Kerala High Court
Malathi Prabhakaran vs Ombudsman For Local Self Government on 25 November, 2021
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
W.P.(C) No. 18871/2010 :1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
WP(C) NO. 18871 OF 2010
PETITIONER/S:
1 MALATHI PRABHAKARAN, PRESIDENT,
KILIMANOOR GRAMA PANCHAYAT, KILIMANOOR,,
THIRUVANANTHAPURAM.
2 A.MURALIDHARAN, VICE PRESIDENT,
KILIMANOOR GRAMA PANCHAYAT, KILIMANOOR,,
THIRUVANANTHAPURAM.
3 K.G.PRINCE, STANDING COMMITTEE
CHAIRMAN (WELFARE), KILIMANOOR GRAMA PANCHAYAT,,
KILIMANOOR, THIRUVANANTHAPURAM.
4 K.JAGADISH CHANDRA UNNITHAN
STANDING COMMITTEE CHAIRMAN (DEVELOPMENT),, KILIMANOOR
GRAMA PANCHAYAT, KILIMANOOR, THIRUVANANTHAPURAM.
5 P.SASIDHARAN PILLAI, PANCHAYATH MEMBER,
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
6 SREEKALA, PANCHAYATH MEMBER
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
7 K.VIJAYAN, PANCHAYATH MEMBER
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
8 J.SREEKANTHAN NAIR, PANCHAYATH MEMBER,
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
9 K.JAYACHANDRAN, PANCHAYATH MEMBER,
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
10 P.RAVEENDRAN NAIR PANCHAYATH MEMBER
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
11 P.S.SOBHA, PANCHAYATH MEMBER,
W.P.(C) No. 18871/2010 :2
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
12 SUMANGALI SREEDHARAN, PANCHAYATH MEMBER,
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
13 SAFIYA BEEVI K.S., PANCHAYATH MEMBER
KILIMANOOR GRAMA PANCHAYAT,, KILIMANOOR,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.NAGARAJ NARAYANAN
SRI.BENOJ C AUGUSTIN
SRI.G.R.PANICKER
SRI.RAJAN VELLOTH
SRI.SAIJO HASSAN
SRI.A.S.SABU
SRI. PRATHAP PILLAI
RESPONDENTS:
1 OMBUDSMAN FOR LOCAL SELF GOVERNMENT
INSTITUTIONS, BARTON HILL, THIRUVANANTHAPURAM.
2 KILIMANOOR GRAMA PANCHAYATH
KILIMANOOR, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY
ITS SECRETARY.
3 RAVI VARMA K. MANAGER
KSIE LIMITED, EMPORIUM, GOVERNMENT PRESS ROAD,, SANTHI
NAGAR, STATUE, THIRUVANANTHAPURAM.
4 S.KRISHNAN KUTTY NAIR
KEEZHAKEDAM (SARASWATHY MANDIRAM),, PONGANADU P.O.,
KULIMANOOR, CHIRAYINKEEZH,, THIRUVANANTHAPURAM.
5 ADDL. R5 & R6 IMPLEADED:
JOY M, S/O. NARAYANAN,, MAVUVILAVEED, MULAKKALUTHUKAVU P.O.,
THATTATHUMALA - 695 604.
(ADDL. R5 IMPLEADED AS PER ORDER DATED 11.01.2011 IN I.A. NO.
215/2011)
6 JAYAKUMAR B.G., ALAPPAT VEEDU, PONGNAD P.O., KILIMANOOR,
THIRUVANANTHAPURAM.
(ADDL. R6 IMPLEADED AS PER ORDER DATED 25.11.2021 IN I.A. NO.
6388/2011)
BY ADVS.
