Manu John and Nihal Moni George v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 26[TH] DAY OF AUGUST 2021 / 4TH BHADRA, 1943** ## **WP(C) NO. 8256 OF 2021** ## **PETITIONERS:** - **1 MANU JOHN AGED 29 YEARS S/O.JOHN, VAKKAVILAYIL HOUSE, VELLAKULANGARA, MANAKALA P.O., ADOOR, PATHANAMTHITTA DISTRICT, PIN-691 551.** - **2 NIHAL MONI GEORGE, AGED 21 YEARS S/O.MONI GEORGE, MULAYAKONATH, VELLAKULANGARA, MANAKALA P.O., ADOOR, PATHANAMTHITTA DISTRICT, PIN-691 551, NOW RESIDING AT AI, GRACE MEADOWS, NO.28, PACHAIYAPPA COLLEGE HOSTEL ROAD, CHETPET, CHENNAI, PIN-600 031.** ## **BY ADV MATHEW KURIAKOSE** ## **RESPONDENTS:** - **1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE, CABINET SECRETARIAT, RAISINA HILLS, NEW DELHI-110 001.** - **2 THE LIFE INSURANCE CORPORATION OF INDIA, YOGAKSHEMA BUILDING, JEEVAN BIMA MARG, P.O.BOX NO-19953, MUMBAI-400 021, REPRESENTED BY ITS CHAIRMAN** - **3 THE ZONAL MANAGER, CHENNAI, LIFE INSURANCE CORPORATION OF INDIA, ZONAL OFFICE, MOUNT ROAD, CHENNAI-600 002.** W.P.(C)No.8256 of 2021 :-2-: - **4 THE SENIOR DIVISIONAL MANAGER, LIFE INSURANCE CORPORATION OF INDIA, DIVISIONAL OFFICE, KOTTAYAM, JEEVAN PRAKASH, KURIAN UTHUP ROAD, NAGAMPADOM, KOTTAYAM, PIN-686 001.** - **5 THE SENIOR BRANCH MANAGER, LIFE INSURANCE CORPORATION OF INDIA, BRANCH OFFICE, ADOOR, PUNTHALA COMPLEX, ADOOR, PATHANAMTHITTA DISTRICT, PIN-691 523.** - **6 MR. PADMANABHA RAO, AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONERS, THE SENIOR DIVISIONAL MANAGER, LIFE INSURANCE CORPORATION OF INDIA, DIVISIONAL OFFICE, KOTTAYAM, JEEVAN PRAKASH, KURIAN UTHUP ROAD, NAGAMPADOM, KOTTAYAM, PIN-686 001.** - **(R6 DELETED FROM PARTY ARRAY AS PER ORDER DATED 26/07/2021 IN IA NO.1/21 IN WP(C) 8256/2021.** - **7 MRS. SOHA KURISSERY AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONERS, THE SENIOR BRANCH MANAGER, LIFE INSURANCE CORPORATION OF INDIA, BRANCH OFFICE, ADOOR, PUNTHALA COMPLEX, ADOOR, PATHANAMTHITTA DISTRICT, PIN-691 523.** **BY ADVS. SRI.T.V.VINU SRI.S.EASWARAN SRI.P.VIJAYAKUMAR, ASGI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION** **ON 2.8.2021, THE COURT ON 26.08.2021 DELIVERED THE FOLLOWING:** W.P.(C)No.8256 of 2021 :-3-: Dated this the 26[th] day of August, 2021 ## **J U D G M E N T** The petitioners in the Writ Petition are challenging the finalisation of a tender process by the Respondents 4 and 5 pursuant to Exhibit P1 tender notification. 2. The Life Insurance Corporation of India (2[nd] Respondent herein), is a statutory corporation. The 4[th] Respondent floated a tender on 7.6.2020, for purchase of vacant land/plots from individuals/firms at locations in Adoor and Changanacherry, for the construction of branch buildings of the 2[nd] Respondent. Ext.P1 is the copy of the notification published in newspaper. As per Exhibit P1, bidders having plot/vacant land within the Municipal limits and within a radius of 3 km from the main bus stop are eligible to apply. It is also mentioned that the land should be located preferably near to the main market area, at a prime location, near public amenities like banks, post office, bus stop etc. In order to maintain this Writ petition under Article 226 of the Constitution of India, it is stated in the Writ petition that the 1[st] petitioner is a life insurance policy holder. Exhibit P3 policy is produced to prove the W.P.(C)No.8256 of 2021 :-4-: above fact. It is stated that the 2[nd] petitioner is the absolute owner in possession of a property having an extent of 20.23 ares in Sy.No. 314/11 in Block No. 16 of Earathu village in Adoor taluk in Pathanamthitta district. Exhibit P4 basic tax receipt is produced to prove the above aspect. It is stated that the 1[st] petitioner being a policyholder is interested in the affairs of the 2[nd] Respondent and the 2[nd] petitioner being a landowner is interested in the bid process. The case of the petitioners is that the Respondents are proposing to purchase property situated outside the Municipal area in violation of the tender conditions and that if it had been made clear in the tender notification that lands can also be situated outside the Municipal area, there would have been more participation in the tender process and the 2[nd] petitioner could also have participated. There are allegations made in the Writ petition regarding corruption, malafides and siphoning off of public money apart from the grounds of arbitrariness and illegality. 