Kerala High Court
Malathi Prabhakaran vs Ombudsman For Local Self ... on 25 November, 2021
W.P.(C) No. 18871/2010 :1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
WP(C) NO. 18871 OF 2010
PETITIONER/S:
1 MALATHI PRABHAKARAN, PRESIDENT,
KILIMANOOR GRAMA PANCHAYAT, KILIMANOOR,,
THIRUVANANTHAPURAM.
2 A.MURALIDHARAN, VICE PRESIDENT,
KILIMANOOR GRAMA PANCHAYAT, KILIMANOOR,,
THIRUVANANTHAPURAM.
3 K.G.PRINCE, STANDING COMMITTEE
CHAIRMAN (WELFARE), KILIMANOOR GRAMA PANCHAYAT,,
KILIMANOOR, THIRUVANANTHAPURAM.
4 K.JAGADISH CHANDRA UNNITHAN
STANDING COMMITTEE CHAIRMAN (DEVELOPMENT),, KILIMANOOR
GRAMA PANCHAYAT, KILIMANOOR, THIRUVANANTHAPURAM.
5 P.SASIDHARAN PILLAI, PANCHAYATH MEMBER,
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
6 SREEKALA, PANCHAYATH MEMBER
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
7 K.VIJAYAN, PANCHAYATH MEMBER
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
8 J.SREEKANTHAN NAIR, PANCHAYATH MEMBER,
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
9 K.JAYACHANDRAN, PANCHAYATH MEMBER,
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
10 P.RAVEENDRAN NAIR PANCHAYATH MEMBER
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
11 P.S.SOBHA, PANCHAYATH MEMBER,
W.P.(C) No. 18871/2010 :2
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
12 SUMANGALI SREEDHARAN, PANCHAYATH MEMBER,
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
13 SAFIYA BEEVI K.S., PANCHAYATH MEMBER
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.NAGARAJ NARAYANAN
SRI.BENOJ C AUGUSTIN
SRI.G.R.PANICKER
SRI.RAJAN VELLOTH
SRI.SAIJO HASSAN
SRI.A.S.SABU
SRI. PRATHAP PILLAI
RESPONDENTS:
1 OMBUDSMAN FOR LOCAL SELF GOVERNMENT
INSTITUTIONS, BARTON HILL, THIRUVANANTHAPURAM.
2 KILIMANOOR GRAMA PANCHAYATH
KILIMANOOR, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY
ITS SECRETARY.
3 RAVI VARMA K. MANAGER
KSIE LIMITED, EMPORIUM, GOVERNMENT PRESS ROAD,, SANTHI
NAGAR, STATUE, THIRUVANANTHAPURAM.
4 S.KRISHNAN KUTTY NAIR
KEEZHAKEDAM (SARASWATHY MANDIRAM),, PONGANADU P.O.,
KULIMANOOR, CHIRAYINKEEZH,, THIRUVANANTHAPURAM.
5 ADDL. R5 & R6 IMPLEADED:
JOY M, S/O. NARAYANAN,, MAVUVILAVEED, MULAKKALUTHUKAVU P.O.,
THATTATHUMALA - 695 604.
(ADDL. R5 IMPLEADED AS PER ORDER DATED 11.01.2011 IN I.A. NO.
215/2011)
6 JAYAKUMAR B.G., ALAPPAT VEEDU, PONGNAD P.O., KILIMANOOR,
THIRUVANANTHAPURAM.
(ADDL. R6 IMPLEADED AS PER ORDER DATED 25.11.2021 IN I.A. NO.
6388/2011)
BY ADVS.
SRI.V.G.ARUN
SRI.P.BENNY THOMAS
SRI.P.GOPINATH
SRI.T.R.HARIKUMAR
SRI.A.K.JAYASANKAR NAMBIAR
W.P.(C) No. 18871/2010 :3
SRI.JAIBY PAUL
SRI.A.MUHAMMED RAFFI
SRI.E.K.NANDAKUMAR
SRI.B.PREMNATH E
SRI.PRASAD CHANDRAN
R4 BY SRI.K.K.RAJEEV
R5 BY SRI.SIBY MATHEW
R2 BY SRI. .SIJU KAMALASANAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.11.2021, THE COURT ON 25.11.2021 DELIVERED THE FOLLOWING:
W.P.(C) No. 18871/2010 :4
'CR'
Dated this the 25th day of November, 2021.
