IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC SATURDAY, THE 20TH AUGUST 2011 / 29TH SRAVANA 1933 WP(C).No. 6406 of 2010(A) ------------------------- PETITIONER(S): --------------- K.K.KUNHI,S/O.SYED SHEIK KOYA, KUNHALEKKAL HOUSE,AMINI ISLANDS, UNION TERRITORY OF LAKSHADWEEP. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): --------------- 1. THE UNION TERRITORY OF LAKSHADWEEP, REPRESENTED BY ITS ADMINISTRATOR, KAVARATHY ISLANDS,KAVARATHY, U.T.OF LAKSHADWEEP. 2. THE SUPERINTENDING ENGINEER, L.P.W.D.,KAVARATHY ISLANDS, U.T.OF LAKSHADWEEP. 3. THE EXECUTIVE ENGINEER (L.P.W.D.), AMINI DIVISION, AMINI ISLANDS, U.T.OF LAKSHADWEEP. 4. K.P SEETHI, S/O.CHERIYAKOYA, KUNNIPURA HOUSE, AMINI ISLANDS, U.T.OF LAKSHADWEEP. ADV. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN FOR R1TOR3 SRI.T.H.ABDUL AZEEZ FOR R4 SRI.B.AMANULLA FOR R4 SMT.M.ISHA FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 6406 of 2010 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE WORK ORDER ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT AS NO.58/EE/Amini/09 DATED 14.12.2009 EXT.P2- TRUE COPY OF THE WORK ORDER NO.70/EE/Amini/2008-2009 DATED 5.12.08 ISSUED TO ONE N.KHADER KOYA EXT.P3- TRUE COPY OF THE WORK ORDER NO.69/EE/Amini/2008-2009 DATED 5.12.2008 ISSUED TO ONE N.KHADER KOYA EXT.R1(a)- A TRUE COPY OF OM NO.DGW/MAN/186A DATED 24.9.09 (ITEM 17) EXT.R1(b) SERIES- TRUE COPIES OF THE TENDER SCHEDULES, THE COMPARATIVE STATEMENT AND AWARDING LETTERS EXT.R1(c)- TRUE PHOTOCOPY OF THE NOTE FILE F.NO./32/2009-AB1 PARA 1,2 & 3. EXT.R4A- PHOTOCOPY OF THE NIT & THE TENDER DOCUMENTS EXT.R4B- PHOTOCOPY OF THE T.G.BOND IN FDR FORM EXT.R4C- PHOTOCOPY OF CERTIFICATE ISSUED BY THE ASSISTANT ENGINEER PWE AMINI SUB DIVISION SHOWING THE WORK, STAGE AND POSITION OF WORK DATED 3.3.10 EXT.R4D- TRUE COPY OF THE PHOTOGRAPHS EXT.R4E- PHOTOCOPY OF THE TENDER SUBMITTED BY THE PETITIONER DATED 2.12.09 (True copy) P.A. To Judge ANTONY DOMINIC, J ........................................... W.P.(C).6406/2011 .............................................. Dated this the 20th day of August, 2011 JUDGMENT The prayer sought in the writ petition is to direct respondents 1 to 3 to permit the petitioner to execute the work of construction of ground floor of the Nursery School at Amini Island, pursuant to Ext.P1 work order issued by the fourth respondent. There is a further prayer to require the third respondent to cancel the work order issued to the fourth respondent, awarding the work in question. 2. According to the petitioner, it is well within the authority of the third respondent to issue work orders below the value of 4 Lakhs without inviting tenders and that in exercise of such power, the third respondent issued Ext.P1 work order dated 14.12.2009, whereby the petitioner was authorized to do the construction of the ground floor of the Nursery School at Amini Island. It is stated that subsequently, when the third respondent took charge, he took the stand that the work should be executed by the fourth respondent. It is in such circumstances the writ petition is filed. The contention of the petitioner is that he, having been issued W.P.(C).6406/10 2 Ext.P1 work order dated 14.12.2009, is entitled to execute and complete the work. 3. However, from the counter affidavits filed by respondents 1 to 3 and the fourth respondent the position that emerges is that Ext.R4A notice was issued on 24.11.2009 inviting tender for various works which include the work of construction of double storied Nursery School at Amini Island (Labour element)also. It is stated that the petitioner and the fourth respondent submitted their tenders in response to Ext.R4A and the tender submitted by the petitioner has been produced as Ext.R4E. Ext.R1D is the relevant extract of the note file which shows that one Sri.M.K.Abdul Salam was the then Assistant Executive Engineer and that according to him, the tender submitted by the fourth respondent was for a lesser amount than that of the petitioner. 4. While the matters stood thus, on 21.12.2009, M.K.Abdul Salam was transferred and was relieved on that date. Subsequently, his successor, one Mr.N.Nandakumaran, took over and he passed order on 1.1.2010 to issue awarding letter to the W.P.(C).6406/10 3 fourth respondent and that accordingly, Ext.R1(b) work order was issued to the fourth respondent on 18.1.2010. Accordingly, The fourth respondent furnished Ext.R4B security on 28.1.2010 and he also executed necessary agreement on 9.2.2010. 