Kerala High Court
Ahammed Musthafa C vs State Of Kerala on 18 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943
WP(C) NO. 3269 OF 2022
PETITIONER:
AHAMMED MUSTHAFA C
AGED 56 YEARS
S/O.KUNJALAN MUSLIYAR, CHAKKARATHODI HOUSE,
KOODASSERIPPARA, KURUMBATHUR, MALAPPURAM DISTRICT,
KERALA, PIN - 676301
BY ADV E.C.AHAMED FAZIL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO DEPARTMENT OF LOCAL
SELF GOVERNMENT, SECRETARIATE,
THIRUVANANTHAPURAM , PIN - 695001
2 THE SECRETARY,
ATHAVANAD GRAMA PANCHAYATH,
ATHAVANAD, KARIPPOL POST, MALAPPURAM DISTRICT - 679571,
3 THE ASSISTANT ENGINEER
LSFD (LID & EW) SECTION, ATHAVANAD GRAMA PANCHAYATH,
ATHAVANAD, KARIPPOL POST,
MALAPPURAM DISTRICT - 679571
SMT.VIDYA KURIAKOSE, GP,
SRI.K.P.SUDHEER, SC FOR R2 & 3
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 3269 OF 2022
2
P.V.KUNHIKRISHNAN, J
-------------------------------
W.P.(C)No. 3269 of 2022
--------------------------------
Dated this the 18th day of February, 2022
JUDGMENT
The above writ petition is filed with the following
prayers:
"(i) To quash Exhibit P5 and P6 with respect to
Item Nos.1 and 3 mentioned therein by issuing a Writ
in the nature of certiorari or any other appropriate Writ
order or direction.
(ii) To declare that petitioner is entitled to get
selected to undertake work with respect to Item No.3
having Project No.322 in Exhibit P1 and Item No.28
having Project No.327 in Exhibit P2 by issuing a Writ in
the nature of declaration or any other appropriate Writ
order or direction.
(iii) To grant such other relief in favour of the
petitioner as this Hon'ble Court may deem fit to grant
on the facts and in the circumstances of the case."[SIC]
2. The petitioner is aggrieved by the rejection of
his tender submitted to Athavanad Grama Panchayat and
according to the petitioner the rejection of the tender is
contrary to the Government Order with respect to 'tender
WP(C) NO. 3269 OF 2022
excess rate permitting up to 10%'. Ext.P4 is the
Government Order and Ext.P3 is the consequential
circular issued by the Local Self Government Department.
According to the petitioner, as per Ext.P3 circular dated
24.09.2021, tender can be quoted up to excess of 10%
with regard to works governed under the DSR(Delhi
Schedule of Rate)-2016. According to the petitioner he
had quoted rate in excess strictly in accordance with
Exhibit P3 and P4(9.5%). On receipt of tenders
submitted by the petitioner, 2nd and 3rd respondents
invited the petitioner for negotiation and the excess rate
was reduced to '9%'. According to the petitioner, he was
on a bona fide belief that the respondents will receive the
tender and he will get selection notice. It is stated by
the petitioner that he received the communication dated
28.01.2021 along with the minutes of the Panchayat
committee stating that as per the decision of the Board
dated 21.12.2021, both tenders submitted by the
petitioner stands rejected stating that the amount quoted
in tenders exceeds PAC(Probable Amount of Contract)
WP(C) NO. 3269 OF 2022
prepared as per DSR 2016. Aggrieved by the same, this
writ petition is filed.
3. Heard the learned counsel for the petitioner,
the learned Government Pleader and the learned
Standing Counsel appearing for the Panchayat.
4. The counsel for the petitioner reiterated his
contentions in the writ petition. The counsel submitted
that the Panchayat is taking a discriminatory stand
against the petitioner. According to the counsel, the
Panchayat granted the benefit of Exts.P3 and P4 to some
contractors and the petitioner was not given the benefit
of the same. The counsel submitted that Ext.P10 will
show the same.
