Dismissed

Raghunadh K.T.K. v. the State of Kerala

Kerala HC22 Dec 2022WP(C)/26178/2022

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition challenging the award of a government tender to a labour contract co-operative society. The petitioner, the lowest bidder, contended the award was illegal due to the respondent's prior ineligibility but argued in favor of intervention because the work had already commenced. The court held interference against public interest when the respondent wa

What did the court decide?

The writ petition challenging the tender award was dismissed on the ground of public interest and the subsequent regularization of the respondent's eligibility.

Raghunadh K.T.K. Vs the State of Kerala — Company and Corporate | Kerala HC (2022)

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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 V.G.ARUN

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THURSDAY, THE 22^ND DAY OF DECEMBER 2022 / 1ST POUSHA, 1944

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WP(C) NO. 26178 OF 2022

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PETITIONER:

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RAGHUNADH K.T.K. PWD CONTRACTOR, KKS VILLA KARIYAD P.O SOUTH, THALASSERY, KANNUR (DT), PIN-673316.

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BY ADVS. C.A.JOJO MATHEWS JOSEPH

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY DEPARTMENT OF PUBLIC WORKS, KERALA GOVERNMENT SECRETARIAT, THIRUVANATHAPURAM-695 001.

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2 THE EXECUTIVE ENGINEER, LID & EW DIVISION, KOZHIKODE DISTRICT PANCHAYATH CIVIL STATION P.O,KOZHIKODE -673020. 3 THE ASSISTANT EXECUTIVE ENGINEER, LID&EW SUB DIVISION, VATAKARA BLOCK PANCHAYATH KOMBLA, AZHIYUR P.O, KOZHIKODE (DT), PIN- 673308.

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4 THE REGISTRAR OF CO-OPERATIVE SOCIETIES JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION THYCAD P.O, PIN-695 014.

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5 THE URALUNGAL LABOUR CONTRACT CO-OPERATIVE SOCIETY REPRESENTED BY ITS SECRETARY, MADAPPALLY COLLEGE ROAD, MADAPPILLY COLLEGE RD, MADAPPALLY POST, VATAKARA, KOZHIKODE-673 102.

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ADDL. R6 IMPLEADED.

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ADDL.R6 THE SECRETARY, VADAKARA BLOCK PANCHAYATH OFFICE AZHIYUR P.O., KOZHIKODE DISTIRCT, PIN 673 308.

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W.P.(C). 26178/2022

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ADDL. R6 IMPLEADED AS PER ORDER DATED 16.12.2022 IN I.A. NO. 1 OF 2022.

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BY ADVS. ADVOCATE GENERAL OFFICE KERALA R5 BY ADV.M.SASINDRAN

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OTHER PRESENT:

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GP P.S.APPU

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.12.2022, THE COURT ON 22.12.2022 DELIVERED THE FOLLOWING:

W.P.(C). 26178/2022

JUDGMENT

Dated this the 22^nd day of December, 2022

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The petitioner is a licensed A category PWD contractor. He responded to Ext.P1 e-tender notification published by the 3^rd respondent for the work “REBUILD-RKI-Onchiyam GPMadappally Underpass Vellikulangara Crash Road.” The closing date of tender was 21.07.2022 and the bid opening date was fixed as 26.07.2022. The petitioner submitted his bid on 20.07.2022. Out of the four bidders who had participated in the e-tender, the petitioner's bid was found to be the lowest. On being informed that he was the lowest bidder, petitioner made all arrangements for complying with the formalities and commencing the work. But to the petitioner's surprise and dismay, he was later informed that the work was awarded to the 5^th respondent Society based on the 10% price preference available to Labour Contract Co-operative Societies ('LCCS for short). Immediately the petitioner gathered details of the bids

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W.P.(C). 26178/2022

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submitted by the four participating bidders. Thereupon, it was revealed that the 5^th respondent was the highest bidder. Further enquiry revealed that, in view of Ext.P4 Government Order, the 10% price preference was not available to the 5^th respondent as on the bid opening date. Pointing out these aspects, the petitioner submitted Ext.P7 representation dated 04.08.2022. In the meanwhile the Government issued Ext.P8 order on 29.07.2022 reinstating the benefits/preferences available to LCCSs and cancelling Ext. P4 Government Order. The 5^th respondent having commenced the work immediately after award of tender, so as to defeat any challenge against the award, this writ petition is filed seeking the following reliefs;

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i) To issue a writ of mandamus or other appropriate writ, order or direction restraining the 3d respondent from awarding the Ext P1 work to the 5th respondent in violation Et.P4 and P6.

