Dismissed

Biju Scaria v. Vazhathope Grama Panchayath

Kerala HC17 Jul 2018WP(C)/12967/2018

Case brief

AI extract

What is this about?

Petitioner challenged the award of a waste removal contract to a third respondent after the Panchayat cancelled an initial tender. The Court held that the Panchayat acted legally and arbitrarily dismissed the petition after finding the petitioner's financial bid was unviable while the third respondent's was the lowest and qualified.

What did the court decide?

No relief granted; petition dismissed holding Panchayat decision was legal and not arbitrary.

Biju Scaria Vs Vazhathope Grama Panchayath — Public Procurement and Tenders | Kerala HC (2018)

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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 SHAJI P.CHALY

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TUESDAY, THE 17TH DAY OF JULY, 2018 / 26TH ASHADHA, 1940

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W.P.(C) No.12967 of 2018

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PETITIONER(S):

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BIJU SCARIA, S/O SCARIA, AGED 49 YEARS, THADATHIL VEEDU, IDUKKI COLONY PO, THANNIKANDAM, IDUKKI DISTRICT.

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BY ADV.SRI.BABY MATHEW

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RESPONDENT(S):

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1. VAZHATHOPE GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, THADIYAMPADU P.O., IDUKKI DIST- 685 602.

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2. SECRETARY, VAZHATHOPE GRAMA PANCHAYATH, THADIYAMPADU P.O., IDUKKI DIST-685 602.

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3. JAYAN T.U., S/O UNNI, AGED 40 YEARS, THOTTATHILKUDIYIL HOUSE, ANAVIRATTI PO, ERUTTUKANAM, ADIMALI, IDUKKI DISTRICT.685 611.

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R1,R2 BY ADV. SRI.RAJU SEBASTIAN VADAKKEKKARA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.T.O

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WP(C).No. 12967 of 2018 (U)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE AGREEMENT DATED 7/9/2011 BETWEEN THE RESPONDENT PANCHAYAT AND THE PETITIONER.
EXHIBIT P2	TRUE COPY OF THE AGREEMENT DATED 19/09/2012 BETWEEN THE RESPONDENT PANCHAYAT AND THE PETITIONER.
EXHIBIT P3	TRUE COPY OF THE AGREEMENT DATED 15/11/2013.
EXHIBIT P4	TRUE COPY OF THE CERTIFICATE OF EXPERIENCE DATED 09/02/2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P5	TRUE COPY OF THE DECISION NO.1(1) DATED 21/12/2017 OF THE PANCHAYAT.
EXHIBIT P6	TRUE COPY OF THE TENDER NOTICE DATED 29/01/2018 PUBLISHED BY THE RESPONDENT PANCHAYAT.
EXHIBIT P7	TRUE COPY OF THE TENDER DATED 14/02/2018 SUBMITTED BY THE PETITIONER.
EXHIBIT P8	TRUE COPY OF THE RE-TENDER NOTICE DATED 20/02/2018 PUBLISHED BY THE RESPONDENT PANCHAYAT.
EXHIBIT P9	TRUE COPY OF THE TENDER DATED 02/03/2018 SUBMITTED BY THE PETITIONER.
EXHIBIT P10	TRUE COPY OF THE MEETING NOTICE DATED 22/03/2018 OF THE VAZHATHOPE PANCHAYAT.
RESPONDENTS' EX	HIBITS:
EXHIBIT R1(A)	TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.29019/2014 OF THIS HONOURABLE COURT, DATED 10.09.2015.
EXHIBIT R1(B)	TRUE COPY OF THE DECISION OF THE PANCHAYAT COMMITTEE DATED 08.12.2017.
EXHIBIT R1(C)	TRUE COPY OF THE NOTIFICATION INVITING TENDERS FOR WASTE REMOVAL PUBLISHED IN THE MALAYALA MANORAMA DAILY DATED 29.01.2018.
EXHIBIT R1(D)	TRUE COPY OF THE DECISION OF PROCUREMENT COMMITTEE DATED 14.02.2018.
EXHIBIT R1(E)	TRUE COPY OF THE DECISION OF THE PANCHAYAT COMMITTEE DATED 16.02.2018.
EXHIBIT R1(F)	TRUE COPY OF THE RE-TENDER NOTIFICATION DATED 20.02.2018.
EXHIBIT R1(G)	TRUE COPY OF THE DECISION OF THE PANCHAYAT COMMITTEE DATED 05.03.2018.

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WP(C).No. 12967 of 2018 (U) :-2-:

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EXHIBIT R1(H) TRUE COPY OF THE NOTICE ISSUED TO JOAN SALK DATED 06.03.2018. EXHIBIT R1(I) TRUE COPY OF THE REPLY DATED 09.03.2018, FILED BY JOAN SALK. EXHIBIT R1(J) TRUE COPY OF THE DECISION OF THE PANCHAYAT COMMITTEE DATED 13.03.2018. EXHIBIT R1(K) TRUE COPY OF THE AGREEMENT NO.1/2018 DATED 13.04.2018.

//TRUE COPY//

P.S.TO JUDGE

St/-

SHAJI P. CHALY, J.

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W.P.(C) No.12967 of 2018

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----------------------------------------------Dated this the 17^th day of July, 2018

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JUDGMENT

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This writ petition is filed by the petitioner seeking to quash Ext.P8 re-tender notice and to quash the decision of the Panchayat Committee awarding contract for removal of waste to the 3^rd respondent, and for other related reliefs. Material facts for the disposal of the writ petition are as follows:

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As per the resolution of the Panchayat, the respondent Panchayat decided to invite public tenders for the year 2017-2018 for collection of waste and its processing in waste treatment plant. Accordingly, Ext.P6 tender notice dated 29.01.2018 was published by the respondent Panchayat. As per clause 13 of Ext.P6, the tenderer should have a minimum of two years experience in the collection of waste from Panchayats or other institutions. In response to Ext.P6 tender notice, petitioner submitted Ext.P7 tender dated 14.02.2018. Petitioner was the only person fulfilling the conditions stated in Ext.P6 tender notice. Despite the same, respondent Panchayat cancelled Ext.P6 tender unilaterally.

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W.P.(C) No.12967 of 2018 2

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The case of the petitioner is that, the respondent Panchayat cancelled the tender only to favour the 3^rd respondent. The 3^rd respondent was not having two years experience in the collection of waste and its processing in waste treatment plants.

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Thereafter, Panchayat again published Ext.P8 retender notice dated 20.02.2018, with a modified experience as per clause 13, i.e., without specifying any period of experience. In response to Ext.P8 tender notice, petitioner submitted Ext.P9 tender dated 02.03.2018. The case of the petitioner is that, even though petitioner was the sole person qualified to participate in the tender, the 2^nd respondent has given a dissenting note and hence the matter was taken up for reconsideration on 19.03.2018, granting contract to the 3^rd respondent, in the Panchayat Committee meeting held on 22.03.2018, evident from Ext.P10, and directed the Secretary of the Grama Panchayat to execute the agreement with the 3^rd respondent.

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It is the further contention of the petitioner that, petitioner was collecting waste from the Panchayat and treating the same in waste treatment plant from 2011 to 2016,

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W.P.(C) No.12967 of 2018 3

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evident from Exts.P1 to P4. Therefore, according to the petitioner, the decision of the Panchayat Committee to award the contract to the 3^rd respondent cannot be sustained under law.

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Respondents 1 and 2 have filed a detailed counter affidavit refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, challenging the continuance of the petitioner in the matter of removal of wastes, one Sony Varghese instituted W.P.(C) No.29019 of 2014 and Ext.R1(a) judgment is rendered

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by this Court, directing the Panchayat to invite fresh tenders for removal of waste. It was thereupon that Panchayat invited fresh tenders during the year 2016. The lowest bidder was one Jose Chettaniyil, and he removed the waste for a period of one year. Thereafter, tender was again invited and one Sony Varghese was the successful bidder. However, he abandoned the work by December, 2016, and utilizing the security deposit of the said person, the Panchayat itself was removing the waste uptil 16.01.2018.

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The Panchayat Committee met on 08.12.2017 and decided to invite fresh tenders, evident from Ext.R1(b), and

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W.P.(C) No.12967 of 2018 4

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thereafter Ext.R1(c) notification was published in a vernacular daily dated 29.01.2018. In response to the same, 7 persons participated in the tender, including the petitioner. It is the case of the respondents that, nobody satisfied the prerequisites or the eligibility conditions in the tender notification. The person who quoted the least amount did not have a vehicle or experience. It was under the circumstances that the

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bid was awarded to one Jomon Scaria Agasthy, as he has already engaged as a daily wager for waste disposal.

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It is also stated that, though the petitioner had experience and a vehicle, the amount quoted by the petitioner was very high at Rs.5,800/- per day, and the funds set apart by the Panchayat under the “waste disposal head”, the rate quoted by the petitioner was above Rs.15 Lakhs, which was not financially viable for the Panchayat. Under the circumstances, it was not possible for the Panchayat to award the bid to the petitioner. The said aspect was examined by the procurement committee which took a decision that it was not viable to award the bid to the petitioner, evident from Ext.R1(d).

