Kerala High Court
Kalloor Electronics And Lightings Pvt. ... vs State Of Kerala on 20 October, 2021
Author: T.R.Ravi
Bench: T.R.Ravi
W.P.(C)Nos.3490 & 5045 OF 2021 1
"CR"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
WP(C) NO. 3490 OF 2021
PETITIONERS:
1 KALLOOR ELECTRONICS AND LIGHTINGS PVT. LTD.
MUNDAKKAYAM, KOTTAYAM REPRESENTED BY ITS MANAGING
DIRECTOR JACOB K JACOB, S/O. JACOB, AGED 36
YEARS,KALLOOR HOUSE, MUNDAKKAYAM P.O,KOTTAYAM 686 513
2 ALLUMMINA ELECTRONICS,
KAKKADAMPOYIL, MALAPPURAM - 673 604
REPRESENTED BY ITS PROPRIETOR RASHAD E.K, AGED 26,
S/O. RASHEEED E.K., RASHY VEEDU, CHUNGAM, FEROKE,
KOZHIKODE 673 631
3 TRANSFORM ELECTRICAL INDUSTRIES,
DOOR NO.V/774-A, NORTH KALAMASSERY, ERNAKULAM-683104
REPRESENTED BY ITS CEO KIRAN P.P, AGED 31, S/O. P.K
PRAKASAN, PALLATH HOUSE, P.O PERINJANAM,THRISSUR 680
686
4 QUALITY SERVICE SYSTEMS,
KOOTANAD, PALAKKAD 679 533
REPRESENTED BY ITS MANAGING PARTNER, SULFIKHAR S, AGED
38, S/O. SUBAIR KUNJU, SUDHEER MANZIL,THANNIMOODU,
IRINCHAYAM P.O, NEDUMANGAD, THIRUVANANTHAPURAM 695 561
5 CENTRUM TECHNOLOGIES
REPRESENTED BY ITS MANAGING PARTNER, JAYESH
GANGADHARAN, AGED 34, S/O. GANGADHARAN, THATTEKKADU
HOUSE,NETTOR, MARADU, ERNAKULAM 682 040
6 COOLUX ELECTRICALS INDIA PVT LTD.,
REPRESENTED BY ITS MANAGING DIRECTOR, SUNNY JACOB
CHERIAN, AGED 62, S/O. CHERIAN, ARTHUNKAL
HOUSE,THRIKKLATHUR P.O, KEEZHILLAM,ALUVA, ERNAKULAM
683 541
BY ADVS.
SRI P.B.KRISHNAN
SRI.P.B.SUBRAMANYAN
SRI SABU GEORGE
SRI.MANU VYASAN PETER
W.P.(C)Nos.3490 & 5045 OF 2021 2
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT
DEPARTMENT, SECREETARIAT, THIRUVANANTHAPURAM 695 001
2 THE KERALA STATE ELECTRICITY BOARD LTD,
CORPORATE OFFICE (COMMERCIAL AND PLANNING), VYDYUTHI
BHAVANAM, PATTOM, THIRUVANANTHAPURAM - 695 004
REPRESENTED BY ITS SECRETARY
3 THE CHIEF ENGINEER (DISTRIBUTION),
VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004
4 ENERGY EFFICIENCY SERVICES LIMITED (EESL),
NFL BUILDING, 5TH & 6TH FLOOR, CORE-III, SCOPE
COMPLEX, LPDHI ROAD, NEW DELHI-110 003, REPRESENTED
BY ITS DIRECTOR
5 ENERGY EFFICIENCY SERVICES LIMITED (EESL)
TC-12/15(3), FIRST FLOOR ABOVE VIVO SERVICE CENTER,
PLAMOODU, PMG ROAD, PATTOM, TRIVANDRUM 695 004
REPRESENTED BY STATE HEAD (GROWTH & LIGHTING)
6 KERALA INFRASTRUCTURE INVESTMENT FUND BOARD (KIIFB)
2ND FLOOR, FELICITY SQUARE, MG ROAD, STATUE,
THIRUVANANTHAPURAM 695 001
REPRESENTED BY ITS CHAIRMAN.
BY ADVS.
R1 SRI K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL
SRI V.MANU, SR.GOVERNMENT PLEADER
R2 & R3 BY SRI.SUDHEER GANESH KUMAR.R.
SRI.B.PREMOD
R4 & R5 BY SRI.VINOD.V (EDAPPUNATHIL)
R6 BY SRI V.G.ARUN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.10.2021, ALONG WITH WP(C).5045/2021, THE COURT ON
20.10.2021 DELIVERED THE FOLLOWING:
W.P.(C)Nos.3490 & 5045 OF 2021 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
WP(C) NO. 5045 OF 2021
PETITIONER:
PMR LIGHTING INDUSTRIES (INDIA) PVT. LTD.
HAVING REGISTERED OFFICE AT MARATH HOUSE,
NAGALASSERY, PALAKKAD-679 533, REPRESENTED BY ITS
DIRECTOR, PRADEEP P.V.
BY ADVS.
S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.R.GITHESH
SRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SRI.SACHIN JACOB AMBAT
SHRI.HARIKRISHNAN S.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001
2 THE KERALA STATE ELECTRICITY BOARD LTD.,
CORPORATE OFFICE (COMMERCIAL AND PLANNING), VYDYUTHI
BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004,
REPRESENTED BY ITS SECRETARY.
3 THE CHIEF ENGINEER (DISTRIBUTION),
VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695
004
4 ENERGY EFFICIENCY SERVICES LIMITED (EESL),
NFL BUILDING, 5TH AND 6TH FLOOR, CORE III, SCOPE
COMPLEX, LODHI ROAD, NEW DELHI-110 003 REPRESENTED
BY ITS DIRECTOR.
5 ENERGY EFFICIENCY SERVICES LIMITED (EESL),
TC-12/15(3), FIRST FLOOR ABOVE VIVO SERVICE CENTER,
W.P.(C)Nos.3490 & 5045 OF 2021 4
PLAMOODU-PMG ROAD, PATTOM, TRIVANDRUM-695 004,
REPRESENTED BY STATE HEAD (GROWTH AND LIGHTING).
6 KERALA INFRASTRUCTURE INVESTMENT FUND BOARD (KIIFB),
2ND FLOOR, FELICITY SQUARE, MG ROAD, STATUE,
THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS
CHAIRMAN.
7 UNION OF INDIA,
REPRESENTED BY THE SECRETARY, MINISTRY OF MICRO,
MEDIUM AND SMALL ENTERPRISES, UDYOG BHAWAN, RAFI
MARG, NEW DELHI-110 011
BY ADVS.
R1 BY SRI K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL
SRI V.MANU, SR.GOVERNMENT PLEADER
SRI.SUDHEER GANESH KUMAR.R., FOR R2 & R3
SRI.B.PREMOD
SRI.VINOD.V (EDAPPUNATHIL), FOR R4 & R5
R6 BY SRI V.G.ARUN
B.PRAMOD, CGC, FOR R7
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 08.10.2021, ALONG WITH WP(C).3490/2021, THE COURT ON
20.10.2021 DELIVERED THE FOLLOWING:
W.P.(C)Nos.3490 & 5045 OF 2021 5
"CR"
T.R.RAVI, J.
-----------------------------
W.P.(C)Nos.3490 & 5045 OF 2021
-------------------------------
Dated this the 20th day of October, 2021
JUDGMENT
The petitioners in the above two writ petitions are Micro, Small and Medium Enterprises (hereinafter referred to as MSME). The petitioners are aggrieved by the implementation of the "Nilaavu" project by the respondents and the procuring of LED bulbs and other allied fixtures and fittings for street lighting in Local Self Government Institutions (LSGI for short) from agencies other than the petitioners and similarly placed MSMEs in the State. The project aims at replacing the conventional street lighting in all the LSGIs with LED lamps and the KSEB Ltd. was to be the special purpose vehicle for the project and the procurement of LED lights is to be through the 4th respondent. The issues involved in the writ petitions and the prayers made are similar and the writ petitions are being heard and disposed of together. The reference to Exhibits is, unless specified otherwise, as they appear in W.P.(C) No.5045 of 2021.
2. On 06.03.2014, the 1st respondent issued Exhibit P27 W.P.(C)Nos.3490 & 5045 OF 2021 6 order whereby it was decided to replace the existing streetlights in the Municipalities in Kerala by LED lights, under a project called "Nagarajyothi". A committee was formed to study and prepare a project report after discussion with the LSGI. By Exhibit P2 order dated 02.03.2015, sanction was accorded to Kerala Rural Employment and Welfare Society (hereinafter referred to as KREWS) for establishing a street light manufacturing, assembling and marketing unit in Kasargode district with public-private partnership mode. Pursuant to Exhibit P2, an agreement was entered into between KREWS and the petitioner in W.P.(C) No.5045 of 2021. It can be seen from the agreement that the proprietor of M/s.Usha Electronic Systems who was the main promoter of the 1 st petitioner in W.P.(C) No.5045 of 2021 had submitted an "expression of interest" on 03.04.2015 for entering into the public-private partnership agreement and they were pre-qualified and selected by the Board of Directors of KREWS for the project. It was further decided that the private participant and KREWS shall form a special purpose vehicle in the form of a private limited company to be incorporated under the Companies Act, 2013. Kerala Gramajyothi Lighting Private Limited was formed pursuant to the agreement. In W.P.(C)No.3490 of 2021, there are six petitioners who had got W.P.(C)Nos.3490 & 5045 OF 2021 7 registration as MSME and commenced production during the years 2012, 2015, 2018, 2017, 2019 and 2020, respectively. A LITTLE HISTORY
3. On 30.01.2009 the Store Purchase Department (SPD for short) of the 1st respondent issued a circular which is marked as Ext.P11 in W.P.(C)No.3490 of 2021. The Circular notices the fact that though the Store Purchase Manual (hereinafter referred to as SPM) required that electrical fittings are to be procured from the small industries alone, the purchasing officers of some LSGI and other Government institutions are refusing to buy such items from the small industries. It was also noticed that in violation of the requirements in the SPM, tenders were being floated showing brand names of products. After noticing the above aspects, the Circular directs that when purchases are made on behalf of the Government or its agencies, the items which have been reserved in favour of small industries under Appendix 28 of the SPM shall be purchased only from such industries. It is further ordered that the responsibility to ensure the quality and to standardise the price throughout the State shall be on SIDCO. On 23.03.2012, Exhibit P6 order was issued by the Ministry of Micro, Small and Medium Enterprises, Government of India. The order is issued in exercise of the powers W.P.(C)Nos.3490 & 5045 OF 2021 8 conferred in Section 11 of the Micro, Small and Medium Enterprises Development Act, 2006, notifying the "Public Procurement Policy for Micro and Small Enterprises (MSEs) Order, 2012" in respect of procurement of goods and services, produced and provided by Micro and Small Enterprises, by the Central Ministries, Departments and Public Sector Undertakings. Paragraph 3(1) of Exhibit P6 states that every Central Ministry or Department or Public Sector Undertaking shall set an annual goal of procurement from MSME from the financial year 2012-13, with the objective of achieving an overall procurement of a minimum of 20% of total annual purchases of products produced and services rendered by MSME in a period of 3 years. Paragraph 3(3) says that after the period of 3 years, i.e., from 01.04.2015, overall procurement goal of minimum of 20% shall be made mandatory. Paragraph 11 of Ext.P6 says that to enable wider dispersal of enterprises in the country, particularly in rural areas, the Central Government Ministries, Departments and Public Sector Undertakings shall continue to procure from MSME, the 358 items shown in the appendix, which have been reserved for exclusive purchase from MSME. This was expected to help in the promotion and growth of MSME including Khadi and Village Industries, which play a critical role in fostering inclusive growth in W.P.(C)Nos.3490 & 5045 OF 2021 9 the country. Item 287 in the list of 358 items is "street light fittings". Since most of the disputes involved in the writ petitions are centered around the understanding of Paragraph 11, the same is extracted for easy reference:
"11. Reservation of specific items for procurement: To enable wider dispersal of enterprises in the country, particularly in rural areas, the Central Government Ministries or Departments or Public Sector Undertakings shall continue to procure 358 items (Appendix) from Micro and Small Enterprises, which have been reserved for exclusive purchase from them. This will help in promotion and growth of Micro and Small Enterprises, including Khadi and village industries, which play a critical role in fostering inclusive growth in the country."
4. On 21.06.2013, the Government of Kerala revised the SPM, as can be seen from Exhibits P9 and P10. Annexure 19 of the SPM is the list of items reserved for exclusive purchase from the MSME. Item 368 in the said list is "street light fittings". Soon thereafter, by G.O.(P)No.546/2013/Fin. dated 07.11.2013, Ext.P6 Public Procurement Policy was extended to the MSMEs registered in Kerala (See Ext.P8). It can thus be seen that the MSMEs were enjoying certain reservations regarding purchases by the Government and Governmental agencies, both Central as well as State. As a matter of fact, such reservations were available in the State of Kerala even prior to Ext.P6. However, Annexure 19 of the Stores Purchase Manual was later deleted as per Ext.R1(a) order W.P.(C)Nos.3490 & 5045 OF 2021 10 G.O.(P)No.5/19/SPD dated 08.4.2019 and the items that were included in Annexure 19 have been included in Annexure 4, which is a list of stores usually ordered.
