Kerala State Electricity Board - ... vs Muhammed Nizar.K
2021 Latest Caselaw 20404 Ker

R.P. No. 524/2021
in W.P.(C) No. 3850/2021 &
I.A.No. 1 of 2021                     :1:

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                     &

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

         FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943

                             RP NO. 524 OF 2021

AGAINST THE ORDER/JUDGMENT IN WP(C) 3850/2021 OF HIGH COURT OF KERALA,

                                ERNAKULAM

REVIEW PETITIONER/S:

     1     KERALA STATE ELECTRICITY BOARD - KSEB
           REPRESENTED BY OFFICE OF THE CHIEF ENGINEER, (SUPPLY CHAIN
           MANAGEMENT) VYDYUTHI BHAVANAM, PATTOM,
           THIRUVANANTHAPURAM,PIN-695 004.

     2     DEPUTY CHIEF ENGINEER(SCM) IN CHARGE,
           KERALA STATE ELECTRICITY BOARD LIMITED, VYDYUTHI BHAVANAM,
           PATTOM, THIRUVANANTHAPURAM, PIN - 695 004.

           BY ADV C.JOSEPH ANTONY
           SRI. RAJU JOSEPH(SR)



RESPONDENTS/PETITIONERS & 1ST RESPONDENT IN W.P.(C):

     1     MUHAMMED NIZAR.K
           AGED 36 YEARS
           S/O. HYDRU, KINANGATTIL HOUSE, THIRUVENGAPPURA POST,
           PATTAMBI, PALAKKAD, PIN - 679 304,

     2     M.E. ANAS
           AGED 40 YEARS
           S/O. MOHAMED IBRAHIM, T/C. 46.454, PALLISTREET, PONNTHURA,
           TRIVANDRUM, PIN - 695 026, KERALA.

     3     ABDUL GAFOOR K
           AGED 45 YEARS
           S/O. HUSSAN, KANIYARATHIL HOUSE, PATTAMBI P.O,
 R.P. No. 524/2021
in W.P.(C) No. 3850/2021 &
I.A.No. 1 of 2021                     :2:

           PALAKKAD - 679 303.

     4     STATE OF KERALA
           REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT
           SECRETARIAT, THIRUVANANTHAPURAM - 695001.

           BY ADVS.
           R1-R3 BY SMT. O.A.NURIYA
           PHILIP T.VARGHESE
           THOMAS T.VARGHESE
           ACHU SUBHA ABRAHAM
           V.T.LITHA
           K.R.MONISHA
           SHRUTHI SARA JACOB



            R4 BY SRI. TEK CHAND SR. GOVERNMENT PLEADER




      THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 01.10.2021,

     THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 R.P. No. 524/2021
in W.P.(C) No. 3850/2021 &
I.A.No. 1 of 2021                   :3:



              Dated this the     1st day of October, 2021.

                                ORDER

SHAJI P. CHALY.

This Review Petition is filed by respondents 2 and 3 in the writ

petition seeking to review the judgment dated 13.07.2021 in W.P.(C)

No. 3850 of 2021, which was a Public Interest Litigation filed seeking

to quash Exts.P1 and P2 tender notifications issued by the Kerala State

Electricity Board-- Ist Review Petitioner, on the ground that the

invitation for the manufacture and supply of the PSC poles of 8m/140

Kgs. working strength was illegal and bad, since the tender

notifications deviated from Ext. P4 board order.

2. Even though the Board is seeking to review the judgment, in

fact, from the contentions raised in the Review Petition, we find that

the Board wants a direction from this Court enabling the Board to

procure 60000 numbers of 8m/140 Kgs. PSC poles as interim

arrangement in the pretext of the supply of P.S.C poles with 8m/200

Kgs. working strength would be delayed.

3. The respondents/writ petitioners have filed a counter affidavit

objecting to the reliefs sought for by the Review Petitioners. R.P. No. 524/2021 in W.P.(C) No. 3850/2021 &

4. We have heard the learned Senior Counsel for the Review

Petitioners Sri. Raju Joseph assisted by Adv. C. Joseph Antony and

Smt. Nurya O.A for the respondents, and perused the pleadings and

materials on record.

