Manu John vs Union Of India
2021 Latest Caselaw 17447 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR. JUSTICE T.R.RAVI
  THURSDAY, THE 26TH DAY OF AUGUST 2021 / 4TH BHADRA, 1943
                     WP(C) NO. 8256 OF 2021
PETITIONERS:

    1    MANU JOHN
         AGED 29 YEARS
         S/O.JOHN, VAKKAVILAYIL HOUSE, VELLAKULANGARA,
         MANAKALA P.O., ADOOR, PATHANAMTHITTA DISTRICT,
         PIN-691 551.
    2    NIHAL MONI GEORGE,
         AGED 21 YEARS
         S/O.MONI GEORGE, MULAYAKONATH, VELLAKULANGARA,
         MANAKALA P.O., ADOOR, PATHANAMTHITTA DISTRICT,
         PIN-691 551, NOW RESIDING AT AI, GRACE MEADOWS,
         NO.28, PACHAIYAPPA COLLEGE HOSTEL ROAD, CHETPET,
         CHENNAI, PIN-600 031.
         BY ADV MATHEW KURIAKOSE


RESPONDENTS:

    1    UNION OF INDIA
         REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE,
         CABINET SECRETARIAT, RAISINA HILLS,
         NEW DELHI-110 001.
    2    THE LIFE INSURANCE CORPORATION OF INDIA,
         YOGAKSHEMA BUILDING, JEEVAN BIMA MARG,
         P.O.BOX NO-19953, MUMBAI-400 021,
         REPRESENTED BY ITS CHAIRMAN
    3    THE ZONAL MANAGER,
         CHENNAI, LIFE INSURANCE CORPORATION OF INDIA,
         ZONAL OFFICE, MOUNT ROAD, CHENNAI-600 002.
 W.P.(C)No.8256 of 2021
                                       :-2-:

       4        THE SENIOR DIVISIONAL MANAGER,
                LIFE INSURANCE CORPORATION OF INDIA,
                DIVISIONAL OFFICE, KOTTAYAM, JEEVAN PRAKASH,
                KURIAN UTHUP ROAD, NAGAMPADOM, KOTTAYAM,
                PIN-686 001.
       5        THE SENIOR BRANCH MANAGER,
                LIFE INSURANCE CORPORATION OF INDIA, BRANCH
                OFFICE, ADOOR, PUNTHALA COMPLEX, ADOOR,
                PATHANAMTHITTA DISTRICT, PIN-691 523.
     * 6        MR. PADMANABHA RAO,
                AGE AND FATHER'S NAME NOT KNOWN TO THE
                PETITIONERS, THE SENIOR DIVISIONAL MANAGER, LIFE
                INSURANCE CORPORATION OF INDIA, DIVISIONAL OFFICE,
                KOTTAYAM, JEEVAN PRAKASH, KURIAN UTHUP ROAD,
                NAGAMPADOM, KOTTAYAM, PIN-686 001.
                * (R6 DELETED FROM PARTY ARRAY AS PER ORDER DATED
                26/07/2021 IN IA NO.1/21 IN WP(C) 8256/2021.
       7        MRS. SOHA KURISSERY
                AGE AND FATHER'S NAME NOT KNOWN TO THE
                PETITIONERS, THE SENIOR BRANCH MANAGER, LIFE
                INSURANCE CORPORATION OF INDIA, BRANCH OFFICE,
                ADOOR, PUNTHALA COMPLEX, ADOOR, PATHANAMTHITTA
                DISTRICT, PIN-691 523.
                BY ADVS.
                SRI.T.V.VINU
                SRI.S.EASWARAN
                SRI.P.VIJAYAKUMAR, ASGI



        THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON     2.8.2021,         THE   COURT   ON      26.08.2021   DELIVERED   THE
FOLLOWING:
 W.P.(C)No.8256 of 2021
                                          :-3-:

                         Dated this the 26th day of August, 2021


                                   JUDGMENT

The petitioners in the Writ Petition are challenging the

finalisation of a tender process by the Respondents 4 and 5 pursuant

to Exhibit P1 tender notification.