5. On 9.11.2018, the Central Government amended Ext.P6 Procurement Policy for MSMEs, whereby it is ordered that wherever the figure and word 20% appears it shall be substituted by 25%. Paragraph 4A was inserted, which said that out of the total annual procurement from micro and small enterprises, 3% from within the 25% target shall be earmarked for procurement from micro and small enterprises owned by women. It is to be noted that paragraph 11 of the order was not amended and it was retained. On 04.06.2020, the Government of India in the Department of Promotion of Industry and Internal Trade issued orders, whereby the revised Public Procurement (Preference to Make in India) Order, 2017, was issued. The Government order is produced as Exhibit P7. Ext.P7, as the title suggests, is intended to give preference to goods manufactured in India in the matter of public procurement. With the above purpose in mind, the order categorises local suppliers as Class I and Class II, depending on the local content involved. "Local content" has been defined to mean the amount of value added in India which shall, unless otherwise prescribed by the Nodal Ministry, W.P.(C)Nos.3490 & 5045 OF 2021 11 be the total value of the item procured (excluding net domestic indirect taxes) minus the value of imported content in the item (including all customs duties) as a proportion to the total value, in percent. Class I local suppliers are suppliers or service providers whose goods, services or works offered for procurement, has local content equal to or more than 50%. In cases where the local content is more than 20%, but less than 50%, the supplier is categorised as Class II local supplier. As per paragraph 3(a) of the order, wherever the Nodal Ministry/Department has communicated that there is sufficient local capacity and local competition, only Class I local supplier shall be eligible to bid irrespective of the purchase value. Paragraph 3(b) says that in the procurement of all goods, services or works, not covered by sub-paragraph 3(a) and with the estimated value of purchases less than ₹200 crore, in accordance with Rule 161(iv) of General Financial Rules (GFRs), 2017, global tender enquiry shall not be issued except with the approval of competent authority as designated by Department of Expenditure. It says that only Class I local supplier and Class II local supplier shall be eligible to bid on procurement undertaken by procuring entities, except when global tender enquiry has been issued. Paragraph 3A says that purchase preference should be given W.P.(C)Nos.3490 & 5045 OF 2021 12 for the entire quantity tendered, to Class I local supplier on procurements undertaken by procuring entities where their bid is the lowest. Regarding bids which are divisible in nature, if the Class I local supplier is not the lowest bidder, contract for 50% of the ordered quantities is to be awarded to the lowest bidder. Regarding the balance 50%, the lowest bidder among the Class I local suppliers, should be invited to match the price offered by the lowest bidder and if the price matches, he can be awarded the contract for such balance 50%. Regarding bids which are not divisible in nature, if the Class I local supplier is the lowest bidder, he will be awarded the contract. If the Class I local supplier is not the lowest bidder, he has to be invited to match the lowest price offered and if he matches the price, he will be offered the contract. If the lowest eligible Class I local supplier fails to match the lowest price, the Class I local supplier with the next higher bid shall be invited to match the lowest price and so on, and the contract will be awarded accordingly. If none of the Class I local suppliers match the price, the contract will be awarded to the lowest bidder. Class II local supplier will not get preference in any procurement undertaken by the political procuring entities. Later, on 23.07.2020, the Department of Expenditure of the Central Government issued Public Procurement Order No.1, which W.P.(C)Nos.3490 & 5045 OF 2021 13 deals with certain restrictions under Rule 144((xi) of the General Financial Rules (GFRs), 2017. The 4 th respondent has produced the above order, to contend that the restrictions will not apply to projects, which receives international funding. The order says that the procurement guidelines applicable to the project shall normally be followed. On 18.09.2020, the Government of Kerala issued Ext.P8 order, on the basis of Ext.P7 order issued by the Central Government. The order says that the new procurement policy of the State will consist of the Price and Purchase Preferences with respect to the products procured from MSMEs/State PSUs and that the order supersedes all the previous orders. Ext.P8 order proceeds as if it is extending a huge benefit to the MSMEs which was not otherwise available but it however, does not consider the fact that Ext.P6 order was still in force as amended in 2018 and the fact that Ext.P7 is not an order repealing Ext.P6 order. The fact that Ext.P6 order was still in force is affirmed by another amendment of Ext.P6 effected recently on 11.08.2021, whereby paragraph 3(1) of the Order was omitted, apparently since it is no longer relevant after 2015. The amendment also substituted paragraph 7 by a new paragraph which directs the Central Ministries or Departments or PSUs to take steps to develop appropriate vendors by organising Vendor Development W.P.(C)Nos.3490 & 5045 OF 2021 14 Programmes, etc. STREET LIGHTING - ANALYSIS OF THE STREET LIGHTING NATIONAL PROGRAMME (SLNP) OF CENTRAL GOVERNMENT AND "NAGARAJYOTHI" AND "NILAAVU" PROJECTS OF THE STATE GOVERNMENT
6. The Hon'ble Prime Minister of India launched the National LED Programme on 05.01.2015 for promoting energy efficiency in the country. There are two components to the programme viz., Domestic Efficient Lighting Programme (DELP for short) and the Street Lighting National Programme (SLNP for short). The aim of SLNP is stated to be to cut down the cost of street lighting, reduce the carbon output and mercury pollution. SLNP was launched with the aim to replace 3.5 crore conventional street lights with LED lights and it visualises an energy saving of 900 crore units, which when converted to monetary value would result in cost savings of ₹5,500 crores for the Municipalities. The declared objective of SLNP is enhanced public lighting, public safety, energy conservation, savings in Electricity bill and maintenance cost for public lighting and environment protection by reducing carbon dioxide emission and mercury ingression on earth. The 4th respondent is the implementing agency for the SLNP. On 14.01.2015, the Government of India addressed the Chief Secretaries of all the States and the Union W.P.(C)Nos.3490 & 5045 OF 2021 15 Territories informing about the launch of SLNP. The letter says that the 4th respondent which is the implementing agency, offers innovative business model to Municipalities and to electrical distribution companies, in which the 4 th respondent invests all the capital upfront without any need for investment by electricity distribution companies or Municipalities and that the amounts need be paid back only over a period of time from energy and cost savings that accrue as a result of the installation of energy efficient LED lights. The petitioners point out that the above feature is a significant feature of SLNP.
7. A few months prior to the launching of the SLNP, the Government of Kerala had issued Ext.P27 order on 06.03.2014, whereby it was decided to replace the existing streetlights in the Municipalities in Kerala by LED lights, under a project called "Nagarajyothi". A committee was formed to study and prepare a project report after discussion with the LSGI. It was after the SLNP was launched, that by Exhibit P2 order dated 02.03.2015, sanction was accorded to KREWS to establish a street light manufacturing, assembling and marketing unit in Kasargode district with public- private partnership mode. While so, the Alappuzha Municipality appears to have entered into an agreement with KSEB as can be W.P.(C)Nos.3490 & 5045 OF 2021 16 seen from Ext.P18 in W.P.(C)No.3490/2021, whereby the replacement of conventional street lighting with LED lights was undertaken through the 4th respondent. It can be seen from the agreement that the cost is met by the 4 th respondent initially and the payment is made by the Municipality to KSEB in instalments, from out of the savings in energy consumption.
8. The project "Nagarajyothi" appears to have been proceeded with even after the launch of SLNP. The petitioner in W.P. (C)No.5045 of 2021 was incorporated on 08.06.2015 and on 17.06.2015, Ext.P3 public-private partnership agreement was entered into between the said petitioner and the KREWS. Soon thereafter the Kerala Gramajyothi Lighting Pvt.Ltd. (KGL for short) was incorporated on 30.07.2015 as envisaged in Ext.P3 agreement and the said company was registered as MSME as seen from Ext.P5 Udyog Aadhaar dated 04.12.2015. After the formation of KGL, the Government issued Ext.P28 order whereby the KSUDP was entrusted with the duty of identifying the person to implement the "Nagarajyothi" project, through competitive bidding.
9. Another simultaneous development was the launching of the Ujwal Discom Assurance Yojana (UDAY for short), by the Central Government on 20.11.2015 as per Ext.P29. In the counter affidavit W.P.(C)Nos.3490 & 5045 OF 2021 17 filed on behalf of the KSEB, it is stated that pursuant to the above Central Government scheme, on 02.03.2017, a tripartite agreement was entered into between the Ministry of Power, Government of India, the State of Kerala and the KSEB, whereby the Government of Kerala was to replace the street lights in all Municipal towns with LED, through the City Municipal Corporations/Town Municipalities. A reading of Ext.P29 would show that the object of the UDAY scheme was to bring about a financial turn around of the Power Distribution Companies in the States referred to as State DISCOMs. Replacement of conventional street lights with LED lights is not the main aspect that comes within the purview of UDAY scheme.
10. On 13.01.2016, the Secretary, Ministry of Power, Government of India, wrote Ext.R4B letter to the Secretary, Ministry of Urban Development, referring to the infrastructure review meeting held by the Hon'ble Prime Minister on 09.11.2015, and requesting that as per the decision taken at the review meeting, steps may be taken to implement the LED programme in all the 98 smart cities. It would appear that the SLNP scheme was being implemented in some of the States through the 4 th respondent, as per their business module. Ext.P26 dated 28.10.2016 shows that the State of Telengana had accorded sanction to all the Urban Local W.P.(C)Nos.3490 & 5045 OF 2021 18 Bodies (ULBs) in the State for implementation of the Energy conservation and efficiency measures, by entering into agreements with the 4th respondent. However, as far as the State of Kerala is concerned, it would appear that the Government had decided to continue with the "Nagarajyothi" project which was announced earlier. On 05.04.2017, the Government issued Ext.P19 order, granting permission to all the LSGIs to directly purchase the electrical equipments manufactured by KGL, which is stated to be a sister concern of the KREWS. As there was no compulsion to either adopt the SLNP scheme or the Nagarajyothi Scheme, the LSGIs which had the responsibility of ensuring street lighting as per the Municipalities Act and the Kerala Panchayat Raj Act, were carrying out their responsibilities as per their individual decisions. This can be seen from Ext.P19 order dated 12.12.2018 (produced in W.P. (C)No.3490/2021) issued by the Government permitting the Kollam Municipal Corporation to implement their proposal to replace the conventional lighting with LED lighting through "e-Smart Solutions Pvt.Ltd." whose proposal was found to be best suited.
11. An issue regarding the implementation of SLNP was raised in the Lok Sabha through starred question No.338. The questions and its answers given on 03.1.02019, is produced as W.P.(C)Nos.3490 & 5045 OF 2021 19 Exhibit P21 in W.P. (C) No.3490 of 2011. The specific questions asked were whether the Government is implementing the SLNP, whether it is currently implemented only in a few selected States, the details of the Local Bodies which have entered into contract with the 4th respondent for replacement of street lights with LED lights and whether the Government has made any study on the implementation of the project. In answer, it is stated that SLNP is a voluntary program, which runs without any budgetary support of the Government of India and the entire investment in supply, installation and maintenance of LED lights is made by the 4th respondent. It is stated that payment to the 4th respondent is made by the ULBs from the resultant savings achieved in terms of reductions in electricity bills and maintenance cost in respect of the streetlights covered under the program over a period of 7 years. It is also stated that the program has been implemented in all the ULBs of 13 States and one Union Territory and partially in the 11 other States and three Union Territories. It is seen from the answer that as far as Kerala is concerned, only four ULBs had signed agreements with the 4 th respondent and a total of 38,301 LED streetlights had been installed till then. Ten months later, the issue was again raised before the Lok Sabha through Starred Question 1677 for which answers were given W.P.(C)Nos.3490 & 5045 OF 2021 20 on 28.11.2019. It is stated in the answer, which is available in Exhibit P22 in W.P.(C)3490 of 2021, that the 4 th respondent had installed over 1.02 crore LED streetlights across the country. It is further stated that the program is voluntary and runs without any budgetary support from the Government of India and that entire upfront investment is made by the 4th respondent.
12. On 19.04.2020, the 4th respondent issued Exhibit P25 tender notification. The title of the contract is "Design Manufacture Testing Supply & 7 Years Warranty of 1.9 Million LED Street Lights and other related works at Telengana Gram Panchayat and other various location at PAN India under SLNP". Evidently, it is a global tender. Instruction No.ITB 21.1 issued to the bidders, says about the amounts to be furnished as bid security for Lot Nos.1 to 5. Lot No.1 is described as Gujarat, Punjab, Uttar Pradesh and Uttarakhand. Lot No.2 is described as West Bengal, Jharkhand, Bihar and Delhi. Lot Nos.3, 4 and 5 are all described as different Grama Panchayats in Telengana, totalling to 32. None of the Lots relate to Kerala. The contractual experience that is required for being eligible to bid is that the bidder should have a minimum capacity for manufacturing 2500 LED streetlights per day, irrespective of wattages in BOQ. It is also stated in paragraph 2.3.2 that the average annual turnover of W.P.(C)Nos.3490 & 5045 OF 2021 21 the bidder in the preceding 3 financial years with regard to the different lots should be around ₹83 crores. There are disputes regarding the scope of Exhibit P25 tender notification, which will be dealt with later.