SRI.V.G.ARUN
SRI.P.BENNY THOMAS
SRI.P.GOPINATH
SRI.T.R.HARIKUMAR
SRI.A.K.JAYASANKAR NAMBIAR
W.P.(C) No. 18871/2010 :3
SRI.JAIBY PAUL
SRI.A.MUHAMMED RAFFI
SRI.E.K.NANDAKUMAR
SRI.B.PREMNATH E
SRI.PRASAD CHANDRAN
R4 BY SRI.K.K.RAJEEV
R5 BY SRI.SIBY MATHEW
R2 BY SRI. .SIJU KAMALASANAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.11.2021, THE COURT ON 25.11.2021 DELIVERED THE FOLLOWING:
W.P.(C) No. 18871/2010 :4
'CR'
Dated this the 25th day of November, 2021.
JUDGMENT
Petitioners, who are the President and the members of the Kilimanoor Grama Panchayat, have filed this writ petition, challenging Ext. P18 order dated 06.03.2010 passed by the Ombudsman for the Local Self Government Institutions in Complaint No. 950 of 2010, whereby the Ombudsman directed the Kilimanoor Grama Panchayat to recover the loss suffered on account of the contract awarded to M/s. Sivaram Electricals during the year 2008 from the petitioners.
2. Brief material facts for the disposal of the writ petition are as follows:
Petitioners were respondents 4 to 17 in complaint No. 950 of 2010 filed by the third respondent--Ravi Varma K., Manager, Kerala State Industrial Enterprises Limited, Thiruvananthapuram, which was originally filed against the Secretary of the Kilimanoor Grama Panchayat--second respondent, the President of the Panchayat and the Chairman of the Standing Committee for the welfare of the Panchayat.
Subsequently, the petitioners were implemented in their personal capacity. The 4th respondent, namely one S. Krishnan Kutty Nair, W.P.(C) No. 18871/2010 :5 Kilimanoor, Thiruvananthapuram, has got himself impleaded in the complaint allegedly on the ground of public interest.
3. The subject matter leading to the complaint are as follows:
The Kilimanoor Grama Panchayat has invited tenders for the supply of the single tube set 1 x 40 w with aluminum body, choke, starter, power factor, improvement, capacitor with tube, mode BJSAL 2400 or equivalent with bend pipe, clamp, nuts, bolt, 3 meter wire as per Ext. P1 notification dated 28.07.2008 published in the newspapers. Three persons responded to the tender notification and submitted their quotation, true copies of which are produced as Exts.P2 to P4. However, the Panchayat found that the above quoted rates for single tube were highly excessive and therefore, the Panchayat in its meeting adopted a resolution, as per decision No. I(1) dated 16.08.2008 not to accept the quotations, as they were exorbitant in nature and accordingly, it was decided to call for fresh tenders, evident from Ext. P5 minutes. Consequently, Ext. P6 notification dated 16.08.2008 was published in the newspaper, pursuant to which 5 persons responded and their bids were as follows:
Single Tube Set Bend Pipe Alfa Electronic 980/825 158 KSIE 1200/840/767 148 Rajeev Charitable 864 125 Society W.P.(C) No. 18871/2010 :6 Sivaram Electricals 635/685/735 525 Thampy's Electricals 1090 230
True copies of the bids are produced as Exts.P7 to P11.
4. The Panchayat, thereafter, directed the bidders to submit their samples for personal verification, inspection and for satisfaction of their quality. Out of five persons, only 3 persons namely Rajeev Charitable Society, Sivaram Electricals and Thampy's Electricals submitted their samples for inspection. The samples were inspected by the members of the Panchayat committee as well as the concerned Assistant Engineer. On the basis of such inspection, it was found that the samples supplied by M/s. Sivaram Electricals was of the best quality and accordingly, the Panchayat committee has taken Ext. P12 resolution at its meeting held on 25.08.2008 and, accepted the tender submitted by M/s Sivaram Electricals. The lowest rate quoted for the tube was that of Sivaram Electricals. Therefore, according to the petitioners, the Panchayat committee was fully satisfied that the bend pipe sample supplied by Sivaram Electricals was of better quality and the sample model provided by them was of different nature and quality from the other two samples.
