Gopakumar vs The Chairman And Managing ...
2021 Latest Caselaw 18288 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
               THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     TUESDAY, THE 7TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943
                         WP(C) NO. 17010 OF 2021
PETITIONER:

              GOPAKUMAR K
              AGED 55 YEARS
              S/O.KRISHNAN NAIR, PROPRIETOR OF AVANI ENTERPRISES,
              MUKKATH HOUSE, MEVELLOOR.P.O, KOTTAYAM DISTRICT,
              PIN-686609.

              BY ADVS.
              ALIAS M.CHERIAN
              K.M.RAPHY
              ANJALY ELIAS
              BRISTO S PARIYARAM



RESPONDENTS:

     1        THE CHAIRMAN AND MANAGING DIRECTOR
              KERALA STATE CIVIL SUPPLIES CORPORATION LTD,
              MAVELI ROAD, GANDHI NAGAR, KOCHI,PIN-682019.

     2        THE MANAGER
              NFSA, KERALA STATE CIVIL SUPPLIES CORPORATION LTD,
              MAVELI ROAD, GANDHI NAGAR,
              KOCHI, PIN-682019.

     3        THE REGIONAL MANAGER,
              KERALA STATE CIVIL SUPPLIES CORPORATION,
              MAVELI TOWER, THIRUNAKKARA,
              KOTTAYAM DISTRICT, PIN-686010.

     4        THE DEPOT MANAGER,
              SUPPLYCO DEPOT, VAIKOM TALUK, PALLIKKAVALA,
              THALAYOLAPARAMPU,
              KOTTAYAM DISTRICT,PIN-686605.

     5        MUHAMMED HUSSAIN,
 WP(C) NO. 17010 OF 2021
                                2



            AGED 42 YEARS
            FATHER'S NAME NOT KNOWN TO THE PETITIONER,
            PULICKALPARAMBIL HOUSE, ALLISSERY,
            ALAPUZHA DISTRICT, PIN-688001.

    6       VINCENT .P.T,
            AGED 60 YEARS
            S/O.M.O.THOMAS, PADIKKAPARAMBIL HOUSE,
            VALLICHIRA POST,
            KOTTAYAM DISTRICT, PIN-686574.

            BY ADVS.
            R.LAKSHMI NARAYAN
            M.V.BOSE
            VINOD MADHAVAN
            SHARATH S.PUTHENPARAMPAN
            A.KEVIN THOMAS
            SANTHOSH PETER MAMALAYIL
            P.N.ANOOP




     THIS    WRIT   PETITION    (CIVIL)   HAVING   COME    UP    FOR
ADMISSION    ON   07.09.2021,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 17010 OF 2021
                              3



             P.V.KUNHIKRISHNAN, J.
          ===================
           WP(C) No. 17010 OF 2021
          ===================
   Dated this the 7th day of September 2021


                     JUDGMENT

The petitioner is the proprietor of a firm called Avani

Enterprises and conducting transportation service. The

first respondent invited tenders for transportation of ration

articles from its Depots to destination godowns. Ext.P1 is

the tender notice. It is the case of the petitioner that, he

submitted tender for the local limit of Vaikom Depot.

When the tenders were opened, 5 th respondent herein was

the lowest-1 (for short 'L1') tenderer, 6 th respondent was

lowest-2 (for short 'L2') tenderer and the petitioner was

lowest-3 (for short 'L3') tenderer. Subsequently the 5 th

respondent/ L1 did not turn up to do the work. Hence the

6th respondent/L2 was offered to do the transportation WP(C) NO. 17010 OF 2021

work at L1 rate. Such an offer was accepted by the 6 th

respondent. Hence the contract was given to the 6 th

respondent for a period of one month as evident by Ext.P1.

After doing the transportation works for a few weeks, 6 th

respondent gave a letter to the 4 th respondent stating that,

he cannot do the transportation at L1 rate, since it causes

loss to him. Hence, 6th respondent requested the 4th

respondent to allow him to do the transportation work at

L2 rate. Ext.P4 is the letter given by the 6 th respondent to

the 4th respondent. But 4th respondent did not agree to

give L2 rate, the petitioner submits. In the above context,

4th respondent offered the transportation contract to the

petitioner at L1 rate. The petitioner agreed the same by

submitting Ext.P5 letter. The 4th respondent granted the

contract to the petitioner for a period of two months at L1

rate. Ext.P6 is the proceedings. Now, the petitioner is

doing the transportation work at L1 rate. According to the

petitioner, Ext.P7 is the agreement executed by him. It is WP(C) NO. 17010 OF 2021

also the case of the petitioner that, he invested huge

amount after executing the agreement. Thereafter, the 6 th

respondent filed a writ petition before this Court as W.P.(C)

No. 7483 of 2021, praying to award the contract to him at

L2 rate being the L2 tenderer. This Court disposed of the

case directing to consider Ext.P4 representation as per

Ext.P9 judgment. Pursuant to Ext.P9 judgment, hearing

was conducted by the authority concerned. After hearing

both sides, as per Ext.P12 proceedings, 1 st respondent

confirmed the tender permanently in the name of the 6 th

respondent L1 rate, subject to the final decision in W.P.(C)

No. 162/2021. Aggrieved by Ext.P2 this writ petition is

filed.

