Kerala High Court
C.Unnikrishnan vs The State Of Kerala on 24 January, 2011
Author: J. Chelameswar
Bench: J.Chelameswar, P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19310 of 2009(S)
1. C.UNNIKRISHNAN,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. PERINTHALMANNA MUNICIPALITY,
3. THE CHAIRMAN, PERINTHALMANNA
4. PALAKKAL MUSTAFA,
For Petitioner :SRI.SANTHEEP ANKARATH
For Respondent :SRI.S.RAMESH BABU
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :24/01/2011
O R D E R
J. CHELAMESWAR, CJ &
P.R. RAMACHANDRA MENON, J.
..............................................................................
W.P.(C)No.19310 OF 2009
&
I.A.No. 4688 OF 2010
.........................................................................
Dated this the 24th January, 2011
J U D G M E N T
J. Chelameswar, CJ.
The Writ Petition is filed with the prayers as follows:
"(i) call for the records leading to Exhibit P3 and quash the same by the issue of a writ of certiorari or other appropriate writ, order or direction.
(ii) issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to the decision of the 2nd respondent Municipality to start a fish market on BOT basis in Kavungal Paramba and quash the same .
(iii) issue such other writ, direction or order as this Hon'ble Court may deems fit and proper in the circumstances of the case."
2. Ext.P3 is an advertisement published in a Malayalam daily, viz., Malayala Manorama dated 03.02.2009, which reads as follows:
W.P.(C)No.19310 OF 2009 2 ""MALAYALA MANORAMA DATED 03.02.2009 TUESDAY E3-419/08 Perinthalmanna Municipality, Date:02.02.09 REGARDING CONSTRUCTION OF FISH MARKET ON BOT BASIS AT JUBILEE BYE- PASS ROAD Offers are invited for construction of a wholesale fish market at Jubilee Bye-pass Road in 92 cents of land with modern facilities on BOT Basis. The bid document prepared as per directions of Municipal Council and Kerala Government approved I.K.I.N contains the conditions and details of the scheme Document cost: Rs.5,000 + VAT Document sold on 9.2.2009 till 13.2.2009 Duly filled up documents to be submitted on upto 19.2.2009., This notification is to be considered as a continuation of notification concerning the scheme published on 26.7.2008. For more details, contact Municipal Office, Engineering Department on working days.
Sd/-
Secretary, Perinthalmanna Municipality"
W.P.(C)No.19310 OF 2009 3
3. The second respondent-Municipality took a decision to establish a Fish Market within the limits of the Municipality, by outsourcing the whole activity through the system known as BOT (Build, Operate and Transfer). Pursuant to the decision of the second respondent-Municipality, eventually Ext.P3 advertisement came to be published .
4. Execution of public works by the Municipalities in the State of Kerala is regulated by the Rules known as the Kerala Municipality (Execution of Public Works and Purchase of Material) Rules 1997. The rules deal with the identification, planning and execution of public works to be undertaken by the Municipalities in the State of Kerala.
5. Rule 3 of the said Rules requires every Municipality to prepare in the beginning of every financial year, a priority list of public works intended to be executed in the Municipality by including in a scheme. It also requires the Municipalities to prepare the rough cost estimate of each public work intended to be executed and also to decide whether such "work is to be executed on contract basis or directly by the Municipality or W.P.(C)No.19310 OF 2009 4 through the beneficiary committee".
6. Rule 8 stipulates that where the Municipal Council has decided to execute any public work through a contractor, the same is to be done by inviting tenders. Rule 8(2) further stipulates that where the estimated cost of any public work comes to Rupees Seventy (70) lakhs or above, the procedure of prequalification of tenders is required to be compulsorily followed. Rule 8 and 8(2) are extracted below:
"8. Invitation of Tenders:- Where the Council has decided to execute any public work through a contractor, the Secretary or any other officer authorised by the Council shall invite tenders according to the orders of the Chairperson.
Provided that for public works the estimated cost of which does not exceed rupees five thousand and for public works of emergent nature to be executed under sub-section 15 tendering is not compulsory and such works may be executed through short notice quotation or by the Municipality directly.
(2) Notwithstanding anything contained in sub-
rule(1) for every work the estimated cost of which comes to Rupees Seventy (70) lakhs or more invitation of prequalification tender shall be compulsorily and for this purpose the Municipality shall prepare a panel of contractor with the approval of the W.P.(C)No.19310 OF 2009 5 technical committee specified under sub-rule (1) of rule 5 and tender shall be requisited only from the contractors included in that panel.
7. Rule 9 stipulates the method and manner of publication of tender notification. Rule 9 reads as follows:
"9. Publication of tender notice--(1) Every tender notice shall be published in the office notice board of the Municipality, Offices of the Public Works Department of the Government in the Municipal area and in other offices as they may deem fit.