JUDGMENT
Petitioners, who are the President and the members of the
Kilimanoor Grama Panchayat, have filed this writ petition, challenging
Ext. P18 order dated 06.03.2010 passed by the Ombudsman for the
Local Self Government Institutions in Complaint No. 950 of 2010,
whereby the Ombudsman directed the Kilimanoor Grama Panchayat to
recover the loss suffered on account of the contract awarded to M/s.
Sivaram Electricals during the year 2008 from the petitioners.
2. Brief material facts for the disposal of the writ petition are as
follows:
Petitioners were respondents 4 to 17 in complaint No. 950 of
2010 filed by the third respondent--Ravi Varma K., Manager, Kerala
State Industrial Enterprises Limited, Thiruvananthapuram, which was
originally filed against the Secretary of the Kilimanoor Grama
Panchayat--second respondent, the President of the Panchayat and the
Chairman of the Standing Committee for the welfare of the Panchayat.
Subsequently, the petitioners were implemented in their personal
capacity. The 4th respondent, namely one S. Krishnan Kutty Nair,
W.P.(C) No. 18871/2010 :5
Kilimanoor, Thiruvananthapuram, has got himself impleaded in the
complaint allegedly on the ground of public interest.
3. The subject matter leading to the complaint are as follows:
The Kilimanoor Grama Panchayat has invited tenders for the
supply of the single tube set 1 x 40 w with aluminum body, choke,
starter, power factor, improvement, capacitor with tube, mode BJSAL
2400 or equivalent with bend pipe, clamp, nuts, bolt, 3 meter wire as
per Ext. P1 notification dated 28.07.2008 published in the
newspapers. Three persons responded to the tender notification and
submitted their quotation, true copies of which are produced as
Exts.P2 to P4. However, the Panchayat found that the above quoted
rates for single tube were highly excessive and therefore, the
Panchayat in its meeting adopted a resolution, as per decision No. I(1)
dated 16.08.2008 not to accept the quotations, as they were
exorbitant in nature and accordingly, it was decided to call for fresh
tenders, evident from Ext. P5 minutes. Consequently, Ext. P6
notification dated 16.08.2008 was published in the newspaper,
pursuant to which 5 persons responded and their bids were as follows:
Single Tube Set Bend Pipe
Society
W.P.(C) No. 18871/2010 :6
True copies of the bids are produced as Exts.P7 to P11.
4. The Panchayat, thereafter, directed the bidders to submit
their samples for personal verification, inspection and for satisfaction
of their quality. Out of five persons, only 3 persons namely Rajeev
Charitable Society, Sivaram Electricals and Thampy's Electricals
submitted their samples for inspection. The samples were inspected by
the members of the Panchayat committee as well as the concerned
Assistant Engineer. On the basis of such inspection, it was found that
the samples supplied by M/s. Sivaram Electricals was of the best
quality and accordingly, the Panchayat committee has taken Ext. P12
resolution at its meeting held on 25.08.2008 and, accepted the tender
submitted by M/s Sivaram Electricals. The lowest rate quoted for the
tube was that of Sivaram Electricals. Therefore, according to the
petitioners, the Panchayat committee was fully satisfied that the bend
pipe sample supplied by Sivaram Electricals was of better quality and
the sample model provided by them was of different nature and quality
from the other two samples.
5. Further, the price quoted by M/s. Sivaram Electricals was for
a length of 1 ½ meters bend pipe, while the earlier price quoted by
W.P.(C) No. 18871/2010 :7
them was for 1 meter bend pipe. The petitioners also contended that
the very low price quoted by the other bidders were unrealistic and
therefore, the same would not have been viable. To substantiate the
same, it is also stated that the material cost of the available market
rate for 1 meter steel pipe was sufficiently higher than the price
quoted by them and their intention in quoting such price was only to
bag the contract. But, at the time of supply, the same would be met
with problems and compromise in quality in reality.