5. According to respondents 1 to 3, the fourth respondent was supplied materials and he commenced work on 3.2.2010 and Ext.R4C certificate shows that he had completed about 70% of the ground floor of the building. 6. The averments in the counter affidavit is that since the tender, in respect of the work in question, was invited by Ext.R4A, Sri.M.K.Abdul Salam could not have awarded the work order of the petitioner and that on the eve of his transfer, he unauthorizedly issued Ext.P1 only to help the petitioner. Therefore, the stand taken is that Ext.P1 is illegal and is of no effect. Further, according to respondents 1 to 3, the items of work covered by Ext.P1 are also included at Sl.Nos.8, 17, 20 and 21 scheduled to Ext.R4A tender notice. W.P.(C).6406/10 4 7. Petitioner has filed a reply affidavit reiterating his contentions in the writ petition and also to the effect that Ext.R4A tender did not include the work covered by Ext.P1 work order. It is also his case that in pursuance to Ext.P1, he has already mobilized the necessary materials and it was at that stage, he was told that the work order has already been issued to the fourth respondent. 8. I have considered the submissions made. 9. As far as the question whether Ext.R4A tender includes the work in relation to the ground floor also is concerned, that contention will have to be answered in the light of Ext.R4A itself. Description of the work contained in Ext.R4A reads thus:- “Construction of Double storied building for Nursery School at Amini (Labour elements)” 10. Ext.R4E is the tender submitted by the petitioner where also the description of the work is exactly as stated above. From this itself, it is obvious that the tender included the ground floor also. If W.P.(C).6406/10 5 it were not so, the name of the work would have been shown as “construction of the first floor of the building” and in any case, the work would not have been described as “the Construction of a Double storied building”. Therefore, in the light of Exts.R4A and R4E, I am not prepared to accept the contention of the petitioner that the work tendered did not include the work in relation to the ground floor of the Nursery School building. 11. Once it is accepted that the work tendered included the ground floor also, inviting tenders on 24.11.2010 and the then Executive Engineer himself having found that the tender submitted by the fourth respondent was lower, he had shown courage to issue Ext.P1 work order to the petitioner with the date 14.12.2010. In my view, Ext.P1 is clearly illegal and therefore, no right of any nature could not have enured in favour of the petitioner on the strength of Ext.P1. This is so for the further reason that in pursuance to Exts.R4A and R1(b) work order issued to the fourth respondent, he had furnished security on 28.1.2010, executed agreement on 9.2.2010 and commenced work on 3.2.2010. Again, Ext.R4(C) shows that substantial portion of the work has W.P.(C).6406/10 6 been completed. During all these periods petitioner kept silent, which is also improbable, if he had a genuine work order in his favour as claimed in the writ petition. In such circumstances I do not find any justification for the prayer sought by the petitioner. 12. According to the learned Standing Counsel for respondents 1 to 3, on coming to know of the aforesaid alleged irregularities committed by M.K.Abdul Salam, the then Assistant Executive Engineer, they issued him a show cause notice on 30.3.2010 and he had submitted his explanation dated 28.6.2010. It is submitted that the matter is pending consideration of the second respondent who has to take further action with the concurrence of the first respondent. In view of the contentions raised by the official respondents in their counter affidavit, about which reference has been made in the earlier part of the affidavit, this appears to be a case where serious irregularities have been committed by a public servant. In such a case, after having issued show cause notice and received explanation from him, respondents have not so far taken further action in the matter for which no satisfactory explanation is forthcoming. Though I do not W.P.(C).6406/10 7 wish to pass any directions in the matter, I hope and trust that the respondents will expedite the proceedings and conclude the same in accordance with law. ANTONY DOMINIC, Judge mrcs