5. Further, the price quoted by M/s. Sivaram Electricals was for a length of 1 ½ meters bend pipe, while the earlier price quoted by W.P.(C) No. 18871/2010 :7 them was for 1 meter bend pipe. The petitioners also contended that the very low price quoted by the other bidders were unrealistic and therefore, the same would not have been viable. To substantiate the same, it is also stated that the material cost of the available market rate for 1 meter steel pipe was sufficiently higher than the price quoted by them and their intention in quoting such price was only to bag the contract. But, at the time of supply, the same would be met with problems and compromise in quality in reality.
6. That apart, it is stated that M/s. Sivaram Electricals was the lowest tenderer, insofar as the single tube was concerned, apart from the fact that the Panchayat committee wanted timely delivery of the products and according to the Panchayat committee M/s. Sivaram Electricals was the most suitable bidder. While so, the third respondent filed Ext. P13 complaint dated 29.08.2008 before the first respondent Ombudsman complaining that the second respondent has awarded the contract overlooking the lowest bid submitted by the third respondent, which is a public sector enterprise.
7. The first respondent--Ombudsman called for a detailed report from the Assistant Director of Panchayat, Trivandrum, who gave Ext. P14 report dated 18.05.2009. To Ext. P14, the Panchayat Secretary had filed Ext. P15 detailed statement for and on behalf of Panchayat W.P.(C) No. 18871/2010 :8 dated 26.08.2009. In response to Ext. P13, the Secretary of the Panchayat filed Ext. P16 statement dated 06.01.2010. It is submitted that the third respondent could not prove the allegations made in the complaint. Anyhow, it was found by the Ombudsman that the rejection of tender of the third respondent was justified, since the third respondent did not furnish earnest money at the rate of 2 ½ percent of the probable amount of the contract. However, the learned Ombudsman found that the tender, awarded to M/s. Sivaram Electricals at the rate of Rs.525/- for the pipe was exorbitant and that awarding of contract to M/s Sivaram Electricals was suspicious in nature and it was accordingly the Panchayat was directed to demand an amount of Rs.1,58,296/- excessively paid to M/s Sivaram Electricals from the petitioners, and failing which, it was directed to recover the amount by resorting to the revenue recovery action. It is, thus, challenging the legality and correctness of the findings of the Ombudsman, the writ petition is filed.
8. The second respondent Grama Panchayat has filed a detailed counter affidavit supporting the contentions advanced by the writ petitioners and further submitting that there is no mal administration or corruption in the matter of awarding the supply contract. It is also contended that the supply order was given as per the decision of the W.P.(C) No. 18871/2010 :9 Panchayat committee dated 25.08.2008 and the resolution taken for the purpose clearly shows that the decision was taken after verifying the samples submitted by different agencies, who had submitted tenders for the supply of electrical equipments. It is also pointed out that the Panchayat Committee and the Assistant Engineer of the Panchayat examined the samples submitted by the tenderers and it was after satisfying the quality of the articles submitted by M/s. Sivaram Electricals, the Committee decided to give the supply order, and accordingly, the Secretary issued the order. Other contentions with respect to the disqualification of the third respondent is clearly spelt out in the counter affidavit.
9. The third respondent has also filed a counter affidavit justifying the action of filing the complaint before the Ombudsman.
10. I have heard, learned counsel for the petitioners Sri. Nagaraj Narayanan, Sri. Siju Kamalasanan for the Grama Panchayat and Sri. K. K. Rajeev for the 4th respondent, and perused the pleadings and materials on record.
11. The question that emerges for consideration is whether any manner of interference is required to the order passed by the Ombudsman. On a perusal of Ext. P18 order of the Ombudsman, it is clear that the third respondent has filed the complaint basically W.P.(C) No. 18871/2010 : 10 contending that the supply order issued by the highest bidder is without considering the lowest bid submitted by M/S Kerala State Financial Enterprises regarding the supply of electrical items. In fact, on a perusal of Ext. P13 complaint, it is clear that the third respondent has not made any allegations of mala fides, manipulation or other illegalities against the petitioners personally.
