Dismissed

Suresh Mathew v. Principal Chief Conservator of Forests

Kerala HC1 Oct 2021WP(C)/12059/2021

Case brief

AI extract

What is this about?

A contractor filed a writ petition challenging a forest timber extraction tender notification issued during the Model Code of Conduct period, alleging violation of election protocols prevented his participation. The court held that since polls and counting were over, no undue influence occurred, and the violation did not vitiate the proceedings, dismissing the petition.

What the court decided

AI extract

Suresh Mathew Vs Principal Chief Conservator… — 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.V.KUNHIKRISHNAN

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FRIDAY, THE 1^ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943

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WP(C) NO. 12059 OF 2021

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PETITIONER:

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SURESH MATHEW AGED 61 YEARS S/O. MATHEW, NEDUMCHIRAYIL HOUSE, S.H. MOUNT P.O., KOTTAYAM-686006. BY ADV M.C.JOHN

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RESPONDENTS:

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1 PRINCIPAL CHIEF CONSERVATOR OF FORESTS, (PLANNING AND DEVELOPMENT), FOREST HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-695014.

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2 THE CHIEF CONSERVATOR OF FORESTS, HIGH RANGE CIRCLE, KOTTAYAM-686001.

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3 THE DIVISIONAL FOREST OFFICER, KOTHAMANGALAM-686691.

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4 BABY JOSEPH AGED 62 YEARS, S/O. JOSEPH, THAYYIL HOUSE, ERATTUPETTA, KOTTAYAM-686121. BY ADVS. GOVERNMENT PLEADER S.PRASANTH (AYYAPPANKAVU) VARSHA BHASKAR

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OTHER PRESENT:

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SRI.T.P.SAJAN, SPL.GP(FOREST)

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).No.12059/2021

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P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.12059 of 2021

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---------------------------------------------Dated this the 01^st day of October, 2021

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JUDGMENT

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Petitioner is a Forest Contractor with A class registration. According to the petitioner, he is doing the contract work from 1985 onwards. It is the case of the petitioner that at the time when General Election to the State Assembly was declared and the Election Code of Conduct came into operation on 26.02.2021, and when nobody could even think of that any department will invite tender for any work especially the timber extraction which requires skilled labourers, the 3^rd respondent, in total violation of the Covid protocol and Election Code of Conduct, published e-tender in the website. Ext.P2 is the tender notification dated 22.04.2021. The probable amount of contract was Rs.24.27 lakhs. Ext.P3 is the relevant portion of the Model Code of Conduct published by the Election Commission. The petitioner relies on Clauses 6, 8 and 10(f) of Ext.P3. It is the case of the petitioner that the contractors were not able to

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W.P.(C).No.12059/2021

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participate in the tender proceedings based on Ext.P2 notification. It is also stated in the writ petition that the very fact that there were only 2 tenderers speaks volumes. It is stated in the writ petition that among the tenderers, the 4^th respondent quoted 27% below. The other tenderer quoted 26.12% and the 4^th respondent is L1 and the only other person is L2. As soon as the petitioner and other contractors came to know about the above tender notification, they submitted a representation to the 3^rd respondent with copy to the 2^nd respondent requesting cancellation of the tender and to retender the work so that there can be proper publicity and participation as well as competition. Ext.P4 is the representation submitted by the petitioner and 4 others to the 3^rd respondent. The 3^rd respondent issued a reply which is Ext.P5. It is the case of the petitioner that the tender submitted by the 4^th respondent was accepted on the next day of receipt of the petitioner's representation. To prove the same, Ext.P6 tender evaluation committee report issued by the 3^rd respondent is also produced. Ext.P7 is the bid list dated 03.05.2021 and Ext.P8 is the tender summary report dated 05.06.2021. The case of the petitioner is that Ext.P2 tender

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W.P.(C).No.12059/2021

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notification is published when the code of conduct is in force. Moreover, it is the further case of the petitioner that since he and other contractors never expected that the 3^rd respondent will issue such tender proceedings when the code of conduct was in force, they were not able to participate in the tender proceedings and therefore, Ext.P2 and consequential proceedings is to be quashed and prayed for a direction to retender the proceedings.

