Ajayakumar D v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **THURSDAY, THE 30TH DAY OF AUGUST 2018/8TH BHADRA, 1940** ## **WP(C).No. 23937 of 2018** ## **PETITIONER:** ## **AJAYAKUMAR D** **AGED 47 YEARS, S/O.DAMODARA NADAR,CHARUVILA PUTHENVEEDU,PERINGAMALA, KALLIYOOR P.O.,PROPRIETOR, FORCE INDIA MANAGEMENT SERVICES AND SECURITIES,URIA, CHITHIRA, UPPALAM ROAD,STATUE G.P.O., THIRUVANANTHAPURAM - 695 001.** ## **BY ADV. SRI. CHERIAN GEE VARGHESE** ## **RESPONDENTS:** - **1 STATE OF KERALA REP.BY ITS SECRETARY,DEPARTMENT OF ELECTRONIC & INFORMATION TECHNOLOGY,KERALA STATE INFORMATION TECHNOLOGY MISSION (KSITM),GOVERNMENT OF KERALA, ICT CAMPUS,VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695 033.** - **2 KERALA STATE BEVERAGES MM CORPORATION LTD. REPRESENTED BY ITS MANAGING DIRECTOR,BEVCO TOWER, VIKAS BHAVAN P.O.,PALAYAM, THIRUVANANTHAPURAM, PIN - 695 033.** **3 GENERAL MANAGER ADMIN KERALA STATE BEVERAGES (M&M) CORPORATION LTD.,BEVCO TOWER, VIKAS BHAVAN P.O.,PALAYAM, THIRUVANANTHAPURAM, PIN - 695 033.** - **4 B.R.JOB CONSULTANCY PALODE, THIRUVANANTHAPURAM, PIN - 695 562.** - **5 BROADVIEW MANPOWER AND SECURITY AGENCY PALARIVATTOM, KOCHI,PIN - 682 025.** **BY ADVS. GOVERNMENT PLEADER SRI ES ASHARAF SRI.NAVEEN.T., SC, KERALA STATE BEV.CO. M. AND M. SRI.NAVEEN.T. SC KERALA STATE BEV.CO. M. AND M.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1.08.2018, THE COURT ON 30.08.2018 DELIVERED THE FOLLOWING:** WP(C).No.23937/18 2 ## **JUDGMENT** ## 1.Petitioner has approached this Court with the following prayer:- “Issue writ in the nature of mandamus or any other writ, order or direction directing respondents 1 to 3 to accept petitioner's technical and financial bids pursuant to Ext.P2 tender notification and may scrutinize and consider said bids as if received in time along with other bids made pursuant to Ext.P2 and may award him the contract if he is successful.” - 2.Heard learned Counsel appearing for the petitioner, learned standing counsel appearing for respondents 2 and 3 as well as the learned Government Pleader. ## 3.The case of the petitioner in short was as follows:- “Petitioner has been supplying manpower for security service for the shops of respondents 2 and 3. Pursuant to Ext.P2, petitioner made online bids for supplying manpower for further period of two years. The online bid was made in time and money was received by the website as evident from Ext.P3. However, when the bids were opened, petitioner was informed that his tenders were not received in the website due to some technical problem. Petitioner requested to accept his bids either online or through hard copy. Respondents 2 and 3 declined the same. Hence this writ petition seeking a direction to respondents 2 and 3 to accept the bid of the petitioner.” - 4.Detailed counter affidavits had been placed on record by the 1[st] respondent as well as respondents 2 and 3. It is stated in the statement filed on behalf of the 1[st] respondent as follows:- WP(C).No.23937/18 3 “Petitioner had to follow the instructions in the tender to documents as per Clause (E) of the general terms and conditions for e-procurement is produced as Ext.P13. The petitioner had to click on 'Freeze bid' link/icon to complete the process of bid submission otherwise the bid will not get submitted online and the same shall not be available for viewing/opening during bid opening process. The petitioner had not clicked on “Freeze bid' button after remitting online payments as contemplated in the bid. This respondent had caused to examine the contentions of the petitioner with respect to the technical problem and it is humbly submitted that there is no technical snag as alleged in the system. Annexure R1(a) is the online activity on the tender site on 9.7.2018 and it is evident from the activities that the site especially from 9 to 10 a.m. is operative”. - 5.Materials have also been produced to show that the site was active throughout the day on which the petitioner contends that he had uploaded the bid. - 6.Respondents 2 and 3 have also filed a statement specifically denying that though an amount of Rs.16,800/- towards tender fee and Rs.5 lakhs Earnest Money Deposit had been paid by the petitioner, the bid of the petitioner had not been received in the portal of the respondents which is presumably due to the fact that the freeze bid button was not clicked by the petitioner. In clause E of the general conditions specifically stipulates that it is necessary to click on “Freeze Bid” link/icon to complete the process of bid submission, otherwise the bid will not get submitted online and the same will not WP(C).No.23937/18 4 be available for viewing/opening during the bid opening process. It is further submitted in the counter affidavit as follows:- “It is submitted that mere remittance of tender fee and EMD will not by itself enable the petitioner to participate in the bid process without completing the process of bid submission as instructed in the general tender terms and conditions for e-procurement. In other words, showing of payment status “success” will not enable the petitioner to be qualified to be participated in the tender process unless all the documents are uploaded through online and complete the process of bid submission as instructed in the general terms and conditions for e-procurement.” It is further submitted that no further opportunity can be granted to the petitioner to submit that since that would amount to violation of the conditions of the tender. 