Baby Joseph v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** ## **MONDAY, THE 13[TH] DAY OF OCTOBER 2021 / 21ST ASWINA, 1943** ## **WP(C) NO. 16522 OF 2021** ## **PETITIONER:** BABY JOSEPH AGED 62 YEARS S/O JOSEPH, THAYIL HOUSE, TEEKOY P.O, ERATUPETTA, KOTTAYAM-686580. BY ADV S.PRASANTH (AYYAPPANKAVU) ## **RESPONDENTS:** |1|STATE OF KERALA| |---|---| ||REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOREST| ||AND WILDLIFE DEPARTMENT, SECRETARIAT,| ||THIRUVANANTHAPURAM-695039.| |2|THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS| ||(PLANNING AND DEVELOPMENT)| ||FOREST HEADQUARTERS, VAZHUTHACAUD,| ||THIRUVANANTHAPURAM-695014.| |3|THE CHIEF CONSERVATOR OF FORESTS| ||SOUTHERN CIRCLE, KOLLAM-691001.| |4|THE DIVISIONAL FOREST OFFICER| ||DIVISIONAL FOREST OFFICE, RANNI, PATHANAMTHITTA-| ||689672.| |5|JIM ZACHARIAH THOMAS| ||KOIKKAL HOUSE, NELLIKKAMAN P.O, RANNI,| ||PATHANAMTHITTA-689674.| |6|PRASAD JOSEPH| ||KOIKKAL HOUSE, ANGADI. P.O,| ||RANNI, PATHANAMTHITTA-689674| W.P.C No.16522/2021 2 7 SHAMEER.B. SHAMEER MANZIL, CHEMPANARUVI P.O, PIRAVANTHOOR, KOLLAM-689696. BY ADVS. SRI.T.P.SAJAN, SPECIAL GOVERNMENT PLEADER(FOREST) P.P.BIJU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C No.16522/2021 3 ## **P.V.KUNHIKRISHNAN, J** **------------------------------W.P.(C)No.16522 of 2021 -------------------------------Dated this the 13[th] day of October 2021** ## **JUDGMENT** **The petitioner is a forest contractor. The above writ petition is filed by the petitioner alleging that 3[rd] and 4[th] respondents are taking steps to finalize tenders in blatant violation of Exhibit P2 tender conditions. It is the case of the petitioner that in the tender condition it is stated that “if the quoted PAC differ estimate PAC by more than 25%, the bid will be rejected”. The petitioner had quoted 25% below PAC although he could have quoted more than that and he quoted 25% below because of the tender condition. It is the case of the petitioner that relaxing the above tender condition, the 3[rd] and 4[th] respondents allotted the work to the 5[th] respondent. Aggrieved by the same, this writ petition is filed with following prayers:** _“i) To issue a writ of mandamus or any_ W.P.C No.16522/2021 4 _other appropriate writ or order directing respondents 3 and 4 to reject tenders submitted pursuant to Ext.P2 tender where the quoted PAC differ estimate PAC by more than 25%; ii) To issue a writ of mandamus or any other appropriate writ or order directing respondents 3 and 4 to award the tender as per Ext.P2 tender document to the petitioner;_ _iii) To issue a writ of mandamus or any other appropriate writ or order directing respondents 3 and 4 to not accept the tenders submitted by respondents 5 to 7 pursuant to Ext.P2 tender;_ _iv) To issue an order declaring that clause 3.c(1) of Ext.P2 tender document stating that “If the quoted PAC differ estimate PAC by more than 25%, the bid will be rejected”. is mandatory and can not be relaxed;_ _v) To issue such other appropriate writ, order or direction as this Hon'ble Court may deem just and proper to issue in the circumstances of the case.”_ ## **2. Heard the learned counsel for the** **petitioner and the learned Government Pleader. I also heard the learned counsel, who appeared for the 5[th] respondent.** ## **3. The learned counsel for the petitioner** **reiterated his contentions in the writ petition. The learned counsel submitted that Ext.P2 provides detailed clauses regarding the tender and work** W.P.C No.16522/2021 5 **execution and the learned counsel takes me through clause 3(c) of the same. The learned counsel submitted that the above clause stipulates that if the quoted PAC is less than the estimate by more than 25%, the bid will be rejected. It is the specific case of the petitioner that because of the tender condition, the petitioner quoted at a rate of only 25% below the estimated price. The learned counsel submitted that there were six tenders submitted by various bidders and 5[th] , 6[th] and 7[th] respondents quoted at the rate of -37.70, -27.34 and -25.10 percentage below estimate amount. Ext.P3 is the bid list. The learned counsel also takes me through Ext.P9 in which the quoted rate of all the tenderers is stated. The petitioner submitted Ext.P4 representation to reject the tenders submitted by respondents 5 to 7 in the light of clause 3(c) of Ext.P2. The learned counsel also submitted that Ext.P7 Government Order is exclusively for amending the PWD manual and the same is not applicable here. The counsel also submitted that if Ext.P7 is applicable to timber operation works of Forest** W.P.C No.16522/2021 6 **Department, definitely, condition No.3 of Ext.P2 tender