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A statement is filed by the 3^rd respondent disputing the contentions of the petitioner in this writ petition. Even though notice was served on the 4^th respondent and there is appearance for the 4^th respondent, no counter is filed by the 4^th respondent.

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This writ petition was listed today because the Special Government Pleader (Forest) submitted that there is urgency. Hence as agreed by both sides, I decided to hear the writ petition itself.

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Heard the counsel for the petitioner and the Special Government Pleader. I also heard the counsel for the 4^th respondent.

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The counsel for the petitioner reiterated his

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W.P.(C).No.12059/2021

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contentions in the writ petition. The counsel submitted that in the interim order dated 01.07.2021, this Court considered all the aspects of the case and accepted the contention of the petitioner and passed an interim order. There is nothing to interfere in the interim order and the same may be made absolute. The counsel takes me through the pleadings and reiterated the contentions. The Special Government Pleader takes me through Ext.P11, which is the schedule of the Assembly Election. The Special Government Pleader submitted that the date of poll was 06.04.2021 and the tender notification was only on 22.04.2021. But it is conceded by the Special Government Pleader that Ext.P2 tender notification was issued when the Model Code of Conduct is in force. But the Special Government Pleader submitted that there is no prejudice to the petitioner because the tender notification itself was issued subsequent to the polling date. The Special Government Pleader submitted that the intention of the Model Code of Conduct is only to ensure that there is no undue influence exerted upon the voters and common public by the Government. Since the election is already over, there is no question of undue influence exerted upon the voters and

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W.P.(C).No.12059/2021

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common public by the Government because of the publication of Ext.P2 tender notification. The Special Government Pleader also submitted that Annexure R3(b) is executed subsequent to the counting. The Special Government Pleader also takes me through Clause 10(f) of Ext.P3 Model Code of Conduct.

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When this writ petition came up for consideration on 17.06.2021, this Court passed the following order:

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“ Admit.

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Learned Special Government Pleader takes notice for respondents 1 to 3. Issue notice to the 4^th respondent through speed post.

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Going by the averments in the writ petition and the documents produced, I am of the prima facie opinion that the award of contract was finalised in violation of the Model Code of Conduct.

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The learned Government Pleader submits that the tender proceedings has been finalised and the work has commenced. The learned counsel for the petitioner stoutly refuted the submission.

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In such circumstances, there shall be an interim order directing the 3^rd respondent not to finalise the proceedings based on Ext.P2 notification, if not already done. ”

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Thereafter the matter was heard in detail by this

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W.P.(C).No.12059/2021

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Court and on 01.07.2021, this Court, after considering the contentions of the petitioner and the Special Government Pleader, directed the 4^th respondent to maintain status quo as on today and stop further execution of the contract. The submission of the Special Government Pleader that, the timber has not so far removed, is also recorded. It is also ordered by this Court that respondents 1 to 3 shall ensure that further work is stopped by the 3^rd respondent.

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Before considering the facts, it will be better to extract the Election Schedule as stated in Ext.P11:

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“ Important Dates

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Date of issue of Gazette Notification: 12.03.2021 Last Date of Nominations : 19.03.2021 Date of Scrutiny of Nominations: 20.03.2021 Last Date of Withdrawal of candidatures: 22.03.2021 Date of Poll: 06.04.2021 Date of counting: 02.05.2021 Date before which election shall be completed: 04.05.2021”

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It is an admitted fact that Ext.P2 tender notification was on 22.04.2021 on which date the Model Code of Conduct is in force. The Special Government Pleader submitted that the date of polling was 06.04.2021. As evident by Annexure R3(b), the agreement was executed with the 4^th respondent on

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W.P.(C).No.12059/2021

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07.06.2021. That is admittedly a date when the Model Code of Conduct was not in force. It is a fact that Ext.P2 tender notification was issued when the Model Code of Conduct is in force. This is conceded by the Special Government Pleader. What is the remedy in such situation ? Whether there is any consequence suppose a Model Code of Conduct is violated ? Whether there is any prejudice to the petitioner ? These are the questions to be decided.

