Petitioner challenged Government Order cancelling a bicycle tender in favor of direct cash grants to students. Court examined allegations of malafides and policy unreasonableness regarding the decision.
Writ petition failed as no interference with the Government's decision to cancel the tender and distribute grants was warranted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
THURSDAY, THE 8TH DAY OF DECEMBER 2011/17TH AGRAHAYANA 1933
WP(C).No. 25831 of 2011 (D)
PETITIONER(S):
SAFARI BIKES LIMITED, E-650, PHASE-V, FOCAL POINT, LUDHIANA - 141 010 (INDIA), REPRESENTED BY ITS AUTHORISED REPRESENTATIVE SHRI.DAVID LALY, B4-SHARON TOCH REACH, VYTTILA P.O.
BY SRI.K.JAYAKUMAR, SENIOR ADVOCATE ADVS.SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.B.SUBRAMANYAN
RESPONDENT(S):
1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENTOF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. PIN - 695 001.
2. THE PRINCIPAL SECRETARY TO GOVERNMENT, SCHEDULED CASTES/SCHEDULED TRIBES DEVELOPMENT DEPARTMENT, GOVERNMENT OF KERALA,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN - 695 001.
3. KERALA SOCIAL SECURITY MISSION, REP.
4. THE EXECUTIVE DIRECTOR,
5. DR.S.SUBBAIAH, PRINCIPAL SECRETARY, SCHEDULED CASTES/SCHEDULED TRIBES DEVELOPMENT DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
BY SRI.K.P.DANDAPANI,SENIOR ADVOCATE, (ADVOCATE GENERAL) R5 BY ADV. SMT.A.P.LALY @ LALY VINCENT
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-12-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C)NO.25831/2011
APPENDIX
PETITIONER'S EXHIBITS:
2/-
sts
-2-
WP(C)NO.25831/2011
RESPONDENT'S EXHIBITS:
R2(A) COPY OF THE TENDER NOTICE 27/08/2011 PUBLISHED IN HINDU 28/08/2011
/TRUE COPY/
P.A.TO.JUDGE
sts
C.K.ABDUL REHIM,J.
W.P.(C) No. 25831 OF 2011
Dated this the 8th day of December, 2011
J U D G M E N T
Issue involved in this writ petition pertains to a tender invited by the State Government consequent to Ext.P1 order. In Ext.P1 Government accorded Administrative Sanction for the project named “Vidya Yathra” which is meant to provide bicycles to students belonging to Scheduled Castes studying in Std. VIII in all Government and Aided Schools within the state. The scheme envisaged supply of about 55,000 bicycles. Kerala Social Security Mission was assigned with the task of monitoring the scheme and to submit evaluations. In Ext.P1 it was contemplated that the scheme can be implemented through store purchase of popular branded bicycles with ISI mark, at a unit price not exceeding Rs.2,750/-. Through Ext.P2, tenders were invited from manufacturers, authorized dealers and leading distributors for purchase of bicycles. The dealer of the petitioner in
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Kerala submitted Ext.P3 bid. Ext.P4 representation was submitted before the 3rd respondent, explaining about qualities of the product and requesting to treat the tender as the lowest. But subsequently the said tender was cancelled and a fresh notification was issued as per Ext.P5. Through Ext.P5, tenders were invited only from manufacturers of bicycles. The petitioner had participated in the tender and submitted Ext.P6 bid. According to the petitioner, his bid was the lowest one and the specifications contained in the technical bid indicated that the bicycle offered by the petitioner is having the maximum number of parts with ISI approval. But the first respondent had cancelled the tender and decided to distribute an amount of Rs.3,000/- to each of the students who are the beneficiaries, instead of purchasing and supplying the bicycles. Ext.P7 is the order issued by the first respondent in this regard. Allegation of the petitioner is that, the cancellation of the tender was only because that the 4th respondent found that the tender cannot be awarded to a company which is favoured by him, and that no undue pecuniary benefit could be gained out of the tender.