12. It is also clear from Ext. P18 order passed by the Ombudsman that the third respondent was not qualified, since the third respondent has not deposited the earnest money in accordance with the conditions in the notification issued by the Grama Panchayat and further that in order to secure exemption from payment of the earnest money, the third respondent did not have the valid registration either at the time of submitting of the tender or the opening of the tender. It is clearly found by the Ombudsman that the registration had expired and the renewal was done by the third respondent after the date of opening of the tender. It is clear from Ext. P15 that the Grama Panchayat has filed a detailed counter affidavit through its Secretary explaining the circumstances under which the tender of M/s. Sivaram Electricals was accepted and further that the Panchayat did not suffer any loss due to the tender awarded to M/s. Sivaram Electricals. That apart, the Secretary, in his individual capacity, has filed Ext. P16 W.P.(C) No. 18871/2010 : 11 objection, in which also it is clearly stated that the third respondent was not qualified and that M/s. Sivaram Electricals has quoted for the bend pipe having a length of 1.5 meters and not 1 meter. However, the third respondent has not quoted any price for the supply of the accessories separately.
13. Anyhow, the Ombudsman has called for a report from the Assistant Director of Panchayat, Thiruvananthapuram evident from Ext. P14, wherein the said Officer has reported that when compared to the rates quoted by the third respondent, the rates quoted by M/s. Sivaram Electricals was higher and therefore, the Panchayat might have suffered a loss.
14. On a perusal of Ext. P18 order of the Ombudsman, it is clear that the Ombudsman has not taken into consideration any of the objections raised by the Panchayat and the Secretary in his written objections. But, on the other hand, the Ombudsman absolutely relied upon the report of the Assistant Director of Panchayats and arrived at the conclusions. The reason assigned in Ext. P18 order for arriving at the conclusion that the rate quoted by M/s Sivaram Electricals was on the higher side, is basically on the ground that in the earlier tender invitation, M/s. Sivaram Electricals has quoted Rs. 250/- for the bend pipe in order to instal the tube light.
W.P.(C) No. 18871/2010 : 12
15. However, quoting an amount of Rs.525/- in the second tender invited after 17 days is suspicious. The Panchayat as well as the Secretary, in their objections, have categorically stated that in the earlier tender, the amount was quoted by M/s. Sivaram Electricals for 1 meter bend pipe. Whereas, in the new tender, it is quoted for a 1.5 meter length bend pipe. It is also stated by the Panchayat, in its objections, that the tender submitted for single tube by M/s. Sivaram Electricals was the lowest.
16. On a threadbare analysis of Ext. P18, I am of the clear opinion that the Ombudsman did not consider any of the aspects put forth by the Panchayat before arriving at the conclusions in the complaint. In fact, the Ombudsman is constituted under Section 271F of the Kerala Panchayat Raj Act, 1994 ('Act, 1994' for short). The powers of the Ombudsman is dealt with under Section 271K of the Act, 1994, which reads thus:
271 K. Powers of the Ombudsman. - (1) The Ombudsman shall, for the purpose of any investigation or enquiry under this Act, have the same powers as are vested in a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (Central Act V of 1908) in respect of the following matters, namely: -
(a) summoning and enforcing the attendance of any witness and examining him;W.P.(C) No. 18871/2010 : 13
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public records, or copy thereof from any Court or Office;
(e) issuing commissions for the examination of witness;
(f) such other powers as are prescribed;
(2) Where the Ombudsman finds that the allegation contained in a complaint is without any substance or trivial in nature it may by order direct the complainant to pay to the opposite party so much of the amount specified in the order by way of cost. (3) Where the allegation contained in a complaint is about the loss or waste or misapplication of the fund of the Local Self Government Institution or in respect of the loss or misconvenience caused to a citizen, the Ombudsman may, during enquiry, collect evidence, determine the loss and direct in its order the amount to be realised from the person responsible.
(4) If the amount paid as per the order passed by the Ombudsman under sub-section (2) or sub-section (3) is not paid within the period specified by it, the same shall be recoverable by Revenue Recovery Proceedings as if it were an arrears of land revenue."
17. Therefore, on an appreciation of Section 271K, it is clear that in order to proceed with the complaint, the Ombudsman should be satisfied that allegations are contained in the complaint, and if the complaint is without any substance or provisional in nature, it may by order direct the complainant to pay to the opposite party so much of W.P.(C) No. 18871/2010 : 14 the amounts satisfied in the order by way of cost.
