Kerala High Court
Biju P. vs Kerala State Civil Supplies ... on 29 March, 2021
W.P(C).Nos.2197/2021-Y &
3766/2021-U 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943
WP(C).No.2197 OF 2021(Y)
PETITIONER:
BIJU P., AGED 31 YEARS
S/O. CHANDRAN, RESIDING AT POOVADAN HOUSE,
EZHUVATHIRUTHI, PONNANI P. O., MALAPPURAM DISTRICT.
BY ADVS.
SRI.K.R.AVINASH (KUNNATH)
SRI.ABDUL RAOOF PALLIPATH
RESPONDENTS:
1 KERALA STATE CIVIL SUPPLIES CORPORATION LIMITED
(SUPPLYCO)
REPRESENTED BY ITS MANAGING DIRECTOR, MAVELI
BHAVAN, GANDHINAGAR, KOCHI - 682 020.
2 THE MANAGER - NFSA
KERALA STATE CIVIL SUPPLIES CORPORATION LIMITED
(SUPPLYCO), MAVELI BHAVAN, GANDHINAGAR,
KOCHI - 682 020.
3 REGIONAL MANAGER - PALAKKAD
SUPPLYCO REGIONAL OFFICE, MANORAMA ROAD,
SULTHANPET, PALAKKAD - 678 001.
4 THE DEPOT MANAGER - TIRUR
KERALA STATE CIVIL SUPPLIES CORPORATION LIMITED
(SUPPLYCO) DEPOT, MOOCHIKKAL,
TIRUR P. O. - 676 109.
5 THE TALUK SUPPLY OFFICER - TIRUR
TALUK SUPPLY OFFICE, TIRUR, MALAPPURAM - 676101.
W.P(C).Nos.2197/2021-Y &
3766/2021-U 2
6 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF CIVIL
SUPPLIES, GOVERNMENT SECRETARIAT,
TRIVANDRUM - 695 001.
R1-4 BY SMT.MOLLY JACOB,SC,SUPPLYCO
SMT.PRINCY XAVIER, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.03.2021, ALONG WITH WP(C).3766/2021(U), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P(C).Nos.2197/2021-Y &
3766/2021-U 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943
WP(C).No.3766 OF 2021(U)
PETITIONER:
DIJIN T.V.,
AGED 34 YEARS
S/O. GANGADHARAN KIDAVU, THAZHATHUVEETTIL HOUSE,
MODAKKALLOOR P.O, ULLERI, KOZHIKODE.
BY ADV. SRI.K.V.GOPINATHAN NAIR
RESPONDENTS:
1 KERALA STATE CIVIL SUPPLIES CORPORATION (SUPPLYCO)
REPRESENTED BY THE MANAGING DIRECTOR, MAVELI
BHAVAN, GANDHI NAGAR, KOCHI - 682020.
2 DEPOT MANAGER,
SUPPLYCO TALUK DEPOT, MOOCHIKEL,
TIRUR, PIN - 676109.
3 ADDL R3 : BIJU.P,
S/O.CHANDRAN, AGED 31 YEARS,
RESIDING AT POOVADAN HOUSE,
EZHUVATHIRUTHI, PONNANI P.O,
MALAPPURAM DISTRICT.
(ADDL.R3 IS IMPLEADED AS PER ORDER DATED
29.03.2021 IN I.A.NO.1/2021)
W.P(C).Nos.2197/2021-Y &
3766/2021-U 4
4 ADDL.R4: ASHRAF.V.P,
S/O.MUHAMMED, VELLUTHA PARAMBIL VEEDU,
KUTTIPURAM P.O, MALAPPURAM DISTRICT,
PIN - 679 571.
(ADDL.R4 IS IMPLEADED AS PER ORDER DATED
29.03.2021 IN I.A.NO.3 OF 2021)
R1 BY SMT.MOLLY JACOB,SC,SUPPLYCO
R3 BY ADV. ABDUL RAOOF PALLIPATH
R3 BY ADV. SRI.K.R.AVINASH (KUNNATH)
R4 BY ADV. P.T.SHEEJISH
R4 BY ADV. SRI.P.K.PURUSH
R4 BY ADV. SRI. HARIKIRAN M.