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It is also alleged that, by cancellation of the tender a new device has been adopted to siphon off the public funds. It is also alleged that the second respondent, who is also impleaded in his personal capacity as the 5th respondent, had furnished the list of schools and students to his favoured bicycle manufacturer in order to facilitate them for supply of bicycles to those students selected. The petitioner is seeking to quash Ext.P7 based on the above said allegations.
engineered by the second respondent with a corrupt motive which had resulted in wasteful expenditure of about Rs.2.5crores out of the State exchequer. The cancellation of the tender is challenged as illegal, arbitrary and unsustainable. Ext.P7 will not withstand scrutiny on the touchstone of Article 14 of the constitution of India, because the decision is taken in an irrational manner without any valid basis, is the contention. Ext.P7 is also challenged as one vitiated by malafides. According to the petitioner, the respondents, who are expected to protect financial interests of the state, have acted in a
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manner resulting in wastefull expenditure and public money to the extent of about Rs.2.5 crores,which could have been saved and utilized for other development activities for the benefit of the Scheduled Castes.
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under leadership of the Director of Scheduled Castes Development Department, in order to monitor the scheme and for finalization of tenders. The team considered tenders received from 3 manufacturers and it was found that the tender submitted by the petitioner herein contained the lowest price bid. But the technical committee recommendations were not in favour of the petitioner, as the rating with respect to bicycles offered by the petitioner was only noted as 'satisfactory' compared with the 'best' and 'good' ratings given to other two competitors. It is stated that when the purchase procedure was about to be completed, the media spread scandals attributing chances of irregularities and corruption in the process of purchase of bicycles. Therefore the Government decided to cancel the tender in order to implement the scheme in a more transperant manner. Accordingly, the Government decided to issue a grant at the rate of Rs.3,000/- per student, for the purchase of bicycles and its accessories, such as, cycle pump, dynamo light, mirror,mudguard, seat cover etc. It is also stated that, in Ext.P7 Government Order sufficient safeguard
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has been taken to ensure that the students are utilising the grant for purchase of bicycles itself. According to the Government, the amount will be released directly to the beneficiaries inorder to avoid any suspicion in the minds of the public. Further contention raised is to the effect that, as per the terms and conditions of the tender it was clarified that the tenders are liable to be suspended or cancelled at any time at the discretion of the Scheduled Caste Development Department, without assigning any reason. It is further stated that the scheme has already been inaugrated by the Honourable Chief Minister on 16-9-2011 by distributing grant to five students in Wayanad District and the progress of the implementation is in an advanced stage in other Districts. Committees envisaged under Ext.P7 has been constituted in each school with membership of the Head of the Institution, president of PTA and Officer of the Scheduled Caste Development Department, for implementation of the scheme. It is contended that there is no malafides with respect to the impugned decision and that the decision is based only on a
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change in the policy, which is not amenable to any challenge.
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decision to distribute grant of Rs.3,000/- to individual students has been adopted in order to ensure transperancy, and it is meant only to enable the beneficiaries to purchase the bicycles as well as its accessories. It is further pointed out that, through Ext.P7 constitution of committees were insisted in each institutions, with representation of the head of institution, PTA president and Scheduled Caste Development Officer, in order to ensure that the beneficiaries are utilising the grant only for purchase of bicycles. Therefore, being a policy decision of the Government which is taken on valid reasons, it is not amenable for any challenge.
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scheme is reaching the real beneficiaries in a more feasible manner.
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upto its finalization, there was no reasonable or rational grounds existed for the Government to decide cancellation of the tender, merely saying that there were complaints received. Coupled with the unreasonableness and arbitrariness of the decision there is clear allegations of malafides, which remains untraversed, is the contention. Therefore it is contended that there exists justifiable circumstances under which this court can exercise its discretionary jurisdiction inorder to protect the interest of the public at large.
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change in the policy decision, no reason need to be assigned, provided the policy decision is not contrary to any statute or to public policy. He points out a further decision of the Honourable Supreme court in Shimnit Utsch India privat Limited and another vs. West Bengal Transport Infrastructure develoment Corporation Limited and others ((2010) 6 SCC 303) where in the honourable Supreme Court evaluated permissibility with respect to change in policy in an occasion of cancellation of a tender . It is held that the Government policy can be changed with changing circumstance and only on the ground of change no such policy will be fully vitiated. The Government has got discretion to adopt a different policy or to alter or change the policy, calculated to serve public interest and to make it more effective. But it is held that the change of policy must be in conformity with wednesbury reasonableness and should be free from arbitrariness,irrationality and bias and malice. Various other decisions were also placed for my consideration in order to support the dictum that any alteration or change in
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policy decision are permissible and unless it is violative of any statutory provisions or it is vitiated by malafides, unreasonableness or arbitrariness, the court cannot interfere. It is also contended based on the decisions that a mere change in the policy for administrative reasond does not necessarily mean that there has been legal malafides.
