Dismissed

Ratheesh M. v. the Udayanapuram Grama Panchayath

Kerala HC5 Jul 2021WP(C)/11256/2021

Case brief

AI extract

What is this about?

Petitioner challenged the fresh notice inviting quotations for a ferry service, alleging he was the highest bidder who failed to execute the agreement due to legal advice and Code of Conduct. The Court dismissed the petition, noting the petitioner did not appear for the agreement and the joint committee was entitled to reconstitute itself and cancel irregular proceedings.

What did the court decide?

Direction to quash the fresh notice and order execution of agreement with petitioner was denied.

Ratheesh M. Vs the Udayanapuram Grama Panchayath — Public Procurement and Tenders | Kerala HC (2021)

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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 P.B.SURESH KUMAR

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MONDAY, THE 5^TH DAY OF JULY 2021 / 14TH ASHADHA, 1943 WP(C) NO. 11256 OF 2021

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PETITIONER:

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RATHEESH M. AGED 30 YEARS S/O.MANIAN, THEKKEPULICKAL, MANAPPURAM P.O., CHERTHALA, ALAPPUZHA - 688 524.

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BY ADV: SRI. MANU GOVIND

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RESPONDENTS:

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1 THE UDAYANAPURAM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, UDAYANAPURAM OPPOSITE BHAGAVATHI TEMPLE, VAIKOM - 686 141.

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2 THE SECRETARY, UDAYANAPURAM GRAMA PANCHAYATH UDAYANAPURAM OPPOSITE BHAGAVATHI TEMPLE, VAIKOM - 686 141.

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BY ADV: SRI. S.RAJMOHAN, SC SMT.PRINCY XAVIER, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.11256 of 2021

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P.B.SURESH KUMAR, J.

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W.P. (C) No.11256 of 2021

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Dated this the 5^th day of July, 2021.

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JUDGMENT

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The grievance of the petitioner in this writ petition concerns P5(a) notice issued by the second respondent, the Secretary of the first respondent Grama Panchayat for assigning the right to operate the ferry service between Nerekadav – Makkekadav across Vembanad Lake.

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2 . Nerekadav is a place falling within the jurisdiction of the first respondent Grama Panchayat and Makkekadav is a place falling within the jurisdiction of Thaikattussery Grama Panchayat. The ferry service between these two places is being operated under the supervision of a joint committee consisting of the elected members of both the Panchayats by inviting quotations and by conducting auction from among the eligible ferry operators. The right to operate the ferry service is assigned on an year to year basis by the Panchaya ts alternately. Pu rsuant to the decision taken by the joint committee, the second respondent has issued a notice

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W.P.(C) No.11256 of 2021

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inviting quotations on 12.02.2021 for assigning the right to operate the ferry for the year 2021-22. Ext.P1 is the notice issued by the second respondent in this regard. In terms of Ext.P1 notice, the ferry operator who is offering the highest amount is entitled to be assigned the right to conduct the ferry service, if he is not otherwise disqualified. The petitioner offered the highest amount in response to Ext.P1 notice. The second respondent accepted the offer made by the petitioner and directed the petitioner to appear before the second respondent with necessary documents to enter into the necessary agreement with the Panchayat before 3 p.m. on 24.02.2021. Ext.P3 is the communication issued by the second respondent to the petitioner in this regard. In terms of Ext.P3, the second respondent has also directed the petitioner to make available the documents referred to therein and deposit 25% of the amount offered by him on or before the said date. It is specified in Ext.P3 communication that if the petitioner does not comply with the requirement in the said communication, the right to operate the ferry service will be assigned to the ferry operator who has made the second highest offer, without further notice to the petitioner.