IMPLEMENTATION OF "NILAAVU" PROJECT
13. In June 2020, the 4th respondent submitted a proposal to the KSEB for implementation of LED streetlights project in the State of Kerala. Paragraph 6 of the proposal says that after receiving the order from the KSEB, the 4th respondent shall, procure the lights as per the public procurement guidelines and the policy approved by its Board of Directors, shall prepare the tender document, hold pre-bid meetings, evaluate the tender, issue the LoA to the successful bidder, etc. It is stated that in order to enhance the transparency of the procurements, the 4 th respondent proposes to include a representative of the KSEB as a member in the tender preparation, evaluation and finalisation committee of the 4th respondent. The technical specification of the lights is to be determined jointly by the 4 th respondent and the KSEB as per the best industry practice (emphasis supplied). Paragraph 10 of the proposal says that 50% of the cost of supply of LED streetlights is to be paid by the KSEB after signing an W.P.(C)Nos.3490 & 5045 OF 2021 22 agreement with the 4th respondent/issuance of LoA to the 4 th respondent and that the balance 50% is to be paid by the KSEB on pro rata basis after supply of LED streetlights as per the delivery schedule. It further says that the Project Management Consultancy (PMC for short) charges payable to the 4th respondent would be 5% of the total project cost, out of which 72% payment is to be paid by KSEB on pro rata basis after supply of LED streetlights and the balance 28% is to be paid annually in the next 7 years. The estimated quantity is 6,50,000 lights and the basic price per unit estimated is ₹450/-. The total price would thus come to ₹29,25,00,000/-. The proposal also deals with the other components for installation. Finally, the proposal arrives at a total estimated cost of ₹107,05,50,000/- and PMC charges of ₹5,35,27,500/-. The proposal specifically says that the financial commitment is calculated based on the cost of LED streetlights procured through the previous tenders and shall be revised based on actual price discovered through EESL bidding process.
14. Thereafter, Ext.P11 order was issued on 10.08.2020, wherein it is stated that the Government of Kerala intends to include a project to be named "Nilaavu", which is envisaged for reducing the power consumption of the LSGIs and for reducing the environmental W.P.(C)Nos.3490 & 5045 OF 2021 23 impact by replacing the conventional lights with LEDs, in the 12 point priority programmes of the Hon'ble Chief Minister of Kerala, and implement it. The order details the manner in which the project is to be given effect to. It says that each LSGI can join by depositing the project cost, according to their requirement, including the cost of LED lamps and fixtures with one year AMC upfront with KSEB.
15. The KSEB is stated to have prepared the DPR on behalf of the LSG Department and forwarded the same to the Department on 30.11.2020. On 22.12.2020, the KSEB is stated to have designated the Chief Engineer (DS) as the State Nodal Officer with responsibilities to procure street lights and fixtures for "Nilaavu" Scheme. It is claimed that the KSEB through its Chief Engineer, had placed Ext.R4I letter of intent with the 4 th respondent on 24.12.2020, for supply of 2 lakh LED lights and fixtures for implementation of phase 1 of the project. The above facts are seriously disputed by the petitioners, since at that point of time, the project itself was in a fluid state and no decision had been taken by the Government to implement the "Nilaavu" project. (emphasis supplied)
16. The decision for implementation of the "Nilaavu" project W.P.(C)Nos.3490 & 5045 OF 2021 24 was taken by the Cabinet of the State of Kerala only on 24.12.2020. This was followed by Ext.P12 Government order dated 25.12.2020, which is claimed to be in line with the SLNP launched on 05.01.2015. According to the respondents, "Nilaavu" project is being implemented by the Government of Kerala with KSEB as its Nodal Agency, as a part of implementing SLNP in the State. The petitioners are disputing the contention of the respondents that the "Nilaavu" project is part of the SLNP. The details of the dispute have been stated in later paragraphs.
17. The 4th respondent is to be the project management consultant for the "Nilaavu" project and the project cost was estimated as ₹289.82 crores, which was to be met by KIIFB initially, and repayable by the LSGI over a period of 7 years. Under the project the KSEB Ltd. is permitted to purchase LED lighting and connected equipments from the 4 th respondent. The project thus envisaged is different from the business model of SLNP and also the project proposal submitted by the 4th respondent in June,2020.
18. On 13.12.2020, the 4 th respondent issued a tender notification. The notice inviting the tender is produced as Exhibit R2(b)/R1(b). The tender description is "Design, Manufacture, Testing, Supply, including Transportation, loading-unloading of the W.P.(C)Nos.3490 & 5045 OF 2021 25 IDC material suitable to LED Street Lights "Nilaavu" project in the State of Kerala under SLNP". The tender document is produced as Exhibit R4D by the 4th respondent in the counter affidavit. Neither the tender notification nor the bid document deal with supply of LED lights. Curiously, in the counter affidavit, the 4 th respondent has chosen to describe Exhibit R4D as a tender for procurement of LED streetlights. Other than Exhibit P25, no other tender notification dealing with supply of LED lights have been produced by the respondents.
19. On 07.01.2021, Exhibit P13 order was issued in clarification of Exhibit P12 order. One of the clarifications is that PMC charge of 2% will be payable to the 4 th respondent. Another clarification is regarding replacement of lights during the period of warranty. Along with the clarification, the order also contains guidelines for implementation of the "Nilaavu" project. It can be seen from Ext.P13 that the KIIFB will be funding the project, the cost of which is estimated as ₹28,982.91 lakhs. It says that 80% of the amount will be given as advance to the 4 th respondent and the balance 20% will be paid in 7 years. The order further says that the amounts deducted at source from the development fund of the LSGIs by the finance department will be the amount which is paid W.P.(C)Nos.3490 & 5045 OF 2021 26 every year to the KIIFB.
20. On 08.01.2021, the Deputy Director of Panchayats wrote to the Secretaries of all the Grama panchayats, stating that the Grama Panchayats should hold an emergency committee meeting on 11.01.2021 and decide to implement the "Nilaavu" project and select one among the 5 packages which are appropriate for the Panchayat. On 23.01.2021, the KSEB issued Exhibit P14 circular regarding the implementation of the project, which contains certain guidelines that are to be followed by the LSGIs.
21. On 26.02.2021 the KSEB has issued purchase order to the 4th respondent (Ext.R4E) and executed an agreement with the 4th respondent (Ext.R4E1). Ext.R4E refers to Ext.P12 and Ext.R4I and a subsequent letter dated 25.02.2021 from the 4 th respondent. It would appear from paragraph 4 of the affidavit in support of I.A.No.3 of 2021 filed by the 4 th respondent producing Exts.R4H and R4I documents that Ext.R4H proposal was submitted in June,2020 and the Letter of Intent was given by the KSEB after six months on 24.12.2020. Ext.R4H contains a proposal for supply of 650000 numbers of 35 W LED street light with 7 years warranty at a base price of ₹1,271/- with additional cost towards maintaining buffer stock, etc. of ₹376/- totalling to ₹1,647/- per unit. The proposal also W.P.(C)Nos.3490 & 5045 OF 2021 27 shows the cost estimation of other components for installation like GI pipes, cables,etc., and the total cost of the same per unit is not specifically stated. At the same time, Ext.R4I Letter of Intent does not even refer to the proposal submitted in June, 2020. lnstead, it says that a comprehensive proposal was submitted by the 4 th respondent on 24.12.2020. That is, on the very same day the proposal was submitted, the KSEB has issued a Letter of Intent. The Letter of Intent however is regarding 100000 numbers each of LED Modules of 18W and 35W. There is no proposal regarding the 18W module available on record. This court is not able to fathom a contention that a proposal involving a huge financial commitment, was accepted on the very same day on which it was submitted and a Letter of Intent was also issued on the very same day. Now, coming to Ext.R4E, which is stated to be the purchase order issued on 26.02.2021, another six months later, it can be seen that the purchase order is for 100000 numbers each of LED modules of 18W and 35W and the unit price stated for the module and fixtures has absolutely no comparison with either Ext.R4H proposal or with R4I Letter of Intent. Ext.R4I specifically requires the 4th respondent to prepare the bid documents, invitation of bid, evaluation of bid, award of purchase order to successful W.P.(C)Nos.3490 & 5045 OF 2021 28 bidder, execution of agreement etc., for procuring the LED luminaries. In fact, in Ext.R4H proposal the 4 th respondent has stated that the steps for procurement like preparation of tender document, holding pre-bid meetings, evaluation of tender, issuance of LoA to successful Bidder, etc., as per the public procurement guidelines shall be undertaken after receiving the order from the KSEB and that the 4th respondent proposes to include a representative from KSEB as a member in the tender preparation, evaluation and finalisation committee of the 4 th respondent. But none of the above procedures have admittedly been followed while issuing Ext.P25 tender notification, if the same is to be considered as a notification for procuring LED lights for the "Nilaavu" project. It is also not evident that such a procedure was followed while issuing Ext.R2(b) notification for procurement of IDC materials. STATUTORY PROVISIONS APPLICABLE
22. Section 166 of The Kerala Panchayat Raj Act, 1994 deals with the powers, duties and functions of the Village Panchayat. Under Section 166(1), it is the duty of the Village Panchayat to meet the requirements of the Village Panchayat area in respect of matters enumerated in the Third Schedule. Under Section 166(2), the Village Panchayat shall have exclusive power to administer the matters W.P.(C)Nos.3490 & 5045 OF 2021 29 enumerated in the Third Schedule and to prepare and implement schemes relating thereto for economic development and social justice and the role of the Government is only to provide guidelines and assistance financial, technical, or otherwise. This aspect is reiterated in Section 166(4) and (5). The Third Schedule contains the mandatory functions and general functions of the Village Panchayats. Serial No.15 in the mandatory functions deals with street lighting and its maintenance. Section 316(1) of the Kerala Municipality Act, 1994, says that the Municipality shall cause the public streets in its land area to be lighted and for that purpose to provide such lamps and works as it deems necessary. As per Section 316(2), for the purpose of sub-section (1), the KSEB shall provide the required electrical energy and technical assistance to the Municipality at the rates fixed by the Government and on other conditions as prescribed. Under Section 316(3), notwithstanding anything contained in sub-section (1), the Government shall, in consultation with the Municipality, provide any public street with a lighting system through an approved agency.
23. The Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act for short) came into force with effect from 02.10.2006. The enterprises are classified under Chapter 3 of the W.P.(C)Nos.3490 & 5045 OF 2021 30 MSMED Act. Section 7 classifies the enterprises as micro, small and medium on the basis of the capital investments of the enterprise. Chapter 4 of the Act deals with measures for promotion, development and enhancement of competitiveness of MSME. Section 11 in Chapter 4, says that for facilitating promotion and development of MSME, the Central Government or the State Government may by order notify from time to time, preference policies in respect of procurement of goods and services produced and provided by micro and small enterprises, by its Ministries or Departments, as the case may be, or its aided institutions and public sector enterprises.
ARGUMENTS ON BEHALF OF THE PETITIONERS
24. Sri P.B.Krishnan, appearing for the petitioner in W.P. (C)No.3490 of 2021 has raised the following contentions.
(a) Though the executive orders regarding the "Nilaavu" Project are contended to have been issued pursuant to the UDAY scheme and the SLNP scheme of the Central Government, on facts the project introduced by the State Government is not in any way connected with the Central Schemes. It is contended that SLNP is a programme for ULBs and is being implemented is select W.P.(C)Nos.3490 & 5045 OF 2021 31 Municipalities and the business module for the programme is such that the entire cost is met by the 4 th respondent and is recouped from the energy savings over a period of time. Except for the fact that both the Central Government scheme and the "Nilaavu" project aim at replacing the conventional street lights with LED lights, it is contended that there is no similarity regarding the business module. It is hence contended that "Nilaavu" is a unique project that has to stand or fall on its own merit.
(b) The jurisdiction and authority in the matter of street lighting is entirely with the LSGIs as per the provisions of the Kerala Municipality Act, 1994 and the Kerala Panchayath Raj Act, 1994. Street lighting and maintenance is a mandatory function of the Grama Panchayaths. The above functions and authority are usurped by the State and the KSEB, whose roles are very limited as per the Statutes. It is also contended that the project is being thrust upon the Panchayats by coercing the procurement officers of the LSGIs.
(c) The "Nilaavu" project is against the existing W.P.(C)Nos.3490 & 5045 OF 2021 32 policy in favour of the MSMEs. The MSMEs enjoy reservation/preference in the matter of public procurement of "street lighting". Section 11 of the MSMED Act, 2006 and the Public Procurement orders issued thereunder speak about such reservation/ preference. The orders issued by the State Government earlier also endorse this fact (Ext.P11 in W.P.(C)No.3490 of 2021). Paragraph 3 of Ext.P6 procurement policy provides for 20% minimum procurement and paragraph 11 provides for exclusive reservation with regard to items included in the Annexure. The SPM issued by the State Government also provided for such reservation in favour of MSMEs till Annexure 19 was deleted from the SPM in 2019. On 09.11.2018, the Central Government enhanced the minimum procurement from 20% to 25% as part of Atmanirbhar Bharat. In the above circumstances, the State cannot allow KSEB to procure LED light fittings from the 4th respondent in bulk. It is also contended that the 4th respondent being a PSU is bound by the mandatory reservation in favour of MSMEs, with regard to streetlighting.
