted the money. However, it is stated that, a complaint was received from one Subir N., stating that there was no proper notice regarding auction and it is also not published in L.S.G.D website and Government offices. Further, the auction was conducted when the election code of conduct was in force and the newspaper in which the auction was published is not having much circulation in Alappuzha District. That apart, it is

W.P.(C) No.13484 of 2019 5 pointed out that, the auction was conducted in a hasty manner to accommodate persons close to Parent Teacher Association. That apart, it is stated in the complaint that Subir was threatened when he came to participate in the auction in the school premises and his vehicle was blocked, evident from Ext.R2(c).

According to the said respondents, Exts.R2(d), R2(e), R2(f) and R2(g) complaints were also received from various other persons. That apart, the school managing committee as per Ext.R2(h) has submitted a complaint dated 02.04.2019, stating that the auction was a manipulated one and requesting to take appropriate action for re-auction. It was thereafter the matter was placed before the 4th respondent i.e., the Standing Committee for Health and Education of the District Panchayat and the 4th respondent recommended re-auction in view of serious allegations levelled in Exts.R2(c) to R2(g) complaints, and also in view of the fact that auction was conducted when the election code of conduct was in force. It was accordingly that the District Panchayat committee decided to cancel the auction. The other contentions raised by the petitioner with respect to illegality and malafides are all denied by the respondents.

W.P.(C) No.13484 of 2019 6

A reply affidavit is filed by the petitioner reiterating the stand adopted in the writ petition and also submitting that majority of the complaints received are from persons who have not participated in the auction and who have no manner of connection or interest in respect of the tender notification, and therefore, it is submitted that Ext.P4 decision is to be quashed and the tender may be awarded to the petitioner.

I have considered the rival submissions made across the Bar, and perused the pleadings and the documents on record.

Certain aspects like invitation of the bid, participation of the petitioner, opening of the tender and the highest bid submitted by the petitioner are all admitted. It is also admitted that in compliance with the stipulations contained in Ext.P1, petitioner has remitted an amount of Rs.2,52,540/-. Therefore, according to the petitioner, consequent to the developments that have taken place so, petitioner is entitled to get the contract confirmed in favour of the petitioner by executing necessary agreement. It is also submitted by the petitioner that the complaints are mostly filed by persons who have no manner of

W.P.(C) No.13484 of 2019 7 connection and those complaints are all manipulated, and with malafide intention to award contract to the persons of the choice of the respondents.

10.

Anyhow, on entire appreciation of the factual circumstances, I am of the considered opinion that, though petitioner has remitted the money as per Ext.P2, that by itself is not a reason for arriving at a conclusion that the tender is finalized in favour of the petitioner. True, petitioner has complied with the stipulations contained in Ext.P1 on identifying that the petitioner was the highest bidder. However, it is curious to note that no communication was issued by the competent respondents awarding the tender in favour of the petitioner. Therefore, the amount paid by the petitioner, evident from Ext.P2 receipt, is only an axiomatic action in terms of the stipulations contained in Ext.P1. So also, it is clear that there is no concluded contract by and between the parties, disabling the 3rd respondent from taking a decision to cancel the contract with the intention of securing more bids for demolishing the building.

11.

It is true that none of the aspects with respect to the complaints received are seen a subject matter of consideration while Ext.P4 decision was taken

W.P.(C) No.13484 of 2019 8 by the Panchayat Committee. However, it is stated that a recommendation was made by the Education Standing Committee to permit the 5th respondent to conduct re- auction. It is also clear that, consequent to the complaints made and the developments that have taken place accordingly have made the situation very complex and suspicious. So also, there is no right accrued to the petitioner on the basis of any concluded contract. Mere payment of the amount by virtue of the stipulations cannot be termed as a concluded contract compelling the respondents to confirm the tender in favour of the petitioner. Of course, the 3rd and 5th respondents are the masters of the tender and they are at liberty and have the leverage to identify whether the tender received by them was competent enough to finalize the same.

12.

In that view of the matter, I do not think the decision taken by the 3rd respondent District Panchayat committee, who is vested with powers to do so, to cancel the contract and conduct the re-auction, is arbitrary and illegal justifying interference of this Court, exercising the power of judicial review under Article 226 of the Constitution of India. So also, no manner of serious prejudice is caused to the

W.P.(C) No.13484 of 2019 9 petitioner, since in the re-auction, petitioner is also entitled as of right to participate in the tender proceedings. However, since petitioner has remitted an amount of Rs.2,52,540/- on 29.03.2019, he is entitled to receive the same back and also since the tender was cancelled not due to any fault on the part of the petitioner, there will be a direction to the 5th respondent to return the said amount to the petitioner with 6% interest from the said date till the date of payment. The writ petition is disposed of with the above direction. SHAJI P.CHALY JUDGE St/- 28.06.2019

W.P.(C) No.13484 of 2019 10 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 THEOF THE NOTICE INVITING TENDER ISSUED BY THE 5TH RESPONDENT. EXHIBIT P2 THEOF THE RECEIPT ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXHIBIT P3 THEOF THE ORDER NO. ED.2772/2019 DATED 6/4/2019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4 THEOF THE DECISION NO. IV (4)12 DATED 17/4/2019 ISSUED BY THE 4TH RESPONDENT. RESPONDENTS' EXHIBITS: EXHIBIT R2(A)OF THE TENDER CONDITIONS. EXHIBIT R2(B)OF THE LIST SHOWING THE NAMES OF THE PEOPLE PARTICIPATED IN THE AUCTION. EXHIBIT R2(C)OF THE COMPLAINT SUBMITTED BY SUBIR N., SURYA MANZIL, MANNARSALA P.O., DATED 03.04.2019. EXHIBIT R2(D)OF THE COMPLAINT SUBMITTED BY NOUSHAD, MILK COLONY STREET, TRIVANDRUM DATED 01.04.2019. EXHIBIT R2(E)OF THE COMPLAINT SUBMITTED BY SHAJAHAN, KOYIPRA VADAKKETHIL, MEMANA MURI DATED 30.03.2019. EXHIBIT R2(F)OF THE COMPLAINT SUBMITTED BY ABDUL AZEEZ, THODUTHARA, NJAKKANAL MURI DATED 30.03.2019. EXHIBIT R2(G)OF THE COMPLAINT SUBMITTED BY NARAYANA PILLAI, EDAYALA HOUSE, NJAKKANAL MURI DATED 30.03.2019. EXHIBIT R2(H)OF THE COMPLAINT SUBMITTED BY MANAGING COMMITTEE OF K.K.M. GOVERNMENT V & H.S.S ELIPPAKULAM DATED 02.04.2019. //// P.S. TO JUDGE St/-