Rahmathulla K.K vs State Of Kerala
2021 Latest Caselaw 9620 Ker

WP(C).No.16002 OF 2020(A)
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            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

    TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943

                      WP(C).No.16002 OF 2020(A)


PETITIONER/S:

                RAHMATHULLA K.K.
                AGED 56 YEARS
                KANICHADI KUZHIYIL HOUSE, CHERUVADI.P.O., MAVOOR,
                KOZHIKODE-673661, KERALA.

                BY ADVS.
                SRI.V.K.PRASAD
                SRI.M.PRAVEESH

RESPONDENT/S:

      1         STATE OF KERALA,
                REPRESENTED BY THE SECRETARY, IRRIGATION
                DEPARTMENT, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM-695001.

      2         SUPERINTENDING ENGINEER,
                MINOR IRRIGATION CIRCLE, KAVERI HOUSE, WEST
                HILL.P.O., KOZHIKODE-673005.

      3         THE EXECUTIVE ENGINEER,
                MINOR IRRIGATION DIVISION, OFFICE OF THE EXECUTIVE
                ENGINEER, MINOR IRRIGATION DIVISION, CIVIL STATION,
                KOZHIKODE-673020.

      4         M.M.BALAKRISHNAN,
                CHERIYAMADATHIL HOUSE, KALPATHOOR, MEPPAYYUR,
                PINCODE-673524, KOZHIKODE.

                R4 BY ADV. SRI.K.B.ARUNKUMAR

OTHER PRESENT:

                SMT.VINITHA.B, GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.16002 OF 2020(A)
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                                     JUDGMENT

Dated this the 23rd day of March 2021

The petitioner challenges finalisation of the tender in

favour of the 4th respondent.

2. Ext.P1 notice inviting tender was issued on 06.03.2020

by the Minor Irrigation Department under the Kerala State

Irrigation Department for construction of the check dam across

Vencheri river at Chambanmuzhi Kaipram in Puthuppadi Panchayath

under Thiruvambady Legislative Assembly of Kozhikkode District.

The time for completion fixed was ten months. It is stated that

4 bidders participated in the tender and petitioner came out

successful as per Ext.P2 proceedings. Three remaining bidders

did not qualify since they failed to pay GST under reverse

mechanism. It was under those circumstances, the petitioner was

declared as L-1. It is stated that despite this petitioner was

not awarded the work and he submitted Ext.P3 representation and

2nd respondent as per Ext.P4 letter informed the petitioner that

files were returned to the office of the 3 rd respondent. It is

stated that the petitioner thereafter approached this Court in

WP(C) No.14413 of 2020 and this Court directed the respondents

to take a decision. As per Ext.P5 letter the 3rd respondent

informed that after the petitioner was declared as L-1, the

matter was considered and it was found that there was a

difference of Rs.8,30,485/-. It was stated that the tender WP(C).No.16002 OF 2020(A)

submitted by other three persons were rejected on the ground

that they did not remit the sum of Rs.502/- towards GST and the

entire documents of the petitioner were forwarded to the

Superintending Engineer as per letter dated 18.05.2020. Seeing

that there was a difference of Rs.8,30,485/- between the amount

quoted by the petitioner and the 4th respondent, respondents

called for clarification from the Commercial Taxes Department

and it was informed that the tenders for which tender fee is

less than Rs.5,000/- are exempted from realization of GST and

therefore it was decided that the 4th respondent who quoted the

lowest amount be awarded the work. The petitioner is challenging

Ext.P5 letter. According to the petitioner tender conditions

cannot be varied.