notification limiting the tender quotable rate to below 25% would have been deleted while issuing the same because it is admittedly after Ext.P7. The learned counsel also submitted that the 4th respondent had invited Ext.P8 tender in which the tender condition did not have the clause regarding the rejection of tenders that quote below 25% of the estimated amount. The learned counsel takes me through the table extracted in page 9 of the writ petition to compare the clauses in Exts.P2 and P8. The sum and substance of the argument of the petitioner is that clause 3(c) of Ext.P2 is mandatory and the action of the 4[th] respondent in not rejecting tenders quoting more than 25% of the estimate is arbitrary and illegal. The learned counsel rebutted the contentions in the counter affidavit filed by the respondents. The learned counsel also takes me through the reply affidavit filed by the petitioner, in which Ext.P10 document is also produced. The learned counsel for the petitioner also relied on the judgments of the Apex** W.P.C No.16522/2021 7 **Court in** _**Bakshi Security and Personnel Services Pvt.Ltd. v. Devkishan Computed Pvt.Ltd. and Others[2016 KHC 6512]**_ **and** _**Ramana Dayaram Shetty v. The International Airport Authority of India and Others [1979 KHC 621]**_ **. The learned counsel takes me through paragraphs No.15 & 17 of the** _**Bakshi Security and Personnel Services's case**_ **(supra) and paragraph No.7 of** _**Ramana Dayaram Shetty's case**_ **(supra). The learned counsel also relied on the judgment of this Court in** _**Ramesan v. Asokan [2018(4) KLT 730]**_ **.** **4. The learned Government Pleader, on the other hand, supported the stand of the official respondents. The learned Government Pleader submitted that in Ext.P1 notification, it is clearly mentioned in paragraph 2 that this work will be done following existing rules in the Forest Department as well as conditions prevailing in Public Works Department. The learned Government Pleader submitted that in Ext.P1 it is stated that the tenderer is bound to comply with the terms and conditions in force, besides the conditions that will be framed by** W.P.C No.16522/2021 8 **the Government in the future in connection with the tender. The learned Government Pleader takes me through Clause 13 of Ext.P2 which states that the full authority with respect to acceptance of the tender rests with the Divisional Forest Officer. The learned Government Pleader takes me through other clauses of Ext.P2 which also says that the tender inviting authority or other sanctioning authority reserves the right to reject any tender or all the tenders without asking any reason therefor. The learned Government Pleader also takes me through various clauses regarding the tender and work execution and submitted that the petitioner did not raise any objection to any of the above clauses till the opening of tender and he approached this Court when he lost the bid. It is also stated in the counter that Ext.R4(b) is prepared as per G.O(P)No.13/2012/PWD dated 01.02.2012. It is submitted by the learned Government Pleader that there was an amendment in the Government Order dated 01.02.2012 and the same is Ext.P7. It is also submitted by the learned Government Pleader that the** W.P.C No.16522/2021 9 **lowest quoted rate is beneficial to the Government and the difference is about 15.79 lakhs. The learned Government Pleader takes me through Ext.R4(d) produced along with the counter affidavit to show the same. The learned Government Pleader submitted that there is nothing to interfere with the action of the official respondents which according to him is in accordance to law.** **5. The learned counsel for the 5[th] respondent also supported the contentions of the Government Pleader.** **6. I considered the contentions of the petitioner and the respondents. The interference of this Court invoking the powers under Article 226 of the Constitution of India in tender matters is very limited. This Court does not have the expertise to correct the administrative decisions of the authorities. If a review of the administrative decision is permitted, it will be substituting its own decision without necessary expertise which itself may be fallible. The Government must have** W.P.C No.16522/2021 10 **freedom in contract matters. The Apex Court held that courts should not easily interfere in commercial activities in which public sector undertakings or Government agencies are involved.** **The Apex Court also held that the purpose of judicial review of administrative action is intended to check whether a choice or decision is made lawfully and not to check whether the choice or decision is sound.