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W.P.(C) No.12967 of 2018

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Thereafter, on 20.02.2018, a re-tender notification was published, evident from Ext.R1(f). Again, 7 persons participated in the bid. From out of the 7 bids, it was found that petitioner, Jomon Sacaria Agasthy and Jone Salk were equally eligible. However, among them, the lowest quotation was from Jone Salk at Rs.3,150/- per day. Therefore, the procurement committee awarded the bid in his favour and the said recommendation was accepted by the Panchayat committee on 05.03.2018. Later, it was found that the experience certificate produced by Jone Salk was found to be suspicious, and decided to award the bid to the lowest bidder, after conducting an enquiry, evident from Ext.R1(g) decision of the Panchayat committee dated 05.03.2018.

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Accordingly, on 06.03.2018, the said person was issued with a notice calling upon to prove the genuineness of the certificate of experience produced by him, evident from Ext.R1(h). A reply was received, which was placed before the Panchayat committee. On 19.03.2018, the Procurement Committee again discussed the issue, and since it could not arrive at a definite recommendation, the matter was referred to the Panchayat Committee. The Panchayat Committee met

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W.P.(C) No.12967 of 2018 6

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on 19.03.2018 deliberated the issue and decided to award the bid to the 3^rd respondent, who was the lowest bidder at Rs.2,372/-, and has satisfied all pre-requisites prescribed in the tender notification. Since the amount quoted by the petitioner at Rs.4,166.66/- per day was too high and beyond the financial capacity of the Panchayat, it was decided to reject the bid.

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It is further stated that, on 24.03.2018, the Panchayat Committee again deliberated the issue and deferred the matter to the next meeting to be held on 28.03.2018, and it was deliberating on the tender submitted by the petitioner, decided to reject the same, since the amount was too high, and directed the Secretary to execute the agreement with the 3^rd respondent, evident from Ext.R1(k). According to the respondents, if the tender of the petitioner is accepted, the Panchayat will have to pay an amount of Rs.71,775/- per month, which cannot be met with by the Panchayat against the allocation.

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I have heard learned counsel for the petitioner and the learned counsel appearing for the Panchayat and perused the documents on record and the pleadings put forth by the

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W.P.(C) No.12967 of 2018

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respective parties.

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The sole question to be considered is, whether any manner of interference is warranted to the award of tender in favour of the 3^rd respondent. The paramount contention advanced by learned counsel for the petitioner is that, in Ext.P6 tender dated 29.01.2018, two years experience was fixed in order to qualify for the bid. However, when Ext.P8 was issued, the two years period was taken away with the wilful intention of accommodating the 3^rd respondent, and therefore, the tender awarded to the 3^rd respondent is illegal and arbitrary.

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On the other hand, learned counsel appearing for the Panchayat submitted that, even though the tender of the petitioner was considered by the Panchayat Committee, since the amount quoted was too high, and the Panchayat did not have sufficient funds to pay the amount in accordance with the tender quoted by the petitioner, it was decided to reject the same. After making due deliberations and considering the tenders submitted by various parties only, it was found that the tender submitted by the 3^rd respondent is the lowest at Rs.2,372/- per day, which will tally with the budget of the

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W.P.(C) No.12967 of 2018

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Panchayat in respect of waste removal.

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Having evaluated the pros and cons and the facts and circumstances, I am of the considered opinion that, the Panchayat has decided to award the tender to the 3^rd respondent after due deliberations. The documents produced by the Panchayat will establish that the tenders received by the Panchayat were taken into account and after deliberations and discussions alone, Panchayat has found that the 3^rd respondent is qualified, and the amount offered by the 3^rd respondent would suit the financial capacity of the Panchayat. Even though a bare allegation is made in the writ petition that it was to accommodate the 3^rd respondent that the qualification of experience for a specified period was taken away in Ext.P8, there is no evidence or pleading put forth by the petitioner to establish the said contention. It is evident from the counter affidavit filed by the Panchayat that, 7 persons participated in the tender, including the petitioner and the 3^rd respondent, and there is no dispute to the fact that the tender submitted by the 3^rd respondent was the lowest. It was after evaluating the above aspects, the Panchayat Committee has found that the 3^rd respondent has sufficient experience. Therefore, in my

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W.P.(C) No.12967 of 2018

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considered opinion, the decision taken by the Panchayat to award the tender to the 3^rd respondent is in any way arbitrary, illegal or malafide , justifying interference of this Court under Article 226 of the Constitution of India.

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Resultantly, writ petition fails, accordingly it is dismissed.

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Sd/- SHAJI P. CHALY JUDGE

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St/18.07.2018

Biju Scaria v. Vazhathope Grama Panchayath

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Biju Scaria v. Vazhathope Grama Panchayath

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