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ii. To issue a writ of mandamus or other appropriate writ, order or direction directing the 3rd respondent to award the Ext.P1. contract work to the Licensed and experienced

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W.P.(C). 26178/2022

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Contractors like the petitioner who has placed lowest bid. iii) To issue a writ of certiorari quashing the decision of the 3rd respondent to award Ext.P1 contract work to the 5th respondent.

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iv) To issue a writ of mandamus calling for the records leading to awarding Ext. P1 contract work to the 5th respondent.

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v) To issue a writ of mandamus or other appropriate writ, order or direction directing the 4th respondent to order an enquiry about the functioning of 5th respondent society. vi) To grant the petitioner such other reliefs which this Hon'ble court deem just and fit in the circumstance of the case including the cost of this proceedings.

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Adv. C.A. Jojo, learned Counsel for the petitioner,

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contended that the award of tender to the 5^th respondent is ex facie illegal since, as on the bid opening date the 5^th respondent was not eligible to participate or for price preference. It is pointed out that the issue is covered by the judgment of this Court in W.P.(C) No. 26062 of 2022.

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Attention is drawn to Ext.P5 reply given by the Minister for Cooperation to a question raised in the Assembly to contend that

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W.P.(C). 26178/2022

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by Ext.P4 the price preference available for LCCS was taken away. Referring to Ext. P11 reply to the queries under the Right to Information Act, it is submitted that the work was awarded to the 5^th respondent hastily on 26.7.2022, anticipating issuance of Ext. P8 GO on 29.7.2022.

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Adv. K.V. Manoj Kumar, learned Government Pleader appearing for respondents 1 and 2, submitted that pursuant to the award of contract, the 5^th respondent executed the agreement on 6.8.2022 and the work is steadily progressing. Hence, any interference at this stage will be against public interest. It is submitted that G.O.(Ms) No. 135/1997/Co-op. Dated 13.11.1997, under which price preference is granted for LCCSs, was applicable to the subject tender also. Moreover, Ext.P4 Government Order stands cancelled by Ext. P8 GO. Even otherwise Ext. P4 cannot be interpreted so as to take away the benefit granted to LCCS.

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Adv. M. Sasindran, learned Counsel appearing for the 5^th respondent, put forth the following contentions in reply;

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The work was awarded to the 5^th respondent strictly in

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W.P.(C). 26178/2022

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terms of the extant Government Orders. Pursuant to the award of contract, the agreement was executed, site handed over and the work is progressing steadily. Interference at this stage will hamper the work and cause difficulties to the public. The tender awarding authority having found the 5^th respondent eligible for the work, in spite of Ext.P4 Government Order, no interference is warranted in exercise of the power under Article 226. Even in the judgment relied on by the petitioner, this Court held the indisputable position to be that that the employer's interpretation ought to be accepted even if a different view is possible. As per Ext. R5(c) Government Order dated 27.12.2019, the Government had clarified that it is mandatory for the work awarding authority to process the tenders submitted by the contractors who are not registered in the online portal. As such, there is no irregularity in the 5^th respondent's tender being accepted. Right from G.O.(Ms) No. 135/1997/Co-op. Dtd. 13.11.1997 onwards LCCSs are conferred with certain privileges and preferences. The intention of Ext. P4 was not to take away those privileges, but,

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W.P.(C). 26178/2022

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to provide a via media for LCCSs to participate in the tenders. As Ext.P4 was found to be causing confusion, that was withdrawn by Ext.P6, reiterating the right of LCCSs to participate in tenders with all preferences and privileges. Therefore, merely for the reason that the bids were opened on 26.07.2022, the petitioner's selection cannot be assailed.