3. The Respondents 2 to 5 filed a counter affidavit, contending that the petitioners have no _locus standi_ to file the Writ Petition. It is contended that the Writ petition is liable to be dismissed ## W.P.(C)No.8256 of 2021 :-5-: on the ground of delay. It is stated that after the opening of the technical bid, the committee constituted for the purpose of assessing the suitability of the properties visited the plots on 25.11.2020 and found that the lowest bid was eligible for finalisation. It is only after the entire process was finalised that the petitioners approached the Court. It is further contended that the actions of the Respondents 2 to 5, though by an authority under Article 12 of the Constitution of India, cannot be subjected to judicial review under Article 226 of the Constitution, insofar as the actions challenged are in the realm of contract and the Respondents 2 to 5 are not performing any public duty. It is further contended that the petitioners are not entitled to seek a Writ of mandamus insofar as the petitioners do not have any statutory right and the Respondents 2 to 5 do not have any statutory duty corresponding to such a right, warranting the issuance of a Writ of mandamus. On facts it is submitted that the 1[st] petitioner who claims to be a policyholder, cannot be treated as a policyholder since the policy referred to by him had lapsed with effect from November, 2015. Regarding the 2[nd] petitioner, it is submitted that he did not respond to Exhibit P1 tender notice and as such he cannot challenge ## W.P.(C)No.8256 of 2021 :-6-: the action of the respondents. The respondents have produced Ext.R4(a) along with the counter affidavit which is the tender notice uploaded in the website of the 2[nd] respondent and it is contended that the notification did not contain a condition that the property should be within the municipal limits and that by placing reliance merely on Ext.P1, it cannot be concluded that only persons who had land within Municipal limits could have responded to the tender notice. The details of the bids received have been stated in the counter affidavit and the locational advantage and the price advantage with regard to the property that was selected has been stated in detail. The counter affidavit also states that the 2[nd] petitioner had not responded to the tender notice, and even if he had responded the property that belongs to him lies 5 km away from Adoor K.S.R.T.C. bus station and that the plot is very far away from important places like market and bus station and that the road in front of the property is too narrow. On comparison, the property that has been chosen is stated to be just 2 km away from Adoor K.S.R.T.C. bus station and that the plot is just outside the Municipal limits and the area opposite the plot is within the Municipal area. The Respondents also produced Exhibit R4(c) which ## W.P.(C)No.8256 of 2021 :-7-: is the valuation report of the approved Engineer, which says that the property is located by the side of Kayamkulam-Punalur Highway and that the recent transaction that happened in the locality recorded a price of Rs.14 lakhs/cent. 4. Heard Sri Mathew Kuriakose on behalf of the petitioners and Sri S.Easwaran, Standing Counsel for the 2[nd] respondent on behalf of respondents 2 to 5. 