NUSERVAN C.R. v. STATE OF KERALA & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 17TH DAY OF AUGUST 2020 / 26TH SRAVANA, 1942** ## **WP(C).No.11552 OF 2020(T)** ## **PETITIONER:** **NUSERVAN C.R., AGED 59 YEARS S/O. RASAVU MOHAMMED, SALSABIL, THONNAKKAL P.O, THIRUVANANTHAPURAM DISTRICT** **BY ADVS. SRI.LATHEESH SEBASTIAN SRI.R.ARUN** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, FOREST DEPARTMENT, , SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **2 DIVISIONAL FOREST OFFICER, KONNY P.O, PATHANAMTHITTA DISTRICT 689 691** - **3 SUNNY PAUL, KOYIKKAKUDY HOUSE, KUTHUKUZHY P.O, KOTHAMANGALAM, ERNAKULAM DISTRICT 686 691** - **4 S.MINI, ANJANA, PUTHOOR P.O, KOTTARAKKARA, KOLLAM DISTRICT 691 507** - **R1-2 BY SPL. GOVT. PLEADER SRI.SANDESH RAJA R3 BY ADV. SRI.P.I.GEORGEKUTTY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC No.11552/2020 : 2 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 17[th] day of August, 2020**_ The petitioner, who bid in a tender floated by the respondents, has filed this writ petition, seeking to direct respondents 1 and 2 to reject the tenders submitted by respondents 3 and 4 with respect to the Raising and Maintenance of 1955 Clear Felled Teal Plantation, Umayamkuppa (Bit II) of North Kumaramperoor Forest Station in Konny Range during 2020–'21, for non-compliance of tender conditions and requirements and award the contract to the petitioner. 2. The second respondent invited tender from Class A Contractors for Raising and Maintenance of 1955 Clear Felled Teal Plantation, Umayamkuppa (Bit II) of North Kumaramperoor Forest Station in Konny Range during 2020–'21. The last date for submission of tender was WPC No.11552/2020 : 3 : 15.04.2020. The petitioner submitted the tender pursuant to the tender invitation of the second respondent. The petitioner submitted all the required documents along with his tender. 3. The petitioner states that as per Rule 16 of the tender conditions, the tenders not submitted in the prescribed online format or submitted incomplete in any respect, shall be summarily rejected. As per Rule 4(i), tenders duly signed using bidder's valid Digital Signature Certificate shall be submitted online. As per Rule 4(iii), the bidder shall mandatorily enclose an attested copy of valid and active Registration Certificate. The Registration Certificate should be attested by a gazetted officer. The envelope containing attested copy of valid and active Registration Certificate and Preliminary Agreement should reach the Department on or before the bid opening date and time. 4. The petitioner states that the second respondent extended the time for submission of tenders up to WPC No.11552/2020 : 4 : 25.04.2020. After opening the tenders, the second respondent awarded tender to the third respondent. Though the third respondent was the lowest bidder, the tender made by him was invalid for more than one reason. The documents submitted by the third respondent did not contain valid Digital Signature. The third respondent did not submit valid Registration Certificate duly attested by a gazetted officer. Clause 16 of the tender notification made it amply clear that tenders not accompanied by valid documents are liable to be rejected summarily. 5. The learned counsel for the petitioner Advocate Latheesh Sebastian pointed out with reference to the documents submitted by the third respondent, that the tender was not signed properly. The third respondent, instead of submitting Registration Certificate duly attested by a gazetted officer, submitted a self attested Registration Certificate. Similarly, the form of agreement did not contain the signature of the third respondent. All these requirements are mandatory as per the tender notification. The tender WPC No.11552/2020 : 5 : submitted by the fourth respondent was also defective due to similar reasons. The petitioner submitted Exhibit-P4 objection in this regard. However, respondents 1 and 2 are proceeding to award the work to the third respondent. The action of respondents 1 and 2 is arbitrary and discriminatory and is liable to be interfered with by this Court, contended the counsel for the petitioner. 6. Advocate Sandesh Raja, leaned Government Pleader representing respondents 1 and 2, submitted that the tender notification was to be opened on 18.04.2020 at 8 a.m. However, many Contractors made complaints stating that due to severe restrictions imposed consequent to lock down/Covid, they could not submit tenders. Respondents 1 and 2 considered this aspect and decided to extend the last date for submission of tenders to 28.04.2020. The decision was taken due to the peculiar pandemic situation and consequential lock down declared by the Government. 7. On opening tenders, it was noticed that the third respondent is the lowest tenderer quoting ₹91,90,000/-. The WPC No.11552/2020 : 6 : fourth respondent, who is the second lowest, quoted ₹1,15,23,000/-. The petitioner was the third lowest, quoting ₹1,16,33,000/-. In view of the lowest amount quoted by the third respondent, the work was awarded to him. 8. As regards the allegations made by the petitioner on submission of tender documents by the third respondent, the learned Government Pleader submitted that due to technical glitches, some Contractors could not upload their tenders. The third respondent intimated his difficulty in uploading the tender and gave by hand all tender documents in original on 28.04.2020, before the stipulated time. Certain other Contractors also could not upload flawless tenders. The second respondent therefore decided to condone small defects. The tender submitted by the petitioner was also defective inasmuch as the envelope to be submitted by the petitioner to the second respondent ought to have reached the authority before bid opening. The petitioner's envelop did not reach in time. It reached only on 21.05.2020 and that too without enclosing the original attested copy of Registration WPC No.11552/2020 : 7 : Certificate. In fairness, the said defects in respect of the petitioner's tender were also condoned. The second respondent decided to condone such small defects in view of the fact that the work was of an urgent nature and retendering would have defeated the very purpose of the work itself. 