(2) The following particulars shall be included in the tender notice published under sub-rule (1) namely;-
(i) The name and details of work;
(ii) The time within which the work shall be completed
(iii) Rough estimate amounts;
(iv) Place from where tender form can be obtained;
(v) Last date and time of acceptance of tender;
(vi) to whom tender shall be submitted;
(vii) The times at which and place from where scrutiny of plan, estimate and conditions of contract can be made;
(viii) Details as to whether actual cost of the work shall be recorded fixed percentage below or over the estimated rate shall be recorded or separate rates for each item of work included in the estimate shall be stated in the tender;
W.P.(C)No.19310 OF 2009 6
(ix) the time at which and place where tenders shall be opened;
(x) The amount of earnest money deposit to be submitted along with the tender and the amount of security deposit to be remitted, if the tender is accepted;
(xi) That the Municipality reserves the right to reject any tender or all tenders without assigning any reason. (3) the precise form of the tender notice shall be published in the newspaper in the following manner, namely;
(a) in the case of public works of estimated cost coming between rupees one lakh and rupees ten lakhs, in a newspaper having wide circulation in the Municipal area compulsorily and in other newspapers, if necessary, by giving not less than ten days time;
(b) In the case of public works of estimated cost coming between rupees ten lakhs and rupees fifty lakhs, in two Malayalam newspapers having circulation all over the State compulsorily and in other newspapers, if necessary, by giving not less than twenty days time;
) in the case of public works of estimated cost exceeding rupees fifty lakhs in two Malayalam dailies having circulation all over the State and in an English daily having circulation in national level compulsorily and in other dailies if necessary by giving not less than twenty days time".
W.P.(C)No.19310 OF 2009 7
8. Initially a notification was issued by the second respondent on 26.07.2008, inviting tenders for construction of the Fish Market, mentioned earlier in this judgment. The said notification came to be challenged by way of three Writ Petitions, (Writ Petition Nos. 27524 , 27639 and 29678 of 2008) which were disposed of by a common judgment dated 20.11.2008. From the judgment it appears that one of the grounds, on which the notification was challenged, is that the notification does not satisfy the stipulation contained in Rule 9(3)(c) of the above mentioned Rules. During the course of hearing of the above mentioned writ petitions, the second respondent agreed "to issue fresh notification inviting tenders in accordance with the rules". Therefore, it was directed as follows:
"The notification dated 26.07.2008 would stand cancelled. The 2nd respondent shall take further proceedings in the matter after publishing a fresh notification inviting tenders in two Malayalam dailies, namely, Mathrubhoomi and Malayala Manorama and in two English dailies, namely, New Indian Express and the Hindu. The notification in Malayalam dailies shall be in Malayalam and the notification in English dailies shall be in English. I further make it clear that the contentions W.P.(C)No.19310 OF 2009 8 of the petitioners are left open to be raised, if necessary, again".
9. One of the respondents to the said writ petitions carried the matter in appeal by way of W.A.No. 167 of 2009. By a short judgment, a Division Bench of this Court disposed of the matter. The judgment of the Division Bench reads as follows:
"Notification dated 26.07.2008 was cancelled by the impugned judgment and learned single Judge directed to issue fresh tender. It is submitted that fresh notification was published in accordance with the directions. In the above circumstances, no further interference is required in the matter. The notification was cancelled because as notification was published in English in Malayalam. Even after fresh tender was published, it is submitted that the writ petitioner did not participate in the fresh tender. Apprehension of the writ petitioner is that they will not be allowed to trade inside the premises. It is submitted by the appellant and the Municipality that they also will be allowed to do business in the fish market subject to conditions laid down for the use of the new building. Recording the above submission, the impugned judgment is set aside and the writ appeals are allowed.
W.P.(C)No.19310 OF 2009 9
10. It appears from the above order that when the matter was taken up by the Division Bench, a submission was made before this Court that a fresh notification was published in accordance with the directions given in the judgment under appeal. The Division Bench recorded that in the said circumstance, "no further interference is required in the matter". However, it is finally recorded that "the impugned judgment is set aside and the Writ Appeals are allowed".
11. We are constrained to say that it is rather difficult to reconcile the two statements mentioned above. But the fact remains that a submission was made that a notification in compliance with the judgment dated 20.11.2008 was published.