W.P.(C)Nos.3490 & 5045 OF 2021 33
(d) It is contended that the principles of promissory estoppel and legitimate expectation are applicable in the case. It is submitted that the MSMEs like the petitioners, which were established on the basis of the public procurement policies and the provisions of the MSMED Act, at huge cost, are idling since no LED fittings required for street lighting are procured from within the State.
(e) It is also contended that there is non application of mind to the relevant aspects, particularly regarding the law and the policy applicable for procurement of LED light fittings and the existence and relevance of the MSMEs operating in the field.
25. The counsel relied on the decisions of the Hon'ble Supreme Court in M/s Motilal Padampat Sugar Mills Co.Ltd., v. The State of Uttar Pradesh & Ors. reported in [AIR 1979 SC 621], State of Punjab v. Nestle India Ltd. & Anr. reported in [(2004)6 SCC 465], Manuelsons Hotel Private Ltd. v. State of Kerala reported in [2016(2)KLT 694(SC)], State of Jharkhand & Ors. v. Brahmputra Metallics Ltd. & Ors. reported in [2020 SCC OnLine SC 968] to contend that the respondents are estopped W.P.(C)Nos.3490 & 5045 OF 2021 34 by the principles of promissory estoppel from not purchasing the required LED lights from persons like the petitioners and that the petitioners are entitled to have a legitimate expectation that purchases of the LED lights required for the purpose of street lighting in the LSGI will be from persons like the petitioners who are entitled to preference.
26. Sri S.Sreekumar, Senior Advocate, instructed by Sri P.Martin Jose, appearing for the petitioner in W.P.(C)No.5045 of 2021 adopted the arguments advanced by Sri P.B.Krishnan. The Senior Counsel submitted that the petitioner in W.P.(C)No.5045 of 2021 is a company registered as an MSME and that the Managing Director is the proprietor of M/s. Usha Electronic System, which is also a MSME. He referred to the Nagarajyothi project that was introduced in 2014 and submitted that the KREWS, which is a Society in which all the Grama Panchayaths are members had pursuant to invitation of interest for private participation and Ext.P3 public private partnership agreement, formed the Kerala Gramajyothi Lighting Pvt.Ltd. It is submitted that it is while the above project was in place that the "Nilaavu" project is introduced, whereby the entire purchase of LED for street lighting is sought to be made from the 4 th respondent, to the total exclusion of the W.P.(C)Nos.3490 & 5045 OF 2021 35 MSMEs, who were hitherto having a reservation. The Senior Counsel referred to Ext.P7 order and submitted that the purchase preference available under paragraph 3(a) has to be considered alongside the proposal of Global Tender by the 4 th respondent. Referring to the features of the SLNP project and the "Nilaavu" projects, it is submitted that the "Nilaavu" project is not in line with SLNP scheme, which provides for the entire cost being met by the 4 th respondent. It is submitted that in the "Nilaavu" project the KIIFB has the role of a financier and the KSEB has the role of an implementing agency, which is not the case with SLNP. Reference is made to Ext.P23 which is brochure of the 4th respondent which says that the 4 th respondent follows a Pay-As-You-Save (PAYS) model which obviates the need of any upfront capital investment by the consumer. The document also claims that the conventional street lights are replaced by LEDs at the cost of the 4th respondent without any investment by the Municipalities and that the business model has been used to replace around 10 million street lights in over 1050 ULBs across India. The Senior Counsel submits that a reading of Ext.P23 and the features of the SLNP will clearly establish that "Nilaavu" project is not in line with SLNP. The Senior Counsel referred to Ext.P16 which contains the Stores Purchase Rules followed in the State and submitted that W.P.(C)Nos.3490 & 5045 OF 2021 36 the rules to be followed for public procurement are contained in the Kerala Financial Code and the Stores Purchase Manual.
27. As per the norms, whenever the estimated value of the stores to be purchased is ₹20,000/- and above, tenders should be invited. The Kerala Financial Code (KFC for short) lays down the general financial principles and rules of procedure in respect of financial matters of all Departments under the Government. As per paragraph 120(2) contained in Chapter VI of the KFC, the rules and instructions will apply also to purchase of stores on behalf of LSGIs. A tender system has been explained in Clause 126 of the KFC. As per Clause 126(b), tenders should be obtained either by advertisement or by direct invitation of limited number of firms or by invitation to one firm only. The counsel also referred to Ext.P18 circular which specifically says that tendering process or public auction is a basic requirement for award of contract by any Government agency and any other method would amount to breach of Article 14 of the Constitution of India. Ext.P18 also makes reference to the decision in Nagar Nigam, Meerut v. Al Faheem Meat Exports Pvt.Ltd & Ors. reported in [(2006) 13 SCC 382].
28. The learned Senior Counsel submitted that it is the duty of the Government to promote MSMEs or at least they should have W.P.(C)Nos.3490 & 5045 OF 2021 37 invited tenders for the supply of LED bulbs, after having decided to implement the "Nilaavu" project. Instead, what has been done is to create a Nodal Agency who is to supply the necessary stores which is totally against the tendering process and hence impermissible. The contention is that when the State is obliged to purchase stores through a tendering process, it cannot be bye-passed under the guise of a policy where a public sector undertaking is identified as a Nodal Agency; and the entire purchase is made through them. It is submitted that admittedly there has been no tender specifically invited for supply of LED lighting in terms of the proposal submitted by the 4th respondent and accepted for the purpose of implementation of the "Nilaavu" project. The counsel points out that even the respondents do not have a case that apart from Ext.P25, there has been any other tender with respect to LED lighting. It is contended that Ext.P25 which was a tender issued for the purpose of implementation of the SLNP in Telengana cannot be taken as a defence to contend that a tendering process was initiated. The learned Senior Counsel referred to the counter affidavit filed by the 4th respondent to contend that the "Nilaavu" project has absolutely no connection with the SLNP initiated by the Central Government. Exts.R4B and R4C are also referred to, to establish the above W.P.(C)Nos.3490 & 5045 OF 2021 38 aspect. After referring to the manner in which the "Nilaavu" project is sought to be implemented, the learned Senior Counsel has raised a question as to why the Municipalities and Panchayats, who have a statutory duty to take care of the street lighting are not allowed to directly deal with the 4th respondent under the SLNP and instead, the 2nd respondent and the KIIFB have been allowed to participate in the project. It is the contention that if the intention of the Government was a benefit to the Municipalities, the same could have been achieved by participating in the SLNP programme directly rather than by launching a unique project with two more participants who are actually not required either from the implementation point of view or from the financial point of view. It is submitted that public purpose will also be served better if the LSGIs had adopted the SLNP. The counsel further submits that the reference to SLNP in Ext.R4D tender notification is actually misleading, as the "Nilaavu" project is not a project under the SLNP, and is in total variance with the business module which has been adopted by the 4 th respondent for implementation of SLNP. It is further submitted that in Ext.R4D, a purchase preference has been stated to be available to MSMEs. A reading of the qualification criteria contained in the bid document would show that there is no manner in which the MSMEs can W.P.(C)Nos.3490 & 5045 OF 2021 39 participate in the tender process. Specific reference is made to the financial criteria which says that bidders should have an average annual turnover of at least ₹3,54,00,000/- in the previous three years. It is submitted that with such harsh conditions, there is no manner in which an MSME can participate in a competitive tender in the nature of Ext.R4D.
29. The learned Advocate General appearing for the State contended that it is not correct to say that there is any usurpation of power of the Municipalities or Panchayats and there is no violation of the statutory provisions. Reference is made to Section 316 of the Municipalities Act to submit that the Government has acted only within its powers. It is submitted that as per the Statute it is open to the Government, in consultancy with the Municipality, to provide any public street with a lighting system through an approved agency. Section 316A of the Municipalities Act is relied on to submit that the Statue permits a Municipality, with prior sanction of the Government, to enter into a contract with KSEB for the bulk purchase for the supply of electricity in its area. The learned Advocate General referred to Section 166 of the Kerala Panchayat Raj Act, 1994 dealing with powers, duties and functions of the Village Panchayat and submitted that the Village Panchayat has W.P.(C)Nos.3490 & 5045 OF 2021 40 certain mandatory functions specified in the Third Schedule. Referring to the Third Schedule, it is submitted that Serial No.15 in the mandatory functions is street lights and its maintenance. It is further submitted that in sector wise functions mentioned in Third Schedule "electricity and energy" is included in Sl.No.IX and it takes in installation and maintenance of street lights. The learned Advocate General submits that Ext.P12 has to be read in the light of Section 316 of the Municipalities Act and Section 166 read with Third Schedule of the Kerala Panchayat Raj Act. The contention is that on a combined reading of the statutory provisions, there is nothing illegal in appointing the KSEB as the special purpose vehicle for the "Nilaavu" project. It is further submitted that as far as the payment is concerned, 80% of the payment is to be made from plan funds and 20% is to be made from energy savings, which is to be paid in seven instalments. As per the project, even the abovesaid payment will be made by the KIIFB and the amounts will be made available to the KIIFB from out of the energy savings. It is specifically contended that there is no compulsion of the LSGI to adopt the "Nilaavu" project. It is submitted that the "model resolution" that the Panchayat has to pass for adopting the "Nilaavu" project, contained in Ext.P13, is not to be understood as a compulsion, but is W.P.(C)Nos.3490 & 5045 OF 2021 41 only a guideline to such of those Panchayats which are proposing to replace the conventional street lights with LED light by opting for the "Nilaavu" project. Regarding the contention of the petitioners on promissory estoppel based on Section 11 of the MSME Act and the procurement policy, it is submitted that paragraph 3 of Ext.P6 only provides for 20% procurement from MSMEs. It is hence contended that even if MSMEs participate in the tender, only 20% need to be procured from them. Another contention is that paragraph 13 of Ext.P6 provides for an alternate remedy through a Grievance Cell. It is submitted that the petitioners have not approached the Grievance Cell with any complaint that there is violation of the procurement policy. It is further submitted that all that is available to the MSMEs is price preference and purchase preference and there is no absolute reservation. Regarding the contentions based on the SPM, the learned Advocate General replied that the SPM is not giving any reservations regarding the purchase of stores. The learned Advocate General pointed out that Annexure 19 of the SPM which listed out the items on which the reservation was available to the MSMEs has been deleted and hence no reservation can be claimed. On the contention that the principles of promissory estoppel and legitimate expectation will apply, the learned Advocate W.P.(C)Nos.3490 & 5045 OF 2021 42 General submitted that Ext.P12 has to be tested on the basis of the judgment in Bannari Amman Sugars Ltd. v. Commercial Tax Officer & Ors. reported in [(2005) 1 SCC 625] which specifically says that the issue has to be decided on the basis of pleadings and as long as the pleadings do not justify a claim of promissory estoppel or legitimate expectation, the doctrine has no application. The specific contention is that the State has not either induced the petitioners or assured them about any purchase of stores from them. It is submitted that they had started units and have been functioning all these years and purchases by the Government or Governmental institutions can only be one of their selling point and that no details are available from the pleadings to show that the petitioners are entirely dependent on purchases by the Government or the LSGIs. Regarding the question whether the reservation in favour of the MSMEs under paragraph 11 of Ext.P6 continues even after Ext.P6 was amended in 2018 and 2021, the learned Advocate General submitted that the State is not bound by the reservation since it applies only to Central Government Ministries, Departments and PSUs and not the the State of Kerala and KSEB. The contention is that once the SPM was amended to include only purchase preference and price preference, and Annexure 19 was deleted, no W.P.(C)Nos.3490 & 5045 OF 2021 43 reservation can be claimed by the MSMEs.
30. The counsel for the 4th respondent submits that the 4th respondent is a joint venture of four public sector undertakings and the Ministry of Power has designated the 4th respondent as the nodal implementing agency for LED based SLNP and DELP programmes. They have been appointed as Project Management Consultant (PMC for short) by the 2nd respondent, who is the Nodal Agency for implementation of "Nilaavu" Project, appointed as per Ext.P11 order. He contends that there is no compulsion on any LSGIs to take part in the "Nilaavu" project. It is contended that the 2 nd respondent had approached the Kerala State Electricity Regulatory Commission, which had on 03.12.2020 ordered that KSEB shall take the role of lead SPV for implementation of the "Nilaavu" project. It is stated that thereafter Ext.R4C Detailed Project Report of the project was prepared with the name "Nilaavu"-Illuminating Kerala. Since the administrative sanction for the project was accorded only as per Ext.P12 order dated 25.12.2020, the project report could only have been prepared thereafter. Paragraph 7 of Ext.R4C details the financial estimates and cost projections which includes details regarding the cost of LED lights of different Watts, the PMC charges payable to the 4th respondent and the manner of funding by the W.P.(C)Nos.3490 & 5045 OF 2021 44 KIIFB. Paragraph 9 says about the payment schedule. It is stated that 80% of the cost of LED street lights and 100% cost of fixtures specified in the invoice of the 4th respondent shall be released by the KIIFB on completion of delivery and acceptance of the same by the 2nd respondent. The project report details the roles of the different stake holders. Regarding the purchases by the 4 th respondent, it is stated that it will be through competitive bidding process. It is further stated that the KSEB will arrange to dismantle the conventional street lights and install the new LED luminaries supplied by the 4th respondent using its own or contracted manpower. The total cost of the project is estimated at around ₹298.38 crores for replacing the existing lights with 10,50,000 LEDs.
