Ranjit R. S/o Rajakumaran v. Deputy Chief Engineer Electrical Circle, Kerala State Electricity Board, Shoranur & Kerala State Electricity Board, represented by its Secretary

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **TUESDAY, THE 11TH DAY OF APRIL 2017/21ST CHAITHRA, 1939** ## **WP(C).No. 34898 of 2016 (j)** ## **----------------------------** - **PETITIONER(S): -------------** **RANJIT R. S/O. RAJAKUMARAN, RESHMI NILAYAM, P.O.AMBALAVATTOM, PANAMANNA, OTTAPALAM TALUK, PALAKKAD DISTRICT.** ## **BY ADV. SRI.P.JAYARAM** ## **RESPONDENT(S):** - **--------------** **1. THE DEPUTY CHIEF ENGINEER ELECTRICAL CIRCLE, KERALA STATE ELECTRICITY BOARD, SHORANUR, PIN-679 122.** **2. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VAIDYUTHI BHAVAN, P.O.PATTAM, THIRUVANANTHAPURAM-695 004.** **R1-R2 BY SRI.SUDHEER GANESH KUMAR, SC, KSEB SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 34898 of 2016 (j)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** - **EXHIBIT P1 COPY OF THE TENDER SPECIFICATION FOR HIRING OF THE VEHICLES ON CONTRACT BASIS ISSUED BY 1ST RESPONDENT.** - **EXHIBIT P2 COPY OF THE RECEIPT DATED 24.9.2016 FOR RS.907/- ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT.** - **EXHIBIT P3 COPY OF THE RECEIPT DATED 24.9.2016 FOR RS.983/- ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT.** - **EXHIBIT P4 COPY OF THE COURIER RECEIPT NO.16705750 DATED 29.9.2016 ISSUED TO THE PETITIONER BY THE PROFESSIONAL COURIERS, SHORANUR.** - **EXHIBIT P5 COPY OF THE COURIER RECEIPT NO.16707551 DATED 29.9.2016 ISSUED TO THE PETITIONER BY THE PROFESSIONAL COURIERS, SHORANUR.** - **EXHIBIT P6 COPY OF THE CERTIFICATE OF REGISTRATION OF THE VEHICLE NO.KL-51-C 5120 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P7 COPY OF THE CERTIFICATE OF REGISTRATION OF THE VEHICLE NO.KL-09/R 8977 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE ORDER NO.DBI/VEHICLE/16-17/SRR/2288 DATED 25.10.2016 ISSUED BY THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, SHORANUR** ## **RESPONDENT(S)' EXHIBITS: NIL** - **-----------------------** ## **//TRUE COPY//** ## **P.A. TO JUDGE** ## **dlk** ## **SHAJI P. CHALY, J. ----------------------------------------------W.P.(C). No. 34898 of 2016** ----------------------------------------------Dated this the 11[th] day of April, 2017 ## **JUDGMENT** This writ petition is filed by the petitioner seeking direction to the 1[st] respondent to permit the agreement to be executed by the petitioner in terms of the final acceptance of the tender and issue necessary work order with respect to the contract for hiring of vehicles for Electrical Circle at Shoranur and Kothakurussi for the period from 1.11.2016 to 31.10.2017 and for other related reliefs. 2. Necessary facts for the disposal of the writ petition are as follows; petitioner submitted tender for hiring of vehicles on contract basis invited by the Kerala State Electricity Board for the purpose of their electrical sections at Shornur and Kothakurussi. The vehicles are to be hired for the period from 1.11.2016 to 31.10.2017 as per the tender conditions. According to the petitioner, petitioner fulfills all the tender conditions. Tenders were opened on 30.9.2016. It is submitted by the petitioner that, petitioner's tender was W.P.(C). No.34898 of 2016 2 accepted being the lowest. Petitioner quoted Rs.9.69 per Kilometer for Shornur Electrical Section and Rs.8.49 for Kothakurussi Electrical Section. Petitioner was ready to execute the agreement with KSEB after his tender was accepted and approached the 1[st] respondent in this respect several occasions. However, the 1[st] respondent delayed the matter and has not permitted the petitioner to execute the agreement and no work order is issued. Therefore, it is contended that, the action of the 1[st] respondent is arbitrary and illegal. It is also contended that, petitioner's tender was liable to be accepted since it was the bid quoting the lowest rate. However, it is reliably learned that, 1[st] respondent is under the influence of the extraneous sources from political circles. It is also submitted that, the bidders of the earlier year are exerting tremendous pressure on the 1[st] respondent to keep the petitioner aloof from the hiring of vehicles. In view of the acceptance of the tender and since the petitioner has incurred huge expenditure in the preparation to execute the contract, respondents are now legally estopped from W.P.