R4 BY ADV. SHRI.PRAVEENKUMAR P.
R4 BY ADV. SMT.JASHITHA VIJAYAN
R4 BY ADV. SRI.A.ABDUL RAHMAN (A-1917)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.03.2021, ALONG WITH WP(C).2197/2021(Y), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P(C).Nos.2197/2021-Y &
3766/2021-U 5
P.V.ASHA, J.
-----------------------------------------------------
W.P(c) Nos.2197 of 2021-Y
and 3766 of 2021-U
----------------------------------------------------
Dated this the 29th day of March, 2021
JUDGMENT
Both these Writ Petitions have been filed alleging that the respondents are
proceeding to invite fresh quotations for transportation of ration articles, contrary
to the provisions in clause 18 of the tender notice dated 15.07.2020, based on
which they were appointed as Transporting Contractors.
2. Both the petitioners were appointed by the Supplyco as Transporting
Contractors for a period of one year in January, 2020, after a process of e-tender
for such appointment for lifting, transportation, handling and delivery of ration
articles from source godowns to destination godowns in Tirur Taluk. The petitioner
in W.P(C).No.2197/2021 was awarded the work of transportation from FCI
Godown, Kuttipuram to Supplyco NFSA Godown - Puthanathani and from CMR
Mills to various Supplyco PDS Depots in Tirur Taluk. The petitioner in
W.P(c).No.3766 of 2021 was given the contract of transportation of ration articles
from FCI, Kuttippuram and CMR mills to various PDS Depots in Tirur Taluk.
Immediately after their appointment, the Supplyco took steps for commissioning a
new depot at Kadungathukundu. Both petitioners claim that the new Depot is
W.P(C).Nos.2197/2021-Y &
within 5 km from the respective depots from which they had been transporting.
The Writ Petitions have been filed stating that the Depot Manager was taking steps
for issuing tender for transportation of ration articles to the new depot to a new
contractor and the same is in violation of clause 18 of the tender conditions and in
the judgment in W.P(c).No.1081/2021 filed by the petitioner in W.P(C).No.2197 of
2021, the 2nd respondent had undertaken to abide by the said condition.
3. Petitioner in W.P(c).No.2197/2021 asserted that the Puthanathani is
less than 5 kms from the new godown at Kadungathukundu; whereas the petitioner
in W.P(c).No.3766/2021 submits that the distance between Varanakara and
Kadungathukundu is less than 5 kms. The said petitioner also pointed out that in
the event of awarding the contract to others, the petitioner who invested huge
amount for the purpose of transportation of contract awarded on 6.1.2021 would
be put to very serious prejudice. In the case of the petitioner in
W.P(c).No.2197/2021 it is stated that he will lose the transportation work from
Puthenathani Godown. Both of them alleged that the respondents are deviating
from clause 18 of the tender conditions, according to which, they are entitled to be
given the transportation to the new godown at the same rate.
4. When W.P(c).No.3766/2021 came up for consideration on
12.02.2021, an interim order was passed directing that quotation proposed in
Ext.P5 letter shall not be finalised and directing the learned Standing Counsel to
get instructions as to whether the said proposal was confined to the new godown
alone. The petitioners' claim that they should be given the work in accordance with
W.P(C).Nos.2197/2021-Y &
clause 18 at the very same rate, can be accepted only if the distance is below 5
kms.
5. Thereafter the Supplyco filed a statement, producing Annexure-R1(a)
report of the Vehicle Surveyor, according to which, the distance from the new
godown to the NFSA godown to Puthanathani and that to NFSA godown at
Varanakkara as well as from other NFSA godowns is between 5.5 kms and 10.2
kms. The 1st respondent Corporation stated that the new godown is having an area
of 39326.72 sq.ft to store the food grains needed for the entire taluk and the said
godown has been constructed after inviting expression of interest from private
parties having one acre of land to build godown as per the plan of the Supplyco
for the purpose of unification of godowns in the Taluk. It is stated that unification
of godowns was recommended by the Vigilance and Anticorruption Bureau to
check misappropriation. It is stated that the new building has to be paid monthly
rent of Rs.5,50,574/- and that it became necessary to close all other godowns in the
Taluk and any delay would cause additional expenditure and heavy loss to the
Supplyco. In view of the finding of the Surveyor in Ext.R2(a) report it is stated
that the respondents decided to go for fresh tender because the 8 godowns have to
be vacated and the rationed articles are to be stored in the new godown.
