Boby Sebastian v. State of Kerala and Divisional Forest Officer, North Wayanad Division, Mananthavady

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY ,THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941** ## **WP(C).No. 571 of 2019** ## **PETITIONER/S:** **BOBY SEBASTIAN, AGED 40 YEARS, VALUVETTICAL HOUSE, KELAKAM P.O., KANNUR DISTRICT, PIN 670 674.** **BY ADVS. SRI.D.ANIL KUMAR SRI.K.LAKSHMINARAYANAN** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY,**| ||**FOREST & WILDLIFE DEPARTMENT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**DIVISIONAL FOREST OFFICER,**| ||**NORTH WAYANAD DIVISION,**| ||**MANANTHAVADY, WAYANAD DISTRICT,**| ||**PIN: 670 645.**| ||**BY SRI. SANDESH RAJA. K., SPL. GOVERNMENT PLEADER**| ||**(FOREST)**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.571 of 2019 2 ## **JUDGMENT** This writ petition is filed by the petitioner seeking to declare that cancellation of Ext.P2 tender is illegal, and to call for the records leading to Exts.P3, P4 and P5, viz., notice inviting fresh tender dated 01.01.2019, communication of the 2[nd] respondent dated 04.01.2019 and further re-tender dated 01.01.2019, respectively, and to quash the same. Brief material facts for the disposal of the writ petition are as follows: 2. The 2[nd] respondent invited a tender as per Ext.P1 dated 15.10.2018 for installation of rail fencing from Koodalkkadavu to Palvelicham, having a stretch of 6 Kms. It was two bid system, i.e., technical as well as financial. Petitioner submitted his bid and the technical bid was to be opened at 11 a.m. on 30.10.2018. However, on 30.10.2018 by 10 a.m., it was announced that the tender would stand cancelled. Thereafter, Ext.P2 fresh tender was issued and petitioner submitted his bid. After opening the technical bids, evaluation was done and out of seven persons participated, five were found qualified. Petitioner was one among them and later the financial bid was opened. According to the petitioner, 3 W.P.(C) No.571 of 2019 petitioner was the second lowest. The lowest bidder was found unqualified, and thereupon, his bid was rejected. Therefore, petitioner became the lowest bidder. 3. It is the case of the petitioner that, respondents decided to accept the bid and proceedings were initiated to give work order to the petitioner. However, all on a sudden, without assigning reasons, respondents cancelled Ext.P2 tender and issued Ext.P3 fresh tender. But, by Ext.P4, it is stated that there were complaints and deficiencies in the tender invitation, and therefore, the said tender was also cancelled. The sum and substance of the contention put forth by the petitioner is that, the cancellation of the tender is arbitrary and illegal, since after opening the financial bid, having known the financial implications, inviting fresh tenders is illegal, and it is with the intention to award the work in favour of a person of the choice of the respondent. 4. A detailed statement is filed by the 2[nd] respondent, refuting all the allegations and claims and demands raised by the petitioner. It is stated that, as per the order dated 21.10.2016, the State Government accorded administrative sanction for an amount of W.P.(C) No.571 of 2019 4 Rs.2,506.80 lakhs for fencing along Forest Boundary under the special investment Plan-Phase I. One of the components included in the administrative sanction was for rail fencing at the cost of Rs.150 lakhs per kilometre and an amount of Rs.1,702.50 lakhs was earmarked for this component alone. However, the Government revised the administrative sanction for the same works with same components for an amount of Rs.25 Crores as per order dated 13.09.2018. The project was scheduled to be executed with the financial assistance of Kerala Infrastructure Investment Fund Board (hereinafter called 'the Board') and the State Forest Development Agency was selected as a special purpose vehicle (SPV) for this work. 5. It is also submitted that, as per Government Order dated 24.06.2018, 2[nd] respondent prepared the estimate in PRICE software through the Uralungal Labour Contractors Co-operative Society, which is an accredited agency under the Government of Kerala. Thereafter, the estimate was scrutinized by the Chief Conservator of Forests, Northern Circle and sanctioned Rs.9.07 crores, as as per order dated 24.10.2018. Accordingly, tender notification was published in the website on 01.11.2018 and the last date and time for W.P.