6. That apart, it is stated that M/s. Sivaram Electricals was the
lowest tenderer, insofar as the single tube was concerned, apart from
the fact that the Panchayat committee wanted timely delivery of the
products and according to the Panchayat committee M/s. Sivaram
Electricals was the most suitable bidder. While so, the third
respondent filed Ext. P13 complaint dated 29.08.2008 before the first
respondent Ombudsman complaining that the second respondent has
awarded the contract overlooking the lowest bid submitted by the third
respondent, which is a public sector enterprise.
7. The first respondent--Ombudsman called for a detailed report
from the Assistant Director of Panchayat, Trivandrum, who gave Ext.
P14 report dated 18.05.2009. To Ext. P14, the Panchayat Secretary
had filed Ext. P15 detailed statement for and on behalf of Panchayat
W.P.(C) No. 18871/2010 :8
dated 26.08.2009. In response to Ext. P13, the Secretary of the
Panchayat filed Ext. P16 statement dated 06.01.2010. It is submitted
that the third respondent could not prove the allegations made in the
complaint. Anyhow, it was found by the Ombudsman that the
rejection of tender of the third respondent was justified, since the third
respondent did not furnish earnest money at the rate of 2 ½ percent of
the probable amount of the contract. However, the learned
Ombudsman found that the tender, awarded to M/s. Sivaram
Electricals at the rate of Rs.525/- for the pipe was exorbitant and that
awarding of contract to M/s Sivaram Electricals was suspicious in
nature and it was accordingly the Panchayat was directed to demand
an amount of Rs.1,58,296/- excessively paid to M/s Sivaram Electricals
from the petitioners, and failing which, it was directed to recover the
amount by resorting to the revenue recovery action. It is, thus,
challenging the legality and correctness of the findings of the
Ombudsman, the writ petition is filed.
8. The second respondent Grama Panchayat has filed a detailed
counter affidavit supporting the contentions advanced by the writ
petitioners and further submitting that there is no mal administration
or corruption in the matter of awarding the supply contract. It is also
contended that the supply order was given as per the decision of the
W.P.(C) No. 18871/2010 :9
Panchayat committee dated 25.08.2008 and the resolution taken for
the purpose clearly shows that the decision was taken after verifying
the samples submitted by different agencies, who had submitted
tenders for the supply of electrical equipments. It is also pointed out
that the Panchayat Committee and the Assistant Engineer of the
Panchayat examined the samples submitted by the tenderers and it
was after satisfying the quality of the articles submitted by M/s.
Sivaram Electricals, the Committee decided to give the supply order,
and accordingly, the Secretary issued the order. Other contentions
with respect to the disqualification of the third respondent is clearly
spelt out in the counter affidavit.
9. The third respondent has also filed a counter affidavit
justifying the action of filing the complaint before the Ombudsman.
10. I have heard, learned counsel for the petitioners Sri.
Nagaraj Narayanan, Sri. Siju Kamalasanan for the Grama Panchayat
and Sri. K. K. Rajeev for the 4th respondent, and perused the pleadings
and materials on record.
11. The question that emerges for consideration is whether any
manner of interference is required to the order passed by the
Ombudsman. On a perusal of Ext. P18 order of the Ombudsman, it is
clear that the third respondent has filed the complaint basically
W.P.(C) No. 18871/2010 : 10
contending that the supply order issued by the highest bidder is
without considering the lowest bid submitted by M/S Kerala State
Financial Enterprises regarding the supply of electrical items. In fact,
on a perusal of Ext. P13 complaint, it is clear that the third respondent
has not made any allegations of mala fides, manipulation or other
illegalities against the petitioners personally.
12. It is also clear from Ext. P18 order passed by the
Ombudsman that the third respondent was not qualified, since the
third respondent has not deposited the earnest money in accordance
with the conditions in the notification issued by the Grama Panchayat
and further that in order to secure exemption from payment of the
earnest money, the third respondent did not have the valid registration
either at the time of submitting of the tender or the opening of the
tender. It is clearly found by the Ombudsman that the registration had
expired and the renewal was done by the third respondent after the
date of opening of the tender. It is clear from Ext. P15 that the Grama
Panchayat has filed a detailed counter affidavit through its Secretary
explaining the circumstances under which the tender of M/s. Sivaram
Electricals was accepted and further that the Panchayat did not suffer
any loss due to the tender awarded to M/s. Sivaram Electricals. That
apart, the Secretary, in his individual capacity, has filed Ext. P16
W.P.(C) No. 18871/2010 : 11
objection, in which also it is clearly stated that the third respondent
was not qualified and that M/s. Sivaram Electricals has quoted for the
bend pipe having a length of 1.5 meters and not 1 meter. However,
the third respondent has not quoted any price for the supply of the
accessories separately.