6. When these matters came up for consideration on 19.03.2021, both
the petitioners expressed their willingness to transport the ration articles from the
FCI godown at the same rate and therefore the respondents were directed to have
negotiation with them. In the additional statement filed by the 2 nd respondent
W.P(C).Nos.2197/2021-Y &
thereafter it is stated that on the basis of the directions of this Court, the petitioners
in both these cases were invited for negotiation. Both of them submitted Ext.R1(c)
and Ext.R1(d) letters. It is stated that the petitioner in W.P(c).No.2197 of 2021
quoted Rs.67.97 per quintel on condition that the entire allotment should be
allowed to be shifted by him. He also stated that he is not prepared to do the work
unless the work is allotted to him only. At the same time, the petitioner in
W.P(c).No.3766 of 2021 has given in writing that he is prepared to lift the articles
@ Rs.67.97 per quintel which is the rate at which he had been transporting from
FCI/CMR Mills to the PDS Godown. He also requested that he alone shall be
considered for lifting and transportation. It is stated that altogether there are 4
transporting contractors from source godowns to PDS depots, Tirur. The petitioner
in W.P(c).No.2197/2021 also is transporting articles from 4 CMR mills to all the
godowns. In the case of the petitioner in W.P(C).No.3766/2021 he is lifting the
articles from 9 FCI godowns and 9 CMR Mills to the existing godowns in the
Taluk. It is stated that there is another contractor Hyder transporting from 7 CMR
mills to PDS and Sri Ashraf from 22 CMR mills.
7. Sri Ashraf has got impleaded in these Writ Petitions claiming that he
shall also be considered for transportation from the new godown.
8. Having heard the contentions on both sides it is seen that the ration
articles stored in all other 8 godowns of the Supplyco in the Taluk would have to
be shifted to the new godown emergently. Any further delay in the matter would
incur additional expenditure to the Supplyco. Relevant provision in clause 18 of
W.P(C).Nos.2197/2021-Y &
the tender condition relied on by the petitioners read as follows:
"after the selection of the contractor, and during the period of contract if
there is any change or addition/deletion in the location of FCI/CMR godown,
Supplyco godown, the rates of transportation in such location/operation will be
arrived considering the distance from the FCI/CMR mills, existing agreed rate etc.
If the new godown/additional godown is within a distance of five kilometers from the
existing godown, Supplyco will not entertain any request for enhancement/deduction
in the rates. In such cases, the transportation rate mutually agreed for lifting of
ration articles from FCI Godown/CMR mills to the existing godown will be
applicable to the new/additional godown."
When the distance is found to be more than 5 kms contrary to the claim of the
petitioners, I am of the view that a decision shall be taken in the matter at the
earliest, in accordance with law, as all the 4 contractors would be affected by the
shifting and the starting of the new godown in the place of the other godowns
which have to be vacated. Due to the pendency of the Writ Petitions the
respondents have not taken a decision even for any temporary arrangement. The
new godown has to be started functioning without any delay.
9. Therefore, the respondents shall take appropriate action, in
accordance with law, at the earliest giving opportunity to all the contractors, taking
note of clause 18 of the tender conditions and also the fact that none of them are
within 5 kms.
The Writ Petitions are disposed of accordingly.
Sd/- (P.V.ASHA, JUDGE)
rtr/
W.P(C).Nos.2197/2021-Y &
APPENDIX OF WP(C) 2197/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE AGREEMENT ENTERED INTO
BETWEEN THE KERALA STATE CIVIL SUPPLIES
CORPORATION AND THE PETITIONER DATED
06.01.2021.
EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS DATED
06.01.2021 OF THE SUPPLYCO-DEPOT MANAGER
-TIRUR.
EXHIBIT P3 TRUE COPY OF THE REQUEST MADE BY THE
PETITIONER BEFORE THE 2ND AND 3RD
RESPONDENTS DATED 23.12.2020.