31. The counsel for the 4th respondent submitted that on 24.12.2020, the 2nd respondent had given a letter of intent to the 4th respondent based on which the 4 th respondent had floated a tender on 01.01.2021. Later on 26.02.2021, the 2 nd respondent had issued a purchase order for supply of 2 lakh LED lights and 2 lakh IDC material and has also entered into an agreement with the 4 th respondent for the supply of the above products [Exts.R4E and R4E(1)]. It is submitted that the 4th respondent has already supplied W.P.(C)Nos.3490 & 5045 OF 2021 45 goods worth ₹33,27,00,000/- to the 2nd respondent. It is further submitted that the LED lights are procured by spending public money and that too money obtained by the Government of India as loan from the Asian Development Bank Act, which has been made over to the 4th respondent. Regarding the contention that the procurement was for Telangana as per Exhibit P25 tender, the counsel submits that there is provision for utilising the purchase made for one contract in another contract. It is also submitted that the tender does not prohibit MSMEs from participating. On the question whether the 4th respondent has followed the purchase preference policy, the counsel referred to the annual report of the 4 th respondent for the period 2019-2020, which is produced as Exhibit R4L and submitted that 25% percentage of the purchases for the year are from MSMEs. It is also submitted that the petitioners did not participate in the tender floated by the 4th respondent.
32. On the legal aspects, it is contended on behalf of the 4 th respondent that the issue involved in the writ petitions is purely contractual and this Court should not interfere in such cases by exercising the jurisdiction under Article 226 of the Constitution of India. It is further contended that judicial review is regarding the decision making process and that the Court should exercise restraint W.P.(C)Nos.3490 & 5045 OF 2021 46 and caution while considering issues of this nature. It is further contended that the Court is not sitting in appeal over the decision of the respondents to implement the "Nilaavu" project, which is a result of expert opinion and unless there is overwhelming public interest involved or there is total arbitrariness or unreasonableness, there can be no case for exercise of the discretionary power under Article 226 of the Constitution of India. Reliance is placed on the decisions of the Hon'ble Supreme Court in Kasturilal Lakshmi Reddy v. State of J&K reported in [AIR 1980 SC 1992], Sachidanand Pandey & Ors. v. The State of West Bengal & Ors. reported in [AIR 1987 SC 1109], M.Jhangir Batusha & Ors. v. UOI & Ors. reported in [AIR 1989 SC 1713], Tata Cellular v. UOI reported in [AIR 1996 SC 11], M.P.Oil Extraction & Ors v. State of M.P. & Ors. reported in [AIR 1998 SC 145], Ranaq International Limited v. I.V.R.Construction Ltd. & Ors. reported in [AIR 1999 SC 393], Air India Ltd., v. Cochin International Airport Ltd. reported in [(2000) 2 SCC 617], Nagar Nigam, Meerut v. Al Faheem Meat Exports Pvt.Ltd. & Ors. reported in [(2006) 13 SCC 382], Jagdish Mandal v. State of Orissa & Ors. reported in [(2007) 14 SCC 517], Meerut Development Authority & Ors. v. Association of W.P.(C)Nos.3490 & 5045 OF 2021 47 Management Studies & Ors. reported in [AIR 2009 SC 2894], Michigan Rubber(India)Ltd. v. The State of Karnatake & Ors. reported in [AIR 2012 SC 2915], UOI & Ors. v. HBL Nife Power Systems Ltd. reported in [AIR 2016 SC 558], Afcons Infrastructure v. Nagpur Metro Rail Corporation Ltd., & Ors. reported in [AIR 2016 SC 4305], in support of the above contention.
33. Another contention of the counsel for the 4 th respondent is that what is challenged in the writ petitions is a policy decision of the State Government and the legal principles regarding judicial review of policy decisions is well settled. Reliance is placed on the judgment of the Hon'ble Supre Court in Union of India v. International Trading Co. & Ors. reported in [AIR 2003 SC 3983]. It is also contended that the 4th respondent has received multilateral funding for the SLNP and certain exemptions have been permitted by the Government of India in Exts.R4F and R4G. The counsel referred to the judgment of the Hon'ble Supreme Court in Asia Foundation & Constructions Ltd. v. Trafalgar House Constructions(I) Ltd. & Ors. reported in [(1997) 1 SCC 738]. The Apex Court had observed in the judgment that the Asian Development Bank came into existence under an Act called Asian W.P.(C)Nos.3490 & 5045 OF 2021 48 Development Act, 1966, pursuant to an International agreement to which India was a signatory. The Court further observed that when financial institutions grant huge loans they always insist that any project for which loan has been sanctioned must be carried out in accordance with the specification and within the time schedule. Reliance is also placed on the decision of the High Court of Gujarat in Paresh Kumar Dalsukhbhai Gurjar v. State of Gujarat & Ors. (Writ petition(PIL) No. 243 of 2016. Regarding the contention that MSMEs are entitled to the reservation under paragraph 11 of Ext.P6, the counsel for the 4 th respondent contends that all that the MSMEs are entitled to are the benefits stipulated in paragraph 3 of Ext.P6 and that the said benefits are being extended by the 4th respondent as is evident from the annual accounts which has been produced in the case.
34. The Standing Counsel for the 2nd respondent adopted the contentions of the learned Advocate General and the counsel for the 4th respondent and submitted that the first phase of the "Nilaavu" project is already implemented and the second phase is under implementation.
35. In reply to the contentions of the respondents, Sri P.B.Krishnan submits that the "Nilaavu" project does not have W.P.(C)Nos.3490 & 5045 OF 2021 49 anything to do with either ADB or SLNP. The counsel points out that the Government orders do not refer to ADB funding or to the Central Scheme. The counsel points out that the SLNP related to replacement of streetlights in 98 selected ULBs. Regarding the contention that the petitioners did not participate in the tender process, the counsel pointed out that as far as Exhibit R4D tender was concerned, it was for procurement of IDC material and there is no reason for the LED manufacturers to participate in the tender. Regarding the tender for LED lamps, the counsel pointed out that the said tender was dated 19.04.2020, much before the "Nilaavu" project was visualised and the tender related to a totally different area. He reiterated the contention that in paragraph 11 of Ext.P6 procurement policy, there is a complete reservation in favour of the MSMEs as far as street lighting is concerned. Regarding the contention that the 4th respondent is procuring 25% from MSMEs, the counsel points out that it can be seen from Exhibit R4L that out of the total procurement worth ₹1913 crores, procurement through international bidding amounts to ₹1629.30 crores and the 25% procurement that is mentioned is relating to only domestic procurement. The contention is that if the project is neither under the ADB nor under SLNP, the respondents are bound to follow the W.P.(C)Nos.3490 & 5045 OF 2021 50 procurement policy. The counsel pointed out that for the first time, the price is shown only in Exts.R4E and R4F. It is pointed out that the writ petition was filed on 09.02.2021, and it is immediately thereafter that the respondents had fixed the price and entered into an agreement. The counsel contended that the failure to issue a tender notification and invite bids is itself an illegality, when it comes to public procurement and spending of public money.
36. The learned Senior Counsel Sri S.Sreekumar appearing for petitioner in W.P.(C)No.5045 of 2020, in reply, submitted that the petitioner in the writ petition was incorporated in order to carry out the Nagarajyothi policy which had been announced by the State Government in 2015. It is submitted that all the LSGIs are members of the KREWS. It is also contended that the model which is contemplated for the "Nilaavu" project is not the unique model which was contemplated for the SLNP by the Government of India and if the contention of the respondents that the project is under the SLNP scheme is to be accepted, necessarily, there cannot be a different model as far as one State is concerned. ISSUES TO BE ANSWERED:
37. On the basis of the pleadings and arguments advanced by the petitioners and respondents, the following questions are W.P.(C)Nos.3490 & 5045 OF 2021 51 formulated for the purpose of deciding the dispute.
(a) Are the MSMEs entitled to any exclusive reservation regarding public procurement of street lighting?
(b) If no exclusive reservation is available, are MSMEs entitled to any preference in purchase by the Governments, LSGIs and PSUs?
(c) Is "Nilaavu" project a part of the Street Lighting National Programme which is implemented through the 4th respondent?
(d) Can the State or LSGI or KSEB avoid public procurement by tender process, including the preference available to the MSMEs, while they are implementing a Policy through a management consultant (4th respondent)?
(e) Have the respondents followed the tender process for procuring LED lighting, required for implementation of the "Nilaavu" project or is it a case of outright purchase from a single PSU (the 4th respondent)?
(f) Do the principles of promissory estoppel and legitimate expectation apply in the facts of this case? W.P.(C)Nos.3490 & 5045 OF 2021 52
(g) Can the petitioners invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India?
CONSIDERATION QUESTIONS (a) and (b):
38. Section 11 of the MSMED Act, 2006, says that for facilitating promotion and development of micro and small enterprises, the Central Government or the State Government may, by order notify from time to time, preference policies in respect of procurement of goods and services, produced and provided by micro and small enterprises, by its Ministries and Departments, as the case may be, its aided institutions and public sector enterprises. Even though Section 7 of the Act categorises the enterprises into micro, small and medium, Section 11 refers only to micro and small enterprises. Going by the norms of categorisation under Section 7, a micro enterprise is one where the investment in plant and machinery does not exceed ₹24 lakhs and a small enterprise is one in which the investment in plant and machinery is more than ₹24 lakhs, but does not exceed ₹5 crores. Exhibit P6 is the preference policy notified under Section 11 of the MSMED Act. Paragraph 3 of the public procurement policy as it originally stood, mandates W.P.(C)Nos.3490 & 5045 OF 2021 53 procurement from MSMEs, 20% of the total purchase made by the Central Government Ministries, Departments and Public Sector Undertakings. The paragraph further says that in case where an MSME is not the L1 tenderer, but has submitted a bid which is within the range of L1+15%, the MSME will be allowed to bring down the price to match the bid of L1 and in such event, the MSME will be awarded work upto 20% of the tendered value. Paragraph was later amended by increasing the preference to 25%. Paragraph 11 of the policy is very relevant. It specifically reserves 358 items which are included in the schedule, for exclusive purchase from MSMEs. Item 287 in the list is "street lighting". Paragraph 11 thus creates an exclusive preference for MSME, with regard to select items that are manufactured by them. Even though Exhibit P6 order was amended on 09.11.2018 and 11.08.2021, paragraph 11 dealing with exclusive preference for MSMEs with regard to certain products was not amended. That is to say, the exclusive reservation still continues. It is to be noted that Exhibit P6 is issued in exercise of the power available under Section 11 of the MSMED Act and has a legislative colour. I am hence of the view that the petitioners and other MSMEs are entitled to the reservation contemplated in paragraph 11 with respect to the 358 items included in the schedule to Exhibit P6. I am W.P.(C)Nos.3490 & 5045 OF 2021 54 also of the opinion that Exhibit P7 order which is also a public procurement policy, has been issued for a totally different purpose and does not deal with the preference policy for MSMEs under Section 11 of the MSMED Act. That apart, Exhibit P7 specifically says that the procurement policy, which are already in place in different departments and approved by the Cabinet after 01.01.2015 will prevail over the provisions of Exhibit P7. The amendments of Exhibit P6 in 2018 and 2021 are a clear indication of an approval after 2015 and hence Exhibit P6 will prevail over Exhibit P7, even in terms of Exhibit P7. The purchase preference of 25% is not hence very relevant as far as the 358 items are concerned and they would apply in case of other products which are manufactured by MSMEs.
39. The contention of the learned Advocate General is of great significance on this issue. It is only under Section 11 of the MSMED Act, the Central Government and the State Government issues preference policies with respect to MSMEs. As far as the Central Government is concerned, Ext.P6 preference policy is binding on the Central Government Ministries, Departments and PSUs. However, even though the State of Kerala had adopted the policy by making amendments in the SPM initially, after the issuance of Ext.P7 order, the State of Kerala has amended the SPM by W.P.(C)Nos.3490 & 5045 OF 2021 55 deleting Annexure 19 which contained the list of the products manufactured by MSMEs which enjoyed reservation. In the place of reservation, the price and purchase preference contained in the Procurement Policy under Make in India Programme alone was incorporated. It is not clear whether the State Government had considered the Procurement Policy under the Make in India Programme as amending Ext.P6. However, the fact remains that there is a change in procurement policy as far as the State Government is concerned. The State Government cannot be compelled to follow the policy of the Central Government in this regard, having regard to the wording of the Statute. I am hence of the opinion that Ext.P6 cannot be held to be binding on the State Government. However, as far as the 4 th respondent is concerned, since it is Central PSU, they are bound by Ext.P6 procurement policy.