13. Anyhow, the Ombudsman has called for a report from the
Assistant Director of Panchayat, Thiruvananthapuram evident from
Ext. P14, wherein the said Officer has reported that when compared to
the rates quoted by the third respondent, the rates quoted by M/s.
Sivaram Electricals was higher and therefore, the Panchayat might
have suffered a loss.
14. On a perusal of Ext. P18 order of the Ombudsman, it is clear
that the Ombudsman has not taken into consideration any of the
objections raised by the Panchayat and the Secretary in his written
objections. But, on the other hand, the Ombudsman absolutely relied
upon the report of the Assistant Director of Panchayats and arrived at
the conclusions. The reason assigned in Ext. P18 order for arriving at
the conclusion that the rate quoted by M/s Sivaram Electricals was on
the higher side, is basically on the ground that in the earlier tender
invitation, M/s. Sivaram Electricals has quoted Rs. 250/- for the bend
pipe in order to instal the tube light.
W.P.(C) No. 18871/2010 : 12
15. However, quoting an amount of Rs.525/- in the second
tender invited after 17 days is suspicious. The Panchayat as well as
the Secretary, in their objections, have categorically stated that in the
earlier tender, the amount was quoted by M/s. Sivaram Electricals for 1
meter bend pipe. Whereas, in the new tender, it is quoted for a 1.5
meter length bend pipe. It is also stated by the Panchayat, in its
objections, that the tender submitted for single tube by M/s. Sivaram
Electricals was the lowest.
16. On a threadbare analysis of Ext. P18, I am of the clear
opinion that the Ombudsman did not consider any of the aspects put
forth by the Panchayat before arriving at the conclusions in the
complaint. In fact, the Ombudsman is constituted under Section 271F
of the Kerala Panchayat Raj Act, 1994 ('Act, 1994' for short). The
powers of the Ombudsman is dealt with under Section 271K of the Act,
1994, which reads thus:
271 K. Powers of the Ombudsman. - (1) The Ombudsman shall, for
the purpose of any investigation or enquiry under this Act, have the
same powers as are vested in a Civil Court while trying a suit under
the Code of Civil Procedure, 1908 (Central Act V of 1908) in respect
of the following matters, namely: -
(a) summoning and enforcing the attendance of any witness and
examining him;
W.P.(C) No. 18871/2010 : 13
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public records, or copy thereof from any Court
or Office;
(e) issuing commissions for the examination of witness;
(f) such other powers as are prescribed;
(2) Where the Ombudsman finds that the allegation contained in a
complaint is without any substance or trivial in nature it may by
order direct the complainant to pay to the opposite party so much of
the amount specified in the order by way of cost.
(3) Where the allegation contained in a complaint is about the loss or
waste or misapplication of the fund of the Local Self Government
Institution or in respect of the loss or misconvenience caused to a
citizen, the Ombudsman may, during enquiry, collect evidence,
determine the loss and direct in its order the amount to be realised
from the person responsible.
(4) If the amount paid as per the order passed by the Ombudsman
under sub-section (2) or sub-section (3) is not paid within the period
specified by it, the same shall be recoverable by Revenue Recovery
Proceedings as if it were an arrears of land revenue."
17. Therefore, on an appreciation of Section 271K, it is clear
that in order to proceed with the complaint, the Ombudsman should be
satisfied that allegations are contained in the complaint, and if the
complaint is without any substance or provisional in nature, it may by
order direct the complainant to pay to the opposite party so much of
W.P.(C) No. 18871/2010 : 14
the amounts satisfied in the order by way of cost.