2. The Life Insurance Corporation of India (2 nd Respondent

herein), is a statutory corporation. The 4 th Respondent floated a tender

on 7.6.2020, for purchase of vacant land/plots from individuals/firms at

locations in Adoor and Changanacherry, for the construction of branch

buildings of the 2nd Respondent. Ext.P1 is the copy of the notification

published in newspaper. As per Exhibit P1, bidders having plot/vacant

land within the Municipal limits and within a radius of 3 km from the

main bus stop are eligible to apply. It is also mentioned that the land

should be located preferably near to the main market area, at a prime

location, near public amenities like banks, post office, bus stop etc. In

order to maintain this Writ petition under Article 226 of the Constitution

of India, it is stated in the Writ petition that the 1 st petitioner is a life

insurance policy holder. Exhibit P3 policy is produced to prove the W.P.(C)No.8256 of 2021 :-4-:

above fact. It is stated that the 2 nd petitioner is the absolute owner in

possession of a property having an extent of 20.23 ares in Sy.No.

314/11 in Block No. 16 of Earathu village in Adoor taluk in

Pathanamthitta district. Exhibit P4 basic tax receipt is produced to

prove the above aspect. It is stated that the 1 st petitioner being a

policyholder is interested in the affairs of the 2 nd Respondent and the

2nd petitioner being a landowner is interested in the bid process. The

case of the petitioners is that the Respondents are proposing to

purchase property situated outside the Municipal area in violation of

the tender conditions and that if it had been made clear in the tender

notification that lands can also be situated outside the Municipal area,

there would have been more participation in the tender process and

the 2nd petitioner could also have participated. There are allegations

made in the Writ petition regarding corruption, malafides and

siphoning off of public money apart from the grounds of arbitrariness

and illegality.

3. The Respondents 2 to 5 filed a counter affidavit,

contending that the petitioners have no locus standi to file the Writ

Petition. It is contended that the Writ petition is liable to be dismissed W.P.(C)No.8256 of 2021 :-5-:

on the ground of delay. It is stated that after the opening of the

technical bid, the committee constituted for the purpose of assessing

the suitability of the properties visited the plots on 25.11.2020 and

found that the lowest bid was eligible for finalisation. It is only after the

entire process was finalised that the petitioners approached the Court.

It is further contended that the actions of the Respondents 2 to 5,

though by an authority under Article 12 of the Constitution of India,

cannot be subjected to judicial review under Article 226 of the

Constitution, insofar as the actions challenged are in the realm of

contract and the Respondents 2 to 5 are not performing any public

duty. It is further contended that the petitioners are not entitled to seek

a Writ of mandamus insofar as the petitioners do not have any

statutory right and the Respondents 2 to 5 do not have any statutory

duty corresponding to such a right, warranting the issuance of a Writ

of mandamus. On facts it is submitted that the 1 st petitioner who

claims to be a policyholder, cannot be treated as a policyholder since

the policy referred to by him had lapsed with effect from November,

2015. Regarding the 2nd petitioner, it is submitted that he did not

respond to Exhibit P1 tender notice and as such he cannot challenge W.P.(C)No.8256 of 2021 :-6-:

the action of the respondents. The respondents have produced

Ext.R4(a) along with the counter affidavit which is the tender notice

uploaded in the website of the 2nd respondent and it is contended that

the notification did not contain a condition that the property should be

within the municipal limits and that by placing reliance merely on

Ext.P1, it cannot be concluded that only persons who had land within

Municipal limits could have responded to the tender notice. The details

of the bids received have been stated in the counter affidavit and the

locational advantage and the price advantage with regard to the

property that was selected has been stated in detail. The counter

affidavit also states that the 2nd petitioner had not responded to the

tender notice, and even if he had responded the property that belongs

to him lies 5 km away from Adoor K.S.R.T.C. bus station and that the

plot is very far away from important places like market and bus station

and that the road in front of the property is too narrow. On

comparison, the property that has been chosen is stated to be just 2

km away from Adoor K.S.R.T.C. bus station and that the plot is just

outside the Municipal limits and the area opposite the plot is within the

Municipal area. The Respondents also produced Exhibit R4(c) which W.P.(C)No.8256 of 2021 :-7-:

is the valuation report of the approved Engineer, which says that the

property is located by the side of Kayamkulam-Punalur Highway and

that the recent transaction that happened in the locality recorded a

price of Rs.14 lakhs/cent.

4. Heard Sri Mathew Kuriakose on behalf of the petitioners

and Sri S.Easwaran, Standing Counsel for the 2 nd respondent on

behalf of respondents 2 to 5.

