Kerala High Court
K.P.Ahammedkutty vs State Of Kerala on 16 April, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 10TH DAY OF AUGUST 2017/19TH SRAVANA, 1939
WP(C).No. 2391 of 2017 (Y)
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PETITIONER(S):
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1. K.P.AHAMMEDKUTTY,
AGED 39 YEARS, S/O.AHMED HAJI,
RESIDING AT KODASSERY PARAMBIL HOUSE,
POST-NEELESWARAM, OMASSERY, KOZHIKODE DISTRICT.
2. P.P.IBRAHIM,
AED 63 YEARS, S/O.AHMEDKUTTY HAJI,
RESIDING AT PARAPPURATH HOUSE,
VENNACODE, MALAYAMMA, KOZHIKODE DISTRICT.
3. K.P.NARAYANAN,
AGED 55 YEARS, S/O.KRISHNANKUTTY NAIR,
RESIDING AT KALLIPURATH HOUSE,
MALAYAMMA, KOZHIKODE DISTRICT.
BY ADVS.SRI.V.V.SURENDRAN
SRI.P.A.HARISH
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY,
SECRETARIATE, THIRUVANANTHAPURAM.695001
2. THE LOCAL SELF GOVERNMENT DEPARTMENT
REPRESENTED BY ITS SECRETARY,
GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM.695001.
3. THE EXECUTIVE ENGINEER,
KOZHIKODE JILLA PANCHAYATH,
KOZHIKODE JILLA PANCHAYATH OFFICE,
CIVIL STATION, KOZHIKODE.673 020.
R1-R2 BY GOVERNMENT PLEADER SRI RAVIKRISHNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 10-08-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
K.V.
WP(C).No. 2391 of 2017 (Y)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF G.O.(ORD)NO.1320/10/LSGD DATED 16.4.2010.
EXHIBIT P2 TRUE COPY OF G.O.(ORD)NO.115/2011/LSGD DATED 12.1.11.
EXHIBIT P3 TRUE COPY OF THE INVOICE ISSUED BY SIDCO IN FAVOUR OF
THE 1ST PETITIONER.
EXHIBIT P4 TRUE COPY OF THE INVOICE ISSUED BY SIDCO IN FAVOUR OF
THE 1ST PETITIONER.
EXHIBIT P5 TRUE COPY OF THE INVOICE ISSUED BY SIDCO IN FAVOUR OF
THE 2ND PETITIONER.
EXHIBIT P6 TRUE COPY OF THE INVOICE ISSUED BY SIDCO IN FAVOUR OF
THE 2ND PETITIONER.
EXHIBIT P7 TRUE COPY OF THE INVOICE ISSUED BY SIDCO IN FAVOUR OF
THE 3RD PETITIONER.
EXHIBIT P8 TRUE COPY OF THE INVOICE ISSUED BY SIDCO IN FAVOUR OF
THE 3RD PETITIONER.
EXHIBIT P9 TRUE COPY OF THE INVOICE ISSUED BY SIDCO IN FAVOUR OF
THE 3RD PETITIONER.
EXHIBIT P10 TRUE COPY OF G.O.(ORD)NO.3299/2016/LSGD DATED 2.12.16.
EXHIBIT P11 TRUE COPY OF THE SELECTION NOTICE ISSUED TO THE
PETITIONER BY THE EXECUTIVE ENGINEER, DISTRICT
PANCHAYATH.
EXHIBIT P12 TRUE COPY OF THE LETTER OF REQUEST MADE BY THE
ASSISTANT ENGINEER CHATHAMANGALAM GRAMA PANCHAYATH TO
THE MANAGER, SIDCO, KOZHIKODE DEPOT DATED 28.11.2016.
EXHIBIT P13 TRUE COPY OF THE INVOICE DATED 16.1.2016, BY THE
SIDCO.
RESPONDENT(S)' EXHIBITS
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R2(A) TRUE COPY OF THE GO(MS) NO 289/07/LSGD
DATED 22.12.2007.
R2(B) TRUE COPY OF THE GO(MS) NO 122/08/LSGD
DATED 28.4.2008.
R2(C) TRUE COPY OF THE GO(MS) NO 275/08/LSGD
DATED 13.8.2008.
R2(D) TRUE COPY OF THE GO(MS) NO 111/09/LSGD
DATED 18.6.2009.
R2(E) TRUE COPY OF THE GO(MS) NO 115/11/LSGD DATED 12.1.2011.