7.A petition has been filed on behalf of the petitioner seeking to produce documents to show that the bid had been successfully uploaded by the petitioner. A detailed step-by-step statement of all the steps taken by the petitioner is also contained in the affidavit filed in support therein. The learned counsel for the petitioner would rely on unreported decisions of this Court in W.P.(C).No.20680 of 2016 and W.A.No.1696 of 2016 to contend that even in cases where amounts had allegedly not been received by the tendering authority, this Court had directed the consideration of the bids submitted by the petitioner therein. WP(C).No.23937/18 5 8.The learned Government Pleader as well as the learned counsel for the respondents would rely on the decisions of the Apex Court in **Maharashtra Housing Development Authority v. Shapoorji Pallonji and Company Pvt.Ltd and others** [(2018) 3 SCC 13] to contend that no directions can be given by this Court for giving another opportunity to a bidder when the bid was not uploaded in time. 9.I have considered the contentions advanced at considerable length. Though it is specifically alleged by the petitioner that he had completed all due procedures and had also clicked the “freeze bid” button and completed the entire procedure for uploading the bid, I am of the opinion that in the light of the statement and counter affidavit placed on record by respondents 1, 2 and 3, the contention of the petitioner that the bid was not uploaded only due to a technical error of the portal cannot be accepted. The respondents had specifically produced materials to show that the website was functionaL throughout the day including the time when the petitioner allegedly uploaded his bid. In the absence of any allegations of mala fide or extraneous considerations as against the portal developer, the Kerala State I.T. Mission or even against the respondents herein, I am of the opinion that their contention that the bid was never uploaded and was not available for consideration before the tendering authority is liable WP(C).No.23937/18 6 to be accepted. The Apex Court in **Maharashtra Housing Development Authority's case** (supra) has specifically held that where the portal developer has specifically stated that there was no technical snag or error in the system, there can be no directions issued by the High court for a consideration of a belated bid by one of the bidders in the tender process. Since it is also submitted by the learned counsel for the respondents that 8 other valid bids have been uploaded within the time stated in the tender notice, I am of the opinion that no direction as sought for can be issued. The writ petition fails and is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj WP(C).No.23937/18 7 ## **APPENDIX** ## **PETITIONER'S/S' EXHIBITS:** |**EXHIBIT P1**|**THE AGREEMENT EXECUTED FOR PROVIDING**| |---|---| ||**SECURITY SERVICES DURING THE PERIOD 2017-18**| ||**DATED 9.3.2017.**| |**EXHIBIT P2**|**THE TRUE COPIES OF THE TENDER NOTICE DATED**| ||**14.6.2018.**| |**EXHIBIT P3**|**TRUE COPY OF THE RECEIPTS ACKNOWLEDGING E-**| ||**PAYMENT DATED 7.7.18 AND 9.7.18.**| |**EXHIBIT P4**|**TRUE COPY OF THE LICENCE ISSUED UNDER THE**| ||**CONTRACT LABOUR( REGULATION AND ABOLITION)**| ||**ACT DATED 17.10.2011.**| |**EXHIBIT P5**|**TRUE COPY OF THE REGISTRATION UNDER EPF ACT**| ||**DATED 16.2.2005.**| |**EXHIBIT P6**|**TRUE COPY OF THE REGISTRATION UNDER ESI ACT**| ||**DATED 4.3.05.**| |**EXHIBIT P7**|**TRUE COPY OF THE GST REGISTRATION**| ||**CERTIFICATE DATED 25.9.2017.**| |**EXHIBIT P8**|**TRUE COPY OF PAN & TAX DATED 25.5.18**| ||**ALLOTTED BY INCOME TAX DEPARTMENT.**| |**EXHIBIT P9**|**TRUE COPY OF THE EVIDENCE SHOWING**| ||**COMMENCEMENT OF THE AGENCY AND ITS PLACE OF**| ||**FUNCTIONING DATED 30.11.2012.**| |**EXHIBIT P10**|**TRUE COPY OF THE EVIDENCE SHOWING ANNUAL**| ||**TURN OVER FOR THE FINANCIAL YEAR ENDED**| ||**LATEST BY 31.3.2018 DATED 14.6.18.**| |**EXHIBIT P11**|**TRUE COPY OF THE AGREEMENT DATED 23.4.2018**| ||**OBTAINED FROM THE DEPARTMENTS OR**| ||**ORGANIZATIONS BELONGING TO CENTRAL OR STATE**| ||**GOVERNMENT STATING THAT THE AGENCY HAS**| ||**PROVIDED MORE THAN 100 SECURITY GUARDS AT A**| ||**TIME FOR A MINIMUM PERIOD OF ONE YEAR.**| |**EXHIBIT P12**|**TRUE COPY OF THE LICENCE ISSUED BY COMPETENT**| ||**AUTHORITY UNDER KERALA PRIVATE SECURITY**| ||**AGENCY RULES 2010 DATED 7.6.2018.**| |**EXHIBIT P13**|**TRUE COPY OF THE TENDER DOCUMENT DULY SIGNED**| ||**BY AUTHORIZED PERSONS DATED 4.7.18 AND SHORT**| ||**RE-TENDER NOTICE DATED 14.6.2018.**| WP(C).No.23937/18 8 **EXHIBIT P14 TRUE COPY OF DECLARATION AS PER ANNEXURE-I DATED 4.7.18. EXHIBIT P15 THE BIDS AND DOCUMENTS UPLOADED AT BOTH THE STAGES.** **RESPONDENT'S/S' EXHIBITS:** ## **ANNEXURE R1** TRUE COPY OF THE ONLINE ACTIVITY ON THE TENDER SITE ON 9.7.2018. TRUE COPY PS TO JUDGE