18. However, sub-Section (3) thereto makes it clear that where there is an allegation contained in a complaint about the loss or waste or misapplication of the fund of the Local Self Government Institution or in respect of the loss or misconvenience caused to a citizen, the Ombudsman may, during enquiry, collect evidence, determine the loss and direct in its order the amount to be realised from the person responsible.
19. On an analysis of the said provision also, it is clear that the basic requirements of a complaint should be an allegation about the loss or waste or misapplication of the fund of the Local Self Government Institution. However, in Ext. P13 complaint, the sole statement made by the third respondent complainant is that the Panchayat has issued the supply order to the highest bidder without considering the lowest bidder regarding the supply of the electrical items. Apart from the complaint so submitted in the format, no allegations were incorporated by the third respondent in the complaint.
20. Therefore, in my considered opinion, the Ombudsman could have proceeded with the complaint before it, only if there were at least some basic allegations with respect to the misappropriation of money or Panchayat fund, which is totally absent in the complaint. The W.P.(C) No. 18871/2010 : 15 Panchayat and the Secretary, in their objections, have stated that M/s. Sivaram Electricals was selected as the successful bidder, taking into account the quality of the product and for ensuring the timely supply of products. It is clear from the resolution of the Panchayat that the Panchayat was unanimous in its decision in the matter of award of the contract to M/s. Sivaram Electricals, after a threadbare discussion and after verifying the quality of the products produced by M/s. Sivaram Electricals for the inspection and finalisation of the tender.
21. Moreover, awarding of contracts within a Panchayat is guided by the Kerala Panchayat Raj (Contract) Rules, 1996, (Rules, 1996) constituted by the State Government by virtue of the powers conferred on it under Section 254(ix) of the Act, 1994. Rule 3 thereto dealing with the general conditions of contracts is extracted hereunder for convenience and proper appreciation of the same:
"3. General conditions in respect of Contracts.--
(1) A Panchayat may enter into and perform all contracts ,that it deems necessary or proper for implementing the provisions of the Act. (2) The Panchayat shall follow the following conditions for the execution of the public works and other works which have been entrusted with, and arc carried out by the Panchayat as per the provisions of the Act.--
(i) The Panchayat Committee shall discuss as to whether a work may be executed on contract or not and as regards the works proposed to be executed on contract and the President shall take further action on the W.P.(C) No. 18871/2010 : 16 basis of the majority decision of the Committee.
(ii) The Secretary shall, under the written orders of the President. invite tenders for the Panchayat and take follow up action thereto.
(iii) The Committee shall take decision in respect of entrusting a work in the name of a person or an institution.
(iv) The President may, in accordance with the decision of the Committee, authorise the Secretary in writing for signing a contract on behalf of the Panchayat.
(v) The deed of contract shall be in stamp paper as mentioned in the relevant section of the Kerala Stamp Act, 1959.
(vi) The Secretary shall if the Contractor fails to complete the work within the stipulated period or if the Secretary is convinced that the work done is not in compliance with the terms of the contract, inform the fact to the President who shall place the matter before the committee for discussion and shall take further action thereon in accordance with the decision of the Committee."
22. Rule 4 empowers the Panchayat to cancel the contracts after issuing notice to the Contractor, if he acts in contravention to the terms of the contract and the President is vested with powers to recover from the Contractor the loss that it sustained, and it reads thus:
"4. Power of Panchayat to cancel Contracts.---The Panchayat shall be vested with the power to cancel a contract after issuing notice to the Contractor if the Contractor acts in contravention to the terms of the contract and the President shall take steps to recover from the Contractor, the loss that the Panchayat may sustain on this account and the President shall have the sole responsibility in this respect."W.P.(C) No. 18871/2010 : 17
23. Rule 6, which deals with the method of executing contracts, reads thus:
"6. Method of executing Contracts.- -(1) Any contract entered into by the Secretary on behalf of the Panchayat shall be made in the same manner and method applicable to him had it been done for himself.
