Dismissed

Sabumon Lukose v. the Chief Engineer, Office of the Chief Engineer, Public Works Department

Kerala HC23 Jul 2019WP(C)/14252/2019

Case brief

AI extract

What is this about?

Petitioner contract challenged an order directing tender revision and re-tender for a compound wall project. The High Court denied interference, ruling that departmental discretion applies given the complex history and lack of malafides.

What did the court decide?

Writ petition dismissed; order directing revision of estimate and re-tender upheld.

Sabumon Lukose Vs the Chief Engineer, Office… — Contract and Commercial Disputes | Kerala HC (2019)

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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 23RD DAY OF JULY 2019 / 1ST SRAVANA, 1941

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WP(C).No.14252 of 2019

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PETITIONER/S:

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SABUMON LUKOSE, AGED 48 YEARS, S/O. K.C.LUKOSE, KARUKAMALYIL, PERUMBAIKADU.P.O., KOTTAYAM.

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BY ADVS. SRI.PHILIP J.VETTICKATTU SRI.G.HARIKRISHNAN (TRIPUNITHURA)

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RESPONDENT/S:

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1 THE CHIEF ENGINEER, OFFICE OF THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT, BUILDINGS DIVISION, TRIVANDRUM-695 001.

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2 THE SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT (BUILDING DIVISION), SOUTH CIRCLE, TRIVANDRUM-695001

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3 THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, (BUILDING DIVISION), COLLECTORATE.P.O., KOTTAYAM-686 002.

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4 STATE OF KERALA, REPRESENTED BY THE SECRETARY, FINANCE (INDUSTRIES & PUBLIC WORKS-B) DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001.

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5 THE DIRECTOR, COLLEGIATE EDUCATION, TRIVANDRUM-695 001.

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BY SRI. K.V. MANOJ KUMAR, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.14252 of 2019

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JUDGMENT

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Petitioner, a contractor who has participated in a tender proceeding, seeks to quash Ext.P5 communication issued by the 1^st respondent dated 16.04.2019, whereby a direction was issued to the Executive Engineer, Public Works Department, Kottayam, i.e., the 3^rd respondent, to revise the estimate and conduct retender. Material facts for the disposal of the writ petition are as follows:

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The 3^rd respondent had floated Ext.P1 Notice

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Inviting Tender for construction of a compound wall for the Government College, Kottayam, on 06.12.2018. The

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Probable Amount of Contract (PAC) for the said work was arrived at on the basis of Schedule of Rate (SOR) applicable for the year 2012, and the specification for the work were fixed on the basis of the Delhi Schedule of Rate (DSR) for the year 2012, Ext.P1 re-tender was floated on the factual backdrop that for the earlier two tenders, there were no effective bidders for the said work. It was in such circumstances, the third attempt was made as per Ext.P1. According to the petitioner, petitioner happened to be the lowest bidder. Petitioner had quoted above the PAC by reckoning the Local Market Rate (LMR) applicable on the

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W.P.(C) No.14252 of 2019

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day. It is also the case of the petitioner that the

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3^rd respondent accepted the bid submitted by the petitioner and forwarded the same as per Ext.P3 for

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approval, to the 1^st respondent. However, the 1^st respondent bypassing Ext.P4, a Government Order dated 01.09.2016, laying down the procedure to deal with tender excess was overlooked and Ext.P5 is issued,

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directing to re-tender the work after revising the estimate. Therefore, according to the petitioner,

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Ext.P5 is arbitrary and illegal, liable to be interfered with by this Court.

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The 3^rd respondent has filed a detailed

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counter affidavit. Among other contentions, it is

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stated that, Administrative Sanction was secured for an amount of Rs.50,00,000/- for carrying out the work in

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question, for which technical sanction was obtained on 30.08.2013. But, the contractor who had undertaken the

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execution of the work requested for exemption from the contract on account of certain disputes arose in the boundary of the property, wherein the construction was to be carried out. Thereafter, as per the request of the Higher Education Department, the remaining work was re-tendered and re-scheduled, wherein, the petitioner participated and happened to be the only one

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W.P.(C) No.14252 of 2019

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contractor who responded to the E-quotation.

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In fact, the estimate for the balance work was prepared based on DSR 2012, i.e., Rs.41,99,659/- and the E-quotation was invited based on DSR 2012 only. The work completed by the earlier contractor was honoured and bill payment to the extent of work completed was paid to him. The balance scheduled amount available was Rs.41,99,659/- for which E- quotation was invited. But, the petitioner quoted an amount of Rs.82,43,049/-, which is 96.28% excess from the estimate amount. To approve the E-quotation, a comparison statement was prepared, i.e., comparing among the estimate based on DSR 2012, DSR 2016 with cost index of 44.12%, LMR and quoted amounts are Rs.41,99,659/-, Rs.67,39,109/-, Rs.87,13,689/- and Rs.82,43,049/- respectively. The comparison statement along with the single quotation was submitted to the 2^nd respondent for approval. Thereafter, the 2^nd respondent received a communication from the 1^st respondent directing to prepare revised estimate based on the current schedule and also to invite tender accordingly.