40. The 4th respondent has put forward a contention that in case of projects funded by the ADB, it is only the norms prescribed for the project that has to be looked into and not Ext.P6 procurement policy. Reliance is placed on Ext.R4F and R4G Office Memorandums in support of the above contention. The portion of the order relied on reads as "In projects which receives international funding with the approval of the Department of Economic Affairs W.P.(C)Nos.3490 & 5045 OF 2021 56 (DEA), Ministry of Finance, the procurement guidelines applicable to the project shall normally be followed, notwithstanding anything contained in this Order and without reference to the Competent Authority. Exceptions to this shall be decided in consultation with DEA." In my opinion, the above contention is without any basis. Firstly, Exts.R4F and R4G do not have anything to do with Ext.P6 Procurement Policy as amended in 2018 and 2021. Secondly, even on a reading of the portion from Ext.R4G extracted above, it would only mean that the procurement guidelines of the project will apply not withstanding the contents of Exts.R4F and R4G. Thirdly, the "Nilaavu" project with which we are concerned, is not a project funded by ADB or one which is receiving international funding. Admittedly, the funding is initially done by KIIFB, and the amount is to be paid back by the Government from the amounts deducted at source from the development fund of the LSGIs by the Finance Department every year. Fourthly, Ext.P6 is binding on the 4 th respondent. The counsel for the 4 th respondent relied on the decision in Asia Foundation (supra), regarding judicial review in a project funded by the ADB. The Court in the above said case was considering a project which was admittedly funded by the ADB, who insist on certain conditions while extending the financial help, and W.P.(C)Nos.3490 & 5045 OF 2021 57 held that the Court has to take into account the fact of escalation of cost in such project and the time involved and the fact that in a co- ordinated project, if one component is worked out, the entire project gets delayed. There is no such situation available in the case on hand. There is already a policy notified by the Central Government which has the force of law, which needs to be adhered to by the 4 th respondent. The State Government has also issued a policy document granting price and purchase preference to MSMEs. Moreover, I have already found that the "Nilaavu" project is not funded by the ADB. It is worthwhile to note that Exts.R4F and R4G office memorandums which dealt with exemptions in case of funding by multilateral and bilateral agencies were issued only after the issuance of Ext.P25 tender notification regarding procurement of LED lights and hence the said exemptions were not available on the day on which the tender was notified. As such, the decision in Asian Foundation (supra) has no application in this case. Hence I find that the MSMEs are entitled to the reservation under the procurement policies notified under Section 11 of the MSMED Act and the said reservation is not affected in any way by Exts.R4F and R4G Office Memorandums, which have been issued in a different context. The 4th respondent is bound by Ext.P6 policy. However, such W.P.(C)Nos.3490 & 5045 OF 2021 58 reservation cannot be claimed against the State Government, if the State Government or its Departments or its PSUs are procuring the products which are included in the Annexure to Ext.P6. The State Government will only have to follow the policy framed by them, which provides only for price and purchase preference for the MSMEs. At the same time, if the State Government is proposing to procure such products, through the intervention of a Central PSU like the 4th respondent, necessarily, the 4th respondent has to make such procurement on behalf of the State Government, following the policies framed by the Central Government in this regard. Question (c):
41. As already discussed in detail in the previous paragraphs, I am of the considered opinion that the "Nilaavu" project which has been announced by the State Government is not a project coming under the SLNP scheme envisaged by the Central Government. Admittedly, the implementation of the "Nilaavu" project is with funds made available by KIIFB and the 4th respondent is only a Project Management Consultant, who is entitled to a payment of PMC Charges at the rate of 2% of the invoice amount and who is responsible for sourcing the LED lights and fixtures. The Nodal Agency is the KSEB. In the case of SLNP, there is no funding agency W.P.(C)Nos.3490 & 5045 OF 2021 59 involved and the entire cost is met by the 4 th respondent. There is no necessity to pay any PMC charges to the 4 th respondent under SLNP. The repayment is to be made in 7 years by the LSGI concerned out of the energy savings. Except for the fact that both projects aim at replacing the conventional street lights with LED lamps, there is no other similarity.
QUESTIONS (d) & (e):
42. What cannot be done directly in law, cannot be permitted to be done indirectly. As per the guidelines contained in the Kerala Financial Code, purchases for amounts more than ₹20,000/- can only be done by invitation of tenders. If the 4 th respondent was not in the picture, the State Government or the KSEB would have had to float a tender for procuring the LED lights and the fittings. So merely for the reason that the 4th respondent is given the responsibility of procuring the lighting materials, it does not mean that the requirement of open tender can be avoided. It is a requirement in public interest and in the interest of transparency in financial dealings of the State that they follow such a procedure. In the case on hand, admittedly, there has been no tender floated by the State Government or the KSEB for procurement of LED lights. The only tender that was floated is Ext.P25 floated by the 4 th respondent, W.P.(C)Nos.3490 & 5045 OF 2021 60 much before they entered into an agreement in connection with the "Nilaavu" project, that too with relation to the State of Telengana and certain other States. I am of the opinion, that Ext.P25 will not satisfy the requirement of law, as far as procurement of LED lights for the "Nilaavu" project is concerned. With regard to the procurement of the IDC materials for the purpose of implementing the project, the petitioners are not really concerned with the same, since they are manufacturers of the LED lights.
43. On the admitted facts, it can be seen that as far as the LED lights are concerned, it is a case of outright purchase of the same from the 4th respondent. Neither the State Government nor the KSEB could have made such a purchase without following the tender process. Even the price is fixed with reference to the tenders floated by the 4th respondent. Even though the proposal submitted by the 4th respondent stated that the tender will be floated for procurement, by the inclusion of officers of the KSEB both for preparation of the bid document and for finalisation of the bid, none of the above have admittedly taken place. It could not also have been done since the KSEB and the State of Kerala were not in picture while Ext.P25 was issued by the 4 th respondent. I hence find that the action of the respondents in procuring 2 lakh LED lights W.P.(C)Nos.3490 & 5045 OF 2021 61 without following the tender process is bad in law. QUESTION (f): PROMISSORY ESTOPPEL AND LEGITIMATE EXPECTATION
44. The principles of promissory estoppel and legitimate expectation have undergone substantial changes after their origin. The Hon'ble Supreme Court has in several decisions explained and applied the principles. Recently, in Brahmputra Metallics (supra), the Apex Court has considered the two principles elaborately, referring inter alia to the earlier decisions in Motilal Padampat (supra), Nestle (supra) and Manuelsons (supra). The Hon'ble Supreme Court has started the analysis from the origin of the doctrine of promissory estoppel referring to the judgment of Lord Denning in the Court of Appeal case Crabb v. Arun DC, wherein his Lordship had traced the genesis of promissory estoppel in equity and the requirements of the doctrine of promissory estoppel formulated in "Chitty on Contracts". The Court noticed that in the early English decisions, the application of the doctrine of promissory estoppel was limited as a "shield" and was not used as a "sword" and that such a restriction was not found in the decisions of the Courts of United States and Australia. The application of the doctrine in India has been elaborately considered thereafter, starting from the decision in W.P.(C)Nos.3490 & 5045 OF 2021 62 Motilal Padampat (supra), where the Hon'ble Supreme Court viewed the doctrine as a principle in equity, which was not hampered by the doctrine of consideration as was the case under English law. In the above said decision Bhagwathi J, speaking for the Bench observed that "We do not see any valid reason why promissory estoppel should not be allowed to found a cause of action where, in order to satisfy the equity, it is necessary to do so." The Hon'ble Supreme Court then goes on to the basis for the doctrine of legitimate expectation under the head "From estoppel to expectations". In paragraphs 36 and 37 of the judgment, the Apex Court states the distinction between the doctrines of promissory estoppel and legitimate expectation under the English Law. Under English Law, the doctrine of legitimate expectations is founded on the principles of fairness in Government dealings and it comes into play if a public body leads an individual to believe that they will be a recipient of a substantive benefit. Paragraph 56 of the judgment in R v. North and East Devon Health Authority, ex p Coughlan, (2001) QB 213 which has been extracted in the judgment is extracted below:
"56....Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that W.P.(C)Nos.3490 & 5045 OF 2021 63 here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy."
45. After considering the application of the doctrines in the public law field and the private law field the Court observed that while the basis of the doctrine of promissory estoppel in private law is a promise made between two parties, the basis of the doctrine of legitimate expectation in public law is premised on the principles of fairness and non-arbitrariness surrounding the conduct of public authorities. Thereafter, the Apex Court considered the doctrine of legitimate expectation in the Indian Context. In paragraphs 40 and 41 of the judgment, the Apex Court noticed that while applying the two doctrines, the Courts have often used the expressions 'legitimate expectation' and 'promissory estoppel' interchangeably. The Court observed that 'legitimate expectation' is a concept much broader in scope than 'promissory estoppel'. The Hon'ble Supreme Court has thereafter proceeded to provide a cogent basis for the doctrine of legitimate expectation. The Court held that the understanding of the doctrine by the Apex Court in the decision in National Buildings Construction Corporation v. S. W.P.(C)Nos.3490 & 5045 OF 2021 64 Raghunathan (1998) 7 SCC 66, that "legitimate expectation" has its genesis in the field of administrative law and that in order to apply the doctrine reliance must have been placed on "representations" and "detriment" should have resulted for the claimant, was based on the scope and ambit of the doctrine under English Law as it stood then. The Court found that since the judgment of this Court in National Buildings (supra), the English Law in relation to the doctrine of legitimate expectation has evolved. The Court in paragraph 45 referred to the concurring opinion of Justice H.L.Gokhale in Monnet Ispat and Energy Ltd. v. Union of India [(2012) 11 SCC 1]. It is useful to extract paragraph 45 of the judgment.
"45. In a concurring opinion in Monnet Ispat and Energy Ltd. v. Union of India (2012) 11 SCC 1, Justice H.L. Gokhale highlighted the different considerations that underlie the doctrines of promissory estoppel and legitimate expectation. The learned judge held that for the application of the doctrine of promissory estoppel, there has to be a promise, based on which the promisee has acted to its prejudice. In contrast, while applying the doctrine of legitimate expectation, the primary considerations are reasonableness and fairness of the State action. He observed thus:
"Promissory Estoppel and Legitimate Expectations
289. As we have seen earlier, for invoking the principle of promissory estoppel there has to be a W.P.(C)Nos.3490 & 5045 OF 2021 65 promise, and on that basis the party concerned must have acted to its prejudice. In the instant case it was only a proposal, and it was very much made clear that it was to be approved by the Central Government, prior whereto it could not be construed as containing a promise. Besides, equity cannot be used against a statutory provision or notification.
290. ..... ..... In any case, in the absence of any promise, the Appellants including Aadhunik cannot claim promissory estoppel in the teeth of the notifications issued under the relevant statutory powers. Alternatively, the Appellants are trying to make a case under the doctrine of legitimate expectations. The basis of this doctrine is in reasonableness and fairness. However, it can also not be invoked where the decision of the public authority is founded in a provision of law, and is in consonance with public interest."
46. Referring to the decision in Union of India v. Lt. Col. P.K. Choudhary [(2016) 4 SCC 236] with approval, it was held that if denial of legitimate expectation in a given case amounts to denial of a right that is guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or in violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 of the Constitution but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. That is to say, that while W.P.(C)Nos.3490 & 5045 OF 2021 66 the doctrine of legitimate expectation cannot be claimed as a right in itself, it can be used when the denial of a legitimate expectation leads to the violation of Article 14 of the Constitution.
47. The Court then proceeds to examine the relationship between Article 14 and the doctrine of legitimate expectation. As regards the relationship between Article 14 and the doctrine of legitimate, the Court quoted with approval paragraphs 7 and 8 of the judgment of a Three Judge Bench in Food Corporation of India v. Kamdhenu Cattle Feed Industries reported in [(1993) 1 SCC 71], wherein the Apex Court held that duty to act fairly is a necessary component of the decision-making process in all State actions and that to satisfy this requirement of non-arbitrariness in a State action, it is necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision, failing which the unfairness in the exercise of the power would amount to an abuse of power and the decision so made would be exposed to challenge on the ground of arbitrariness. The Court held that the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. The Apex Court also referred to the decision in NOIDA Entrepreneurs W.P.(C)Nos.3490 & 5045 OF 2021 67 Assn. v. NOIDA [(2011) 6 SCC 508], wherein the Hon'ble Supreme Court held that power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest and that it is to be exercised strictly adhering to the statutory provisions. The Court held that action taken "in good faith" means "for legitimate reasons". The Court finally concluded that the doctrine of substantive legitimate expectation is one of the ways in which the guarantee of non-arbitrariness enshrined under Article 14 finds concrete expression. The Court further held that the States' policies give rise to legitimate expectations that the State will act according to what it puts forth in the public realm. Since the law has been explained in clear terms in Brahmputra (supra), I do not think it is necessary to elaborately consider the other decisions cited by Sri.P.B.Krishnan on the issue of legitimate expectation. Since the contention of legitimate expectation and promissory estoppel are based on the public procurement policy notified by the Government, I am of the opinion that the principles laid down in Bannari Amman (supra) will not in any way affect the rights of the petitioners.
48. Applying the above said principles to the facts of this case, as already found earlier, the MSMEs enjoy a reservation W.P.(C)Nos.3490 & 5045 OF 2021 68 regarding such products produced by them, which are included in the Annexure to Ext.P6 procurement policy. The policy is a legal document, issued under the powers available under Section 11 of the MSMED Act. The MSMEs thus have a legitimate expectation that the Central Government, its Departments and its PSUs will follow the policy scrupulously, while proceeding for public procurement. As such, non-consideration of the above right available to them while procuring LED lights required for street lighting under the "Nilaavu" project, by the 4th respondent, is necessarily arbitrary and violative of Article 14 of the Constitution of India.
