Kerala High Court

Biju.S vs The State Of Kerala on 19 November, 2021

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE N.NAGARESH
  FRIDAY, THE 19TH DAY OF NOVEMBER 2021/28TH KARTHIKA, 1943
                     WP(C) NO. 21598 OF 2021


PETITIONER:

         BIJU S., AGED 44 YEARS,
         S/O. SADANANDAN, VENU MANDIRAM,
         KALARI, CHAVARA P.O., PANMANA,
         PANMANA, CHAVARA, KOLLAM,
         KERALA 691 483.

         BY ADVS.
         JOHNSON GOMEZ
         S.BIJU (KIZHAKKANELA)
         SANJAY JOHNSON
         JOHN GOMEZ
         SREEDEVI S.
         ENLIN MARY RODRIGUS
         MOHAMED SHEHARAN
         DINOOP P.D.
         SANJITH JOHNSON


RESPONDENTS:

    1    THE STATE OF KERALA REPRESENTED BY
         THE SECRETARY TO GOVERNMENT,
         PUBLIC WORK DEPARTMENT, SECRETARIAT,
         THIRUVANANTHAPURAM, PIN -695 001.

    2    THE EXECUTIVE ENGINEER,
         OFFICE OF THE EXECUTIVE ENGINEER,
         PWD BUILDING DEPARTMENT, KOLLAM

         BY SMT.VINITHA B., SR.G.P.

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 19.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C)No.21598/2021

                               2




                        JUDGMENT

Dated this the 19th day of November, 2021

The petitioner who is the successful bidder pursuant to

Ext.P1 Notice Inviting Tender, is before this Court aggrieved

by the cancellation of the tender proceedings and re-tender

of the work.

2. The petitioner responded to Ext.P1 Notification

Inviting Tenders for the work of demolition of NGO Quarters

at Kollam. The upset price was fixed at `15,85,000/-. In the

bid evaluation, the petitioner was found to be the highest

bidder who quoted `16,01,000/-. Ext.P2 communication

was issued to the petitioner informing that he is selected for

the work. He was further informed that once he pay the

requisite deposit, the work can be started. WP(C)No.21598/2021

3. To the surprise and predicament of the petitioner,

the very next day on 05.10.2021, the 2 nd respondent issued

Ext.P3 order cancelling the award of tender in favour of the

petitioner. The work was subsequently re-tendered.

4. The petitioner would contend that Ext.P3

cancellation of tender was effected without issuing any

notice to the petitioner and without granting the petitioner

any opportunity of hearing. The petitioner had quoted more

than the upset price. The petitioner quoted the highest

amount. Under such circumstances, the cancellation of bid

in Ext.P1 is highly arbitrary and unsustainable.

5. The learned counsel for the petitioner submitted

that Ext.P3 would indicate that the tender proceedings have

been cancelled on the basis of certain doubts of

manipulations. It appears that the doubt arose consequent

to an anonymous call. If on the basis of mere doubt, tender

proceedings are cancelled, that will not be a healthy practice WP(C)No.21598/2021

and that will be highly arbitrary also.

6. The learned counsel for the petitioner submitted

that pursuant to Ext.P1, as many as eight persons were

participated in the tender proceedings. None of the

participants have raised any complaint regarding the tender

process. The petitioner has quoted an amount above upset

price. The 2nd respondent therefore ought not have

cancelled the tender proceedings.

7. The 2nd respondent entered appearance and filed

a statement through the Senior Government Pleader. The

2nd respondent submitted that the opening of the tender was

on 04.10.2021 and the petitioner was found to be the

highest bidder. Therefore, a communication was given to

the petitioner that he was selected. However immediately

thereafter, a complaint was received alleging manipulations

in the tender process. The Special Branch of the Police also

reported that all the persons who participated in the tender, WP(C)No.21598/2021

were nominees of the petitioner and therefore the bidders

did not quote an amount higher than `16,01,000/-. Since

there was strong doubts of the process of tender and the

strong likelihood of manipulation, Ext.P1 was cancelled in

larger public interest.

8. The learned Government Pleader submitted that

Clause 2116.2 of the PWD Manual governs the issue of

termination of contract. In this case, no agreement was

executed by the petitioner with the Government. The

cancellation was prior to any such agreement. Therefore

the petitioner cannot be said to be aggrieved by violation of

any contract.