3. The 3rd respondent has filed a counter affidavit

reiterating the contents of Ext.P5 letter. It is stated that as

per the GST S.11(1) of the GST Rules 2017, if the tender fee

amount is less than Rs.5,000/- it is exempted from the GST and

in the present case the tender fee is only Rs.2,790/- and all

the bidders are eligible for exemption from paying GST @ 18%. It

is stated that the Technical Evaluation Committee which met on

23.06.2020 considered the tenders in the light of the

clarification and the petitioner became L-4. The 2nd respondent

directed to take a suitable decision in the matter in order to

see that no loss is sustained by the Government. Thereafter the

3rd respondent approved the lowest tender and issued selection WP(C).No.16002 OF 2020(A)

notice to the 4th respondent. He signed the agreement with the 3rd

respondent on 09.07.2020. The site of the said work has been

handed over to the contractor on 15.07.2020 and he has started

the work from 15.07.2020. It is stated that the petitioner was

informed about all these in the letter dated 13.07.2020.

4. The 4th respondent also filed a counter affidavit stating

that he is eligible for exemption from payment of GST and being

L-1 he is entitled to be awarded the work.

5. The petitioner has filed a reply affidavit pointing out

that the work is not started and he is entitled to be awarded

the work.

6. Admittedly the bid amount quoted by the petitioner is

Rs.69,97,656.8. It is only because the tender evaluation

committee initially did not consider the relevant rules under

the GST which provides for exemption from payment of GST where

the tender fee is below Rs.5,000/- that petitioner was treated

as L-1 though he quoted the highest amount and was actually L-4

among the 4 bidders. In the aforesaid circumstances, respondents

have awarded the work in public interest in order to see that

the Government does not sustain any loss in the process of

tender and also to see that the selection is made in accordance

with the rules. What the respondents have done is in accordance

with law.

7. Just because the respondents have issued a selection

notice and the petitioner was treated as L-1 without noticing WP(C).No.16002 OF 2020(A)

the relevant provisions under the GST Rules, petitioner cannot

have any right to insist that he should be given the work and

the person who would be quoted at the lowest amount should be

given the work. It is settled law that even if there are certain

minor variations from the tender conditions, interference by

courts under Article 226 of the Constitution of India is

uncalled for except in cases of arbitrariness and malafides. No

such allegation is raised in this Writ Petition. Therefore,

petitioner does not deserve any relief.

The Writ Petition is accordingly dismissed.

Sd/-

                                                           P.V.ASHA

rkc                                                         JUDGE
 WP(C).No.16002 OF 2020(A)




                            APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1           A TRUE COPY OF THE TENDER NOTICE BEARING
                     NO.EE    MI/ET-42/2019-20   DATED    6.3.2020

INVITING TENDERS ISSUED BY 2ND RESPONDENT MINOR IRRIGATION DEPARTMENT UNDER 1ST RESPONDENT STATE IRRIGATION DEPARTMENT.

EXHIBIT P2 A TRUE COPY OF THE TECHNICAL EVALUATION REPORT DATED 16.6.2020 DOWNLOADED FROM THE WEBSITE OF 1ST RESPONDENT SHOWING PETITIONER AS L1.

EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DATED 17.6.2020 SUBMITTED BY PETITIONER AT THE OFFICE OF 2ND RESPONDENT.

EXHIBIT P4 A TRUE COPY OF THE COMMUNICATION FROM THE OFFICE OF THE 2ND RESPONDENT BEARING NO.DB10-2019/7212/1A DATED 23.6.2020.

EXHIBIT P5 A TRUE COPY OF LETTER BEARING NO.D2/2019/7212/1A DATED 13.7.2020 SENT BY 3RD RESPONDENT THAT WAS RECEIVED BY THE PETITIONER ON 18.7.2020.

EXHIBIT P6           A TRUE COPY OF THE LETTER DATED 5.10.2018
                     SENT    BY    DEPUTY   COMMISSIONER    SGST

DEPARTMENT, PALAKKAD, PALAAKKD DISTRICT COMMITTEE OF ALL KEARALA GOVERNMENT CONTRACTORS ASSOCIATION STATED IN EXHIBIT P5 COMMUNICATION.

EXHIBIT P7 A TRUE COPY OF THE TENDER NOTICE DATED 27/07/2020 ISSUED BY RESPONDENT 3.

EXHIBIT P8 TRUE COPY OF THE PHOTOGRAPHS OF THE TENDER SITE TAKEN ON 24/02/2021.