(C). No.34898 of 2016 3 denying the contract to the petitioner. These are the background facts projected by the petitioner to sustain the reliefs sought for in the writ petition. 3. First respondent has filed a counter affidavit denying the claims and demands raised by the petitioner and refuting the allegations contained in the writ petition. The participation of the petitioner in the tender is admitted by the 1[st] respondent. That apart it is stated that, tenders were opened on 30.9.2016. Though the petitioner has quoted the lowest rate, petitioner's tender was not accepted in the process since the authorization as per Part 1, para 7 of the tender condition was not fulfilled by the petitioner. As per Part 1, para 7 of the tender specifications, for hiring of vehicle on contract basis, individuals who can let out vehicles registered during the last 15 years and having a taxi permit from the transport authorities only are eligible to quote, evident from Ext.R1A. Therefore, according to the 1[st] respondent, the Board is at liberty to reject the offers in the absence of specific documents. At the time of opening of W.P.(C). No.34898 of 2016 4 tenders other bidders present had submitted objections stating that those tenders which do not contain proper documents should not be accepted, evident from Ext.R1B complaint. 4. That apart it is stated that, as per Part II, Section A general conditions of contract, para 1 conditional tenders are liable to be rejected. Final acceptance of the tenders, rest entirely with the tendering authority acting on behalf of the Board and is not liable to assign any reason whatsoever for not accepting the lowest or any tender and the Board's decision will be final and binding on all bidders. The Board will not responsible for any expenses or losses that may be incurred by the tenderer in the preparation of the tender. Hence the petitioner's tender was not accepted and no negotiation letter was sent and no work order has been issued. Accordingly, tenders invited for hiring vehicles for the use of various Electrical Sections under the Electrical Circle Shornur on contract basis for 12 months was cancelled by the 1[st] respondent, evident from Ext.R1C. Therefore, it is W.P.(C). No.34898 of 2016 5 contended that, petitioner has not made out any case warranting interference of this court under Article 226 of the Constitution of India. 5. A reply affidavit is filed by the petitioner reiterating the stand adopted in the writ petition and among other contentions it is stated that, Ext.R1B complaint is false and fallacious especially due to the fact that the said complaint do not show the date or time at which it was placed before the respondent. The said complaint was not placed before the respondents at the time of bid opening in the presence of the petitioner, and therefore, Ext.R1B is obviously a document created to defeat the interest of the petitioner. That apart it is contended that, conditions of Part I violated, is only an instruction to the tenderer, and it is not a mandatory condition of the tender/bid. That apart it is stated, if at all it is a condition, same is only a curable defect, and the noncompliance of which could not defeat the bid. Again it is contended that, Ext.R1C is illegal and void since it is issued during the pendency of this writ petition. That apart it is W.P.(C). No.34898 of 2016 6 contended that, tender submitted by the petitioner was not a conditional tender and the petitioner quoted the lowest rate. Therefore, petitioner is entitled to get the reliefs sought for in the writ petition. Petitioner has produced additional documents along with I.A No.1755/2017, and since some developments took place consequent to cancellation of tender the writ petition was amended. 6. Heard learned counsel for petitioner, learned Standing Counsel for the Board and perused the documents on record and the pleadings put forth by the petitioner. 