5. The learned Standing counsel for the Panchayat
submitted that the petitioner was given one work based
on his tender as evident by Serial No.12 in Ext.P10. The
Standing counsel submitted that it is the discretion of the
Panchayat to decide whether the benefit of Exts.P3 and
P4 is to be given to the petitioner. The Panchayat
committee after discussion decided not to give. In such
WP(C) NO. 3269 OF 2022
circumstances, this Court may not interfere with the
proceedings of the Panchayat and the counsel also
submitted that the re-tender proceedings is already
initiated.
6. I have considered the contentions of the
petitioner and the learned Standing counsel appearing for
the Panchayat. The petitioner raised a grievance before
this Court in this writ petition based on Exts.P3 and P4.
But the counsel for the Panchayat submitted that it is the
discretion of the Panchayat and the Panchayat decided
the matter after considering all the circumstances. If
that is the case, the petitioner can approach the
Panchayat with a representation narrating his grievance
and to accept his tender. If such a representation is
received, the Panchayat can be directed to consider the
same and the re-tender proceedings will be subject to
the decision passed by the Panchayath in that
representation.
Therefore, this writ petition is disposed of in the
following manner:
WP(C) NO. 3269 OF 2022
i. The petitioner is free to file a representation before the
2nd respondent narrating his grievance raised in this writ
petition within ten days from the date of receipt of a
copy of this judgment.
ii. Once such a representation is received, the 2 nd
respondent will consider the same and pass appropriate
orders in it, as expeditiously as possible, at any rate,
within ten days from the date of receipt of the
representation, after giving an opportunity of hearing to
the petitioner.
iii. Till final orders are passed in the representation, the
opening of two tenders of the work involved in this case
based on the re-auction proceedings will be kept in
abeyance.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
DM
WP(C) NO. 3269 OF 2022
APPENDIX OF WP(C) 3269/2022
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF TENDER NOTICE NO.
AE/LSGD/ATVD/MT/01/21-22 ISSEUD BY
ASSISTANT ENGINEER, ATHAVANAD GRAMA
PANCHAYATH
EXHIBIT P2 TRUE COPY OF TENDER NOTICE NO.
AE/LSGD/ATVD/MT/02/21-22 ISSEUD BY
ASSISTANT ENGINEER, ATHAVANAD GRAMA
PANCHAYATH
EXHIBIT P3 TRUE COPY OF CIRCULAR NO.
DB1/3688/2021/CE/LSGD DATED 24.09.2021
ISSUED BY THE DEPARTMENT OF LSGD,
GOVERNMENT OF KERALA
EXHIBIT P4 TRUE COPY OF GOVERNMENT ORDER NO.
1778/2021/LSGD DATED 16.09.2021 ISSUED
BY THE DEPARTMETN OF LSGD, GOVERNMENT
OF KERALA
EXHIBIT P5 TRUE COPY OF COMMUNICATION 28.01.2022
ISSUED BY ASSISTANT ENGINEER (LID &
EW), SECTION, ATHAVANAD GRAMA
PANCHAYATH TO PETITIONER
EXHIBIT P6 TRUE COPY OF MINUTES/RESSOLUTION OF
MEETING DATED 21.12.2021 OF ATHAVANAD
GRAMA PANCHAYATH
EXHIBIT P7 TRUE COPY OF QUERRY UNDER RTI ACT
DATED 10.01.2022 FILED BEFORE
ATHAVANAD GRAMA PANCHAYATH
EXHIBIT P8 TRUE COPY OF QUERRY UNDER RTI ACT
DATED 27.01.2022 FILED BEFORE
ATHAVANAD GRAMA PANCHAYATH
EXHIBIT P9 TRUE COPIES OF RECEIPT EVIDENCING
RECEIPT OF EXHIBIT P7 AND P8 ISSUED
FROM ATHAVANAD GRAMA PANCHAYATH
EXHIBIT P10 TRUE COPY OF THE LIST OF APPROVED
TENDERS CUM MINUTES OF THE MEETING OF
WP(C) NO. 3269 OF 2022
ATHAVANAD GRAMA PANCHAYAT HELD ON
21.12.2021.
EXHIBIT P11 TRUE COPY OF THE LIST OF APPROVED
TENDERS CUM MINUTES OF THE MEETING OF
ATHAVANAD GRAMA PANCHAYAT HELD ON
21.12.2021.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY//
PA TO JUDGE