12. The instant writ petition is filed, as already mentioned, in public interest. The basic submission in the writ petition is that notwithstanding the statement recorded by the Division Bench in the judgment that the direction contained in the judgment dated 20.11.2008 regarding publication of the notification was complied with, neither the direction is complied with nor the requirement of Rule 9 of the Kerala Municipality W.P.(C)No.19310 OF 2009 10 (Execution of Public Works and purchase of materials) Rules, 1997, is satisfied. All that the second respondent did subsequent to the judgment dated 20.11.2008 is that he published another advertisement in the Malayala Manorama which is already extracted hereinbefore. A reading of the said notification would clearly demonstrate that no information as specified in Rule 9(2) of the above mentioned rules is contained in the said advertisement. Apart from that it is the specific case of the petitioner that no publication, as directed by this Court in the judgment dated 20.11.2008 or contemplated under Rule 9(3)
(c) was ever made. The second respondent proceeded with award of the contract in favour of the 4th respondent, pursuant to the advertisement made only in the Malayalam Manorama daily dated 03.02.2009. (Ext.P3).
13. The second respondent filed a counter affidavit in the Writ Petition. The stand of the Municipality regarding compliance of the directions issued in the judgment dated 20.11.2008 is contained in paragraph 3 of the counter affidavit. The relevant portion of paragraph 3 of the counter affidavit W.P.(C)No.19310 OF 2009 11 reads as follows:
"In fact, Ext. P2 judgment has been interfered by the Division Bench of this Honourable Court in Writ Appeal No.167 of 2009 and connected Writ Appeals and the judgment was set aside. By interim order dated 03.02.2009 in Writ Appeal No.167/2009, this Hon'ble Court was pleased to stay all further proceedings pursuant to Exhibit P2 judgment. Therefore, the Municipality has not proceeded further with the issue of the tender notification in the English dailies. The true copy of the judgment dated 26.2.2009 in Writ Appeal No.167 of 2009 is produced herewith and marked as Exhibit R2(a)."
14. In substance, the Municipality is of the opinion that in view of the last sentence in the judgment of the Division Bench that the appeals are allowed, the Municipality need not proceed with the publication of the tender notification, as directed by the learned single Judge. The Municipality while making such a submission obviously ignores the fact that in the same judgment it was recorded earlier that it was stated before the Division Bench that the requirement of publication, as directed in the judgment dated 20.11.2008 was already complied with. It is on the basis of the said statement, the W.P.(C)No.19310 OF 2009 12 Division Bench proceeded to examine the matter. The Municipality which is a party to the proceedings all through, in our opinion, is expected to bring the correct factual position to the notice of this Court. It not only failed to bring the correct facts to the notice of this Court, but now seeks to take shelter under a judgment obtained on a misrepresentation of facts to justify its failure to comply with the procedure stipulated by the statutory Rules. It is unfortunate that the judgment of the Division Bench is not clear as to at whose instance such a wrong statement of fact came to be recorded by the Division Bench. We must place on record that the role played by the Municipality is not far from doubt and certainly not in accordance with the standard expected of a public body discharging statutory functions.
15. The award of contract in favour of the 4th respondent herein is neither in accordance with the procedure prescribed under Rule 9(3)(c) of the abovementioned Rules nor is it in compliance with the directions of this Court recorded in the judgment dated 20.11.2008. Hence, we have no other option W.P.(C)No.19310 OF 2009 13 but to allow the instant Writ Petition, as prayed for.
16. It may also be necessary to place on record that during the pendency of the present Writ Petition, the second respondent, Municipality proceeded with the award of contract in favour of the 4th respondent. While admitting the instant Writ Petition, a Division Bench of the Court in its order dated 09.07.2009, observed as follows:
"Any steps for award of work for setting up of wholesale fish market at Kavungal Paramba will be subject to the result of the writ petition. "
17. In view of our conclusion that the Writ Petition is required to be allowed, we also deem it appropriate to make a further declaration that the award of contract in favour of the 4th respondent for the construction of the Fish Market in dispute is also required to be declared as illegal and is accordingly declared. I.A.No.4688 of 2010:(Application for impleading)
18. This application is filed by a Limited Company with the prayer as follows:
W.P.(C)No.19310 OF 2009 14 "For the reasons stated in the Original Petition and accompanying affidavit it is most humbly prayed that this Hon'ble Court may be pleased to implead the ICICI Kinfra Ltd. reptd. by its Managing Director, Thiruvananthapuram as additional 5th respondent in the above Writ Petition and all other connected petitions."
19. We notice from the application that it is defective and not in accordance with the requirement of the procedure, as the above mentioned Limited Company is shown to be respondent in the application. Apart from the procedural defect, neither any relief is sought against the said Company nor the Company established any need to implead it as a party to the proceedings having regard to the controversy involved. In the said circumstance, the I.A. is dismissed.
J. CHELAMESWAR, CHIEF JUSTICE.
P.R. RAMACHANDRA MENON, JUDGE.
Lk/vku.