IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 WP(C).No. 8956 of 2010(T) ------------------------- PETITIONER(S): --------------- NOOJUM,S/O.ALI KANNU, TC 46/499, KALIVILAKATHU VEEDU, POONTHURA PALLI STREET, MUTTATHARA,THIRUVANANTHAPURAM. BY ADV. SRI.P.A.AHAMMED SRI.THOUFEEK AHAMED RESPONDENT(S): --------------- 1. CORPORATIN OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETRY, CORPORATION OFFICE, PALAYAM, THIRUVANANTHAPURAM. 2. HAKKIM, T.C.46/718, MANIKYAVILAKOM, POONTHURA PO, THIRUVANANTHAPURAM. 3. OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, REPRESENTED BY ITS SECRETARY, BARTON HILL, THIRUVANANTHAPURAM. ADV. SRI.RAJESH P.NAIR FOR R2 MR.P.K.MANOJKUMAR, SC FOR CORPORATION. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.8956/2010 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF ADVERTISEMENT PUBLISHED IN DESHABHIMANI DATED 19/01/2010. P2 : COPY OF ADVERTISEMENT PUBLISHED IN KERALA KAUMUDI DATED 19/01/2010. P3 : COPY OF ADVERTISEMENT PUBLISHED IN MANGALAM DATED 19/01/2010. P4 : COPY OF QUOTATION NOTICE NO.R10/738/2010 DATED 4/1/2010. P5 : COPY OF QUOTATION SHEET. P6 : COPY OF REPRESENTATION FILED BY THE PETITIONER DATED 25/02/2010. P7 : COPY OF COMPLAINT FILED BY R2 BEFORE R3. P8 : COPY OF COUNTER STATEMENT FILED BY R1 ON OP NO.170/2010. P9 : COPY OF ORDER OF R3 IN OP NO.355/2010 DATED 11/03/2010. RESPONDENT'S EXHIBITS R2(a) : COPY OF RE TENDER NOTICE DATED 12/03/2010 ISSUED BY THE SECRETARY OF R1 CORPORATION. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.8956 of 2010 (T) --------------------------------- Dated, this the 8th day of April, 2010 J U D G M E N T Heard the learned counsel for the petitioner, the learned senior counsel appearing for the 1st respondent and the learned counsel for the 2nd respondent. 2. In respect of the public markets maintained by the 1st respondent Corporation, the practice adopted was that it will invite tenders, conduct auction and accept whichever is higher. 3. In so far as for the year 2010-2011 is concerned, in respect of 18 public markets maintained by the Corporation, tenders were invited by Exts.P1 to P3, and Ext.P4 contains the conditions. Clause 3 of Ext.P4 provides that after the auction, quotations received will be opened and inspected and the highest offer received will be accepted. It further provides that if the Secretary feels that the response received in auction/quotation is inadequate, it will be open to the Secretary not to confirm the auction or to go for reauction. WP(C) No.8956/2010 -2- 4. In so far as the Ambalathara public market of the Corporation is concerned, in response to Exts.P1 to P3, two quotations were received on the last date, i.e. 27/01/2010 of which the petitioner's was the higher. Auction was scheduled on 28/01/2010 and nobody participated in the auction. Despite the petitioner having made the highest offer of Rs.3,51,500/-, auction was not confirmed in his favour. He made representations to the Mayor, and that was pending. 5. At that stage, the 2nd respondent, who did not submit any quotation in response to Exts.P1 to P3 or appear for the auction, filed a complaint before the 3rd respondent, which was numbered as O.P.No.170/2010. Notice was served on the petitioner and the Corporation. They filed their objections. Meanwhile, the petitioner also approached the Ombudsman complaining that despite long lapse of time, auction was not confirmed in his favour. His complaint was numbered as O.P.No.355/2010. Both O.P.Nos.170/2010 & 355/2010 were considered by the Ombudsman and Ext.P9 order was passed directing reauction. It is challenging Ext.P9 this writ petition is filed. WP(C) No.8956/2010 -3- 6. A reading of Ext.P9 shows that the Ombudsman has accepted the case canvassed by the petitioner and the Corporation that as on 27/01/2010 two quotations were received, and that of the two, the quotation submitted by the petitioner was the higher. It is also accepted that on 28/01/2010 auction was scheduled and that auction was not held as nobody participated in the auction. On accepting these two contentions, the Ombudsman rejected the case of the 2nd respondent that tender was invited and auction was held in a secretive manner. After having held so, instead of directing confirmation of the auction in favour of the petitioner, the Ombudsman proceeded to pass an order directing that in the fitness of things, it is only appropriate that the parties are given one more opportunity to participate in the auction. Accordingly, reauction was directed to be held. 7. In my view, this course of action adopted by the Ombudsman is totally erroneous. The Ombudsman after having accepted the case pleaded by the petitioner and the Corporation that tenders were received, auction was scheduled but was not held as nobody participated in the auction, and that the petitioner was WP(C) No.8956/2010 -4- the highest bidder; and after rejecting the case of the 2nd respondent that the auction was held in a secretive manner, should have as a consequence directed confirmation of auction in favour of the petitioner. On the other hand, reauction is ordered. Once the steps taken by the Corporation have been upheld, the Ombudsman has no power to impose its own views in another manner, as it has done in Ext.P9. In my view, for that reason, Ext.P9 to the extent it directs reauction is illegal and is only to be set aside and I do so. Therefore, this writ petition is disposed of directing the 1st respondent to confirm the auction in respect of the Ambalathara public market in favour of the petitioner. This shall be done as expeditiously as possible, at any rate, within two weeks of production of a copy of this judgment This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg