Disposed

Jamy Joseph v. Ettumanoor Block Panchayath

Kerala HC3 Aug 2012WP(C)/7685/2012

Case brief

AI extract

What is this about?

In this writ petition challenging the rejection of a tender, the court held that the tender rejection was factually erroneous as the rules did not mandate stamp paper. The court refrained from ordering a retender to avoid loss to the successful bidder but left the petitioner's claim for damages open.

What did the court decide?

The writ petition was closed; the court declined to pass further orders, including a retender, though the petitioner's right to claim damages remains unaffected.

Jamy Joseph Vs Ettumanoor Block Panchayath — Public Procurement and Tenders | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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FRIDAY, THE 3RD DAY OF AUGUST 2012/12TH SRAVANA 1934

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WP(C).No. 7685 of 2012 (I)

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PETITIONER(S):

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JAMY JOSEPH, AGED 47 YEARS, S/O.K.S.JOSEPH,PROPRIETOR,STEELIND PRODUCTS DEVELOPMENT PLOT,POOVANTHURUTHU,KOTTAYAM-12.

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BY ADVS.SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY

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RESPONDENT(S):

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----------------------- -

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1. ETTUMANOOR BLOCK PANCHAYATH REPRESENTED BY ITS SECRETARY/BLOCK DEVELOPMENT OFFICER BLOCK PANCHAYATH OFFICE,P.O.ETTUMANOOR,KOTTAYAM-686631.

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2. THE SECRETARY/BLOCK DEVELOPMENT OFFICER,

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ETTUMANNOOR BLOCK PANCHAYATH

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BLOCK PANCHAYATH OFFICE,P.O.ETTUMANOOR-686 631, KOTTAYAM.

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3. THE PRESIDENT,

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ETTUMANOOR BLOCK PANCHAYATH,BLOCK PANCHAYATH OFFICE P.O.ETTUMANOOR-686 631,KOTTAYAM.

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4. THE CHILD DEVELOPMENT PROGRAMME OFFICER, BLOCK PANCHAYATH OFFICE,P.O.ETTUMANOOR-686,KOTTAYAM.

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5. ABDUL REHIEM, PROPRIETOR M/S.AFSAL METALS,

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ZACHARIA BAZAR, P.O.ALAPPUZHA.

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BY ADV. SRI.G.UNNIKRISHNAN BY ADV. SRI.R.LAKSHMI NARAYAN BY ADV. SMT.R.RANJINI

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) NO.7685/2012

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXT-P1:- THE TRUE COPY OF THE CERTIFICATE OF THE REGISTRATION ISSUED BY THE DISTRICT INDUSTRIES CENTER,KOTTAYAM.

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EXT-P2 :- THE TRUE COPY OF THE SUPPLY ORDER EXECUTED IN FAVOUR OF SMALL INDUSTRIAL DEVELOPMENT CORPORATIN(SIDCO)

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EXT-P3 THE TRUE COPY OF THE TENDER NOTICE DATED 17-2-2012 ISSUED BY THE ETTUMANOOR BLOCK PANCHAYATH.

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EXT-P4 THE TRUE COPY OF THE LETTER DATED 19.3.2012 SUBMITTED BY THE PETITIONER TO 2ND RESPONDENT

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EXT-P5 THE TRUE COPY OF THE LETTER DATED 21.3.2012 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.

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EXT-P6 THE TRUE COPY OF THE APPLICATION DATED 23/3/2012 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.

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RESPONDENTS' EXHIBITS

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R1(a):- COPY OF DECISION DTD. 16.3.2012 OF THE BLOCK PANCHAYATH COMMITTEE. R1(b):- COPY OF LETTER DTD. 20.3.2012 GIVEN BY THE FIFTH RESPONDENT.

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R5(a):- COPY OF THE WORK ORDER DTD. 20.3.2012 ISSUED BY THE 4TH RESPONDENT.

//TRUE COPY//

P.S. TO JUDGE

tss

ANTONY DOMINIC, J.

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W.P.(C) NO.7685 OF 2012(I)

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Dated this the 3^rd day of August, 2012

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J U D G M E N T

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Respondents 1 and 2 issued Ext.P3 inviting tenders for the supply of hundred numbers of food containers. In response to the tender notice, petitioner, 6^th respondent and 2 others submitted their tenders. The tender was subject to the Government Rules governing the same, ie; Kerala Panchayat Raj ( Execution of Public Works) Rules, 1997. By Ext.R1(a) resolution of the Panchayat, tenders submitted by the petitioner and another tenderer were rejected on the ground that preliminary agreement was not submitted along with the tender documents. Thereafter the 5^th respondent was called for negotiation and the tender was eventually awarded to him. It is challenging rejection of the petitioner's tender this writ petition is filed.

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By order dated 27.3.2012 this court directed that award of the tender in favour of the 5^th respondent shall be subject to the result of the writ petition. In the writ petition and in the reply affidavit filed, contention raised by the petitioner is that he did submit preliminary agreement in terms of Rule 10(3) of the Rules referred above and

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WPC.No. 7685/2012

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therefore the basis on which his tender was rejected was factually erroneous. On the other hand, the stand taken by the respondent Panchayat before this court is that, the preliminary agreement submitted by the petitioner was not on stamp paper and therefore there was no preliminary agreement as contemplated in Rule 10(3). On this basis Panchayat contends that the rejection of the tender evidenced by Ext.R1(a) is legally valid.

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Rule 10 provides that along with the sealed tenders, the tenderer shall submit a preliminary agreement in the proforma specified by the Government, in cases where estimated cost of the work tendered is in excess of Rs.50,000/-. Neither this Rule nor the tender conditions prescribe that the proforma to be submitted shall be in stamp paper. If that be so, nothing required the tenderer to submit the proforma in stamp paper. Further, reason mentioned in Ext.R1(a) to reject the tender is that the preliminary agreement was not submitted. This therefore indicates that no preliminary agreement either on a stamp paper or in the plain paper were submitted by the petitioner which again is an incorrect statement. Therefore for both the aforesaid reasons the rejection evidenced by Ext.R1(a) cannot be sustained.

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WPC.No. 7685/2012

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However, there is yet another aspect. Even according to the respondent Panchayat on 26.3.2012 itself, the 5^th respondent supplied 50% of the quantity ordered. Subsequently, also he has supplied the remaining quantity of the food containers. These food containers are being used by the Panchayat also. Further, the rate at which the food containers are purchased from the 5^th respondent is Rs.4,490/-, while the lowest rate quoted by the petitioner was Rs.4,495/-. Therefore in monetary terms also, no loss has been caused to the Panchayat. In such circumstances and having regard to the loss that will be caused to the 5^th respondent, if this court is to order a retender in this case, I am inclined to refrain from doing so.

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In the result, while I accept the contention of the petitioner that the rejection of the tender was wrongly done, I declined to pass any further orders in the matter. Needless to say that this judgment will not stand in the way of the petitioner in claiming damages in appropriate proceedings.

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Writ Petition is closed.

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(ANTONY DOMINIC) JUDGE

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vi/

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WPC.No. 7685/2012

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Jamy Joseph v. Ettumanoor Block Panchayath

Case brief

What is this about?

What did the court decide?

Jamy Joseph v. Ettumanoor Block Panchayath

Case brief

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