IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 WP(C).No. 28352 of 2008(A) -------------------------- PETITIONER(S): --------------- C.K.MUSTHAFA, S/O. KUNHIMOHAMMED, AGED 26 YEARS, CEE YEM COFFEE CURING WORKS AND NDUSTRIES, WYNAD DISTRICT. BY ADV. SRI.CIBI THOMAS RESPONDENT(S): --------------- 1. AYYANKUNNU GRAMA PANCHAYATH REP. BY ITS SECRETARY, ANGADIKKADAVU P.O., KANNUR. 2. THE PRESIDENT, AYYANKUNNU GRAMA PANCHAYATH, ANGADIKKADAVU P.O, KANNUR. 3. THE AGRICULTURAL OFFICER, KRISHI BHAVAN, AYYANKUNNU, KOOMANTHODU P.O., KANNUR. 4. GEW-AGRO SERVICE CENTRE, ELANJKODU, ANAKKOTTOOR P.O., KOTTARAKKARA, KOLLAM DISTRICT, REP. BY ITS MARKETING OFFICER. ADV. SRI.VPK.PANICKER FOR R1 & R2 GOVT. PLEADER SMT. K.R. DEEPA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 28352/2008. --------------------------------------------------------------------- EXT.P1 TRUE COPY OF ADVERTISEMENT. EXT.P2 TRUE COPY OF TENDER. EXT.P3 COMPARATIVE STATEMENT. EXT.P4 DECISION DT. 27-8-2008. EXT.P5 TRUE COPY OF ATTENDANCE SHEET. EXT.P6 REPRESENTATION DT. 19-9-2008. EXT.P7 REPRESENTATION DT. 20-9-2008. EXT.P8 TRUE COPY OF RESOLUTION. EXT.P9 TRUE COPY OF FORWARDING NOTE. EXT.P10 PROJECT PROPOSAL. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R1(a) TRUE COPY OF TENDER. EXT.R1(b) AGREEMENT DT. 18-9-2008. EXT.R1(c) COMMUNICATIONS DT. 30-9-2008. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 28352 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 24th October, 2008. J U D G M E N T Pursuant to Ext. P1 tender notification published by the 1st respondent-Panchayat for supply of bone meal, the petitioner submitted his tender, as also the 4th respondent. The petitioner quoted Rs. 12.40 for super quality bone meal and Rs. 11.90 for first quality bone meal. The 4th respondent quoted Rs. 13.45 including unloading charges. After considering the two tenders, by Ext. P4 resolution, the Panchayat rejected the tender submitted by the petitioner on the ground that the tender was not accompanied by preliminary agreement in Rs. 50/- stamp paper and he has quoted two rates . According to the petitioner, the requirement of preliminary agreement is only a technical defect and the petitioner had signed Ext. P2 annexure to the tender, which is the form of agreement although not in stamp paper. He further submits that he did not produce the agreement only because the concerned officer orally told him that the same can be produced when the tender is accepted. As far as the second objection is concerned, he would submit that the quality of the bone meal is decided on the basis of the content of bone and phosphorus therein and the petitioner has quoted two prices depending on the quality. He therefore submits that the reason that he had quoted two rates for rejecting his tender is also unsustainable. The petitioner also points out that the Secretary of the Panchayat had recorded a dissenting note and in Ext. P4 copy of the resolution of the Panchayat the dissenting note has not been included although in Ext. P8 copy obtained by him, it has been recorded. 2. Respondents 1 and 2 have filed a counter affidavit in which they have refuted the allegations raised by the petitioner. According to them, under clause 33 of Ext. P2 tender conditions, it was mandatory that a preliminary agreement in Rs. 50 stamp paper W.P.C. No. 28352/2008. -: 2 :- should accompany the tender. Admittedly, the petitioner did not produce the agreement in stamp paper. Therefore, for that reason alone, the tender is liable to be rejected, is the contention raised. 3. They would further submit that in the market, there is no separate qualities for bone meal as stated by the petitioner and therefore quoting of two rates cannot be accepted. As regards the discrepancy between Exts.P 4 and P8, they would submit that as is evident from Ext. P8, the same is the resolution of the Panchayat numbered as 134(1)/2000 and Ext. P4 is the communication to be issued to the petitioner which is numbered as 14(1)/08. Although in Ext. P4, the first two paragraphs of Ext. P8 have been extracted, that was only intended as a reply for convenience, instead of drafting a separate reply and Ext. P4 was not a true copy of Ext. P8 issued to the petitioner as suggested by the petitioner. 4. I have considered the rival contentions in detail. 5. Clause 33 of Ext. P2 tender conditions states as follows: “33. The tenderer should send along with its tender an agreement executed and signed in Kerala Stamp Paper of value of Rs. 50 purchased in the Kerala state. Stamp paper will be supplied to firms outside Kerala along with the tender forms on payment of Rs. 20 (Rs.50 being the value of the stamp paper and Rs. 5 incidental charges) which may be remitted by money order in advance. A specimen form of agreement is given as annexure to this tender. Tenders without the agreement in stamped paper will be reject outright. But in deserving cases where agreement has not been received, the Purchasing Officer may exercise his discretion and call upon such tenderer to execute the agreement within a period of ten days from the date of issue of such intimation, if the Purchasing Officer is satisfied that the omission to forward the agreement along with the tender was due to cause beyond the control of the tenderer and was not due to any negligence on his part. Agreement received from a tenderer after the above time limit will not be considered.” (Emp hasis supplied) Therefore, without an agreement in stamp paper, the petitioner's W.P.C. No. 28352/2008. -: 3 :- tender is not valid. In such circumstances, I do not find any infirmity in the action of respondents 1 and 2 in rejecting the petitioner's tender on that ground. The petitioner's contention that even then, the 3rd respondent had a duty to exercise his discretion for extending the time for submission of the agreement, I am of opinion that the petitioner cannot claim such exercise of discretion in so far as he did not invoke the discretion of the 2nd respondent by seeking extension of time to submit the same. 6. Regarding the rates, I find that even if the petitioner's contention is correct, the quotation submitted by the petitioner is excluding unloading charges, whereas that of the 4th respondent is including unloading charges. The petitioner has not taken pains to demonstrate that even including the unloading charges also, the petitioner's rates would be lesser. As far as the discrepancy shown between Ext. P7 and P8 is concerned, I find the explanation of the Panchayat very convincing. In the above circumstances I do not find any merit in the writ petition and the same is therefore dismissed. S. Siri Jagan, Judge. Tds/