5. The counsel for the petitioners sought to draw a

comparison between Exhibit P1 publication in the newspaper and

Exhibit R4(a), which is stated to be the notification as available in the

website of the 2nd Respondent, and pointed out that there is a striking

difference insofar as the two conditions which are shown under the

column "locations" are concerned. Though the paper publication

showed that persons having land within the Municipal limits and within

a radius of 3 km from the main bus stop are eligible to apply, no such

condition is available in Exhibit R4(a). According to the Counsel,

Exhibit P1 which is a publication in the newspaper alone should be

considered and the decision of the 2nd Respondent to accept the bid

with regard to a property, which is not within the limits prescribed, is W.P.(C)No.8256 of 2021 :-8-:

bad in law. It is further contended that the property that is offered is

valued much higher than its fair value, as can be seen from Exhibit

P2. The petitioners also contended that the property of 20.23 Ares

belonging to the 2nd petitioner was very much available at a much

lesser cost.

6. The counsel for the Respondents relied on the decisions of

the Hon'ble Supreme Court in Bareilly Development Authority v.

Ajai Pal Singh reported in (1989)2 SCC 116, B.S.N.Joshi & Sons

Ltd v. Nair Coal Services Ltd and others reported in (2006)11 SCC

548, Tejas Constructions and Infrastructure Private Ltd v.

Municipal Council, Sendhwa and another reported in (2012)6 SCC

464 and K.K.Saksena v. International Commission on irrigation

and Drainage and others reported in (2015)4 SCC 670 and the

judgment of a learned Single Judge of this Court in Unimoni

Financial Services Ltd vs IDBI Bank Ltd and another reported in

2020 SCC Online Ker 7347 in support of his contention that neither is

a writ petition maintainable against the 2 nd respondent nor are the

petitioners entitled to the reliefs prayed for in the writ petition.

7. In B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., W.P.(C)No.8256 of 2021 :-9-:

reported in (2006)11 SCC 548, the Hon'ble Supreme Court in

paragraph 66 summarised the principles of judicial review in matters

relating to tenders. While stating that essential conditions of tender

notification should be adhered to, the Court also held that when a

decision is taken by the appropriate authority upon due consideration

of the tender document submitted by all the tenderers on their own

merits and if it is ultimately found that successful bidders had in fact

substantially complied with the purport and object for which essential

conditions were laid down, the same may not ordinarily be interfered

with. Later in Jagdish Mandal v. State of Orissa reported in (2007)

14 SCC 517, the Hon'ble Supreme Court held that judicial review of

administrative action is intended to prevent arbitrariness, irrationality,

unreasonableness, bias and mala fides. It was held that when the

power of judicial review is invoked in matters relating to tenders or

award of contracts, it should be borne in mind that a contract is a

commercial transaction and evaluating tenders and awarding

contracts are essentially commercial functions. It was further held that

if the decision relating to award of contract is bona fide and is in public

interest, courts will not, in exercise of power of judicial review, interfere W.P.(C)No.8256 of 2021 :-10-:

even if a procedural aberration or error in assessment or prejudice to

a tenderer, is made out. The Apex Court held that, a court before

interfering in tender or contractual matters in exercise of power of

judicial review, should pose to itself the questions whether the process

adopted or decision made by the authority is mala fide or intended to

favour someone (Or) whether the process adopted or decision made

is so arbitrary and irrational that the court can say: "the decision is

such that no responsible authority acting reasonably and in

accordance with relevant law could have reached" and that if the

answers are in the negative, there should be no interference under

Article 226. In Tejas (supra) referred to by the counsel for the

respondents, the above principles were reiterated. In

K.K.Saksena(Supra), the Hon'ble Supreme Court after referring to

several earlier decisions, held that a writ will not lie against an

authority which is "State" within the meaning of Article 12 of the

Constitution, for enforcing a private law right. The Apex Court

observed that a private law is that part of a legal system which is a

part of common law that involves relationships between individuals,

such as law of contract or torts. The Court further held that even if writ W.P.(C)No.8256 of 2021 :-11-:

petition would be maintainable against an authority which is "State"