(C) No.571 of 2019 5 receipt of tender/bids was fixed as 14.11.2018, 6.00 p.m., and the date of opening of the tender was on 19.11.2018. However, due to some technical reasons, the meeting of the tender opening committee was refixed on 20.11.2018, and on the same day, technical bid evaluation committee meeting was held. 6. It is further submitted that, the accredited agency, viz., the Labour Co-operative Society specified above and six contractors submitted their bids online and five contractors and the Labour Co-operative Society submitted hard-copies of mandatory documents directly. However, one of the contractor firm, even though submitted the bid online, failed to submit the requisite mandatory documents directly. It was later found that the sole accredited agency, i.e., the Labour Co-operative Society failed to produce the receipt for payment of tender submission fee, copy of EPF registration and bank certificate for evidence of access to availability of credit facilities. Therefore, the committee rejected the bid of the said accredited agency also. The bids submitted by other five contractors were found to be sound in preliminary examination, and thereupon, the 2[nd] respondent requested the Chief Conservator of Forests, Kannur to W.P.(C) No.571 of 2019 6 permit her to open the financial bids of the remaining five contractors. Accordingly, the bids were opened. However, while perusing the documents, various lapses were found out. One of the bidders whose technical bid was rejected also submitted a petition pointing out contradictory eligibility criteria in Tender conditions, and considering the above and other reasons, it was recommended to go for re-tender after preparing better tender conditions, enabling all the eligible contractors to participate. It is also pointed out that, the rail fencing work need to be completed at the earliest, so that further ManElephant-Conflict in the proposed site can be minimized. 7. I have heard Sri. K. Lakshmi Narayanan, learned counsel for the petitioner and the learned Special Government Pleader, Sri. K. Sandesh Raja, appearing for the respondents. Perused the pleadings and the documents on record, and also verified the original note file produced by the Special Government Pleader. 8. On evaluation of the rival contentions put forth by the respective counsel in terms of their pleadings, the issue to be considered by this Court is, W.P.(C) No.571 of 2019 7 whether the petitioner has any legal right to challenge the cancellation of bid and re-tender ordered by the 2[nd] respondent. Even though vague allegations are made in the writ petition, alleging _malafides_ that the cancellation of the bids were successively done by the 2[nd] respondent, to accommodate a contractor of its choice, no substantial evidence or pleadings are put forth before this Court in order to substantiate the said contention advanced. Neither any pinpointed allegations are made against the 2[nd] respondent, connecting to any particular contractor and no such person is made a party in this writ petition also. 9. After all, the respondents are the bid inviting authorities and they are at liberty to find out the suitability, feasibility and other circumstances in order to proceed with the tender. It is true, the bid invited was successively cancelled, however, reasons are assigned in the statement filed before this Court as well as in Ext.P4 communication dated 04.01.2019, to the effect that the tender was cancelled consequent to serious lapses in the tender inviting notice and complaints were raised on account of the same. It is true, the circumstances for cancellation of the tender were not clearly put forth W.P.(C) No.571 of 2019 8 in Ext.P4, however, the sum and substance of the reasons for cancellation are provided thereunder. In the statement filed by the 2[nd] respondent for and on behalf of the 2[nd] respondent, reasons are clearly assigned and the lapses that have occurred while issuing Notice Inviting Tender are clearly enumerated. 10. So far as the issue of interfering with the cancellation of tender is concerned, it is well settled, and going by the proposition of law laid down by the apex court as well as this Court in its various judgments, it is clear that unless and until _malafides_ are clearly alleged and proved, no interference can be made. The judgment of the apex court in ' _**Michigan Rubber (India) Ltd. (M/s.) v. State of Karnataka and**_ _**Others**_ ' [2012 KHC 4446 : (2012) 8 SCC 216) is relevant, specifically paragraph 31, which read thus: _“_ _**31** . As observed earlier, the Court would not normally interfere with the policy decision and in matters challenging the award of contract by the State or public authorities. In view of the above, the appellant has failed to establish that the same was contrary to public interest and beyond the pale of discrimination or unreasonable. We are satisfied that to have the best of the equipment for the vehicles, which ply on road carrying passengers, the 2nd respondent thought it fit that the criteria for applying for tender for procuring tyres should be at a high standard and thought it fit that only those manufacturers who satisfy the eligibility criteria should be permitted to participate in the tender. As noted in various decisions, the_ W.P.