(2) Every contract shall be affixed with the common seal of the Panchayat, (3) If the expenditure involves more than one thousand rupees in the case of execution of a work or procuring of goods or of rendering a service, the Contract therefore shall be in writing and the details in respect of the work that shall be executed; the particulars of the goods (that shall be supplied, the standard of quality thereof, the details as to the manner in which and the period up to which the service shall be rendered, the date on which the work shall be completed, the last date for supply of the goods etc-, as the case may be, shall be clearly stated therein.
(4) The common seal of the Panchayat shall be kept by the Secretary and it shall not be affixed in any contract or other document otherwise than in his presence.
(5) No Contract entered into otherwise than in accordance with the provisions of this rule shall be binding on the Panchayat."
24. Therefore, it is clear from the Rules, 1996 that a clear methodology in the matter of awarding of contracts is in vogue. On a consideration of the resolution taken by the Panchayat and the Rules, 1996, I am of the clear opinion that the Panchayat has awarded the W.P.(C) No. 18871/2010 : 18 contract to M/s. Sivaram Electricals by observing and complying with the statutory requirements. Merely because the price quoted by M/s. Sivaram Electricals is high, that would not dissuade the Panchayat to consider the tender submitted by the said agency predominantly for the reason that the Panchayat has to satisfy with the quality of the work specified in order to ensure that the products have long duration without it being damaged in any manner.
25. The objection filed by the Panchayat before the Ombudsman and the pleading put forth in this writ petition clearly shows that the Panchayat committee has unanimously taken the decision to award the supply contract to M/s. Sivaram Electricals by assigning categorical reasons in the resolution adopted by the Panchayat. The third respondent has not even raised any allegation or alleged any mala fides against the members of the Panchayat i.e., the petitioners, in the matter of awarding the contract. Moreover, in this regard, Section 191 of the Act, 1994 is relevant. Section 191 of the Act, 1994, which deals with the power of the Government for cancellation and suspension of resolutions, reads thus:
[191. Power of cancellation and suspension of resolutions etc. - (1) Government may either suo moto or, on a reference by President, Secretary or a member, or on a petition received from a citizen, W.P.(C) No. 18871/2010 : 19 cancel or very a resolution passed or a decision taken by the panchayat if in their opinion such decision or resolution -
(a) is not legally passed or taken; or
(b) is in excess of the powers conferred by this Act or any other law or its abuse; or
(c) is likely to endanger human life, health public safety, communal harmony or may lead to riot or quarrel; or
(d) is in violation of the directions or provisions of grant issued by Government in the matter of implementing the plans, schemes or programmes.
(2) Before cancelling or amending a resolution or decision as per sub-
section (1), the Government may refer the matter for consideration either of the ombudsman constituted under section 271G or the Tribunal constituted under Section 271 and the Ombudsman or the Tribunal, as the case may be, after giving the Panchayat an opportunity of being heard, send a report to the Government with its conclusions and the Government may, on its basis cancel, amend or confirm the resolution or decision.
(3) If another remedy is available to the petitioner through the tribunal under section 276, the Government shall not consider any petition for cancelling or amending any resolution or decision of the Panchayat.
(4) If Government consider that a resolution or decision of the Panchayat has to be cancelled or amended as per sub-section (7) it may suspend such resolution or decision temporarily and may direct the Panchayat to defer its implementation till the final disposal after W.P.(C) No. 18871/2010 : 20 the completion of the procedure under sub-section" .
26. On a proper appreciation of the said provision also, it is clear that if the resolution passed by the Panchayat was, in any manner, illegal or likely to cause damages to the Panchayat, there was every power vested with any Officer of the Panchayat, any member of the Panchayat or any third person to file a suitable application before the Government. It is evident from sub-Section (2) thereto that when an application is received from any person, the Government is vested with powers to refer the matter for consideration of either the Ombudsman constituted under Section 271G or the Tribunal constituted under Section 271S. Therefore, it is clear that when there was a clear provision under the Act, 1994 to approach the Government for cancellation of the resolution adopted by the Panchayat, no steps were taken either by the third respondent or any other persons entitled to do so.