2. Heard the learned counsel for the petitioner and

the learned Standing Counsel for the respondents 1 to 4. I

also heard the learned counsel for the 5 th and 6th

respondents.

3. The learned counsel for the petitioner reiterated WP(C) NO. 17010 OF 2021

his contentions in this writ petition. The learned counsel

submitted that, huge amount is invested by him after

Ext.P6 order and it is an injustice to grant the

contract to the 6th respondent. The contention of the

petitioner is that, in Ext.P4 the 6 th respondent already

submitted before the authority that, he is not in a position

to do the work at L1 rate and he requested the authorities

for allowing him to do the work at L2 rate. In such

circumstances, Ext.P12 order passed by the 1 st respondent

is unsustainable. The learned counsel submitted that,

what remains is only three months more as per the tender

notice. The learned counsel submitted that, if the 1 st

respondent feel that the proceedings initiated by the

authorities are not proper, a fresh tender ought to have

been ordered instead of allotting the same to the 6 th

respondent.

4. The learned Standing Counsel for the

respondents 1 to 4 submitted that, the action of WP(C) NO. 17010 OF 2021

respondents 1 to 4 are perfectly legal and there is nothing

to interfere in it. The learned Standing counsel takes me

through the paragraphs 3 and 4 in the statement filed on

26.08.2021.

5. The learned counsel for the 6th respondent

submitted that, there was no submission from the side of

6th respondent that, he is not ready to do the work at L1

rate. The learned counsel submitted that, it was only his

desire to do the work at L2 rate.

6. After hearing both sides, I think, there is nothing

to interfere with Ext.P12 order. It will be better to extract

the statement dated 26.08.2021 filed by the learned

Standing Counsel for the 1st respondent.

" 3. It is submitted that in the e-tender invited by the Supplyco, through e-tender notice dated 15.07.2020, the fifth respondent was qualified as L1 bidder for lifting from FCI, Chingavanam, FCI Kunnathanam and door delivery of food grains for Vaikom Taluk. But he was elected as Councilor in Alappuzha Municipality and hence requested the Corporation to exclude him from signing the agreement. In the meanwhile, One Muhammed Rafeeq filed Writ Petition as W.P.

WP(C) NO. 17010 OF 2021

(c) No. 162/2021, challenging the tender proceedings. This Hon'ble Court issued interim order dated 05.01.2021 that the finalization of e- tender in Taluks in which the fifth respondent (8 th respondent in W.P.(C) No. 162/2021 became L-1 bidder, will be subject to the outcome of the Writ Petition. The main prayer of W.P.(C) No. 162/2021 is to quash the proceedings dated 28.12.2020 of the first respondent herein and holding that the fifth respondent herein and two others are qualified in the technical and commercial bids.

4. In view of the above, the Corporation directed the Depot Manager, Vaikom to carry out lifting and door delivery of food grains by temporary arrangement at L1 rate. The Depot Manager ascertained the willingness of the L-2 bidder, the 6th respondent herein, as to whether he is ready to perform the work at L1 rate. The 6th respondent agreed to perform the work at L-1 rate, for the month of February 2021. On getting his consent, he was awarded the work temporarily. While he was doing the work, the sixth respondent gave a request before the Depot Manager to allow him to perform the work at L-2 rate, as the loading/ unloading charges and transportation charges are very high. As this request cannot be conceded to, in view of the direction issued by the Corporation that the temporary arrangement should be done at L-1 rate, the Depot Manager negotiated with the petitioner herein, the L-3 bidder and signed a temporary agreement with him to carryout the work at L-1 rate, for the temporary period fixed, as reflected in the agreement. The photocopy of the agreement dated 01.03.2021 executed by the petitioner is produced herewith and marked as Annexure-R1(a)."