** _**(See judgment in Municipal Corporation, Ujjain and Another v. BVG India limited and Others [2018 (5) SCC 462] Silppi Constructions Contractors v. Union of India and Another [2019 KHC 6912], Jagdish Mandal v. State of Orissa and others [2007 KHC 7883]).**_ **7. Bearing in mind the above principle, this Court has to consider the facts in this case. According to the petitioner, there is a blatant violation of clause 3(c) of Ext. P2. It will be better to extract clause 3(c) of Ext.P2.** _“(c) The bidders who quoted below estimate rate will remit performance guarantee with a view to curb the tendency to quote low rates and execute the works unsatisfactorily._ W.P.C No.16522/2021 11 _**(i) If the quoted PAC differ estimate PAC by more than 25%, the bid will be rejected.**_ _(ii) If the quoted PAC differ estimate PAC up to 25%, the bidder will remit performance guarantee equal to the unbalanced price in the estimate P.A.C and quoted P.A.C. This will be released only after satisfactory completion of the work._ _(iii) No interest, if any circumstances, shall be payable by the department to the bidder for the EMD/security deposit/performance guarantee furnished.”_ **8. The case of the petitioner is that 3(c) of Ext.P2 is mandatory and the respondents allotted the work to the 5[th] respondent flouting the mandatory conditions in clause 3(c) of Ext.P2. The short point is whether 3(c) is mandatory or directory. If the same is a mandatory provision, and the official respondents allotted the work to the 5[th] respondent violating the same, this Court can interfere in the matter.** **9. I perused Ext.P1 e-tender notice. In the first page of Ext.P1 itself, it is specifically stated that the tenderer is bound to comply with the terms and conditions in force, besides the conditions that will be framed by the Government in the future in connection with this tender. It is** W.P.C No.16522/2021 12 **also stated in Clause 7 of Ext.P1 that all other existing conditions related to the auction of timber in the Kerala Forest department and PWD will be applicable in this e-tender also. The specific case of the respondents is that Ext.R4(b) is prepared as per GO(P)No.13/2012/PWD dated 01.02.2012. It is the specific case of the official respondents that there was an amendment in this Government Order dated 01.02.2012 that is Ext.R4(c) and the same is produced as Ext.P7 in the writ petition also. I perused Ext.P7. It is an order passed by the Finance department of the Government of Kerala. But of course in Ext.P7, it is stated that the Government Order is issued in the light of Clause 2009.4 of PWD Manual 2012 which envisages that the tender/quotation with quoted PAC less than 75% of the estimated PAC shall not be accepted, since awarding of such work may lead to failure of contract or poor quality of work executed by the contractor and wastage of public money. In such circumstances, the Government after examining the matter in detail pleased to issue certain guidelines** W.P.C No.16522/2021 13 **for processing quotes below 25% of estimated PAC, in partial modifications of Clause 2009.4 of Revised PWD Manual. It will be better to extract the guidelines mentioned in Ext.P7 (Ext.R4(c)).** _“(i) The tender with lowest quoted rate less than 75% estimated PAC shall not be rejected if sufficient completion is ensured and the rate quoted by the second and third lowest bidder are also comparatively nearer to the lowest bidder._ _(ii) The tender inviting authority shall obtain a statement from the lowest bidder quoting rates below PAC regarding the reasonableness of the rate quoted to assess that whether the quoted rates are workable._ _(iii)Assessment shall be made by Department also, as to whether the particular work has any rate advantage as compared to the rate as given in Price Software Viz.reduction in cost bitumen, steel etc._ _(iv). If any contractor quotes less than 75% of the estimated PAC and variation with all other quoted rates are much higher, the Tender accepting Authority shall take appropriate decision based on merits._ _(v). The above guidelines will come into force with immediate effect.”_ **10. Clause 4 of the above Government Order says** **that, if any contractor quotes less than 75% of the estimated PAC and variation with all other quoted rates are much higher, the tender accepting authority shall take appropriate decisions based on merits. I perused Ext.R4(d) which is the bid opening** W.P.C No.16522/2021 14 **summary. Six bidders participated, out of which Jim Zachariah Thomas quoted the lowest rate that is -37.70%(L1) below estimate rate. Mr.Prasad Joseph K.