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It is also stated that, thereafter, the

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revised estimate of the work is prepared by the

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W.P.(C) No.14252 of 2019

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Assistant Engineer, Building Section, Kottayam and the amount arrived at comes to Rs.56,32,338/- based on DSR 2016 with cost index of 37.93%. But, only an amount of

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RS.44,10,372/- is remaining in the Administrative Sanction, and therefore, for the balance amount, additional Administrative Sanction is required, and in that view of the matter, re-tender is the only option available to the respondents. Since re-tender is

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invited based on the revised estimate, Revised Administrative Sanction cannot be obtained from the Government for an amount of Rs.12,21,966/-, without ascertaining whether there are other qualified contractors who can give the tenders for the remaining work with the balance amount, failing which, it will be difficult to ascertain whether the work can be executed with loss or gain to the Government. Therefore, it is not feasible to award the work to the petitioner with the additional amount quoted.

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A reply affidavit is filed by the petitioner,

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reiterating the stand adopted in the writ petition, and disputing the contentions put forth by the 3^rd respondent.

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I have heard Sri. Philip J. Vettickattu,

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learned counsel for the petitioner and Sri. K.V.Manoj

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W.P.(C) No.14252 of 2019

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Kumar, learned Senior Government Pleader appearing for

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the respondents, and perused the pleadings and the documents on record.

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The elaborate discussion of facts made above would make it clear that, petitioner is aggrieved by Ext.P5 order issued by the 1^st respondent Chief Engineer to the 3^rd respondent Executive Engineer, directing to revise the estimate of the tender in question and invite fresh tenders. The basic case projected by the petitioner is that, the said action of the 1^st respondent is violative of Ext.P4 Government

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Order, wherein, conditions are prescribed by the Finance Department in respect of tender excess for approval of tender by the competent authorities and submission of tender proposals to Government. It is true, parameters and specifications are prescribed thereunder. However, in my considered opinion, the guidelines fixed by the Government are necessarily to be followed by the Department officials under ordinary and normal circumstances. Here is a case where the

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tender in question has a chequered history. Even though tenders were invited twice, there were no sufficient bidders and it was thereupon that Ext.P1 is

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again issued inviting E-quotation. It is also an

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W.P.(C) No.14252 of 2019

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admitted fact that, one of the earlier contractors who

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has undertaken the work has sought permission to withdraw from the contract after some work was carried out due to a boundary dispute that arose in the property.

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petitioner was the sole bidder and petitioner has quoted 96.28% above the estimate rate. However, after re-evaluation of the tender, it is pointed out that the

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amount required for completing the work is Rs.56,32,338/- and additional Administrative Sanction is required for an amount of Rs.12,21,966/-, which thus means, without securing additional Administrative

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Sanction, the tender cannot be proceeded with. It is

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also clear from the contentions put forth by the respondents that the tender quoted by the petitioner is highly inflated, and the only way out consequent to the present complex situation is to go for a fresh tender. Merely because Ext.P4 guidelines were fixed by the Government, that cannot be said to be applicable to a circumstance like the one on hand. In my considered view, the guidelines cannot be termed to be absolute imposition of stipulations on the officers of the Government. If the quoted tender has found to be in

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W.P.(C) No.14252 of 2019

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excess of the work to be carried out, the officers are

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always at liberty to consider the issue and then take appropriate decisions in accordance with law.

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Viewed under that circumstances, it is clear that the stand adopted by the 1^st respondent is to protect the interest of the State Government. That apart, the Government is the master of the contract, and it is for the Government to decide the manner in

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which the tender is to be processed. There are no

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malafides also alleged by the petitioner against the

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present action of the 1^st respondent. Taking into

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account the above specified aspects, I am of the considered opinion that, petitioner has not made out any case of illegality or arbitrariness, justifying interference of this Court, exercising the power of judicial review under Article 226 of the Constitution of India.

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The writ petition fails, accordingly it is

dismissed.

Sd/-

SHAJI P.CHALY

JUDGE

St/26.07.2019

W.P.(C) No.14252 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF NOTICE INVITING TENDER IN RESPECT OF THE WORK DATED 6.12.2018. EXHIBIT P2 TRUE COPY OF BID ACKNOWLEDGMENT RECEIPT DOWNLOADED FROM THE WEBSITE OF THE E- TENDERING SYSTEM OF THE GOVERNMENT OF KERALA DATED 13.12.2018 EXHIBIT P3* TRUE COPY OF LETTER ISSUED BY THE CHIEF (SUBSTITUTED) ENGINEER DATED 20.12.2018. *ENCLOSURES 2 TO 4 MENTIONED IN THE LETTER NO.D2 876/2008 ARE ENCLOSED WITH EXT.P3 AS PER ORDER DATED 14.06.2019 IN I.A.NO.1/2019. EXHIBIT P4 TRUE COPY OF ORDER BEARING NO.GO(P)NO.133/2016/FIN DATED 1.09.2017. EXHIBIT P5 TRUE COPY OF PROCEEDINGS OF THE CHIEF ENGINEER DATED 16.4.2019. EXHIBIT P6 TRUE COPY OF LETTER FORWARDED BY THE PRINCIPAL, GOVERNMENT COLLEGE, KOTTAYAM. EXHIBIT P7 THE COPY OF ABSTRACT ESTIMATE PREPARED BY THE ASSISTANT ENGINEER ISSUED TO THE PETITIONER ON REQUEST.

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RESPONDENTS' EXHIBITS: NIL

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//TRUE COPY//

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P.S. TO JUDGE

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St/-

Sabumon Lukose v. the Chief Engineer, Office of the Chief Engineer, Public Works Department

Case brief

What is this about?

What did the court decide?

Sabumon Lukose v. the Chief Engineer, Office of the Chief Engineer, Public Works Department

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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