7. A perusal of the statement, it is clear that the WP(C) NO. 17010 OF 2021

contract executed with the petitioner was only for two

months. That is clear from clause 5 of Annexure R1(a)

agreement. Moreover, in para 3 of Ext.P6, it is clearly

stated that, the appointment is valid for two months/till

the permanent contract is signed/further directions

received from the head office in this regard from the date

of the agreement with effect from 01.03.2021. Admittedly

the petitioner completed two months. In the light of the

same, there is no right to the petitioner to contend that

the petitioner should be given the contract, when the 6 th

respondent is ready to do the work at L1 rate. I see no

reason to interfere in Ext.P12 order.

Therefore, the writ petition is dismissed.

(Sd/-)

P.V.KUNHIKRISHNAN

JUDGE LU WP(C) NO. 17010 OF 2021

APPENDIX OF WP(C) 17010/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF ORDER NOTICE BEARING NO.NFSA5-170 16/20 DATED 15/07/2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE TENDER RESULT FOR VAIKOM TALUK & RANKING DATED 07/10/20 PUBLISHED BY 4TH RESPONDENT

EXHIBIT P3 TRUE COPY OF PROCEEDINGS NO.CSC2-

732/20 DATED NIL

EXHIBIT P4 TRUE COPY OF LETTER DATED 24/02/2021 SUBMITTED BY 6TH RESPONDENT BEFORE 4TH RESPONDENT

EXHIBIT P5 TRUE COPY OF LETTER DATED 24/02/2021 SUBMITTED BY THE PETITIONER BEFORE 4TH RESPONDENT

EXHIBIT P6 TRUE COPY OF PROCEEDINGS NO.CSC2-

732/20 DATED 01/03/2021 ISSUED BY 4TH RESPONDENT

EXHIBIT P7 TRUE COPY OF AGREEMENT DATED 30/03/2021 EXECUTED BY THE PETITIONER

EXHIBIT P8 TRUE COPY OF INVOICE NO.3052 DATED 03/03/2021 IN THE NAME OF THE PETITIONER

EXHIBIT P8(A) TRUE COPY OF INVOICE NO.5667 DATED 03/03/2021 IN THE NAME OF THE PETITIONER.

EXHIBIT P8(B) TRUE COPY OF INVOICE N0.3054 DATED WP(C) NO. 17010 OF 2021

04/03/2021 IN THE NAME OF THE PETITIONER

EXHIBIT P8(C) TRUE COPY OF INVOICE NO.3097 DATED 12/03/2021 IN THE NAME OF THE PETITIONER

EXHIBIT P8(D) TRUE COPY OF INVOICE NO.3227 DATED 16/04/2021 IN THE NAME OF THE PETITIONER

EXHIBIT P9 TRUE COPY OF JUDGMENT DATED 14/07/2021 IN WP(C)NO.7483 OF 2021 BY THIS HON'BLE COURT.

EXHIBIT P10 TRUE COPY OF HEARING NOTICE N0.NFSA2-12309/2021 DATED 28/07/2021 ISSUED BY THE 2ND RESPONDENT

EXHIBIT P11 TRUE COPY OF WRITTEN SUBMISSION DATED 04/08/2021 SUBMITTED BEFORE THE 2ND RESPONDENT

EXHIBIT P12 TRUE COPY OF ORDER NO.NFSA2-

12309/2021 DATED 12/08/2021 PASSED BY THE 1ST RESPONDENT.

EXHIBIT P13 TRUE COPY LETTER NO.CSC2.730/20 DATED 3/5/2021 ISSUED BY THE 4TH RESPONDENT

EXHIBIT P14 TRUE COPY CERTIFICATE FOR THE MONTH OF MARCH 2021 ISSUED BY THE 4TH RESPONDENT

EXHIBIT P14(A) TRUE COPY CERTIFICATE FOR THE MONTH OF APRIL 2021 ISSUED BY THE 4TH RESPONDENT

EXHIBIT P14(B) TRUE COPY OF CERTIFICATE FOR THE MONTH OF MAY 2021 ISSUED BY THE 4TH WP(C) NO. 17010 OF 2021

RESPONDENT.

EXHIBIT P14(C) TRUE COPY OF CERTIFICATE FOR THE MONTH OF JUNE 2021 ISSUED BY THE 4TH RESPONDENT

EXHIBIT P14(D) TRUE COPY OF CERTIFICATE FOR THE MONTH OF JULY 2021 ISSUED BY THE 4TH RESPONDENT

RESPONDENTS EXHIBITS

ANNEXURE -R1(A) THE PHOTOCOPY OF THE AGREEMENT DATED 01.03.2021 EXECUTED BY THE PETITIONER.

ANNEXURE -R1(B) THE PHOTOCOPY OF THE LETTER DATED 1.3.2021 SUBMITTED BY THE PETITIONER.

//TRUE COPY//

PA TO JUDGE