27. The Panchayat is also vested with certain constitutional obligations as empowered under Section 243G of the Constitution of India, to protect the interest and welfare of the people within its territorial limits, and the power envisioned thereunder was conferred by the State Government through the Act, 1994 to function itself as a self governing institution and to discharge the duties, responsibilities W.P.(C) No. 18871/2010 : 21 and obligations in terms of the constitutional guarantees. Apart from the same, Schedule 11 of the Constitution of India empowers the Panchayat to carry out the activities prescribed thereunder, which includes the development of roads, rural electrification etc. and therefore, the Panchayat was duty bound to ensure the quality of the products supplied to it.
28. That apart, I am of the considered opinion that none of the contentions put forth by the Panchayat as well as the Secretary were taken into account by the Ombudsman before arriving at the conclusions. Therefore, it is clear that the order passed by the Ombudsman is violative of the principles of natural justice and without understanding the true implications of the law in regard to the award of contract. It is a well settled position in law that the master of the tender is the tender inviting authority and it is for the said authority to decide whom to be chosen to carry out the contract. Merely because one of the bidders have quoted the lowest price, that would not, in any manner, compel the Panchayat to accept the said tender. This is more so since there are clear rules contained under the Rules, 1996 in the matter of awarding of the contract. There is no case for anyone or the Ombudsman that the Panchayat committee has violated Rules, 1996 or any of the provisions of the Act, 1994 in awarding the contract to M/s. W.P.(C) No. 18871/2010 : 22 Sivaram Electricals.
29. That being the situation, I have no doubt in my mind that the order passed by the Ombudsman cannot be sustained under law and it requires interference. Therefore, I quash Ext. P18 order dated 06.03.2010 passed by the Ombudsman in complaint No. 950/2008, and the complaint would stand dismissed.
This writ petition is allowed accordingly.
sd/- SHAJI P. CHALY, JUDGE.
Rv W.P.(C) No. 18871/2010 : 23 APPENDIX OF WP(C) 18871/2010 PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF THE NOTIFICATION DATED 28.07.2008 Exhibit P2 TRUE COPY OF THE PRICE SCHEDULE Exhibit P3 TRUE COPY OF THE PRICE SCHEDULE Exhibit P4 TRUE COPY OF THE PRICE SCHEDULE Exhibit P5 TRUE COPY OF THE MINUTES OF THE PANCHAYATH MEETING DATED 16.08.2008 Exhibit P6 TRUE COPY OF THE TENDER NOTIFICATION DATED 16.08.2008 Exhibit P7 TRUE COPY OF THE PRICE SCHEDULE Exhibit P8 TRUE COPY OF THE PRICE SCHEDULE Exhibit P9 TRUE COPY OF THE PRICE SCHEDULE Exhibit P10 TRUE COPY OF THE PRICE SCHEDULE Exhibit P11 TRUE COPY OF THE PRICE SCHEDULE Exhibit P12 TRUE COPY OF THE MINUTES OF THE MEETING OF THE PANCHAYATH COMMITTEE DATED 25.08.2008 Exhibit P13 TRUE COPY OF THE COMPLAINT DATED 29.08.2008 Exhibit P14 TRUE COPY OF THE REPORT DATED 18.05.2009 Exhibit P15 TRUE COPY OF THE STATEMENT DATED 26.08.2009 Exhibit P16 TRUE COPY OF THE STATEMENT DATED 06/01/2010 Exhibit P17 TRUE COPY OF THE WRITTEN STATEMENT DATED 06.03.2010 Exhibit P18 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 06.03.2010 RESPONDENTS' EXHIBITS:
Exhibit R3(a) TRUE COPY OF THE RECEIPT NO 62 DATED 25.08.2008. Exhibit R3(b) TRUE COPY OF THE LETTER DATED 25.08.2008 SENT BY THE 3RD RESPONDENT TO THE SECRETARY, KILIMANOOR GRAMA PANCHAYATH /True Copy/ PS To Judge.
RV