9. Advocate P.I. George Kutty, learned counsel for the third respondent, submitted that the petitioner is also a beneficiary of condonation of minor conditions in the tender notification and therefore he cannot now turn around and contend that defects in the tender notifications of others should not be condoned. The learned counsel for the third respondent stated that consequent to the award of tender, the third respondent has already spent more than ₹35 lakhs. No interference in the award of tender is legally warranted or justified. 10. I have heard the learned counsel for the petitioner, learned Government Pleader appearing for respondents 1 and 2 and the counsel for the third respondent. WPC No.11552/2020 : 8 : 11. It is true that the documents submitted by the third respondent did not bear valid Digital Signature. The Registration Certificate uploaded by the third respondent did not also contain the signature of the gazetted officer. However, it is stated that due to the Covid-19 pandemic and consequential lock down, the Contractors found it difficult to upload their documents as all of them did not have the technical support of internet and scanners. Some of them could not go out to upload the tenders and documents due to Covid restrictions. It is under such circumstances that the second respondent decided to ignore minor defects. 12. There is no dispute that the third respondent handed over all original documents and his bid personally to the second respondent. The second respondent ignored minor defects in respect of the tenders submitted by all bidders taking into account the situation. The work also had to be started and completed immediately as incessant rains and adverse weather conditions would defeat the cause. There was no time for re-tendering. Therefore, I do not find WPC No.11552/2020 : 9 : any illegality in the action of respondents 1 and 2. 13. It is to be noted that the petitioner is also a beneficiary of the relaxation granted by the second respondent. As per Clause 43 of the tender notification, all the envelopes to be provided by all bidders ought to have been received before opening of the bids. The envelope of the petitioner reached the office much beyond the time and that too without Registration Certificate. The second respondent did not however reject the bid of the petitioner. The petitioner is also a beneficiary of the relaxation granted by the second respondent. The Hon'ble Apex Court in _**B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. and others** [(2006) 11 SCC 548]_ has held that when deviations are made in relation to all the parties in regard to any of the conditions, a power of relaxation must be held to be existing. Parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand. 14. In such circumstances, the petitioner cannot question the action of the second respondent in ignoring WPC No.11552/2020 : 10 : minor defects in the tenders submitted by all the bidders. It is to be further noticed that the difference in the amounts quoted by the petitioner and the third respondent is substantial. The petitioner has not alleged any malafide or favouritism on the part of the second respondent. The qualifications and eligibility of the third respondent to bid, are also not under challenge. 15. Therefore, this Court is of the considered opinion that there is no illegality or arbitrariness on the part of the second respondent in awarding the tender to the third respondent, which has been done with promptitude and taking into account the benefit to the Government and to the public exchequer. The writ petition is therefore devoid of merits and it is accordingly dismissed. Sd/- **N. NAGARESH, JUDGE** aks/18/08/2020 WPC No.11552/2020 : 11 : ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TENDER OF THE PETITIONER AND THE DOCUMENTS SUBMITTED BY THE PETITIONER.** **EXHIBIT P1 A TRUE COPY OF THE ATTESTED COPY OF REGISTRATION CERTIFICATE BY A GAZETTED OFFICER** - **EXHIBIT P1 B TRUE COPY OF THE TENDER CONDITIONS** **EXHIBIT P1 C TRUE COPY OF THE DECLARATION SUBMITTED BY THE PETITIONER ALONG WITH THE TENDER.** - **EXHIBIT P1 D TRUE COPY OF THE FORM OF AGREEMENT SIGNED BY THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE TENDER SUBMITTED BY THE 3RD RESPONDENT** - **EXHIBIT P2 A TRUE COPY OF THE SELF ATTESTED COPY OF THE REGISTRATION CERTIFICATE PRODUCED BY THE 3RD RESPONDENT AS OBTAINED FROM THE 2ND RESPONDENT** - **EXHIBIT P2 C TRUE COPY OF THE DECLARATION SUBMITTED BY THE 3RD RESPONDENT ALONG WITH THE TENDER** - **EXHIBIT P2 C TRUE COPY OF THE REQUISITION FOR E- PAYMENT SUBMITTED BY THE 3RD RESPONDENT** - **EXHIBIT P2 D TRUE COPY OF THE FORM OF AGREEMENT APPENDED ALONG WTH THE TENDER SUBMITTED BY THE 3RD RESPONDENT** WPC No.11552/2020 ## : 12 : ## **EXHIBIT P3** **TRUE COPY OF THE TENDER SUBMITTED BY THE 4TH RESPONDENT** - **EXHIBIT P3 A TRUE COPY OF THE SELF ATTESTED COPY OF THE REGISTRATION CERTIFICATE PRODUCED BY THE 4TH RESPONDENT AS OBTAINED FROM THE 2ND RESPONDENT.** **EXHIBIT P3 B TRUE COPY OF THE DECLARATION SUBMITTED BY THE 4TH RESPONDENT ALONG WITH THE TENDER.** - **EXHIBIT P3 C TRUE COPY OF THE FORM OF AGREEMENT APPENDED ALONG WITH THE TENDER SUBMITTED BY THE 3RD RESPONDENT.** **EXHIBIT P4** **TRUE COPY OF THE REPRESENTATION OF THE PETITIONER DATED 15-05-2020**