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3 . One of the documents directed to be produced in

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terms of Ext.P3 communication is stamp paper worth 1% of the amount offered for the purpose of entering into the agreement. It is

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W.P.(C) No.11256 of 2021

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alleged by the petitioner that he appeared before the second respondent on 24.02.2021 and pointed out to the second respondent that in terms of the provisions of the Stamp Act, the agreement can be executed in a stamp paper of Rs.200/- and stamp paper worth 1% of the offered amount is not necessary for the said purpose. It is also alleged by the petitioner that the second respondent then informed the petitioner that he needs to obtain legal advice on that aspect and permitted the petitioner to approach the second respondent for entering into the agreement as and when required to do so, after obtaining legal advice. It is further alleged by the petitioner that though he contacted the second respondent on several occasions thereafter, the second respondent did not permit the petitioner to enter into the agreement on the ground that, in view of the Code of Conduct in connection with the election to the State Legislative Assembly came into effect in the meanwhile, the agreement can be executed only after the election. It is stated by the petitioner that he has submitted Ext.P4 representation in the meanwhile requesting the second respondent to expedite the execution of the agreement and permit the petitioner to operate the ferry service. The case set out by the petitioner in the writ petition is that while he was awaiting a positive response from the second respondent on Ext.P4

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representation, the Panchayat issued Ext.P5(a) notice inviting fresh quotations for operating the ferry service for the very same period. According to the petitioner, as the offer made by him was the highest in the process initiated in terms of Ext.P1 notice and as he was willing to comply with the conditions stipulated in Ext.P1 notice and Ext.P3 communication, the Panchayat is not justified in inviting fresh quotations for operating the ferry service for the very same period. The petitioner, therefore, seeks orders quashing P5(a) notice and all further proceedings thereto. The petitioner also seeks directions to the first respondent to bring the proceedings initiated in terms of Ext.P1 notice to its logical end so as to enable the petitioner to operate the ferry service.

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4 . A counter affidavit has been filed in the matter by the second respondent. The stand taken by the second respondent in the counter affidavit is that since the petitioner has not turned up for executing the agreement with the Panchayat in response to Ext.P3 communication after complying with the conditions stipulated therein, he has forfeited his right to operate the ferry service in the tender process commenced pursuant to Ext.P1 notice. It is also the stand of the second respondent in the counter affidavit that since the petitioner did not comply with the requirements in Ext.P3 communication before 3 p.m. on

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W.P.(C) No.11256 of 2021

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24.02.2021, a meeting of the committee of the first respondent Grama Panchayat was convened on the same day itself to discuss about the further course of action for operating the ferry service; that it has come out in the course of the discussion in the said meeting that after the election to the local bodies took place during December 2020, a new joint committee consisting of newly elected members of the Panchayats should have been constituted to supervise the operation of the ferry service and since Ext.P1 notice was issued on the basis of the decision taken by the joint committ ee before its reconstitution, the proceedings initiated in terms of Ext.P1 notice was irregular. According to the Panchayat, it is in the circumstances, the proceedings pursuant to Ext.P1 notice was cancelled and Ext.P5(a) notice was issued later based on the decision taken by the joint committee, after its reconstitution.

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5 . Heard the learned counsel for the petitioner as also the learned counsel for the first respondent Panchayat.

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6 . As noted, the reason stated by the petitioner in the writ petition for not entering into the agreement on 24.02.2021 is that when he pointed out the defect in Ext.P3 communication as regards the stamp paper to be produced for executing the agreement, the Secretary of the Panchayat informed him that he needs to obtain legal advice on the defect pointed out by the

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petitioner and agreement can be executed only thereafte r. Ext.P4 is the representation submitted by the petitioner before the second respondent about two months after 24.02.2021. There is no reference in Ext.P4 concerning the defect in stamp paper which is stated to have been raised by the petitioner before the Secretary of the Panchayat on 24.02.2021. There is also no statement in Ext.P4 that the petitioner appeared before the Secretary on 24.02.2021 with the remaining documents and with the preparedness to remit 25% of the amount offered by him. Instead, what is stated by the petitioner in Ext.P4 is that he contacted the Secretary on several days after Ext.P3 and he has been made to believe that there are some legal impediments in entering into the necessary agreement with the petitioner and that he will be informed as to the date of execution of the agreement in due course. In the circumstances, according to me, the case set out by the petitioner that it is on account of the defect pointed out by him concerning the stamp paper required to be produced, that the agreement could not be executed on 24.02.2021 cannot be believed.

