Kerala High Court
V.Mohanan vs State Of Kerala on 5 February, 2021
WP(C).No.2589 OF 2021(W)
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942
WP(C).No.2589 OF 2021(W)
PETITIONER/S:
V.MOHANAN
AGED 61 YEARS
S/O.VELAYUDHAN, CONTRACTOR, PATHRAMALIL HOUSE,
MARAKKAR ROAD, PERUMBAVOOR, ERNAKULAM DISTRICT.
BY ADVS.
SRI.BABU JOSEPH KURUVATHAZHA
SRI.M.G.SREEJITH
SMT.K.S.ARCHANA
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
DEPARTMENT OF PUBLIC WORKS, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 SUPERINTENDING ENGINEER,PUBLIC WORKS DEPARTMENT
(ROADS AND BRIDGES), NORTH CIRCLE, HEAD POST
OFFICE, 1ST FLOOR, BWD COMPLEX, KANNUR-KOZHIKODE
ROAD, MANANCHIRA, KOZHIKODE-673 001.
3 SIDDIK.K.V.,
P.W.D.CONTRACTOR, ZAREENA MANZIL, BERKA, CHENGALA
P.O., KASARAGOD DISTRICT, PIN-671 542.
OTHER PRESENT:
SMT.PRINCY XAVIER, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.2589 OF 2021(W)
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JUDGMENT
Dated this the 5th day of February 2021
The petitioner who is an A Class contractor has filed this
Writ Petition seeking a direction to the respondents that the
bid submitted by the 3rd respondent which does not contain
notarized affidavit shall be rejected by the 2nd respondent. He
further seeks a direction to the 2nd respondent to award the work
to the petitioner as he is the 2nd lowest bidder.
2. It is stated that as per Ext.P1 tender notice dated
06.01.2021, the 2nd respondent invited tenders for effecting
improvements to Yakkara Thirunellayi Thankan Hospital Road at
ch.0/00 to 2/500 adjacent to Palakkad town and it was stated
that it was specifically prepared in stamp paper attested by a
Notary. The petitioner submitted that the rate quoted by the 3 rd
respondent was Rs.3,04,37,333/- whereas the rate quoted by the
petitioner was Rs.3,14,44,611/-. Pointing out that the 3 rd
respondent had not submitted the affidavit in stamp paper and it
was not attested by the Notary, it is stated that the 3 rd
respondent is disqualified going by the tender conditions. It is
also stated that the petitioner submitted Ext.P3 representation
on 29.01.2021 pointing out the infirmity in accepting the tender
of the 3rd respondent.
3. The learned Government Pleader on instructions submitted
WP(C).No.2589 OF 2021(W)
that the Government had issued an order on 04.08.2020 exempting
furnishing of affidavits attested by the Notary in view of
Covid-19 situation. It is also pointed out that the tender
conditions includes a clause to the effect that all the
Government orders would be applicable to the tender.
4. Heard the learned Counsel for the petitioner and the
learned Government Pleader. It is settled law that in respect of
contracts entered into on behalf of the State or the
undertakings under it, the court can examine only the infirmity
if any in the 'decision-making process' whether it was
unreasonable, irrational, arbitrary and violative of Article 14
of the Constitution; and not the decision itself, as held by the
Apex Court in Tata Cellular v. Union of India: (1994) 6 SCC 651,
and reiterated in a series of judgments. As held in Jagdish
Mandal v. State of Orissa: (2007) 14 SCC 517 so long as a
decision relating to award of contract is bonafide and is in the
public interest, courts are not supposed to interfere by
exercising power of judicial review even if a procedural
aberration or error in assessment or prejudice to a tenderer is
made out.
5. In Raunaq International Ltd. v. I.V.R. Construction
Ltd.: 1999 (1) SCC 492 the Apex Court held that there should
not be any interference under Article 226 in a dispute between
rival tenderers unless substantial amount of public interest was
involved or in case the transaction was vitiated by malafides.
WP(C).No.2589 OF 2021(W)
In B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd.: 2006
(11) SCC 548 it was 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, the
Courts have to exercise judicial restraint once it was found
that the decision of the authority was taken purely in public
interest. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail
Corpn. Ltd.: (2016) 16 SCC 818 it was held that the employer of
a project who authored the tender documents, is the best person
to understand and appreciate its requirements and interpret its
documents. It was held as follows:
"The constitutional courts must defer to this
understanding and appreciation of the tender
documents, unless there is mala fide or perversity in
the understanding or appreciation or in the
application of the terms of the tender conditions. It
is possible that the owner or employer of a project
may give an interpretation to the tender documents
that is not acceptable to the constitutional courts
but that by itself is not a reason for interfering
with the interpretation given.xxxxx
13. In other words, a mere disagreement with the
decision-making process or the decision of the
administrative authority is no reason for a
constitutional court to interfere. The threshold of
mala fides, intention to favour someone or
arbitrariness, irrationality or perversity must be met
before the constitutional court interferes with the
decision-making process or the decision."
6. After analysing almost all the judgments of the Apex
Court, the Division Bench of this court in the judgments in TBAS
Construction Supreme Infrastructure India Ltd. (M/s.) and in
Pushkarraj Constructions Pvt. Ltd. (M/s.)'s case held that
interference with the decisions of tendering authority must be
WP(C).No.2589 OF 2021(W)
only in exceptional cases and while examining the rationality of
a decision the court should look at the matter in the point of
view of the tendering authority and even in cases where there is
procedural lacuna court should refrain from interference if the
decision is for public interest.
7. Though the learned counsel for the petitioner submits
that the petitioner would undertake the work for the amount
quoted by the 3rd respondent, I am of the view that on the ground
that the 3rd respondent did not produce the affidavit attested by
a Notary this Court need not interfere with the award of work
pursuant to Ext.P1 when the Government has ordered that
affidavit need not be notarized. In the light of the judgments
of the apex court and this Court that the power of judicial
review in matters of contract are limited and it is for the
tendering authority to decide whether a tender can be accepted
or not in the interest of public. Therefore, I do not find any
circumstances to interfere with the proceedings initiated
pursuant to Ext.P1.
The Writ Petition is dismissed.
Sd/-
P.V.ASHA
rkc JUDGE
WP(C).No.2589 OF 2021(W)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE TENDER DETAILS OF THE WORK
EFFECTING IMPROVEMENTS TO YAKKARA
THIRUNELLAYI THANKAM HOSPITAL ROAD AT
CH.0/00 TO 2/500, IN PALAKAKD TOWN.
EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE
3RD RESPONDENT BEFORE THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED
29.01.2021 SUBMITTED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT.
