Gopakumar K vs The Chairman And Managing ...
2021 Latest Caselaw 19532 Ker

W.A.No. 1192/2021                   :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 17TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943

                            WA NO. 1192 OF 2021

   AGAINST THE JUDGMENT IN WP(C) 17010/2021 OF HIGH COURT OF KERALA

APPELLANT/PETITIONER:

             GOPAKUMAR K.
             AGED 55 YEARS
             S/O.KRISHNAN NAIR, PROPRIETOR OF AVANI ENTERPRISES,
             MUKKATH HOUSE, MEVELLOOR P.O., KOTTAYAM DISTRICT,
             PIN - 686 609.

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



RESPONDENT/S:

     1       THE CHAIRMAN AND MANAGING DIRECTOR
             KERALA STATE CIVIL SUPPLIES CORPORATION LTD., MAVELI ROAD,
             GANDHI NAGAR, KOCHI, PIN - 682 019.

     2       THE MANAGER
             NFSA, KERALA STATE CIVIL SUPPLIES CORPORATION LTD., MAVELI
             ROAD, GANDHI NAGAR, KOCHI, PIN - 682 019.

     3       THE REGIONAL MANAGER
             KERALA STATE CIVIL SUPPLIES CORPORATION, MAVELI TOWER,
             THIRUNAKARA, KOTTAYAM DISTRICT, PIN - 686 010.

     4       THE DEPOT MANAGER
             SUPPLYCO DEPOT, VAIKOM TALUK, PALLIKAVALA,
 W.A.No. 1192/2021                 :2:


            THALAYOLAPARAMPU, KOTTAYAM DISTRICT, PIN - 686 605.

     5      MUHAMMAD HUSSAIN
            AGED 42 YEARS
            FATHER'S NAME NOT KNOWN TO THE APPELLANT, PULICKALPARAMBIL
            HOUSE, ALLISERRY, ALAPUZHA DISTRICT, PIN - 688 001.

     6      VINCENT P.T.
            AGED 60 YEARS
            S/O.M.O.THOMAS, PADIKKAPARAMBIL HOUSE, VALLICHIRA POST,
            KOTTAYAM DISTRICT, PIN- 686 574.

            R1 to R4 BY SRI.LAKSHMI NARAYANAN, SC
            R5 BY SRI.M.V.BOSE
            R6 BY SRI.KEVIN THOMAS




      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.09.2021, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No. 1192/2021                  :3:


              Dated this the 17th day of September, 2021.

                                 JUDGMENT

SHAJI P. CHALY.

The petitioner in W.P.(C) No. 17010 of 2021 has filed the appeal

challenging the judgment dated 07.09.2021, whereby the following

reliefs sought for in the writ petition were declined basically holding

that the contract executed with the appellant was only for two months,

which is clear from clause 5 of Annexure R1(a) agreement produced

along with the statement filed by the Kerala State Civil Supplies

Corporation on 24.08.2021:

1. To issue a writ of certiorari or any other appropriate writ, direction or orders calling for the documents leading up to Ext. P12 and quash the same.

2. To declare that the 6th respondent is not entitled to get the contract again, under Ext. P1/tender proceedings, in preference to the petitioner.

3. To direct the first respondent to re-tender the transportation contract under Ext. P1/proceedings by inviting fresh tenders.

2. It was found by the learned single Judge that as per Ext. P6

order dated 01.03.2021 passed by the Depot Manager of Vaikom

Depot, the appointment of the appellant was valid only for two

months/till the permanent contract is signed/further directions

received from the Head Office in that regard from the date of the

agreement, with effect from 01.03.2021. In effect, the learned single

Judge concluded the issues raised by the appellant holding that the

agreement period as per Annexure R1(a) for two months pursuant to

Ext. P6 order has elapsed and therefore, the appellant has no right to

contend that the contract should have been given to the appellant,

when the 6th respondent, who was the second lowest tenderer, was

ready to do the work at the rate of the first lowest tenderer, and it was

accordingly, that the writ petition was dismissed.