49. Coming to the action of the State Government and the KSEB, they are also in law obliged to follow the tender process while procuring materials above the value of ₹20,000/-. The mere fact that the procurement is done through a Central PSU will not absolve them from the above obligation and they are bound to ensure that the 4th respondent does not violate such a requirement of law. As far as the "Nilaavu" project is concerned there has been no such public procurement of the LED lights, initiated with the participation of the 4th respondent and the KSEB or officers of the Government and the Government has just purchased what has already been procured by the 4th respondent on the basis of tenders that had been floated by W.P.(C)Nos.3490 & 5045 OF 2021 69 them for implementing the SLNP scheme in Telengana and certain other areas. Here again, the petitioners have a legitimate expectation that the respondents will follow the procedure prescribed while making public procurement, with necessary consideration of the right of the MSMEs either on reservation or for the price and purchase preference. There is no material to show that there was such a consideration.
50. In the light of the above findings, I am of the opinion that the procurement of LED lights for the purpose of "Nilaavu" project, by the respondents, without following the procedure prescribed and without considering the rights of the MSMEs available as per Ext.P6 as far as the 4th respondent is concerned and to the extent adopted by the State Government, are arbitrary and violative of Article 14 of the Constitution of India.
QUESTION (g):
51. The contention of the 4th respondent is that since the issue involved is in the realm of contract, depending on opinion of experts, unless the decision is totally arbitrary or unreasonable, the Court will not sit in appeal over the decision of the appropriate authority, in exercise of the discretionary power under Article 226 of the Constitution of India.
W.P.(C)Nos.3490 & 5045 OF 2021 70
52. In Kasturilal (supra), the Apex Court held that Court can interfere and strike down State action as arbitrary, unreasonable or contrary to public interest. On facts the Court held that so long as the State action is bona fide and reasonable, the Court will not interfere merely on the ground that no advertisement was given or publicity made or tenders invited. The judgment does not in any way hold that the Court should not act if it finds that an action is arbitrary for having not considered the legitimate expectations of the MSMEs, which are based on policies notified by the State. Sachidanand Pandey (supra) was a case where the Government of West Bengal resorted to private negotiation instead of following the process of inviting tenders or holding public auction and on facts, the Apex Court found that the said action cannot be said to lacking in probity. Unlike the above case, in the case on hand, rights are recognised in favour of the MSMEs in terms of reservation and purchase and price preference and the said rights recognised by the notified policies are not taken into account, thus leading to arbitrariness in State action. The decision in M.Jhangir (supra) also does not better the case of the 4 th respondent in any manner. Tata Cellular (supra) is a case where the Apex Court held that the right to refuse the lowest or any other tender is always available W.P.(C)Nos.3490 & 5045 OF 2021 71 with the Government. The said judgment also stands on a totally different footing. In the case on hand, I have already found that there has been no tender for procurement of LED lights for the "Nilaavu" project and it is a case of total exclusion of the MSMEs, who claim reservation as against the 4 th respondent and price and purchase preference as against the State and KSEB. In fact, the Apex Court had specifically held in the above case that the Court is concerned with the manner in which a decision is taken. The Court reiterated the grounds of illegality, irrationality (Wednesbury unreasonableness) and procedural impropriety as the ones available for challenging an administrative action. This Court is concerned with the decision making process adopted by the respondents, which in my opinion does not satisfy the tests laid down in Brahmputra (supra). M.P.Oil (supra) is a case where the Hon'ble Supreme Court held that the Court should not embark on the unchartered ocean of public policy and should not question the efficacy or otherwise of such policy. The said decision will also not apply to the facts of this case, where the petitioners are complaining about non- consideration of their rights guaranteed in the policy notified by the State. In the case on hand, the State Government as well as the Central Government have notified schemes/projects whereby the W.P.(C)Nos.3490 & 5045 OF 2021 72 conventional streetlights are to be replaced with LED lights. This Court has no doubt about the laudable objective that is sought to be achieved. However, when faced with a situation where, in implementation of the project, the State Government or its agents have acted arbitrarily, this Court is bound to interfere and set right the action in such a way that the arbitrariness is removed.
53. The principles laid down in Raunaq International (supra), also do not help the 4th respondent in any manner. The said judgment also does not rule out judicial review in cases where the petitioners put forth a right of legitimate expectation based on notified public policy, issued in terms of the power available under Section 11 of the MSMED Act. Reliance is placed on Air India (supra), wherein the Hon'ble Supreme Court held that "Even when some defects is found in the decision making process, the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point". However, the above observation was made by the Court after stating the law on the point thus: "... the State, its Corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them W.P.(C)Nos.3490 & 5045 OF 2021 73 arbitrarily. Though that decision is not amenable to judicial review, the Court can examine the decision making process and interfere if it is found vitiated by malafides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned". This Court is examining the action of the respondents only to the above said limited extent. Nagar Nigam (supra) was a case in which the High Court had granted a licence by negotiation and the law laid down by the Court does not go against the principles laid down in Brahmputra(supra). In Jagdish Mandal (supra) also, the Hon'ble Supreme Court reiterated the law that Court can interfere when the process adopted or the decision made is so arbitrary and irrational that no responsible authority acting reasonably and in accordance with relevant law could have reached. The decisions in Meerut Development (supra), Michigan Rubber(supra), HBL Nife Power (supra) and Afcons (supra), also do not depart from the above referred legal principles.
54. Reliance is placed on the decision in International Trading Co.(supra) to contend that the doctrine of legitimate expectation cannot be applied if it came in the way of public interest, while exercising the power of judicial review of policy W.P.(C)Nos.3490 & 5045 OF 2021 74 decisions of the State. However, the said contention does not appear to be justified in the light of the law stated by the Hon'ble Supreme Court in the judgment relied on. What is stated in paragraph 22 of the judgment is that "If denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased gross abuse of power or violation of principles of natural justice, the same can be questioned on the well known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles." The above judgment also proceeds on the basis that the Court can examine the question whether the denial of legitimate expectation amounts to denial of a right guaranteed or is arbitrary etc.
55. Lastly, the Counsel for the 4th respondent referred to the decision of the Gujarat High Court in Paresh Kumar Dalsukhbhai Gujrar v. State of Gujarat & others (Writ Petition(PIL) No.243 of 2016), and contended that in a similar situation, the Gujarat High Court had dismissed a writ petition challenging the appointment of the 4th respondent as the Nodal Agency for the project of LED street lights in various ULBs in the State of Gujarat. The above decision does not relate to the rights of the MSMEs W.P.(C)Nos.3490 & 5045 OF 2021 75 regarding procurement of products manufactured by them. As already stated, this Court is very much aware of the laudable object of the project "Nilaavu" envisaged by the State Government. The SLNP could have been implemented by the State Government or the LSGIs in the State, even without a separate project named "Nilaavu", by entrusting the entire implementation with the 4 th respondent, in which case the defence regarding the international funding would have been available to the 4 th respondent. However, the facts as already discussed are very different in the case of the "Nilaavu" project. I am of the opinion that the decision of the Gujarat High Court does not apply to the facts of this case.
56. Before proceeding to conclude, it is beneficial to recapitulate some necessary facts. Neither the KSEB nor the 4th respondent has a case that any of the process that was set forth in the proposal submitted by the 4th respondent regarding the implementation of the project in June, 2020 (Ext.R4H) was undertaken after issuance of Ext.R4I Letter of Intent or even before. It is in this context that the Tender documents Ext.R4D and Ext.P25 should be compared. Ext.P25 is a global tender for purchase of 1.9 million LED lamps notified on 19.4.2020, when the "Nilaavu" project was not in contemplation. Ext.R4D is regarding purchase of IDC W.P.(C)Nos.3490 & 5045 OF 2021 76 materials suitable for LED Streetlights. Ext.R4D is six days after the issuance of Ext.R4I Letter of Intent. However, Ext.P25 is eight months before the Letter of Intent. Even though an attempt is made to link Ext.P25 to the contract between the 4 th respondent and KSEB, I am of the opinion that there is no way in which they can be linked. Ext.P25 cannot legally be the basis for issuance of the purchase order for several reasons. Firstly, Ext.P25 is relating to implementation of SLNP in Telengana and some other States, which does not include Kerala. Secondly, even the proposal for supply was submitted by the 4th respondent to the KSEB only in June, 2020. Thirdly, Ext.P25 is a global tender with standards of pre-qualification for bidders fixed in such a way that no MSME will be able to participate in the tender process. Fourthly, Ext.P25 does not refer to "Nilaavu" project at all while Ext.R4D relating to IDC materials specifically refers to the project. It would appear that the entire process is to facilitate the 4 th respondent to supply LED lightings that are already available with them, having procured for some different project, by making it appear it as a fresh procurement in terms of Ext.R4I Letter of Intent. I would not have made the above observation, but for the reason that in their counter affidavit, the 4th respondent has sought to contend W.P.(C)Nos.3490 & 5045 OF 2021 77 that they had invited open competitive bidding for procurement of LED street lights and IDC fixtures as per the policy guidelines and norms prescribed for giving purchase and price preference to MSMEs and also sought to make it appear that Ext.R4D is a tender relating to procurement of LED Street lights. It is also contended that the LED lights and the fittings and fixtures have been procured by the 4th respondent in accordance with the Procurement Policy envisaged under the agreement dated 26.02.2021. The above contentions cannot be true since Ext.P25 was issued on 19.04.2020, much before Ext. R4E and R4E1.
CONCLUSION
57. In the light of the detailed discussion in the earlier paragraphs, the contentions raised by the writ petitioners are found to be legally sustainable. The petitioners are entitled to succeed in the writ petitions. It is declared that the procurement of LED lights by the State Government and the KSEB, through the 4 th respondent is not in accordance with law. However, since the procurement of 2 lakh LED lights is already completed and it is contended that the replacement with the said 2 lakh LED lights is nearing completion, this Court does not think it fit to exercise the discretion available under Article 226 of the Constitution of India to direct the W.P.(C)Nos.3490 & 5045 OF 2021 78 respondents to undo what has already been done. However, the project envisages purchase of 10.5 lakhs LED lights. In the light of my finding on questions (a) to (f), it is directed that the respondents shall not proceed to procure the balance 8.5 lakhs LED lights without making necessary changes in the purchase process under the "Nilaavu" project, by providing for the purchase of the LED lights from the MSMEs like the petitioners, giving due consideration to the reservation available under paragraph 11 of Ext.P6 and the price and purchase preference notified by the State Government. This Court does not deem it necessary to stop the Government from going ahead with the project of replacement of the conventional street light with LED lights. The respondents are free to continue with the "Nilaavu" project, after making necessary changes regarding giving reservation/preference to the MSMEs in the procurement of LED lights, and thus bringing the action within the limits of non- arbitrariness.
The parties will bear their respective costs.
Sd/-
T.R.RAVI, JUDGE dsn W.P.(C)Nos.3490 & 5045 OF 2021 79 APPENDIX OF WP(C) 3490/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE OF PETITIONER NO.1 IN 'UDYAM' UNDER THE MINISTRY OF MICRO, SMALL AND MEDIUM ENTERPRISES OF THE UNION OF INDIA WITH DATE OF REGISTRATION 14-09- 2020 EXHIBIT P2 TRUE COPY OF THE UDYOG AADHAR OF PETITIONER NO. 2 EXHIBIT P3 TRUE COPY OF THE UDYOG AADHAR OF PETITIONER NO. 3 EXHIBIT P4 TRUE COPY OF THE UDYOG AADHAR OF PETITIONER NO. 4 EXHIBIT P5 TRUE COPY OF THE UDYOG AADHAR OF PETITIONER NO. 5 EXHIBIT P6 TRUE COPY OF THE CERTIFICATE OF INCORPORATION OF PETITIONER NO. 6 DATED 15-10-2020 EXHIBIT P7 TRUE COPY OF ORDER NO.S O 581(E) DATED 23-03- 2012 ISSUED BY THE MINISTRY OF MICRO, SMALL AND MEDIUM ENTERPRISES, GOVERNMENT OF INDIA.
EXHIBIT P8 TRUE COPY OF ORDER NO. P-45021/2/2017 PP (BE II) DATED 04-06-2020 ISSUED BY THE MINISTRY OF COMMERCE AND INDUSTRY, GOVERNMENT OF INDIA EXHIBIT P9 TRUE COPY OF G.O(RT) NO 5382/2020/FIN DATED 18- 09-2020 ISSUED BY THE FINANCE DEPARTMENT, GOVERNMENT OF KERALA EXHIBIT P10 TRUE COPY OF THE RELEVANT PAGES OF ANNEXURE 19 OF THE STORE PURCHASE MANUAL, REVISED EDITION 2013 EXHIBIT P11 TRUE COPY OF CIRCULAR NO. 3038/A2/98/S.P.D DATED 30-01-2009 ISSUED BY THE STORE PURCHASE (A) DEPARTMENT OF THE GOVERNMENT OF KERALA.