7. The sole question remains to be considered is whether the tender submitted by the petitioner is entitled to be accepted for the reason that, petitioner is the lowest tenderer for the purpose of hiring the vehicles. The formidable point raised by the respondents in this regard is paragraph 7 of Part I of Ext.R1A instructions to the tenders. It is a well settled proposition in law that, a notice inviting tender is the rule of the game and participants in the tender are liable to follow the instructions contained in the notice inviting tender. W.P.(C). No.34898 of 2016 7 ## Admittedly petitioner has not complied with paragraph 7 of Part I of Ext.R1A, which reads thus: “Individuals who can let out vehicles below 15 years old for jeep having a Taxi permit from the Transport Authorities only are eligible to quote. True copies of relevant pages of the Certificate of Registration, Tax, fitness Certificate and Insurance Certificate of the related vehicles attested by a Gazetted Officer and willingness of the actual owners of the vehicles to let out their vehicles on hire basis to the Board shall also be furnished along with the tender. Board is at liberty to reject the offers in the absence of these documents.” 8. Therefore, it can be seen that, paragraph 7 imposes a peremptory condition of production of the relevant pages of Certificate of Registration, Tax, fitness Certificate and Insurance Certificate of the related vehicles attested by a Gazetted Officer and willingness of the actual owners of the vehicles to let out their vehicle on hire basis to the Board. It is specifically mentioned therein that, the Board is at liberty to reject the offers in the absence of all these documents. Therefore, from the stipulations so made, it is unequivocally W.P.(C). No.34898 of 2016 8 clear that, documents mentioned in paragraph 7 is a necessary corollary to consider the bids submitted by the tenderers. Petitioner has not produced those documents. Therefore, it cannot be said that, the same was a curable defect. Also the tender submitted by a tenderer can be processed only on the basis of all those vital documents. Other tenderers participated in the bid had submitted those documents. Petitioner is not having a case otherwise. The sole contention raised by the petitioner in this regard is that Ext.R1B submitted by the other tenderers are only concocted documents to defeat the bid submitted by the petitioner. Such a contention will not suffice the situation. To put it otherwise, the bid submitted by the petitioner was a defective one since it did not comply with the stipulations contained under the notice inviting bid. 9. The next contention advanced by the petitioner is that, Ext.R1C cancellation of the tender for the Shornur Circle cannot be sustained under law. As I have stated earlier, the authority of the petitioner to raise such a claim itself is W.P.(C). No.34898 of 2016 9 doubtful since the petitioner is not at all a qualified bidder in the tender process. Moreover, it is for the authority to decide whether to accept or cancel the tender. Petitioner is not having a case that, the tender was cancelled in order to help any bidder or the action of the respondents affect the transparency of the bid process or the same has any malafide or arbitrary intentions. The Apex Court had occasion to consider such an issue in the judgments reported in **Maa Binda Express Carrier v. Northeast Frontier Raiway and Ors** [AIR 2014 SC 390], **Sanjay Kumar Shukla v. M/s. Bharat Petroleum Corporation Ltd, and Ors.** [AIR 2014 SC 3778], **State of Jharkhand and Ors. v. M/s.CWE-SOMA Consortium** [AIR 2016 SC 3366] and held in sum and substance that, the scope of judicial review undertaken by a constitutional court in a tender process is confined to the legality of the decision making process. Petitioner is not having any established case before this court that cancellation of the tender is vitiated by any malafides, arbitrariness, unreasonableness, or any other legal infirmities. W.P.(C). No.34898 of 2016 10 10. Therefore, in my considered opinion, petitioner has not made out any case warranting interference on the action of the respondents in not accepting tender submitted by the petitioner and cancellation of a part of the tender, invoking the extraordinary jurisdiction conferred on this court under Article 226 of the Constitution of India. Necessarily writ petition has to fail, accordingly it is dismissed. Sd/- **SHAJI P. CHALY JUDGE** smv 12.4.2017