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The Election Commission is not a party to this writ petition. There is no case to the petitioner that because of Ext.P2 tender notification there is any undue influence exerted upon the voters and common public by the Government. The only case of the petitioner is that he was on a bondafide belief that no tender proceedings will be there when the Model Code of Conduct is in force. Hence he was not able to participate in the same. I asked the Special Government Pleader how Ext.P2 is published. The Special Government Pleader submitted that Ext.P2 tender notification is published as per the procedure and this is the usual procedure adopted by the 3^rd respondent in tender proceedings. In such situation, simply because there is some violation of Model Code of Conduct, it cannot be said

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that the entire tender notification is vitiated. The heading of Ext.P3 Model Code of Conduct itself shows that it is for guidance. If there is any violation of the same, the petitioner ought to have approached the Election Commission and not this Court. Moreover Election Commission is not even a party in this writ petition. Since the notification is published in the usual manner, the contention of the petitioner that, he did not expect such a notification during that period cannot be accepted. It is an admitted fact that the 4^th respondent already started the work before the interim order passed by this Court. The work mentioned in Ext.P7 is the felling of teak plantations from Thattekkadu Section. It is an admitted fact that trees are already cut down and are lying in the forest area. It is stated by the Special Government Pleader that if the trees are kept in such a fashion in the forest area, it will ruin. What remains is only the transportation of these trees from the place. That means the work is in the middle stage. At this stage, I think it will not be proper to quash the entire tender proceedings simply because there is a violation of the Model Code of Conduct. I also take note of the fact that the tender notification was subsequent to the polling date and the

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W.P.(C).No.12059/2021

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work agreement was executed when the Model Code of Conduct was not in force. In such circumstances, according to me, there is nothing to interfere with Ext.P2 tender notification.

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The writ petition fails and the same is accordingly dismissed.

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Sd/-

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P.V.KUNHIKRISHNAN

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JUDGE

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W.P.(C).No.12059/2021

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APPENDIX OF WP(C) 12059/2021

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PETITION	ER EXHIB	ITS
Exhibit	P1	TRUE COPY OF THE A CLASS RENEWAL CARD DATED 26/04/2021 ISSUED BY THE 2ND RESPONDENT TO PETITIONER.
Exhibit	P2	TRUE COPY OF THE RELEVANT PORTION OF THE TENDER NOTIFICATION NO. G1- 328/2021 DATED 22/04/2021 ISSUED BY THE 3RD RESPONDENT.
Exhibit	P3	TRUE COPY OF THE RELEVANT PORTION OF THE MODEL CODE OF CONDUCT DATED NIL PUBLISHED BY ELECTION COMMISSION OF INDIA.
Exhibit	P4	TRUE COPY OF THE REPRESENTATION DATED 25/05/2021 SUBMITTED BY PETITIONER AND OTHERS.
Exhibit	P5	TRUE COPY OF THE REPLY DATED 31/05/2021 FROM 3RD RESPONDENT.
Exhibit	P6	TRUE COPY OF THE TENDER EVALUATION COMMITTEE REPORT DATED 26/05/2021.
Exhibit	P7	TRUE COPY OF BID LIST DATED 03/05/2021.
Exhibit	P8	TRUE COPY OF THE TENDER SUMMARY REPORT DATED 05/06/2021.
EXHIBIT	P9	TRUE COPY OF THE E-MAIL DATED 23.06.2021 ADDRESSED TO 3RD RESPONDENT
EXHIBIT	P10	TRUE COPY OF HTE INSTRUCTION SL.NO.122 DATED NIL ISSUED BY THE ELECTION COMMISSION
EXHIBIT	P11	TRUE COPY OF PRESS NOTE DATED NIL ISSUED BY TEH ELECTION COMMISSION
RESPONDE	NTS EXHI	BITS
ANNEXURE	R3(A)	TRUE COPY OF THE WORK ORDER DATED 07.06.2021
ANNEXURE	R3(B)	TRUE COPY OF THE AGREEMENT DATED 07.06.2021
ANNEXURE	R3(C)	TRUE COPY OF THE MAHAZAR DATED 14.06.2021

Suresh Mathew v. Principal Chief Conservator of Forests

Case brief

What is this about?

What the court decided

Suresh Mathew v. Principal Chief Conservator of Forests

Case brief

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