5. The counsel for the petitioners sought to draw a comparison between Exhibit P1 publication in the newspaper and Exhibit R4(a), which is stated to be the notification as available in the website of the 2[nd] Respondent, and pointed out that there is a striking difference insofar as the two conditions which are shown under the column "locations" are concerned. Though the paper publication showed that persons having land within the Municipal limits and within a radius of 3 km from the main bus stop are eligible to apply, no such condition is available in Exhibit R4(a). According to the Counsel, Exhibit P1 which is a publication in the newspaper alone should be considered and the decision of the 2[nd] Respondent to accept the bid with regard to a property, which is not within the limits prescribed, is ## W.P.(C)No.8256 of 2021 :-8-: bad in law. It is further contended that the property that is offered is valued much higher than its fair value, as can be seen from Exhibit P2. The petitioners also contended that the property of 20.23 Ares belonging to the 2[nd] petitioner was very much available at a much lesser cost. 6. The counsel for the Respondents relied on the decisions of the Hon'ble Supreme Court in **Bareilly Development Authority v. Ajai Pal Singh** reported in **(1989)2 SCC 116, B.S.N.Joshi & Sons Ltd v. Nair Coal Services Ltd and others** reported in **(2006)11 SCC 548, Tejas Constructions and Infrastructure Private Ltd v. Municipal Council, Sendhwa and another** reported in **(2012)6 SCC 464 and K.K.Saksena v. International Commission on irrigation and Drainage and others** reported in **(2015)4 SCC 670** and the judgment of a learned Single Judge of this Court in **Unimoni Financial Services Ltd vs IDBI Bank Ltd and another** reported in **2020 SCC Online Ker 7347** in support of his contention that neither is a writ petition maintainable against the 2[nd] respondent nor are the petitioners entitled to the reliefs prayed for in the writ petition. 7. In **B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd.,** W.P.(C)No.8256 of 2021 :-9-: reported in **(2006)11 SCC 548** , the Hon'ble Supreme Court in paragraph 66 summarised the principles of judicial review in matters relating to tenders. While stating that essential conditions of tender notification should be adhered to, the Court also held that when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with. Later in **Jagdish Mandal v. State of Orissa** reported in **(2007) 14 SCC 517** , the Hon'ble Supreme Court held that judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and _mala fides_ . It was held that when the power of judicial review is invoked in matters relating to tenders or award of contracts, it should be borne in mind that a contract is a commercial transaction and evaluating tenders and awarding contracts are essentially commercial functions. It was further held that if the decision relating to award of contract is _bona fide_ and is in public interest, courts will not, in exercise of power of judicial review, interfere W.P.(C)No.8256 of 2021 :-10-: even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The Apex Court held that, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the questions whether the process adopted or decision made by the authority is _mala fide_ or intended to favour someone (Or) whether the process adopted or decision made is so arbitrary and irrational that the court can say: _“the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached_ ” and that if the answers are in the negative, there should be no interference under Article 226. In **Tejas (supra)** referred to by the counsel for the respondents, the above principles were reiterated. In **K.K.Saksena(Supra)** , the Hon'ble Supreme Court after referring to several earlier decisions, held that a writ will not lie against an authority which is "State" within the meaning of Article 12 of the Constitution, for enforcing a private law right. The Apex Court observed that a private law is that part of a legal system which is a part of common law that involves relationships between individuals, such as law of contract or torts. The Court further held that even if writ W.P.