C.D.Antony Jacob vs Kerala State Housing Board
2021 Latest Caselaw 11270 Ker

WP(C).No.6321 OF 2021(M)
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            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

   THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                       WP(C).No.6321 OF 2021(M)


PETITIONER/S:

                C.D.ANTONY JACOB
                AGED 47 YEARS
                S/O. DOMINIC C.A, GOVERNMENT CONTRACTOR,
                CHITTATTUTHARA HOUSE, PALLURUTHY P.O, KOCHI 682 006

                BY ADVS.
                SRI.BABU JOSEPH KURUVATHAZHA
                SRI.M.G.SREEJITH
                SMT.K.S.ARCHANA

RESPONDENT/S:

      1         KERALA STATE HOUSING BOARD
                THAMPANOOR MASJID ROAD, NEAR INDIAN INSTITUTE OF
                EMERGENCY MEDICAL, SANTHI NAGAR, PULIMOODU,
                THIRUVANANTHAPURAM 695 001, REPRESENTED BY ITS
                SECRETARY

      2         CHIEF ENGINEER,
                KERALA STATE HOUSING BOARD, THAMPANOOR MASJID ROAD,
                NEAR INDIAN INSTITUTE OF EMERGENCY MEDICAL, SANTHI
                NAGAR, PULIMOODU, THIRUVANANTHAPURAM 695 001

      3         THE EXECUTIVE ENGINEER,
                KERALA STATE HOUSING BOARD, THRISSUR DIVISION,
                AYYANTHOLE, THRISSUR 680 003

                SHRI.K.DENNY DEVASSY, SC, K.S.H.B.

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.6321 OF 2021(M)
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                                   JUDGMENT

Dated this the 8th day of April 2021

The petitioner is aggrieved by the cancellation of the

award of contract as per Ext.P10 order dated 06.03.2021. It is

stated that the tender was invited as per Ext.P2 on 10.12.2020

for construction of a building for Aswas Rental Housing Scheme

for Government Medical College at Thrissur. The PAC of the work

was shown as Rs.3,12,85,650/- (Rupees Three Crore Twelve Lakhs

Eighty Five Thousand Six Hundred and Fifty only). The petitioner

quoted Rs.2,94,76,458/- (Rupees Two Crores Ninety Four Lakhs

Seventy Six Thousand Four Hundred and Fifty Eight only) and he

was found to be L1 out of the total 5 bidders who were found

qualified. Based on that work was awarded to petitioner as per

Ext.P7 letter on 23.02.2021 directing him to execute the

agreement within 21 days. The petitioner points out that as per

Exts.P8 and P8(a) performance guarantee was deposited by way of

fixed deposits on 24.02.2021 and stamp papers worth Rs.29,500/-

(Rupees Twenty Nine Thousand Five Hundred only) was also

remitted before the respondents on 26.02.2021. It was while so

Ext.P10 order was passed canceling the work order. In Ext.P10 it

was stated that while inviting the e-tenders PAC happened to be

shown in it inclusive of 12% GST which is against the conditions WP(C).No.6321 OF 2021(M)

of NIT. The Writ Petition was filed at that stage alleging that

cancellation after the award of work and after furnishing

performance guarantee is illegal and arbitrary.

2. Respondents have filed a counter affidavit stating that

actually the PAC was Rs.2,79,33,608/- (Rupees Two Crore Seventy

Nine Lakhs Thirty Three Thousand Six Hundred and Eight only) and

the amount quoted by the petitioner was 5.52% above the PAC. It

is also stated that the Chief Engineer is not competent to award

such a work. It is stated that only after the work was awarded

to the petitioner, respondents realized the mistake and

immediately thereupon the notice was issued. Producing Ext.R1(e)

proceedings of Technical Sanction, the respondents have stated

that 12% GST was also included while stating the PAC in the NIT

as Rs.3,12,85,650/- whereas it should have been Rs.2,79,39,608/-

(Rupees Two Crore Seventy Nine Lakhs Thirty Nine Thousand Six

Hundred and Eight only). According to the respondents the

mistake is liable to be rectified and therefore it was

cancelled. It is stated that the Board has also issued a letter

to the petitioner inviting for a negotiation in good faith. But

the petitioner did not turn up.

3. The petitioner has filed a reply affidavit stating that

there is nothing illegal in awarding the work to the petitioner

with the amount quoted by him even though it is inclusive of the

GST. The petitioner submits that similar work has already been

awarded by the respondents in Ext.P16. Ext.P16 is a selection WP(C).No.6321 OF 2021(M)

notice dated 01.10.2020 issued by the 2nd respondent. Ext.P16

also would show that the same is for construction of a building

under the Aswas Scheme in Alappuzha Medial College and PAC was

Rs.4,16,73,410/- (Rupees Four Crore Sixteen Lakhs Seventy three

Thousand Four Hundred and Ten only) and the negotiated rate of

5% above PAC was agreed by the Contractor. That work has been

awarded by the Chief Engineer. The petitioner has submitted

Ext.P17 letter before the Chief Engineer informing that he is

agreeable for carrying out the work for an amount 5% above PAC

by reducing the rate Rs.2,93,30,288/- (Rupees Two Crore Ninety

Three Lakhs Thirty Thousand Two Hundred and Eighty Eight only)

which is less than the original amount quoted by the petitioner

based on which the selection notice was issued to him.