/TRUE COPY/
K.V. P.S.TO JUDGE
K. VINOD CHANDRAN, J.
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W.P.(C) No. 2391 of 2017 (Y)
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Dated: 10th August, 2017
J U D G M E N T
The petitioners are aggrieved with Ext.P10 order passed by the Government. The petitioners are small time contractors who apply and tender their estimate; under notifications issued by the Local Self Government Institutions (LSGI) inter alia for tarring work of the roads within the Panchayat area.
2. The issue agitated before this Court is the purchase of bitumen which has been regulated by the Government over the years. Exts.P1, P2 and P10 orders are produced by the petitioner. Ext.P1 & P2 are orders enabling the LSGI's to purchase bitumen directly from the petroleum companies and also from SIDCO, of quantity less than ten tons. Ext.P10 is a modification W.P.(C) No. 2391/2017 -2- brought to the aforesaid Circulars, which interdicted the purchase of bitumen by the LSGI's through intermediaries. It was specifically ordered in Ext.P10 that when LSGI's purchase bitumen from Government/ Semi-Government/Government approved organisations, the purchase shall only be from manufactures of bitumen and not through intermediaries. Effectively, the purchase permitted from SIDCO was prohibited by Ext.P10.
3. The petitioners, small time contractors who are regularly engaged in the work of tarring roads purchase bitumen of varying quantities and stock it, especially since the price of bitumen varies during the seasons. The purchases are also made through SIDCO. The petitioners having been awarded works as tendered by the LSGI's, are aggrieved with the fact that the Engineers who have to certify their work and sanction W.P.(C) No. 2391/2017 -3- the bills; refuse to approve the purchase of bitumen, from SIDCO. The stand taken by the Engineers is that procurement of bitumen for any work entrusted by the LSGI's has to be from the manufacturer itself and not through any intermediary, not even SIDCO.
4. The Government has filed a detailed counter affidavit producing the various orders issued over the years. It is also pointed out that the attempt of the Government was to ensure that public money is not wasted by involving intermediaries and thus mulcting the LSGI with the additional liability of compensating the intermediary also from public funds. It is hence, the manufacturers are to be approached directly for purchase in the event of the purchase being made without tenders. The State also seeks for dismissal of the writ petition, agreeing with the interpretation placed on Ext.P10 order by the Engineers, as stated by W.P.(C) No. 2391/2017 -4- the petitioners before this Court.
5. This Court is not inclined to interfere with Ext.P10 order but the interpretation placed on it is totally perverse and misplaced. What was intended by the impugned order was only to restrict direct purchases without tenders from the manufacturers, being the Government/ Semi Government /Government approved organisations. The restriction is applicable, only if it is a direct purchase and when tender proceedings are not resorted to. Hence when the LSGI's adopt tendering process then, even if it is for mere purchase of bitumen, there is no mandate to allow participation of only manufacturers. The attempt of the impugned order is to prevent purchases from intermediaries, without inviting competitive tenders. This is to ensure the best deal in purchases effected and avoid criticism of wastage of public money. W.P.(C) No. 2391/2017 -5-
6. In this context it is also to be noticed that SIDCO itself, which acted as an intermediary is a fully owned Government Company and it is very strange that the Government has thought it fit to exclude even that Company from the purchases. However, that is the policy of the Government, the reasonableness of which will not be examined by this Court. The net effect of the impugned order only is that the LSGI's when purchasing bitumen by themselves without floating tenders would be obliged to, buy it from the manufacturers themselves. When the LSGI's tender the work and the contractor has the responsibility of procuring bitumen also, which expenditure is included in the bid amount, then there could be no restriction placed on the use of such bitumen purchased by the Contractor coming within the quoted rate. The purchase cannot be directed to be made directly from W.P.(C) No. 2391/2017 -6- the Petroleum Companies.
7. The general purport of the Government Orders, as produced in the writ petition and the counter affidavit is to ensure that small time contractors are not put to difficulty especially for reason of the purchase from the manufacturer, has to be effected either from Kochi or Mangalapuram. Small quantities cannot be purchased independently and it is hence large quantities are purchased through intermediaries. When small quantities are purchased by the Contractors from such intermediaries, including the SIDCO which expenditure is included in the total contract amount, then there could be no restriction placed on the sanction of such amounts. Ext.P10 is clarified to the above extent. The Secretary of the Local Self Government Department, the 2nd respondent, is directed to issue necessary instructions to the LSGI's W.P.(C) No. 2391/2017 -7- and the Engineers attached to the Institutions, in consonance with the observations made herein above. The bills submitted by the petitioners before the 3rd respondent shall be considered in accordance with the directions herein above.
The writ petition is allowed. No Costs.
Sd/-
K.VINOD CHANDRAN, JUDGE jjj 10/8/17