18. However, sub-Section (3) thereto makes it clear that where
there is an allegation contained in a complaint about the loss or waste
or misapplication of the fund of the Local Self Government Institution
or in respect of the loss or misconvenience caused to a citizen, the
Ombudsman may, during enquiry, collect evidence, determine the loss
and direct in its order the amount to be realised from the person
responsible.
19. On an analysis of the said provision also, it is clear that the
basic requirements of a complaint should be an allegation about the
loss or waste or misapplication of the fund of the Local Self
Government Institution. However, in Ext. P13 complaint, the sole
statement made by the third respondent complainant is that the
Panchayat has issued the supply order to the highest bidder without
considering the lowest bidder regarding the supply of the electrical
items. Apart from the complaint so submitted in the format, no
allegations were incorporated by the third respondent in the complaint.
20. Therefore, in my considered opinion, the Ombudsman could
have proceeded with the complaint before it, only if there were at least
some basic allegations with respect to the misappropriation of money
or Panchayat fund, which is totally absent in the complaint. The
W.P.(C) No. 18871/2010 : 15
Panchayat and the Secretary, in their objections, have stated that M/s.
Sivaram Electricals was selected as the successful bidder, taking into
account the quality of the product and for ensuring the timely supply
of products. It is clear from the resolution of the Panchayat that the
Panchayat was unanimous in its decision in the matter of award of the
contract to M/s. Sivaram Electricals, after a threadbare discussion and
after verifying the quality of the products produced by M/s. Sivaram
Electricals for the inspection and finalisation of the tender.
21. Moreover, awarding of contracts within a Panchayat is
guided by the Kerala Panchayat Raj (Contract) Rules, 1996, (Rules,
1996) constituted by the State Government by virtue of the powers
conferred on it under Section 254(ix) of the Act, 1994. Rule 3 thereto
dealing with the general conditions of contracts is extracted hereunder
for convenience and proper appreciation of the same:
"3. General conditions in respect of Contracts.--
(1) A Panchayat may enter into and perform all contracts ,that it deems
necessary or proper for implementing the provisions of the Act.
(2) The Panchayat shall follow the following conditions for the
execution of the public works and other works which have been
entrusted with, and arc carried out by the Panchayat as per the
provisions of the Act.--
(i) The Panchayat Committee shall discuss as to whether a work may
be executed on contract or not and as regards the works proposed to be
executed on contract and the President shall take further action on the
W.P.(C) No. 18871/2010 : 16
basis of the majority decision of the Committee.
(ii) The Secretary shall, under the written orders of the President.
invite tenders for the Panchayat and take follow up action thereto.
(iii) The Committee shall take decision in respect of entrusting a work
in the name of a person or an institution.
(iv) The President may, in accordance with the decision of the
Committee, authorise the Secretary in writing for signing a contract on
behalf of the Panchayat.
(v) The deed of contract shall be in stamp paper as mentioned in the
relevant section of the Kerala Stamp Act, 1959.
(vi) The Secretary shall if the Contractor fails to complete the work
within the stipulated period or if the Secretary is convinced that the
work done is not in compliance with the terms of the contract,
inform the fact to the President who shall place the matter before the
committee for discussion and shall take further action thereon in
accordance with the decision of the Committee."
22. Rule 4 empowers the Panchayat to cancel the contracts after
issuing notice to the Contractor, if he acts in contravention to the
terms of the contract and the President is vested with powers to
recover from the Contractor the loss that it sustained, and it reads
thus:
"4. Power of Panchayat to cancel Contracts.---The Panchayat
shall be vested with the power to cancel a contract after issuing
notice to the Contractor if the Contractor acts in contravention to the
terms of the contract and the President shall take steps to recover
from the Contractor, the loss that the Panchayat may sustain on this
account and the President shall have the sole responsibility in this
respect."
W.P.(C) No. 18871/2010 : 17
23. Rule 6, which deals with the method of executing
contracts, reads thus:
"6. Method of executing Contracts.- -(1) Any contract entered
into by the Secretary on behalf of the Panchayat shall be made in the
same manner and method applicable to him had it been done for
himself.