EXHIBIT P12 TRUE COPY OF G.O(MS) NO. 202/2020/LSGD DATED 25-12-2020 ISSUED BY LOCAL SELF GOVERNMENT DEPARTMENT OF GOVERNMENT OF KERALA.
EXHIBIT P13 TRUE COPY OF THE ORDER NO. EWB1/101/2020 DATED 07-01-2021 ISSUED BY LOCAL SELF GOVERNMENT (EWB) DEPARTMENT OF GOVERNMENT OF KERALA ALONG W.P.(C)Nos.3490 & 5045 OF 2021 80 WITH THE REVISED GUIDELINES OF "NILAVU" SCHEME EXHIBIT P14 TRUE COPY OF CIRCULAR NO. C.P/PLG II/NILAVU STREET LIGHT SCHEME/2020-21/174 DATED 23-01- 2021 ISSUED BY RESPONDENT NO.2 EXHIBIT P15 TRUE COPY OF THE STREET LIGHT NATIONAL PROGRAMME (SNLP).
EXHIBIT P16 TRUE COPY OF THE AGREEMENT DATED 04.12.2015 EXECUTED BETWEEN NAGAR NIGAM KOTA, GOVERNMENT OF RAJASTHAN AND EESL.
EXHIBIT P17 TRUE COPY OF THE ORDER ISSUED BY THE MUNICIPAL ADMINISTRATION AND URBAN DEVELOPMENT (P2) DEPARTMENT, GOVERNMENT OF TELANGANA, DATED 28.10.2016.
EXHIBIT P18 TRUE COPY OF THE AGREEMENT DATED 27.07.2015 EXECUTED BETWEEN THE KSEBL AND THE ALAPPUZHA MUNICIPALITY.
EXHIBIT P19 TRUE COPY OF THE GOVERNMENT ORDER
NO.3128/2018/LSGD DATED 12.12.2018 ISSUED BY
THE LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT OF KERALA.
EXHIBIT P20 TRUE COPY OF THE ORDER ISSUED BY THE PANCHAYAT
DIRECTOR TO THE SECRETARIES OF ALL THE
PANCHAYATS IN THE STATE ON 08.01.2021.
EXHIBIT P21 TRUE COPY OF STARRED QUESTION No.338 AND THE
ANSWERS GIVEN BY THE UNION MINISTER OF POWER ON
3.1.2019 REGARDING SLNP IN THE LOK SABHA
EXHIBIT P22 TRUE COPY OF UNSTARRED QUESTION No.1677 AND THE
ANSWERS GIVEN BY THE UNION MINISTER OF POWR ON
28.11.2019 REGARDING SNLP IN THE LOK SABHA
EXHIBIT P23 TRUE COPY OF PHOTOGRAPH OF A STREET LIGHT AS
PER THE NILAVU PROJECT
RESPONDENTS' EXTS:
EXT.R2A TRUE COPY OF NOTICE INVITING TENDER
DT.19.4.2020 ISSUED BY EESL
EXT.R2B TRUE COPY OF NOTICE INVITING TENDER
DT.30.12.2020 ISSUED BY EESL
EXT.R4A TRUE COPY OF LETTER OF AUTHORITY DT.11.3.2021
ISSUED BY RESPONDENT No.4
W.P.(C)Nos.3490 & 5045 OF 2021 81
EXT.R4B TRUE COPY OF LETTER D.O.No.9/23/2014-EC
(VOL.II) DT.13.1.2016 ISSUED BY THE MINISTRY OF POWER EXT.R4C TRUE COPY OF THE DETAILED PROJECT REPORT GOT PREPARED BY RESPONDENT No.1 NAMED AS NILAVU
-ILLUMINATING KERALA EXT.R4D TRUE COPY OF THE TENDERS FOR PROCUREMENT OF LED STREET LIGHTS INVITED BY EESL EXT.R4E TRUE COPY OF PURCHASE ORDER DT.26.2.2021 EXT.R4E(1) TRUE COPY OF AGREEMENT DT.26.2.2021 EXT.R4F TRUE COPY OF OM DT.4.6.2020 EXT.R4G TRUE COPY OF OM DT.23.7.2020 EXT.R4H TRUE COPY OF RELEVANT PAGES OF THE PROPOSAL GIVEN BY EESL IN JUNE 2020 TO KSEB TITLED PROPOSAL FOR IMPLEMENTATION OF LED STREET LIGHT PROJECT IN KERALA STATE EXT.R4I TRUE COPY OF THE 2ND RESPONDENT'S LETTER OF INTENT DT.24.12.2020 EXT.R4J TRUE COPY OF ADB PROCUREMENT POLICY, 2017 EXT.R4K TRUE COPY OF PROCUREMENT REGULATIONS FOR ADB BORROWERS, 2017 EXT.R4L TRUE COPY OF RELEVANT PAGES OF 4TH RESPONDENT'S ANNUAL REPORT FOR THE FINANCIAL YEAR 2019-2020 EXT.R1(A) TRUE PHOTOCOPY OF GO(P)No.5/2019/SPD DT.8.4.2019 EXT.R1(B) TRUE COPY OF NOTICE INVITING TENDER IT DT.30.12.2020 ISSUED BY EESL, INVITING TENDER FOR SUPPLYING MATERIALS FOR NILAVU PROJECT.
W.P.(C)Nos.3490 & 5045 OF 2021 82APPENDIX OF WP(C) 5045/2021 PETITIONERS' EXHIBITS EXHIBIT P1 TRUE COPY OF CERTIFICATE OF INCORPORATION OF THE PETITIONER DATED 08.06.2015.
EXHIBIT P2 TRUE COPY OF G.O (RT) NO. 629/2015/LSGD DATED 02.03.2015.
EXHIBIT P3 TRUE COPY OF PUBLIC PRIVATE PARTNERSHIP AGREEMENT DATED 17.06.2015 EXECUTED BETWEEN THE PETITIONER AND KREWS.
EXHIBIT P4 TRUE COPY OF CERTIFICATE OF INCORPORATION OF THE SPV DATED 30.07.2015.
EXHIBIT P5 TRUE COPY OF UDYOG AADHAR OF THE SPV FILED ON 04.12.2015.
EXHIBIT P6 TRUE COPY OF ORDER NO. S.O. 581(E) DATED 23.03.2012 OF 7TH RESPONDENT.
EXHIBIT P7 TRUE COPY OF ORDER NO. P45021/2/2017-PP(BE-II) DATED 04.06.2020.
EXHIBIT P8 TRUE COPY OF G.O(RT) NO. 5382/2020/FIN. DATED 18.09.2020.
EXHIBIT P9 TRUE COPY OF G.O(P) NO. 3/2013/SPD DATED 21.06.2013.
EXHIBIT P10 TRUE COPY OF RELEVANT PAGES OF THE STORES PURCHASE MANUAL, REVISED EDITION, 2013.
EXHIBIT P11 TRUE COPY OF G.O (K) NO. 117/2020/LSGD DATED 10.08.2020 ISSUED BY LOCAL SELF GOVERNMENT DEPARTMENT OF GOVERNMENT OF KERALA.
EXHIBIT P12 TRUE COPY OF G.O(K) NO. 202/2020/LSG DATED 25.12.2020.
EXHIBIT P13 TRUE COPY OF ORDER NO. EWB1/101/2020 DATED 07.01.2021 ISSUED BY LOCAL SELF GOVERNMENT (EWB) DEPARTMENT OF THE 1ST RESPONDENT ALONG WITH THE REVISED GUIDELINES OF "NILAVU" SCHEME.
EXHIBIT P14 TRUE COPY OF CIRCULAR NO. C.P./PLG II/NILAVU STREET LIGHT SCHEME/2020-21/174 DATED 23.01.2021 ISSUED BY RESPONDENT NO.2.
EXHIBIT P15 TRUE COPY OF REPRESENTATION SUBMITTED BY THE SPV W.P.(C)Nos.3490 & 5045 OF 2021 83 BEFORE THE MINISTER FOR INDUSTRIES, STATE OF KERALA.
EXHIBIT P16 TRUE COPY OF WEBSITE OF THE STORES PURCHASE DEPARTMENT, GOVERNMENT OF KERALA.
EXHIBIT P17 TRUE COPY OF RELEVANT PAGES OF THE KERALA FINANCIAL CODE VOLUME 1, 8TH EDITION, 2016.
EXHIBIT P18 TRUE COPY OF CIRCULAR NO. 23/7/07 DATED 05.07.2007 ISSUED BY THE CENTRAL VIGILANCE COMMISSION.
EXHIBIT P19 TRUE COPY OF VIDE G.O(GEN.) NO. 1093/2017/LSGD DATED 05.04.2017.
EXHIBIT P20 TRUE COPY OF UDYOG AADHAAR MEMORANDUM OF M/S USHA ELECTRONIC SYSTEMS SHOWING DATE OF COMMENCEMENT AS 21.08.2009 ISSUED BY THE 7TH RESPONDENT EXHIBIT P21 TRUE COPY OF UDYOG AADHAAR REGISTRATION CERTIFICATE OF THE PETITIONER COMPANY ISSUED BY THE 7TH RESPONDENT DATED 05.03.2021 EXHIBIT P22 TRUE COPY OF RELEVANT PAGES OF ANSWERS PLACED ON THE TABLE OF LOK SABHA BY THE MINISTRY OF POWER, WITH REGARD TO THE QUESTIONS RELATING TO LED STREET LIGHTS.
EXHIBIT P23 TRUE COPY OF RELEVANT PAGES OF CORPORATE BROCHURE OF THE 4TH RESPONDENT.
EXHIBIT P24 TRUE COPY OF LETTER NO B3-829/2020 DATED 08.01.2021 ISSUED BY PANCHAYAT DEPUTY DIRECTOR ADDRESSED TO THE SECRETARY, PANCHAYATS.
EXHIBIT P24 TYPED COPY OF EXHIBIT P24 EXHIBIT P25 TRUE COPY OF RELEVANT PAGES OF TENDER NO-
EESL/2020-21/ICB/PHASE-111/SLNP-181902249 ON 19.4.2020 ISSUED BY THE 4TH RESPONDENT EXHIBIT P26 TRUE COPY OF G.O.(RT) NO.761 DATED 28.10.2016 ISSUED BY THE GOVERNMENT OF TELENGANA EXHIBIT P27 TRUE COPY OF G.O.(GEN) NO-685/2014/LSGD DATED 06.03.2014 ISSUED BY THE 1ST RESPONDENT EXHIBIT P28 TRUE COPY OF G.O.(GEN) NO.2495/2015/LSGD DATED 12.08.2015 ISSUED BY THE 1ST RESPONDENT EXHIBIT P29 TRUE COPY OF ORDER NO.06/02/2015-NEF/FRP DATED 20.11.2015 OF GOVERNMENT OF INDIA.
W.P.(C)Nos.3490 & 5045 OF 2021 84RESPONDENTS' EXHIBITS EXHIBIT R2A THE TRUE COPY OF NOTICE INVITING TENDER AND TENDER DOCUMENTS DATED 19.04.2020 ISSUED BY EESL.
EXHIBIT R2B THE TRUE COPY OF NOTICE INVITING TENDER DATED 30.12.2020 ISSUED BY EESL.
EXT.R4A TRUE COPY OF LETTER OF AUTHORITY DT.11.3.2021 ISSUED BY RESPONDENT No.4 EXT.R4B TRUE COPY OF LETTER D.O.No.9/23/2014-EC (VOL.II) DT.13.01.2016 ISSUED BY THE MINISTRY OF POWER EXT.R4C TRUE COPY OF THE DETAILED PROJECT REPORT GOT PREPARED BY RESPONDENT No.1 NAMED AS NILAVU
-ILLUMINATING KERALA EXT.R4D TRUE COPY OF THE TENDERS FOR PROCUREMENT OF LED STREET LIGHTS INVITED BY EESL EXT.R4E TRUE COPY OF PURCHASE ORDER DT.26.2.2021 EXT.R4E(1) TRUE COPY OF AGREEMENT DT.26.2.2021 EXT.R4F TRUE COPY OF OM DT.4.6.2020 EXT.R4G TRUE COPY OF OM DT.23.7.2020 EXT.R4H TRUE COPY OF RELEVANT PAGES OF THE PROPOSAL GIVEN BY EESL IN JUNE 2020 TO KSEB TITLED PROPOSAL FOR IMPLEMENTATION OF LED STREET LIGHT PROJECT IN KERALA STATE EXT.R4I TRUE COPY OF THE 2ND RESPONDENT'S LETTER OF INTENT DT.24.12.2020 EXT.R4J TRUE COPY OF ADB PROCUREMENT POLICY, 2017 EXT.R4K TRUE COPY OF PROCUREMENT REGULATIONS FOR ADB BORROWERS, 2017 EXT.R4L TRUE COPY OF RELEVANT PAGES OF 4TH RESPONDENT'S ANNUAL REPORT FOR THE FINANCIAL YEAR 2019-2020 EXT.R1(A) TRUE PHOTOCOPY OF THE GO(P)No.5/2019/SPD DT.8.4.2019 EXT.R1(B) TRUE PHOTOCOPY OF THE NOTICE INVITING TENDER IT DT.30.12.2020 ISSUED BY EESL, INVITING TENDER FOR SUPPLYING MATERIALS FOR NILAVU PROJECT