(C)No.8256 of 2021 :-11-: petition would be maintainable against an authority which is “State” under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action challenged is in the domain of public law as distinguished from private law. In **Bareilly Development Authority(supra)** , the Hon'ble Supreme Court after considering the earlier case law held that in the absence of any statutory obligations on the part of the authority which is "State" under Article 12 of the Constitution, matters relating to contractual aspects are to be governed by the rights and obligations of the parties _inter se_ in the contractual field. The Hon'ble Supreme Court referred to the earlier decisions which laid down that if the grievance is non-statutory and purely contractual, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple. In **Unimoni (supra)** , the learned Single Judge of this Court, referred to the binding decisions of the Hon'ble Supreme Court and held that where there is no public duty involved, a writ petition under Article 226 is not maintainable against a public sector Bank. 8. Applying the legal principles referred to above to the facts W.P.(C)No.8256 of 2021 :-12-: of this writ petition, the transaction that is challenged falls entirely within the realm of contract. The action of the 2[nd] respondent that is challenged is not one which is governed by any statute and is in furtherance of a commercial decision taken by the 2[nd] respondent, to purchase an immovable property for housing their branch offices. Decisions relating to purchase of immovable property by an authority which is "State" within the meaning of Article 12 of the Constitution of India is not, by any stretch of imagination, a decision coming under the public law realm. Such authority does not owe any public duty to persons like the petitioners, so as to warrant the issuance of a writ of mandamus. Even giving a long rope and assuming for argument sake that a writ petition of this nature is maintainable against the 2[nd] respondent, the fact remains that the process adopted and the decision made by the 2[nd] respondent cannot be stated to be _mala fide_ or intended to favour someone or that it is so arbitrary and irrational that no responsible authority acting reasonably and in accordance with relevant law could have reached. It is evident from the facts on record that the price quoted for the property is less than the valuation made by the authorised Engineer and that the property sought to be W.P.(C)No.8256 of 2021 :-13-: purchased is just outside the Municipal limits, divided only by a public road. It is also in evidence that the property is within 2 kms from the main bus stand and that it is alongside the Kayamkulam-Punalur Highway. Thus, even on the facts, there can be no interference with the decision made by the 2[nd] respondent, on the ground of arbitrariness. In the result, the writ petition fails and is dismissed. The parties will bear their respective costs. All pending interlocutory applications are closed. Sd/- **T.R.RAVI, JUDGE** ami/ W.P.(C)No.8256 of 2021 :-14-: ## **APPENDIX OF WP(C) 8256/2021** **PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE TENDER NOTIFICATION DATED 7.6.2020 ISSUED BY THE 4TH RESPONDENT EXHIBIT P2 COMPUTER PRINT OUT OF THE FAIR VALUE NOTIFICATION IN RESPECT OF THE PROPERTY IN RE.SURVEY NO 16/2 OF EZHAMKULAM VILLAGE OBTAINED FROM THE WEBSITE WWW.IGR.KERALA.GOV.IN EXHIBIT P3 TRUE COPY OF THE JEEVAN ANAND (WITH PROFITS) (WITH ACCIDENT BENEFITS) POLICY NO 396001311 IN THE NAME OF THE 1ST PETITIONER EXHIBIT P4 TRUE COPY OF THE BASIC TAX RECEIPT DATED 1.12.2018 ISSUED BY THE VILLAGE OFFICE, EARATHU. EXHIBIT P5 TRUE COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER TO THE CHIEF INFORMATION OFFICER. LIC OF INDIA, ADOOR BRANCH AND THE RECEIPT DATED 23.3.2021** ## **RESPONDENTS' EXHIBITS :** **EXHIBIT R4(a) TRUE COPY OF THE TERMS AND CONDITIONS OF TENDER DATED 7.6.2020** **EXHIBIT R4(b) TRUE COPY OF THE TECHNICAL BID SUBMITTED BY Dr.AFSAL AHAMED** **EXHIBIT R4(c) TRUE COPY OF THE VALUATION REPORT DATED 23.12.2020** **EXHIBIT R4(d) TRUE COPY OF THE LOCATION SKETCH OF THE ADOOR MUNICIPALITY** W.P.(C)No.8256 of 2021 :-15-: **EXHIBIT R4(e) TRUE COPY OF THE CERTIFICATE DATED 29.3.2021 ISSUED BY CHAIRPERSON, ADOOR MUNICIPALITY**