(2) Every contract shall be affixed with the common seal of
the Panchayat,
(3) If the expenditure involves more than one thousand rupees
in the case of execution of a work or procuring of goods or of
rendering a service, the Contract therefore shall be in writing and the
details in respect of the work that shall be executed; the particulars of
the goods (that shall be supplied, the standard of quality thereof, the
details as to the manner in which and the period up to which the
service shall be rendered, the date on which the work shall be
completed, the last date for supply of the goods etc-, as the case may
be, shall be clearly stated therein.
(4) The common seal of the Panchayat shall be kept by the
Secretary and it shall not be affixed in any contract or other document
otherwise than in his presence.
(5) No Contract entered into otherwise than in accordance
with the provisions of this rule shall be binding on the Panchayat."
24. Therefore, it is clear from the Rules, 1996 that a clear
methodology in the matter of awarding of contracts is in vogue. On a
consideration of the resolution taken by the Panchayat and the Rules,
1996, I am of the clear opinion that the Panchayat has awarded the
W.P.(C) No. 18871/2010 : 18
contract to M/s. Sivaram Electricals by observing and complying with
the statutory requirements. Merely because the price quoted by M/s.
Sivaram Electricals is high, that would not dissuade the Panchayat to
consider the tender submitted by the said agency predominantly for
the reason that the Panchayat has to satisfy with the quality of the
work specified in order to ensure that the products have long duration
without it being damaged in any manner.
25. The objection filed by the Panchayat before the Ombudsman
and the pleading put forth in this writ petition clearly shows that the
Panchayat committee has unanimously taken the decision to award the
supply contract to M/s. Sivaram Electricals by assigning categorical
reasons in the resolution adopted by the Panchayat. The third
respondent has not even raised any allegation or alleged any mala
fides against the members of the Panchayat i.e., the petitioners, in the
matter of awarding the contract. Moreover, in this regard, Section 191
of the Act, 1994 is relevant. Section 191 of the Act, 1994, which deals
with the power of the Government for cancellation and suspension of
resolutions, reads thus:
[191. Power of cancellation and suspension of resolutions etc. - (1)
Government may either suo moto or, on a reference by President,
Secretary or a member, or on a petition received from a citizen,
W.P.(C) No. 18871/2010 : 19
cancel or very a resolution passed or a decision taken by the
panchayat if in their opinion such decision or resolution -
(a) is not legally passed or taken; or
(b) is in excess of the powers conferred by this Act or any other law
or its abuse; or
(c) is likely to endanger human life, health public safety, communal
harmony or may lead to riot or quarrel; or
(d) is in violation of the directions or provisions of grant issued by
Government in the matter of implementing the plans, schemes or
programmes.
(2) Before cancelling or amending a resolution or decision as per sub-
section (1), the Government may refer the matter for consideration
either of the ombudsman constituted under section 271G or the
Tribunal constituted under Section 271 and the Ombudsman or the
Tribunal, as the case may be, after giving the Panchayat an
opportunity of being heard, send a report to the Government with its
conclusions and the Government may, on its basis cancel, amend or
confirm the resolution or decision.
(3) If another remedy is available to the petitioner through the
tribunal under section 276, the Government shall not consider any
petition for cancelling or amending any resolution or decision of the
Panchayat.
(4) If Government consider that a resolution or decision of the
Panchayat has to be cancelled or amended as per sub-section (7) it
may suspend such resolution or decision temporarily and may direct
the Panchayat to defer its implementation till the final disposal after
W.P.(C) No. 18871/2010 : 20
the completion of the procedure under sub-section" .
26. On a proper appreciation of the said provision also, it is
clear that if the resolution passed by the Panchayat was, in any
manner, illegal or likely to cause damages to the Panchayat, there was
every power vested with any Officer of the Panchayat, any member of
the Panchayat or any third person to file a suitable application before
the Government. It is evident from sub-Section (2) thereto that when
an application is received from any person, the Government is vested
with powers to refer the matter for consideration of either the
Ombudsman constituted under Section 271G or the Tribunal
constituted under Section 271S. Therefore, it is clear that when there
was a clear provision under the Act, 1994 to approach the Government
for cancellation of the resolution adopted by the Panchayat, no steps
were taken either by the third respondent or any other persons
entitled to do so.
