V. Chandran vs State Of Kerala
2022 Latest Caselaw 34 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
               THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                          &
                    THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
             MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943
                                WA NO. 1737 OF 2021
 AGAINST THE JUDGMENT IN WP(C) 22824/2021 OF HIGH COURT OF KERALA DATED 15.12.2021
APPELLANT/PETITIONER:

         V. CHANDRAN, AGED 62 YEARS, S/O. VASUDEVAN, PROPRIETOR, CHITRA ENTERPRISES,
         PANGODE P.O., VIA KALLARA, THIRUVANANTHAPURAM, PIN-695 006

         BY ADV K.B.GANGESH



RESPONDENTS/RESPONDENTS:

    1    STATE OF KERALA, REPRESENTED TO THE SECRETARY TO GOVERNMENT,
         DEPARTMENT OF FOREST, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

    2    KERALA FOREST DEVELOPMENT CORPORATION LTD., AARANYAKOM, KARAPUZHA,
         KOTTAYAM-686 003 REPRESENTED BY ITS MANAGING DIRECTOR.

    3    DIVISIONAL MANAGER, KERALA FOREST DEVELOPMENT CORPORATION LTD.,
         THIRUVANANTHAPURAM DIVISION, VELLAYAMBALAM, SASTHAMANGALAM P.O.,
         THIRUVANANTHAPURAM-695 017.

    4    MIDLAND TIMBERS, KARIMKUNNAM VILALGE, THODUPUZHA, IDUKKI-685 586,
         REPRESENTED BY ITS MANAGING PARTNER JOJO JOSEPH.

         ADV.SRI. SANGEETH C.U, GP FOR R1,
         SMT. KABANI DINESH, SC FOR R2 AND R3,
         SRI.P.THOMAS GEEVERGHESE AND
         SRI. CHACKO SIMON, FOR R4

      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.01.2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.1737 of 2021
                                        : 2:




                                   JUDGMENT

Dated this the 3rd day of January 2022

S.MANIKUMAR, C.J.

Appellant, an 'A' class contractor under the Forest Department, has

approached this court by filing this writ appeal challenging the judgment in

W.P.(C)No.22824 of 2021 dated 15.12.2021 by which, a learned Single Judge

dismissed the writ petition holding that the second respondent/Kerala Forest

Development Corporation Limited has got absolute discretion for not

confirming a bid without assigning any reason as per Ext.P7.

2. W.P.(C)No.22824 of 2021 was filed seeking direction to the 2 nd

respondent in the writ petition/the Kerala Forest Development Corporation

Limited, to confirm the resale of eucalyptus trees in 51.9 hectors of plantation

in Block No.VII/6, 7, 8, 9, 10 Sankily - Bit - II, Arippa Sub Unit,

Thiruvananthapuram as per Ext.P7 notification in favour of the petitioner on

the basis of the tender / auction held on 4.10.2021.

3. The writ petitioner has also sought for a declaration that the

petitioner is eligible to participate in the resale of eucalyptus trees in 51.9

hectors of plantation in Block No.VII, 6, 7, 8, 9, 10 Sankily - Bit - II, Arippa Sub

Unit, Thiruvananthapuram in response to Ext.P7 and that the re-tender of the W.A.No.1737 of 2021

aforesaid plantation on 7.10.2021 by cancelling the tender/auction held on

4.10.2021 is violative of the terms contained in Ext.P7 and therefore illegal.

4. Another relief sought for is a direction commanding the second

respondent therein to consider and pass orders on Ext.P9 representation

preferred by the petitioner before confirming the bid of the 4 th respondent in

respect of the plantation in issue as held on 7.10.2021.

