Kerala High Court
Balachandran vs The Director on 17 October, 2024
Author: V.G.Arun
Bench: V.G.Arun
W.P.(C).No.34838/24
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
WP(C) NO. 34838 OF 2024
PETITIONER:
BALACHANDRAN
AGED 63 YEARS
S/O PADMANABHAN, THUNDUPARAMBU, VANDANAM P.O.,
ALAPPUZHA, PIN - 688005
BY ADVS.
SABU GEORGE
P.B.SUBRAMANYAN
MANU VYASAN PETER
RESPONDENTS
1 THE DIRECTOR
DIRECTORATE OF MEDICAL EDUCATION,
MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM, PIN - 695011
2 THE PRINCIPAL,
GOVT. MEDICAL COLLEGE,
VANDANAM,
ALAPPUZHA, PIN - 688005
3 THE SUPERINTENDENT
GOVT. MEDICAL COLLEGE,
VANDANAM, ALAPPUZHA, PIN - 688005
4 THE HOSPITAL DEVELOPMENT SOCIETY
GOVT. MEDICAL COLLEGE, VANDANAM, ALAPPUZHA,
REPRESENTED BY ITS SECRETARY, PIN - 688005
W.P.(C).No.34838/24
2
5 HASSAN.A
AWARDEE OF THE TENDER OF MILMA BOOTH CUM
CAFETERIA IN GOVERNMENT MEDICAL COLLEGE HOSPITAL,
TENDER REF. NO. B7/101/2024/GTDMCHA,
VANDANAM, ALAPPUZHA, PIN - 688005
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 14.10.2024, THE COURT ON 17.10.2024 DELIVERED
THE FOLLOWING:
W.P.(C).No.34838/24
3
V.G.ARUN, J
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W.P.(C).No.34838 of 2024
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Dated this the 17th day of October, 2024
JUDGMENT
The petitioner is conducting a Milma Booth in the
Government Medical College Hospital, Vandanam from
15.05.1991 onwards. The booth commenced functioning on the
strength of Ext.P1 permission granted by the Principal of the
Medical College and continued with the permission of the
Hospital Development Committee. By Ext.P6, the petitioner
was asked to shift the booth to a new place, in view of the
development activities sought to be implemented in connection
with the Prime Minister's Swasthya Suraksha Yojana.
Accordingly, the petitioner constructed the booth in the new
location allotted to him and shifted his business to that building
on 21.07.2016. Immediately thereafter, respondent No.3 invited
tenders for allotment of the booth on rental basis. The
petitioner challenged the decision for allotment of the booth
before this Court and by Ext.P11 judgment, the 3rd respondent
was directed to reconsider the matter. Thereafter, the 3 rd
respondent passed Ext.P13 order, affirming the decision to
conduct fresh tender. Pursuant to Ext.P13, a tender notification
was issued on 16.03.2024. The 2 nd notification was also
challenged by the petitioner in W.P.(C).No.13140 of 2024. By
Ext.P16, that writ petition was dismissed holding that the
respondents cannot be found to be at fault for deciding to issue
fresh tenders for the purpose of utilising the present
commercial value of the premise. It was also held that the
petitioner can participate in the fresh tender notified.
Accordingly, petitioner participated in the tender but came out
as the lowest among the eight bidders. As the highest bidder
failed to execute the agreement, the tender was finalised in
favour of the 2nd highest bidder, the 5th respondent herein. On
finalisation of the tender, the petitioner was issued with Ext.P23
notice, requiring him to vacate the building by 05.10.2024.
Thereupon, the instant writ petition was filed challenging the
finalisation of tender in favour of the 5th respondent.
2. Learned Senior Counsel appearing for the petitioner
contended that the procedure by which the tender is finalised in
favour of the 5th respondent is patently illegal, being contrary to
the procedure prescribed in Ext.P24 notice inviting tender.
Attention is drawn to Clause 7 of Ext.P24 dealing with the
opening of tenders, to contend that the notice does not provide
for award of contract in favour of the 2nd highest bidder.
3. Learned Government Pleader submitted that the writ
petition is liable to be dismissed in limine, it being a mala fide
attempt to continue the booth, in spite of the petitioner's earlier
challenges being repelled by this Court. It is contended that,
being the lowest bidder, the petitioner has no vestige of right to
challenge the award of contract in favour of the 2nd highest
bidder. It is pointed out that the annual rent quoted by the 5 th
respondent is Rs.13,00,332/-, which is now enhanced to
Rs.13,65,349/- based on negotiation. As against this, the annual
rent being paid by the petitioner is Rs.3,60,000/- and his bid
amount is only Rs.5,66,400/-. It is hence contended that by
awarding the tender in favour of the 5 th respondent, the Hospital
Development Society will gain more than Rs.10,00,000/- every
year.
4. In response to the contention that Ext.P24 does not
contain any provision enabling award of the tender in favour of
the 2nd highest bidder, it is contended that Clause 12 empowers
the tender awarding authority to alter, modify or relax any of
the conditions in the notice inviting tender.
5. Indisputably, the petitioner is the lowest among the 8
bidders who had participated in the tender. As such the
petitioner's right to challenge the award of tender to the 5 th
respondent, who is the 2nd highest bidder, is very limited. The
ground urged by the petitioner is that, the notice inviting
tender does not provide for award of the tender to the 2 nd
highest bidder. True that Ext.P24 does not contain any specific
clause enabling the award of contract to the 2 nd highest bidder.