9. The learned Government Pleader also pointed

out that in view of paragraph 6.5.1 of Standard Bid

Document, the tender authority has absolute power to

accept or reject any tender. Since the tender authority has

such power under Standard Bid Document, Ext.P3 cannot WP(C)No.21598/2021

be said to be illegal or irregular. The petitioner does not

have any vested right to execute an agreement with the 2 nd

respondent for executing the work. It is absolutely within the

discretion of the authorities whether to accept a tender and

enter into an agreement with any particular person. In the

circumstances, the writ petition is devoid of any merit.

Ext.P1 proceedings were rightly cancelled for good and

sufficient reasons.

10. I have heard the learned counsel for the

petitioner and the learned Senior Government Pleader

representing the respondents.

11. From the pleadings and arguments made in the

matter, it is evident that the petitioner had quoted

`16,01,000/- for the work in question and the respondents

decided to award the work to the petitioner. However there

were certain complaints and the Special Branch of the

Police also informed the 2nd respondent that there is strong WP(C)No.21598/2021

likelihood of manipulations occurred in the tendering

process in as much as all the persons participated in the

tender proceedings were likely to be the nominees for the

petitioner. That is the reason for there being no competitive

bid in response of Ext.P1.

12. The statement filed by the 2nd respondent would

indicate that only 8 persons participated in the tender

process pursuant to Ext.P1 notification dated 20.09.2019.

However when the fresh tender was quoted as per

Annexure R2(a), as many as 81 bidders participated.

Similarly, the amount of `16,01,000/- was enhanced to

`40,03,000/- in the re-tender. The fact that tender

proceedings pursuant to 20.09.2019, only 8 persons

participated and in the tender proceedings pursuant to

Annexure R2(a), 81 participants would indicate that the

proceedings initiated pursuant to Ext.P1 was not an effective

considerably.

13. The learned counsel for the petitioner submitted

that since the amount quoted by the petitioner is above the

upset price, the respondent should not be permitted to re-

tender the work. If such practice is followed by the

respondents it would give way to manipulations in the tender

proceedings. Taking into consideration the totality of the

circumstances, this Court is not inclined to interfere in

Annexure R2(a) tender proceedings for the reason that by

re-tender, the amount has been doubled as against

`16,01,000/-. The State exchequer will be benefited by an

additional `24 lakhs.

12. At the same time, the fact remains that there

were certain complaints regarding the tender process and

the Special Branch has given a report in the matter. In the

circumstances, while dismissing the writ petition, the 1 st

the alleged manipulations occurred pursuant to Ext.P1

tender notification. Such enquiry should be done as early

as possible.

The writ petition is dismissed with the above

observations.

Sd/-

APPENDIX OF WP(C) 21598/2021

PETITIONER'S EXHIBITS

Exhibit P1 A TRUE COPY OF THE NOTIFICATION NO D2-

4538/2020 DATED 20.9.2019 ISSUED BY THE 2ND RESPONDENT Exhibit P2 A TRUE COPY OF THE COMMUNICATION NO D2-

4538/2020 DATED 4.10.2021 ISSUED BY THE 2ND RESPONDENT ADDRESSED TO THE PETITIONER Exhibit P3 A TRUE COPY OF THE ORDER O D2-4538/2020 DATED 5.10.2021 ISSUED BY THE 2RD RESPONDENT Exhibit P4 A TRUE COPY OF THE NEWS ITEM PUBLISHED IN THE MALAYALA MANORAMA KOLLAM EDITION ON 6.10.2021 Exhibit P5 A TRUE COPY OF THE RELEVANT PAGES OF THE KERALA PWD MANUAL REVISED EDITION OF 2012 AS PER GOVERNMENT ORDER 13/2012/PWD DATED 1.2.2012

RESPONDENTS' EXHIBITS

ANENXURE R2(a) TRUE COPY OF THE PAPER PUBLICATION DONE IN DESHABHIMANI DAILY ANNEDURE R2(b) TRUE COPYO F THE PROCEEDINGS OF AUCTION DATED 12.10.2021.