5. After considering the rival contentions, by judgment dated 15 th

December 2021, writ court dismissed the writ petition, relevant portion of

which reads thus:

"3. The short point to be decided is whether the rejection of the petitioner's tender submitted on 4.10.2021 is correct or not. It is an admitted fact that the petitioner participated in the tender proceedings based on Ext.P1 tender notification and he was the successful bidder as far as three plantations are concerned. But the petitioner executed agreement with the respondents only for one plantation. It is also an admitted fact that as per Ext.P6 proceedings of the 2nd respondent, the retender of the second plantation was ordered at the risk and cost of the petitioner. According to the Standing Counsel for respondents 2 and 3, the petitioner's tender was rejected on 4.10.2021 because of Ext.P6 proceedings. The Standing Counsel submitted that the petitioner alone participated on 4.10.2021 and that is why it was adjourned to 7.10.2021. The Standing Counsel takes me through Clause 1.23 of Ext.P7, which is the terms and conditions of the tender/auction. It will be better to extract clause 1.23 of Ext.P7.

"1.23 Acceptance or otherwise of tenders/auctions : The acceptance of tender is subject to confirmation by the Managing Director, Kerala Forest Development Corporation Ltd., who may confirm or reject any tender, including the highest tender, without assigning any reasons thereof. His W.A.No.1737 of 2021

decision in in this respect shall be final. More opening of tenders by the officer cannot be deemed as acceptance of the tender, unless it is confirmed by the competent authority."

4. From the above, it is clear that the acceptance of tender is subject to confirmation by the Managing Director, Kerala Forest Development Corporation Limited, who may confirm or reject any tender including the highest tender, without assigning any reasons thereof. It is also stated that his decision in this respect shall be final. The counsel for the petitioner submitted that there is no rejection of the tender and the same is not communicated to him. On the other hand, the Standing Counsel submitted that the tender submitted by the petitioner on 4.10.2021 was rejected and that is why it was conducted on 7.10.2021. On 4.10.2021 and 7.10.2021, it was a public auction. From Clause 1.23 of Ext.P7, it is clear that it is the discretion of the Managing Director to dismiss and reject a tender. Admittedly, as per Ext.P6 proceedings, it is held that the re-tender was ordered at the risk and cost of the petitioner. In such situation, I cannot say that the stand of the Managing Director to reject the tender of the petitioner is illegal or it is a matter to be interfered under Article 226 of the Constitution of India.

Therefore, I think there is no merit in the writ petition and the same is accordingly, dismissed."

6. Mr.K.B.Ganesh, learned counsel for the appellant submitted that the

appellant participated in the auction held on 4.10.2021 and his bid and EMD

was accepted. But thereafter, without formally rejecting the appellant's bid

and without issuing any intimation to the appellant, the very same plantation

was re-auctioned on 7.10.2021 and the bid of the 4th respondent was accepted.

7. According to the learned counsel for the appellant, writ court has

not verified the legality of the contention raised by the second W.A.No.1737 of 2021

respondent/the Managing Director, Kerala Forest Development Corporation

Limited that the appellant's bid was cancelled as he was ineligible to

participate in the bid.

8. Smt.Kabani Dinesh, learned Standing Counsel appearing for

respondent No.2/the Managing Director, Kerala Forest Development

Corporation Limited submitted that auction conducted on 7.10.2021 has been

confirmed in favour of the 4th respondent/Midland Timbers.

9. Heard the learned counsel for the parties and perused the materials

on record.

10. Clause 1.23 of Ext.P7 dated 8.9.2021, notice inviting tender cum

auction sale reads thus:

"1.23 Acceptance or otherwise of tenders/auctions: The acceptance of tender is subject to confirmation by the Managing Director, Kerala Forest Development Corporation Ltd., who may confirm or reject any tender, including the highest tender, without assigning any reasons thereof. His decision in this respect shall be final. More opening of tenders by the officer cannot be deemed as acceptance of the tender, unless it is confirmed by the competent authority."

11. Clause 1.23 makes it clear that acceptance of tender is subject to

confirmation by the Managing Director, Kerala Forest Development

Corporation Limited, who may either to confirm or reject any tender

including the highest tender, without assigning any reasons thereof. W.A.No.1737 of 2021

12. Bid alone has been accepted. It has been confirmed. The discretion

is given to the Managing Director either to confirm or to reject the tender

without giving any reasons thereof is absolute.

In such a view of the matter, we are not inclined to interfere with the

matter. Writ appeal fails and it is dismissed.

SD/-

S.MANIKUMAR CHIEF JUSTICE

SD/-

SHAJI P. CHALY JUDGE jes