(C) No.571 of 2019 9 _Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the Courts would interfere. The Courts cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. In the case on hand, we have already noted that taking into account various aspects including the safety of the passengers and public interest, the CMG consisting of experienced persons, revised the tender conditions. We are satisfied that the said Committee had discussed the subject in detail and for specifying these two conditions regarding pre-qualification criteria and the evaluation criteria. On perusal of all the materials, we are satisfied that the impugned conditions do not, in any way, could be classified as arbitrary, discriminatory or mala fide.”_ 11. So also, a Division Bench of this Court in ' _**Musthafa P.A. v. Union of India and Others**_ ' [2014 KHC 329], after undertaking a threadbare survey on the proposition of law laid down by the apex court and this Court, has held that unless there are clear and proven _malafides_ , no interference can be made in the cancellation of a tender. Paragraphs 12 and 14 are relevant to the context, which read thus: _“_ _**12** . As far as the aforesaid ground is concerned, it is true that it is not mentioned in Ext.P4. It is also contended by the appellant that this also amounts to reopening the technical evaluation which was already done, as evident from Ext.P2 wherein the appellant was informed that the appellant is qualified in the technical bid process, which was based on the documents submitted in envelope (A). The reopening of the technical evaluation by RCAC is done when what was sent up to it in terms of the manual was consideration of the financial bid. Thereafter, there is a reference to the ground taken in_ W.P.(C) No.571 of 2019 10 _Ext.R3(c) and it is mentioned that the tender process has to be scrapped in view of what is stated in relation to the flaw in the tender as well as technical observations relating to wrapping machine which was not evaluated by the station as observed in the notes. It would appear that in terms of the principle enunciated in Mohinder Singh Gill's case (supra) and Rashmi Metaiks Limited's case (supra), it may amount to supplementing the reasons given in Ext.P4. It may also amount to giving a reason for cancellation and retender for which tenable reasons may not have been made out in what was communicated to the appellant._ _**14** . Even proceeding on the basis that Ext.P4 falls foul of the principle laid down in Mohinder Singh Gill's case (supra), we must pose the question as to what is the right available to the appellant. It is not a case where the contract has been awarded to anyone else. The appellant cannot contend that the appellant must be awarded the contract. There is a right available to cancel and retender. In the ultimate analysis, we must understand the decision in the context of the rights available to the parties. More importantly, we are bound to consider whether there is overwhelming public interest in favour of our interfering in the matter. We would think that if the decision appears to have been one taken in larger public interest, namely, that the tender conditions are amended so as to incorporate conditions which would allow for greater participation and greater competition by having tender conditions so as to make available the right kind of machine, we must defer to the decision of the AAI.”_ 12. On an evaluation and appreciation of the rival contentions and applying the principles of law laid down in the afore-quoted judgments, I am of the considered opinion that, petitioner has not made out any case of _malafides_ , arbitrariness or patent illegality, justifying interference of this Court in W.P.(C) No.571 of 2019 11 the cancellation of the tender and re-tendering the work by the 2[nd] respondent. Resultantly, writ petition fails, accordingly it is dismissed. **Sd/-** **SHAJI P.CHALY JUDGE** St/04.04.2019 W.P.(C) No.571 of 2019 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF ORDER NOTICE INVITING TENDER ISSUED BY THE SECOND RESPONDENT DATED 15-10-2018.** **EXHIBIT P2 TRUE COPY OF TENDER NOTIFICATION DATED 1-11-2018 ISSUED BY THE SECOND RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF TENDER NOTICE DATED DATED 1-1-2019 ISSUED BY THE SECOND RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF COMMUNICATION DATED 4-1-2019 ISSUED BY THE SECOND RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE TENDER DATED 01.01.2019 IN RESPECT OF SAME WORK COVERED BY EXHIBITS-P2 AND P3.** - **EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 28.01.2019 FROM THE SECOND RESPONDENT GIVEN TO ME UNDER THE RIGHT TO INFORMATION ACT.** - **EXHIBIT P7 TRUE COPY OF THE COMPLAINT DATED 07.12.2018 SUBMITTED BY ONE OF THE PARTICIPANTS IN THE TENDER.** RESPONDENTS' EXHIBITS: NIL ## //TRUE COPY// ## P.S. TO JUDGE St/-