(L2) and Shameer (L3) had quoted -27.34% and -25.10% respectively which is also below the estimate rate. The petitioner, Mr.Baby Joseph(L4) quoted -25% below estimate rate. It is the case of the official respondents that while awarding any contract work related to Government, the topmost priority is Government profitability. According to the official respondents, in the bid opening summary of this tender, L1 is profitable to the Government. Absolutely no serious malafides are alleged in the writ petition. In such a situation, it is very difficult for this Court to interfere with the proceedings only on the ground that there is violation of Clause 3(c) of Ext.P2. Clause 7 of Ext.P1 says that all other existing conditions related to auction in timber in Kerala Forest department and PWD will be applicable in this e- tender also. Clause 13 of Ext.P2 says that the acceptance of the tender rests with the Divisional** W.P.C No.16522/2021 15 **Forest Officer who does not undertake to accept the lowest or any particular tender. Clause 14 of Ext.P2 says that the right to carry out the work in conformity with or in a manner entirely different from the terms of this invitation that may be considered most suitable before or subsequent to the receipt of tenders due to exigencies of work is reserved with the Forest department. The official respondents say that the lowest quoted rate is beneficial to Government about Rupees 15.79 lakhs and being the lowest, the tendering authority accepted it and awarded the work. After going through the tender conditions and Ext.P7, it can not be said that Clause 3(c) of Ext.P2 is mandatory. The decisions relied on by the learned counsel for the petitioner are all settled positions in these types of cases. There can not be any dispute on those settled positions laid down by the Apex Court and this Court in** _**Bakshi Security and Personnel Services's case**_ **(supra),** _**Ramana Dayaram Shetty's case**_ **(supra) and** _**Ramesan's case**_ **(supra). But in this case, it can not be said that the official** W.P.C No.16522/2021 16 **respondents violated Clause 3(c) of Ext.P2 in the light of Ext.P7. Ext.P7 is a Government order issued by the Finance department of the Government of Kerala. As I said earlier, it is clearly stated in the tender conditions itself that all other existing conditions related to auction of timber in Kerala Forest department and PWD will be applicable in this e-tender also. Hence there is nothing wrong in the stand of the official respondents that the tender of the 5[th] respondent is not rejected in the light of Ext.P7. I see no reason to interfere with the actions of the official respondents.** ## **Therefore, this writ petition fails and** ## **accordingly dismissed.** Sd/- **P.V.KUNHIKRISHNAN JUDGE** **DM** W.P.C No.16522/2021 17 ## **APPENDIX OF WP(C) 16522/2021** PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF THE E-TENDER NOTICE NO.A2-| |---|---| ||4873/18 DATED 15.02.2021 ISSUED BY THE| ||4TH RESPONDENT.| |EXHIBIT P2|TRUE COPY OF THE E-GOVERNMENT PROCUREMENT| ||NOTICE INVITING TENDER FOR E-TENDER| ||NO.56/DFO/A2-4873/18 RNI/2021-22 ISSUED| ||BY THE 4TH RESPONDENT.| |EXHIBIT P3|TRUE COPY OF THE BID LIST FOR TENDER ID| ||2021- FD-415792-1 AS OBTAINED FROM THE| ||TENDER WEBSITE OF THE GOVERNMENT OF| ||KERALA.| |EXHIBIT P4|TRUE COPY OF THE REPRESENTATION DATED| ||5.3.2021 SENT BY THE PETITIONER TO THE| ||4TH RESPONDENT.| |EXHIBIT P5|TRUE COPY OF THE REPRESENTATION DATED| ||6/4/2021 SENT BY THE PETITIONER TO THE| ||4TH RESPONDENT.| |EXHIBIT P6|TRUE COPY OF THE REPRESENTATION DATED| ||11.4.2021 SENT BY THE PETITIONER TO THE| ||3RD RESPONDENT.| |EXHIBIT P7|TRUE COPY OF THE G.O(P) NO.124/2016/FIN| ||DATED 29/08/2016 ISSUED BY THE FINANCE| ||(INDUSTRIES AND PUBLIC WORKS-B)| ||DEPARTMENT.| |EXHIBIT P8|TRUE COPY OF THE EXTRACT OF E-GOVERNMENT| ||PROCUREMENT NOTICE INVITING TENDER FOR| ||TENDER NO.11/DFO.A2-4649/18/RNI/2019-20| ||DATED 25.11.2019 ISSUED BY THE 4TH| ||RESPONDENT.| |EXHIBIT P9|TRUE COPY OF THE LETTER NO.Q,C1-1391/2020| ||DATED 25.06.2021 SENT BY THE 3RD| ||RESPONDENT TO THE JOINT SECRETARY, LEGAL| ||SECTION IN THE FOREST HEADQUARTERS.| W.P.C No.16522/2021 18 EXHIBIT P10 TRUE COPY OF THE TENDER NOTICE WITH REFERENCE NO.KN 6952/2019 DATED 24.07.2020. ## **RESPONDENTS EXHIBITS:** EXHIBIT R4(A) TRUE COPY OF THE NOTIFICATION NO.A24873/2018 DATED 16.02.2021. EXHIBIT R4(B) TRUE COPY OF E-TENDER NO.56/DFO/A24873/2018/RN1/2021-22 ON 12.08.2021. EXHIBIT R4(C) TRUE COPY OF G.O(P)NO.124/2016/FIN DATED 29.08.2016. EXHIBIT R4(D) TRUE COPY OF BID OPENING SUMMARY. EXHIBIT R4(E) TRUE COPY OF G.O.(RT)NO.141/2021 F & WILD DATED 06.05.2021. EXHIBIT R4(F) TRUE COPY OF AGREEMENT SIGNED BY THE PETITIONER WITH DIVISIONAL FOREST OFFICER, KANNUR. //TRUE COPY// PA TO JUDGE