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7 . As noted, the specific case of the petitioner is that he has appeared before the second respondent on 24.02.2021 pursuant to Ext.P3 communication for execution of the agreement with necessary documents and with the preparedness to remit 25%

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of the amount offered by him, whereas, the case of the respondents is that the petitioner has not turned up on 24.02.2021 pursuant to Ext.P3 communication for execution of the agreement. The fact that there was a meeting of the committee of the Panchayat on 24.02.2021 to discuss about the operation of the ferry service is not disputed by the petitioner. Ext.R1(a) is the minutes of the said meeting. It is recorded in Ext.R1(a) that the petitioner did not turn up pursuant to Ext.P3 communication for execution of the agreement. Ext.R1(a) being the minutes of the meeting of the Panchayat held on the day on which the petitioner was called upon to enter into necessary agreement for operation of the ferry service, there is absolutely no reason to doubt the correctness of the statement recorded therein. In other words, the case of the petitioner that he has turned up before the Panchayat on 24.02.2021 pursuant to Ext.P3 communication with necessary documents cannot be accepted.

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8 . Be that as it may. It is stated in Ext.R1(a) that Ext.P1 noti ce was iss ued pursuant to the decision taken by the joint committee of the two Panchayats constituted for supervising the operation of the ferry service. In Ext.R1(a), the committee of the Panchayat has noticed that the said joint committee should have been reconstituted before the said decision by including the newly

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elected members of both the Panchayats and that the decision, on the basis of which Ext.P1 notice was issued, was therefore irregular. According to me, in a case of this nature, the committee of the Panchayat cannot be found fault with for having cancelled the proceedings initiated in terms of Ext.P1 notice for assignment of the right to operate the ferry service. It is all the more so since the petitioner did not appear before the Panchayat for execution of the necessary agreement with the Panchayat for operation of the ferry service when called upon to do so. The materials on record indicate that after Ext.R1(a) decision, the joint committee for supervision of the operation of the ferry service was reconstituted, and Ext.P5(a) notice was issued based on the decision taken by the reconstituted joint committee.

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In the light of the findings aforesaid, I do not find any merit in the writ petition and the same is, accordingly, dismissed.

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Sd/P.B.SURESH KUMAR, JUDGE.

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YKB

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W.P.(C) No.11256 of 2021 -: 10 :-

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	COPY OF THE NOTIFICATION NO.A5/NM/2020/21 ISSUED BY THE FIRST RESPONDENT GRAMA PANCHAYATH DATED 12/02/21.
EXHIBIT P2	COPY OF THE RECEIPT NO.A8414262 ISSUED BY THE FIRST RESPONDENT FOR HAVING RECEIVED THE EMD OF RS.15,000/- ALONG WITH ITS RETYPED COPY.
EXHIBIT P3	COPY OF THE COMMUNICATION NO.A4/2021 DATED 19/02/2021 ISSUED TO THE PETITIONER BY THE FIRST RESPONDENT CONFIRMING THE BID FOR NEREKADAVU - MAKKEKADAVU FERRY SERVICE FOR 2021-22.
EXHIBIT P4	COPY OF THE REQUEST DATED 23/04/2021 SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT.
EXHIBIT P5	COPY OF THE NOTIFICATION NO.A5-2170/21 ISSUED IN MATHRUBHUMI NEWSPAPER DATED 09/05/2021.
EXHIBIT P5(A)	COPY OF THE NOTIFICATION NO.A5-2170/21 DATED 05/05/2021 ISSUED BY THE FIRST RESPONDENT, AVAILABLE IN THE WEBSITE.

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RESPONDENTS' EXHIBITS:

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EXHIBIT R1(a) A TRUE COPY OF THE DECISION IN THE METTING HELD ON 24.02.2021

Ratheesh M. v. the Udayanapuram Grama Panchayath

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Ratheesh M. v. the Udayanapuram Grama Panchayath

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