3. Brief material facts for the disposal of the appeal are as

follows:

The appellant is the proprietor of a firm called Avani Enterprises

engaged in the business of transportation service. As per Ext. P1

tender notice dated 15.07.2020, the Kerala State Civil Supplies

Corporation Ltd.--first respondent invited tenders for transportation of

ration articles from its depot to destination godowns for a period of

one year. The appellant participated in the tender and was the third

lowest. Respondent No. 5, namely one Muhammad Hussain, was the

lowest among the participants and the 6th respondent namely Vincent

P.T. was the second lowest tenderer. However, the lowest tenderer, the

5th respondent did not turn up to do the work and therefore, the

second lowest tenderer, Vincent P.T was offered with the work at the

rate submitted by the lowest tenderer, the 5th respondent. The 6th

respondent accepted the offer and hence, as per Ext. P3 proceedings

bearing No. CSC2-732/20, the contract was awarded to the 6 th

respondent for a period of one month at the rate submitted by the

lowest tenderer. According to the appellant, after doing the

transportation work for a few weeks, 6 th respondent submitted Ext. P4

letter to the Depot Manager of Supplyco, Vaikom Taluk, the 4 th

respondent, stating that if he continues to do the transportation work

with the rate quoted by lowest tenderer, he would suffer loss, taking

into account various contributory factors like increase in the wages of

the workers, increase for the rent for the vehicles, expenses at FCI

etc. It is also the case of the appellant that in that context, the Depot

Manager offered the transportation contract to the appellant at the

rate of the lowest tenderer. In fact, the appellant has agreed for the

same by submitting a letter dated 24.02.2021, and accordingly, the

Depot Manager, Vaikom has passed Ext. P6 order dated 01.03.2021

and started doing the transportation work.

4. Be that as it may, while so, the 6 th respondent filed W.P.(C) No.

7483 of 2021 before this Court seeking a direction to award the

contract to him at the rate quoted by him in the tender. However,

when the writ petition came up for consideration, the 6 th respondent

confined his arguments seeking for a direction to the Manager,

National Food Security Act, Kerala State Civil supplies Corporation Ltd.,

Kochi, the 2nd respondent, to consider and dispose of Ext. P6

representation therein dated 24.02.2021 submitted by him before the

Depot Manager, after providing an opportunity of hearing to the 6 th

respondent as well as the appellant herein and accordingly, this Court

directed the second respondent to consider and dispose of the

representation so submitted by the 6th respondent, after providing an

opportunity of hearing to the appellant as well as the 6th respondent.

5. Apparently, in pursuance to the directions, the appellant has

submitted Ext. P11 representation dated 04.08.2021 before the 2 nd

respondent, who after considering the request made by the parties,

has passed Ext. P12 order dated 12.08.2021 and awarded the contract

to Vincent P.T, subject to the result of W.P.(C) No. 162 of 2021 pending

before this Court, which was filed challenging Ext. P1 tender

notification and consequential proceedings apparently by other

participants. In fact, the pendency of the said writ petition was the

root cause for granting the contract for a temporary period as narrated

above, or else it would have been for a period of one year. It is, thus,

aggrieved by Ext. P12, the writ petition was filed.

6. In fact, the Kerala State Civil Supplies Corporation had filed a

detailed statement in the writ petition along with certain documents

justifying its action in Ext. P12.

7. We have heard the learned counsel for the appellant Sri.

Alias M. Cherian, Adv. Lakshmi Narayanan appeared for respondents 1

to 4 and Sri. Kevin Thomas appeared for the 6 th respondent, and

perused the pleadings and materials on record.

8. The basic contention advanced by the learned counsel for the

appellant is that the 6th respondent has abandoned the contract

awarded to him as per Ext. P3 order, and therefore, the respondents

were not at liberty to award a contract to him. According to the

appellant, when the 6th respondent clearly indicated in Ext. P4 letter

that he cannot do the work at the rate quoted by the lowest tenderer,

it was arbitrary and illegal on the part of the respondents to award the

contract in favour of the 6th respondent. It was further pointed out that

the representation submitted by the 6th respondent was a clear replica

of Ext. P4 representation dated 24.02.2021 submitted by him, in which

the 6th respondent has clearly stated that he is prepared to do the

work, only if he is permitted at the rate quoted by him as the second

lowest tenderer and therefore, the respondents were not right in

conferring the work in favour of the 6th respondent.

9. On the other hand, learned counsel appearing for the Civil

Supplies Corporation and the 6th respondent have contended that the

6th respondent has never abandoned the work as alleged by the

appellant and in the representation, 6 th respondent has requested to

permit him to carry out the work as per the rate quoted by him, and

accepted by the Corporation as the second lowest tenderer. It was also

pointed out by the learned counsel for the 6th respondent Sri Kevin

Thomas that it was without considering the request made by the 6 th

respondent that the request of the appellant was considered by the

Depot Manager and passed Ext. P6 order in favour of the appellant,

and therefore, the 6th respondent was justified in approaching this

Court and securing Ext. P9 judgment dated 14 th day of July, 2021

directing the second respondent to consider the representation.