At the same time, it is pertinent to note that, Ext.P24 does not
also contain any clause mandating cancellation of the tender, if
the selected bidder does not execute the agreement. Being so,
it is well within the powers of the tender awarding authority to
confirm the bid in favour of the 2nd highest bidder.
6. As contended by the learned Government Pleader, by
awarding the contract in favour of the 2nd highest bidder, the
rent of the premises occupied by the petitioner got enhanced
from Rs.3,60,000/- to Rs.13,65,349/-. As the 3 rd respondent
society is functioning on public funds, public interest is also
subserved by the award of contract to the 2nd highest bidder. As
held by the Apex Court in Research in Ayurvedic Sciences
and Another v. Bikartan Das and Others [AIR 2023 SC
4011], Article 226 of the Constitution grants an extraordinary
remedy which is essentially discretionary, although founded on
legal injury and therefore, it is perfectly open for the writ court
to pass such orders as public interest dictates. In the case at
hand, this Court finds that the attempt of the petitioner is to
cling on to the rented premises, by challenging the tender
proceedings, in spite of being the lowest bidder. Such challenge
is liable to be repelled, since the petitioner's private interest
cannot precede the public interest involved.
For the aforementioned reasons this writ petition is
dismissed.
Sd/-
V.G.ARUN, JUDGE
sj
APPENDIX OF WP(C) 34838/2024
PETITIONER EXHIBITS
Exhibit-P1 A TRUE COPY OF ORDER NO.G6/29696/90/DME
DATED 15-5-1991
Exhibit-P2 A TRUE COPY OF THE AGREEMENT DATED 16-
8-2000 EXECUTED BY THE PETITIONER
Exhibit-P3 A TRUE COPY OF NOTICE NO.H.D.C.269/2010
DATED 27-7-2010
Exhibit-P4 A TRUE COPY OF THE ORDER
NO.5369/M3/2011 DATED 8-2-2011 ISSUED
BY THE SECRETARY TO THE GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT
Exhibit-P5 A TRUE COPY OF THE MINUTES OF THE
MEETING DATED 22-1-2013 OF THE HOSPITAL
DEVELOPMENT SOCIETY
Exhibit-P6 A TRUE COPY OF THE APPLICATION DATED
NIL SUBMITTED BY THE PETITIONER TO
RESPONDENT NO.2
Exhibit-P7 A TRUE COPY OF ORDER
NO.E5/7010/2016/GTDMCA DATED 27-6-2016
ISSUED BY RESPONDENT NO.2
Exhibit-P8 A TRUE COPY OF THE NOTICE
NO.HDS/6293/16 DATED 7-7-2016 ISSUED BY
RESPONDENT NO.3
Exhibit-P9 A TRUE COPY OF THE LETTER
NO.AMC/C1/05/2016/1064 DATED 14-7-2016
ISSUED BY MILMA
Exhibit-P10 A TRUE COPY OF QUOTATION NOTICE
NO.H.D.S/348/2016 DATED 26-9-2016
ISSUED BY RESPONDENT NO.3
Exhibit-P11 A TRUE COPY OF THE JUDGMENT DATED 24-
02-2023 IN W.P(C) NO.32812 OF 2016
Exhibit-P12 A TRUE COPY OF REPRESENTATION DATED 20-
02-2024 SUBMITTED BY THE PETITIONER
BEFORE RESPONDENT NO.3
Exhibit-P13 A TRUE COPY OF THE ORDER DATED 15-03-
2024 ISSUED BY RESPONDENT NO.3
Exhibit-P14 A TRUE COPY OF THE TENDER NOTIFICATION
DATED 16-03-2024 ISSUED BY RESPONDENT
NO.3
Exhibit-P15 A TRUE COPY OF THE LICENSE ISSUED BY
THE ALAPPUZHA NORTH GRAMA PANCHAYAT,
DATED 14-03-2024
Exhibit-P16 A TRUE COPY OF THE JUDGMENT DATED 01-
04-2024 IN W.P(C) NO.13140 OF 2024
Exhibit-P17 A TRUE COPY OF THE BOQ SUMMARY DETAILS
Exhibit-P18 A TRUE COPY OF THE NOTICE DATED 03-06-
Exhibit-P19 A TRUE COPY OF THE DECISION OF THE
TENDER COMMITTEE ON 24-05-2024
Exhibit-P20 A TRUE COPY OF THE NOTICE DATED 26-08-
Exhibit-P21 A TRUE COPY OF THE APPLICATION DATED
13-08-2024 SUBMITTED UNDER THE RTI ACT
Exhibit-P22 A TRUE COPY OF THE REPLY DATED 11-09-
Exhibit-P23 A TRUE COPY OF THE NOTICE DATED 30-09-
2024 ISSUED BY RESPONDENT NO.3
Exhibit-P24 A TRUE COPY OF THE E-TENDER
NOTIFICATION DATED 15-03-2024 OF THE
TENDER OF RUNNING OF MILMA BOOTH CUM
CAFETERIA IN GOVERNMENT MEDICAL COLLEGE
HOSPITAL, ALAPPUZHA.