4. In the above circumstances, there shall be a direction

to the 2nd respondent to consider Ext.P17 representation and to

pass orders taking note of Ext.P16 also within a period of ten

days from the date of receipt of a copy of the judgment. In the

meanwhile work shall not be awarded to anybody else and further

proceedings shall not be taken pursuant to Ext.P10.

The Writ Petition is disposed of accordingly.

Sd/-

                                                  P.V.ASHA
rkc                                                 JUDGE
 WP(C).No.6321 OF 2021(M)




                           APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1           TRUE COPY OF THE TENDER NOTIFICATION FOR THE

CONSTRUCTION OF BUILDING FOR ASWAS RENTAL HOUSING SCHEME, FOR GOVERNMENT MEDICAL COLLEGE AT THRISSUR PUBLISHED BY THE 2ND RESPONDENT, IN THE E-CENTRE PORTAL OF THE GOVERNMENT OF KERALA, DATED 11-12-2020

EXHIBIT P2 TRUE COPY OF THE NOTICE INVITING TENDER DATED 10-12-2020 PUBLISHED BY THE 2ND RESPONDENT

EXHIBIT P3 TRUE COPIES OF THE PAGE NUMBERS 760, 761, 763, 816 AND 817 OF THE PART 1- INSTRUCTIONS TO THE BOIDDERS ATTACHED TO EXT P2 NOTICE INVITING TENDER

EXHIBIT P4 TRUE COPY OF THE CIRCULAR NO. 18/2019/FIN DATED 1-3-2019 ISSUED BY THE GOVERNMENT OF KERALA.

EXHIBIT P5 TRUE COPIES OF THE FIRST AND LAST PAGES OF THE BID SUBMITTED BY THE PETITIONER

EXHIBIT P6 TRUE COPY OF THE BID SUBMISSION CONFIRMATION DATED 16-12-2020 ISSUED TO THE PETITIONER, ON BEHALF OF THE 2ND RESPONDENT

EXHIBIT P7 TRUE COPY OF THE WORK AWARDING LETTER/WORK ORDER DATED 23-2-2021 ISSUED BY THE 2ND RESPONDENT

EXHIBIT P8 TRUE COPY OF THE FIXED DEPOSIT RECEIPT WORTH RS. 4.42,150/- DATED 24-2-2021 DEPOSITED IN FAVOUR OF THE 3RD RESPONDENT

EXHIBIT P8 A TRUE COPY OF THE FIXED DEPOSIT RECEIPT WORTH RS. 4,42,150/- DATED 24-02-2021 DEPOSITED IN FAVOUR OF THE 3RD RESPONDENT

EXHIBIT P9 TRUE COPY OF THE LETTER DATED 26-02-2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ALONG WITH ETS. P8 AND P8(A)

EXHIBIT P10 TRUE COPY OF THE ORDER NO. KSHB HO/684/2020-D2 DATED 6-3-2021 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE LETTER NO-KSHB-HO/684/2020-D2 DATED 9.3.2021 ISSUED BY THE 2nd RESPONDENT

EXHIBIT P12 TRUE COPY OF THE CIRCULAR NO-01/01/10 DATED 20.1.2010 ISSUED BY THE CENTRAL VIGILANCE WP(C).No.6321 OF 2021(M)

COMMISSION UNDER THE GOVERNMENT OF INDIA.

EXHIBIT P13 TRUE COPY OF THE RELEVANT PAGES OF CLAUSE 11.0 OF THE COMMON IRREGULARITIES/LAPSES OBSERVED IN STORES/PURCHASE CONTRACTS AND GUIDELINES FOR IMPROVEMENT IN THE PROCUREMENT SYSTEM PUBLISHED BY THE CHIEF TECHNICAL EXAMINER'S ORGANIZATION. CENTRAL VIGILANCE COMMISSION, GOVERNMENT OF INDIA.

EXHIBIT P14 TRUE COPY OF G.O.(P) NO.16/2017/FIN. DATED 6.2.2017 ISSUED BY THE GOVERNMENT.

EXHIBIT P15 TRUE COPY OF THE APPLICATION DATED 30.3.2021 SUBMITTED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT, BEFORE THE STATE PUBLIC INFORMATION OFFICER ATTACHED TO THE OFFICE OF THE 3RD RESPONDENT.

EXHIBIT P16 TRUE COPY OF THE SELECTION NOTICE BEARING NO.KSHB-HO/1387/2019-D2 DATED 1.10.2020 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P17 TRUE COPY OF THE LETTER SENT BY THE PETITIONER TO THE 2ND RESPONDENT ON 1.4.2021 THROUGH EMAIL.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1(a) TRUE COPY OF WORK ORDER NO.KSHB-HO/684/2020-D2 DATED 23/02/2021 ISSUED BY KERALA STATE HOUSING BOARD.

EXHIBIT R1(b) TRUE COPY OF NOTICE INVITING TENDER (NIT) ISSUED BY KERALA STATE HOUSING BOARD.

EXHIBIT R1(c) TRUE COPY OF LETTER DATED 09/03/2021 ISSUED BY THE KERALA STATE HOUSING BOARD TO THE PETITIONER.

EXHIBIT R1(d) TRUE COPY OF ESTIMATE (OF ALL CIVIL WORKS) ISSUED BY CHIEF ENGINEER, KERALA STATE HOUSING BOARD.

EXHIBIT R1(e) TRUE COPY OF THE TECHNICAL SANCTION PROCEEDINGS DATED 23.11.2020 ISSUED BY CHIEF ENGINEER, KERALA STATE HOUSING BOARD.