new policy for distribution of the grant directly to the beneficiaries. Before deciding that questions it is necessary for this court to look into the contentions raised with respect to locus standi of the petitioner. As contended on behalf of the respondents the petitioner is a person who has participated in the tender and is having interest in the subject matter of the case. He cannot therefore step into the shoes of a public interest litigant, seeking interference of this court alleging
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malafides, wastage of public exchequer, interest of the public at large etc. Therefore, I am of the view that the petitioner cannot be permitted to pursue the matter on the basis of public interest seeking for an interdiction to prevent an alleged public mischief . But that by itself will not preclude this court from looking into the various aspects, in order to decide as to whether there is any extreme circumstances where an irrational decision is taken in an unreasonable and arbitrary manner which had resulted in the public interest seriously affected and resulted in siphoning off public money to a considerable extent. According to me such an interference is warranted only if there is an extreme situation striking conscience of the court that, inspite of the restrain in interfering with the policy decisions of the executive, the court should not abstain from interference due to the gross calamity which may occur by virtue of the unreasonable and arbitrary decision. In the case at hand, on analysing the factual aspects, I do not find any such alarming situation. It is evident that the Government had entrusted implementation of the policy at the
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first instance with the 3rd respondent . Subsequently, on finding that the respondents 3 and 4 are not acting in accordance with the time frame formulated, the matter was entrusted with the Director of Scheduled Caste Department. Even after inviting fresh tenders, the committee constituted for evaluation of the tenders have not rated the product of the petitioner as best, even though he quoted the least amount . According to the Government, there arose some hue and cry in the media raising allegations regarding the tendering process and alleging corruption in the implementation of the scheme. It is stated that the Government, in order to ensure transparency, have decided to cancel the tender and to distribute the benefits directly to the students. Considering these factors I do not find any extreme circumstances warranting interference to hold that the change of policy decision was totally irrational or unreasonable or arbitrary. The petitioner, in his capacity as a tenderor cannot raise any successful challenge against the decision in cancelling the tender process, because such right is perfectly vested with the
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awarder, at any point of time, at any stage of the tender. Even though the petitioner had raised certain allegations of malafides , which even assuming remains ultraversed, there is no sufficient materials produced to support such allegations or to prima facie convince the conscience of this court to arrive at a conclusion that the change in the decision was motived by any malafide intention as alleged.
Under the above mentioned circumstance, I decline to interfere with the decision taken by the Government under Ext.P7. Resultantly the writ petition fails and the same is accordingly dismissed.
C.K.ABDUL REHIM JUDGE
smm
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2 issues framed by the court
Whether there is any unreasonableness, arbitrariness or malafides with respect to the Government's decision to cancel the tender.
Whether the change in policy from direct procurement to direct cash distribution to beneficiaries warrants judicial interference.
Colour shows how this judgement treated each authority
Union of India and others vs. Dinesh Engineering Corporation and AnotherReferred¶92
Union of India and others vs. Dinesh Engineering Corporation and Another ((2001) 8 SCC 491) · Who else cites this
Ramachandra Murarilal Bhattad and others vs. State of Maharashtra and othersReferred¶96
Ramachandra Murarilal Bhattad and others vs. State of Maharashtra and others ((2007) 2 SCC 588) · Who else cites this
Shimnit Utsch India privat Limited and another vs. West Bengal Transport Infrastructure develoment Corporation Limited and othersReferred¶98
Shimnit Utsch India privat Limited and another vs. West Bengal Transport Infrastructure develoment Corporation Limited and others ((2010) 6 SCC 303)
1 provisions across 1 enactments
Safari Bikes Limited
The State of Kerala
Kerala Social Security Mission
The Executive Director, Kerala Social Security Mission
Dr. S. Subbaiah
C.K. Abdul Rehim
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