under Article 12 of the Constitution, before issuing any writ, particularly

writ of mandamus, the Court has to satisfy that action challenged is in

the domain of public law as distinguished from private law. In Bareilly

Development Authority(supra), the Hon'ble Supreme Court after

considering the earlier case law held that in the absence of any

statutory obligations on the part of the authority which is "State" under

Article 12 of the Constitution, matters relating to contractual aspects

are to be governed by the rights and obligations of the parties inter se

in the contractual field. The Hon'ble Supreme Court referred to the

earlier decisions which laid down that if the grievance is non-statutory

and purely contractual, no writ or order can be issued under Article

226 of the Constitution of India so as to compel the authorities to

remedy a breach of contract pure and simple. In Unimoni (supra), the

learned Single Judge of this Court, referred to the binding decisions of

the Hon'ble Supreme Court and held that where there is no public duty

involved, a writ petition under Article 226 is not maintainable against a

public sector Bank.

8. Applying the legal principles referred to above to the facts W.P.(C)No.8256 of 2021 :-12-:

of this writ petition, the transaction that is challenged falls entirely

within the realm of contract. The action of the 2 nd respondent that is

challenged is not one which is governed by any statute and is in

furtherance of a commercial decision taken by the 2 nd respondent, to

purchase an immovable property for housing their branch offices.

Decisions relating to purchase of immovable property by an authority

which is "State" within the meaning of Article 12 of the Constitution of

India is not, by any stretch of imagination, a decision coming under

the public law realm. Such authority does not owe any public duty to

persons like the petitioners, so as to warrant the issuance of a writ of

mandamus. Even giving a long rope and assuming for argument sake

that a writ petition of this nature is maintainable against the 2 nd

respondent, the fact remains that the process adopted and the

decision made by the 2 nd respondent cannot be stated to be mala fide

or intended to favour someone or that it is so arbitrary and irrational

that no responsible authority acting reasonably and in accordance

with relevant law could have reached. It is evident from the facts on

record that the price quoted for the property is less than the valuation

made by the authorised Engineer and that the property sought to be W.P.(C)No.8256 of 2021 :-13-:

purchased is just outside the Municipal limits, divided only by a public

road. It is also in evidence that the property is within 2 kms from the

main bus stand and that it is alongside the Kayamkulam-Punalur

Highway. Thus, even on the facts, there can be no interference with

the decision made by the 2nd respondent, on the ground of

arbitrariness.

In the result, the writ petition fails and is dismissed. The parties

will bear their respective costs.

All pending interlocutory applications are closed.

Sd/-

T.R.RAVI, JUDGE ami/ W.P.(C)No.8256 of 2021 :-14-:

APPENDIX OF WP(C) 8256/2021

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE TENDER NOTIFICATION DATED 7.6.2020 ISSUED BY THE 4TH RESPONDENT EXHIBIT P2 COMPUTER PRINT OUT OF THE FAIR VALUE NOTIFICATION IN RESPECT OF THE PROPERTY IN RE.SURVEY NO 16/2 OF EZHAMKULAM VILLAGE OBTAINED FROM THE WEBSITE WWW.IGR.KERALA.GOV.IN EXHIBIT P3 TRUE COPY OF THE JEEVAN ANAND (WITH PROFITS) (WITH ACCIDENT BENEFITS) POLICY NO 396001311 IN THE NAME OF THE 1ST PETITIONER EXHIBIT P4 TRUE COPY OF THE BASIC TAX RECEIPT DATED 1.12.2018 ISSUED BY THE VILLAGE OFFICE, EARATHU.

EXHIBIT P5 TRUE COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER TO THE CHIEF INFORMATION OFFICER. LIC OF INDIA, ADOOR BRANCH AND THE RECEIPT DATED 23.3.2021

RESPONDENTS' EXHIBITS :

EXHIBIT R4(a) TRUE COPY OF THE TERMS AND CONDITIONS OF TENDER DATED 7.6.2020

EXHIBIT R4(b) TRUE COPY OF THE TECHNICAL BID SUBMITTED BY Dr.AFSAL AHAMED

EXHIBIT R4(c) TRUE COPY OF THE VALUATION REPORT DATED 23.12.2020

EXHIBIT R4(d) TRUE COPY OF THE LOCATION SKETCH OF THE ADOOR MUNICIPALITY W.P.(C)No.8256 of 2021 :-15-:

EXHIBIT R4(e) TRUE COPY OF THE CERTIFICATE DATED 29.3.2021 ISSUED BY CHAIRPERSON, ADOOR MUNICIPALITY