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It is true that by the judgment in W.P.(C) 26062 of 2022 this court had declined the 5^th respondent's challenge against rejection of its tenders based on the finding that Ext.P4 was in force as on the date of opening of the bids. The situation here is different in so far as the tender awarding authority permitted the 5^th respondent to participate in the tender de hors Ext. P4. The authority also found the 5^th respondent eligible for price preference. More importantly, in spite of the work being awarded on 26.7.2022, the writ petition challenging the award was filed only on 12.8.2022. By that time, the 5^th respondent had executed the agreement and made arrangements for commencing the work. Moreover, by the time the award was challenged, Ext. P8

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W.P.(C). 26178/2022

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Government Order had also come into force. In such circumstances, the finding in W.P.(C) No. 26062 of 2022 will not come to the petitioner's aid. This court cannot also be oblivious to the fact that any interference with the subject work will be against public interest.

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For the aforementioned reasons, the writ petition is dismissed.

Sd/-

V.G.ARUN

JUDGE

W.P.(C). 26178/2022

APPENDIX OF WP(C) 26178/2022

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PETITIONER EXHIBITS

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Exhibit P1	A TRUE COPY OF THE RELEVANT PAGES OF THE E- TENDER NOTICE WITH NO.04/2021/AEE/LID&EW/VTKBP DATED 12.07.2022 BY THE 3RD RESPONDENT .
Exhibit P2	A TRUE COPY OF THE RELEVANT PAGES OF THE BID DOCUMENT ALONG WITH PRELIMINARY AGREEMENT- SUBMITTED BY THE PETITIONER DATED 20.07.2022 .
Exhibit P3	A TRUE COPY OF THE BID STATUS DATED 11.08.2022 AT 09.27 AM TAKEN FROM THE WEB SITE.
Exhibit P4	A TRUE COPY OF THE G.O.(MS)NO.6/2022/PWD DATED 19.02.2022 ISSUED BY THE 1ST RESPONDENT.
Exhibit P5	A TRUE COPY OF THE ANSWER GIVEN BY THE HON'BLE MINISTER DATED 18.07.2022 ISSUED BY THE SECTION OFFICER OF THE KERALA LEGISLATIVE ASSEMBLY.
Exhibit P6	A TRUE COPY OF THE G.O(MS) 41/2020/PWD DATED 19.03.2020.
Exhibit P7	A TRUE COPY OF THE REPRESENTATION SUBMITTED TO THE 2ND RESPONDENT DATED 04.08.2022.
Exhibit P8	A TRUE COPY OF THE G.O(MS) NO.21/2022/PWD DATED 29.07.2022.
Exhibit P9	THE TRUE PHOTOGRAPHS OF THE PRESENT STAGE OF THE ROAD IN FROM THE STARTING POINT AND END
	POINT AS ON 02.11.2022 AND THE PLACE OF WORK IN THE EXT. P1 TENDER IS PRODUCED HEREWITH

W.P.(C). 26178/2022

AND MARKED AS

Exhibit P10 THE TRUE COPY OF VIDEO CD SHOWING THE PRESENT STAGE OF THE ROAD FROM THE STARTING POINT, MIDDLE POINT AND END POINT AS ON 02.11.2022. Exhibit P11 THE TRUE COPIES OF THE RIGHT TO INFORMATION RECEIVED BY THE PETITIONER 29.08.2022. Exhibit P12 A TRUE COPY OF THE TENDER STATUS IN PRICE -3 SOFTWARE DATED 21.08.2022. RESPONDENT EXHIBITS Exhibit R5 (a) A TRUE COPY OF THE PHOTOGRAPHS SHOWING CLEARING WORK EXECUTED BY THE 5TH RESPONDENT SOCIETY. RESPONDENT EXHIBITS Exhibit R5 (b) A TRUE COPY OF THE PHOTOGRAPHS SHOWING CONSTRUCTION OF DRAINAGE BEING CARRIED OUT BY THE 5TH RESPONDENT. RESPONDENT EXHIBITS Exhibit R5(C) TRUE COPY OF THE G.O(MS) 60/2019/PWD DATED 27/12/2019 ISSUED BY THE GOVERNMENT OF KERALA

Raghunadh K.T.K. v. the State of Kerala

Case brief

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Raghunadh K.T.K. v. the State of Kerala

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