27. The Panchayat is also vested with certain constitutional
obligations as empowered under Section 243G of the Constitution of
India, to protect the interest and welfare of the people within its
territorial limits, and the power envisioned thereunder was conferred
by the State Government through the Act, 1994 to function itself as a
self governing institution and to discharge the duties, responsibilities
W.P.(C) No. 18871/2010 : 21
and obligations in terms of the constitutional guarantees. Apart from
the same, Schedule 11 of the Constitution of India empowers the
Panchayat to carry out the activities prescribed thereunder, which
includes the development of roads, rural electrification etc. and
therefore, the Panchayat was duty bound to ensure the quality of the
products supplied to it.
28. That apart, I am of the considered opinion that none of the
contentions put forth by the Panchayat as well as the Secretary were
taken into account by the Ombudsman before arriving at the
conclusions. Therefore, it is clear that the order passed by the
Ombudsman is violative of the principles of natural justice and without
understanding the true implications of the law in regard to the award
of contract. It is a well settled position in law that the master of the
tender is the tender inviting authority and it is for the said authority to
decide whom to be chosen to carry out the contract. Merely because
one of the bidders have quoted the lowest price, that would not, in any
manner, compel the Panchayat to accept the said tender. This is more
so since there are clear rules contained under the Rules, 1996 in the
matter of awarding of the contract. There is no case for anyone or the
Ombudsman that the Panchayat committee has violated Rules, 1996 or
any of the provisions of the Act, 1994 in awarding the contract to M/s.
W.P.(C) No. 18871/2010 : 22
Sivaram Electricals.
29. That being the situation, I have no doubt in my mind that
the order passed by the Ombudsman cannot be sustained under law
and it requires interference. Therefore, I quash Ext. P18 order dated
06.03.2010 passed by the Ombudsman in complaint No. 950/2008,
and the complaint would stand dismissed.
This writ petition is allowed accordingly.
sd/- SHAJI P. CHALY, JUDGE.
Rv
W.P.(C) No. 18871/2010 : 23
APPENDIX OF WP(C) 18871/2010
PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF THE NOTIFICATION DATED 28.07.2008
Exhibit P2 TRUE COPY OF THE PRICE SCHEDULE
Exhibit P3 TRUE COPY OF THE PRICE SCHEDULE
Exhibit P4 TRUE COPY OF THE PRICE SCHEDULE
Exhibit P5 TRUE COPY OF THE MINUTES OF THE PANCHAYATH
MEETING DATED 16.08.2008
Exhibit P6 TRUE COPY OF THE TENDER NOTIFICATION DATED
16.08.2008
Exhibit P7 TRUE COPY OF THE PRICE SCHEDULE
Exhibit P8 TRUE COPY OF THE PRICE SCHEDULE
Exhibit P9 TRUE COPY OF THE PRICE SCHEDULE
Exhibit P10 TRUE COPY OF THE PRICE SCHEDULE
Exhibit P11 TRUE COPY OF THE PRICE SCHEDULE
Exhibit P12 TRUE COPY OF THE MINUTES OF THE MEETING OF THE
PANCHAYATH COMMITTEE DATED 25.08.2008
Exhibit P13 TRUE COPY OF THE COMPLAINT DATED 29.08.2008
Exhibit P14 TRUE COPY OF THE REPORT DATED 18.05.2009
Exhibit P15 TRUE COPY OF THE STATEMENT DATED 26.08.2009
Exhibit P16 TRUE COPY OF THE STATEMENT DATED 06/01/2010
Exhibit P17 TRUE COPY OF THE WRITTEN STATEMENT DATED
06.03.2010
Exhibit P18 TRUE COPY OF THE ORDER PASSED BY THE 1ST
RESPONDENT DATED 06.03.2010
RESPONDENTS' EXHIBITS:
Exhibit R3(a) TRUE COPY OF THE RECEIPT NO 62 DATED 25.08.2008.
Exhibit R3(b) TRUE COPY OF THE LETTER DATED 25.08.2008 SENT BY
THE 3RD RESPONDENT TO THE SECRETARY,
KILIMANOOR GRAMA PANCHAYATH
/True Copy/
PS To Judge.
RV