EXHIBIT P4 TRUE COPY OF THE REPRESENTATION MADE BY THE
PETITIONER BEFORE THE RESPONDENTS 2 AND 3
DATED 07.01.2021.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 15.01.2021
IN WPC 1081/2021 OF THIS HON'BLE COURT.
EXHIBIT P6 TRUE COPY OF THE NOTICE NO.F.1682/19 DATED
22.01.2021 ISSUED BY TALUK DEPOT MANAGER,
SUPPLYCO, TIRUR.
RESPONDENTS' EXHIBITS
ANNEXURE-R2(a) PHOTO COPY OF THE REPORT DATED 15.02.2021.
ANNEXURE-R2(b) PHOTO COPY OF THE LETTER NO.NFSA 2-
4870/2021 DTD.22.02.2021.
ANNEXURE-R1(c) PHOTO COPY OF THE LETTER SUBMITTED BY THE
PETITIONER IN THE ABOVE CASE TO THE 4TH
RESPONDENT.
ANNEXURE-R1(d) PHOTO COPY OF THE LETTER SUBMITTED BY THE
PETITIONER IN WPC NO.3766/2021 TO THE 4TH
RESPONDENT.
ANNEXURE-R1(e) PHOTO COPY OF THE REPRESENTATION DATED
22.03.2021 OF SRI V.P.ASHRAF BEFORE THE 2ND
RESPONDENT.
W.P(C).Nos.2197/2021-Y &
APPENDIX OF WP(C) 3766/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE PROCEEDINGS OF THE 2ND
RESPONDENT DATED 6.1.2021.NO.F 517/2000.
EXHIBIT P2 A TRUE COPY OF THE TENDER NOTICE DATED
15.07.2020. NO.NFSA 5-17016/20.
EXHIBIT P2(a) A TRUE COPY OF THE AGREEMENT DATED 6.1.2021
BETWEEN PETITIONER AND 1ST RESPONDENT.
EXHIBIT P3 A TRUE COPY OF THE LETTER DATED 22.01.2021
NO.F-1682/19.
EXHIBIT P4 A TRUE COPY OF THE LETTER DATED
25.01.2021.NO.F-1682/19.
EXHIBIT P5 A TRUE COPY OF THE LETTER DATED 11.02.2021
NO.F-517/21.
EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS NO.NFSA2-
4870/2021 DATED 04/03/2021.
EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 18/03/2021 OF
THE 2ND RESPONDENT.
RESPONDENTS' EXHIBITS
EXT.R3(a) COPY OF THE REQUEST SUBMITTED BY THE
PETITIONER DATED 23.12.2020.
EXT.R3(b) TRUE COPY OF THE REPRESENTATION DATED
7.1.2021 SUBMITTED BY THE PETITIONER.
EXT.R3(c) TRUE COPY OF THE JUDGMENT DATED 15.1.2021
IN WPC.1081/2021 OF THIS HON'BLE COURT.
EXT.R3(d) TRUE COPY OF THE NOTICE NO.F.1682/19 DATED
22.1.2021 ISSUED BY TALUK DEPOT MANAGER,
SUPPLYCO.
ANNEXURE-R1(a) PHOTO COPY OF THE REPORT DATED 15.2.2021 OF
VEHICLE SURVEYOR SUBMITTED TO CHAIRMAN &
MANAGING DIRECTOR OF 1ST RESPONDENT.
ANNEXURE-R1(b) PHOTO COPY OF THE LETTER NO.NFSA 2-
4870/2021 DTD. 22.2.2021 OF MANAGER NFSA OF
W.P(C).Nos.2197/2021-Y &
1ST RESPONDENT.
EXT.R4-A TRUE COPY OF THE ORDER DT.4.3.2021 ISSUED
BY THE CMD, SUPPLYCO.
EXT.R4-B TRUE COPY OF THE COMMUNICATION DT.20.3.2021
ISSUED BY MANAGER OF SUPPLYCO, TIRUR.
EXT.R4-C TRUE COPY OF THE REPRESENTATION
DT.22.3.2021 ISSUED TO THE MANAGER,
SUPPLYCO.