5. The basic contention advanced by the Review Petitioners is

that in paragraph 42 of the judgment, it is observed that if the Board

was of the opinion that in order to meet up with any emergent

requirements, it ought to have manufactured the same in its premises

or purchased 8m PSC poles with 140 Kgs. working strength to tide

over the situation, instead of inviting tenders for the lakhs and lakhs of

poles with the said specifications. In fact, the said observation was

made to justify our conclusions with respect to the sudden deviation

made by the Board for a short period by taking Exts. R2(g), R2(b) and

R2(i) decisions and then return to Ext. P4 decision taken on

23.09.2019. The said observation was made by this Court in order to

demonstrate the Board's attitude of deviation from its decision to

purchase poles with 8m/ 200Kgs on account of safety reasons for a

short period, for reasons best known to it, and to picturize and

thereby, emphasise the patent arbitrariness and illegality of the Board.

Ultimately, we have found that the action of the Board inviting Exts.P2 R.P. No. 524/2021 in W.P.(C) No. 3850/2021 &

and P3 tenders for 8m/140 Kgs. PSC Poles are arbitrary and illegal.

Thinking so, we are of the clear view that such observations cannot be

taken advantage of for seeking a review, basically for the reason that

the ultimate findings in the Judgment are not dependent upon such

observations made as a passing remark in the endeavour made by the

court to arrive at right conclusions.

6. Added to this, a statement is filed by the Review Petitioners

in pursuance to the directions issued by this Court on 03.09.2021 and

along with the same, two orders of the Board dated 04.08.2021 and

12.08.2021 are produced, from where we find that during the

pendency of the writ petition, the Board had taken a decision to

purchase 60000 numbers of PSC Poles with 8m/140 Kgs. to tide over

the emergent situation, and the Board had purchased substantial

number of PSC poles out of the same, which was not actually revealed

even in the Review Petition.

7. It is true that the said purchase was made by the Board in

the interregnum on the basis of the interim order passed by this Court

in the writ petition permitting the Board to purchase 8m/140 Kgs.

Poles in order to tide over any emergent situations. Consequent to the

dismissal of the writ petition, the interim order is not in force and in R.P. No. 524/2021 in W.P.(C) No. 3850/2021 &

the writ petition, it was found that the tenders invited by the Board to

purchase 8 m/140Kgs. PSC Poles cannot be sustained in view of the

previous and subsequent immediate orders passed by the board on the

basis of safety reasons to purchase poles with 8m/ 200 Kgs. We are

also of the view that the review petitioners have failed to establish any

immediate requirement of purchasing poles with the lesser

specification, though it cannot be permitted too.

8. Having taken into account the aforesaid facts and

circumstances, we are of the considered opinion that the Review

Petitioners has not made out any case of error apparent on the face of

the record or any other legal infirmities justifying review of the

judgment. It is well settled in law that the error contained in the

judgment shall be one which can easily be referable and apparent on

the face of the record. As we have pointed out above, the Review

Petitioners have failed to make out any such ground.

Needless to say, the Review Petition fails and accordingly, it is

dismissed.

Even though the erstwhile supplier of poles has filed an

impleading petition stating that the judgment would materially affect

them, we are not inclined to entertain it for more reasons than one, ie; R.P. No. 524/2021 in W.P.(C) No. 3850/2021 &

a third party is not entitled to file any application for impleading in a

review petition for review of a Judgment by one of the parties; that by

the judgment in question, we have not interfered with any previous

contract awarded by the Board to the proposed intervenor; and that

there is no locus standi for the proposed third party intervenor to

interfere with the findings rendered by this Court in the judgment on

the basis of the illegality on the part of the Board. Therefore, the

interlocutory application so filed is dismissed .

sd/-

S. MANIKUMAR, CHIEF JUSTICE.

sd/-

SHAJI P. CHALY, JUDGE.

Rv R.P. No. 524/2021 in W.P.(C) No. 3850/2021 &

PETITIONER'S ANNEXURES:

ANNEXURE A1: TRUE COPY OF THE NOTE SUBMITTED BY THE CHIEF ENGINEER (SCM) TO FULL TIME DIRECTORS DATED 04.08.2021.

ANNEXURE A2: TRUE COPY OF THE BOAD ORDER DATED 12.08.2021.

ANNEXURE A3: TRUE COPY OF THE TENDER NOTIFICATION DATED 09.08.2021.

RESPONDENTS' ANNEXURES: NIL

/True Copy/

PS to Judge.

rv