10. We have evaluated the rival submissions made across the Bar.

As pointed out above, the learned single Judge declined the reliefs

sought for by the appellant basically holding that the right of the

appellant to do the transporting contract was confined to Ext. P6 order

issued by the Depot Manager dated 01.03.2021 for a period of two

months. On an analysis of Ext. P6, what we could gather is that the

appellant was appointed to do the transporting work on certain

conditions, including bank guarantee and cash security for a period of

two months/till the permanent contract is signed/further direction

received from the Head Office in that regard from the date of the

agreement with effect from 01.03.2021, which could be extended for a

further period of three months at the option of the Supplyco without

any change in the rate or any terms of the contract, if such

circumstances arises. Therefore, one thing is clear, the right of the

appellant was confined to the period specified in Ext. P6 order and the

eventualities occurring as specified therein, and nothing more than

that. Apart from the same, the Civil Supplies Corporation has produced

along with its statement before the writ court the agreement executed

by the appellant on 1st March, 2021 wherein also, it was clearly

agreed by the appellant that the contract will be for a period of two

months or till the permanent contract is signed or further direction is

received from the Head Office in that regard from the date of the

agreement. It is also clear that the parties have agreed that the Civil

Supplies Corporation has the right to extend the period of contract for

a further period of three months at the option of the Corporation

without any change in the rate or any terms of the contract, if such

circumstances necessitates. It was in terms of the aforesaid basic

conditions that the agreement was executed by and between the

appellant and the Corporation.

11. In that view of the matter, it is clear that the appellant was well

aware that his rights are confined to two months or the happening of

such other eventualities as contained in Ext. P6 order and Annexure

R1(a) agreement. Therefore, the contention advanced by the appellant

that consequent to the illegal action of the corporation he has suffered

loss on account of organising vehicles for transportation of goods and

developing infrastructure has no basis or foundation at all.

12. This was exactly the point weighed with the learned single

Judge to dismiss the writ petition. The sole question that emerges for

consideration is whether there are any illegalities or other legal

infirmities on the part of the learned single Judge in exercising the

discretion vested under Article 226 of the Constitution of India. It is a

well settled proposition in law that a writ court considering a writ

petition need only consider whether there was any arbitrary action or

illegal conduct on the part of the authority while taking any decision,

so as to interfere with the fundamental rights of an aggrieved person.

As discussed above, the appellant has no case that he was not

permitted to carry on with the contract for a period of two months. We

also find that the 6th respondent has made a request to permit him to

do the transporting contract at the rate quoted by him and it could not

be gathered from the representation submitted by him that he was not

prepared to do the work and there is no indication in the letter that he

would abandon the work, if the request made by him is not

considered. In our view, when a request was made, the Corporation

was at liberty to allow or reject the request; however, thinking either

way the contract awarded to the 6th respondent could not have

terminated solely because a request was made for consideration of the

authority. But, the Corporation has kept quiet in the representation

submitted by the 6th respondent and entertained the representation

submitted by the appellant and has passed Ext. P6 order appointing

him to do the transporting contract for a period of two months or such

other eventualities specified therein occur.

13. Probably, the Corporation has taken such a decision to

ensure that the supply of ration articles is not disrupted. However, the

6th respondent felt that it was overlooking his representation that the

representation of the appellant was considered, which persuaded him

to approach this Court by filing W.P.(C) No. 7483 of 2021, and

significantly the judgment therein was passed after hearing the

appellant also. The second respondent, while considering the issue

raised by the appellant and the 6th respondent, has found that when

the lowest tenderer failed to turn up, the second lowest tenderer ought

to have given the option and therefore, it was only legal and

appropriate to confer the contract to the 6 th respondent on condition

that he executes the contract at the rate of the lowest tenderer (L-1).

These being the facts and circumstances, we do not find any

arbitrariness or illegality in the action of the respondents in awarding

the contract in favour of the 6th respondent. It is a well settled

proposition in contractual matters that unless there are patent

illegalities, arbitrariness or shockingly unfair circumstances , a writ

court, exercising the power of discretion under Article 226 of the

Constitution of India, shall not interfere with an administrative action

of awarding contracts. The facts and circumstances of the case at hand

is synonymous to the well settled legal proposition as said above. We

are also of the view that a prerogative writ, like a writ of certiorari,

cannot be issued as a matter of right; but on the other hand, such

writs can normally be issued, if the authorities under Article 12 of the

Constitution of India function themselves illegally, arbitrarily,

capriciously and in absolute violation of the principles of natural

justice. In effect, the appellant could not make out any case justifying

interference of the writ court. Therefore, we do not find any

jurisdictional error on the part of the learned single Judge in

dismissing the writ petition, justifying our interference in an intra court

appeal.

Needless to say, appeal fails and accordingly, it is dismissed.

sd/-

S. MANIKUMAR, CHIEF JUSTICE.

sd/-

SHAJI P. CHALY, JUDGE.

Rv