IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 WP(C).No. 12478 of 2010(H) -------------------------- PETITIONER: --------------- M/S.GANGA CONSTRUCTIONS, MANNAETH HOUSE, KSHARATH LANE, VIYYOOR, THRISSUR, REPRESENTED BY ITS MANAGING PARTNER, PRAMOD.P. BY ADV. SRI.ANIL XAVIER SRI.M.SHAHEED AHMAD SRI.M.RISHIKESH SHENOY SMT.K.INDU (POURNAMI) RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM. 2. THE SECRETARY, KUNNAMKULAM MUNICIPALITY, KUNNAMKULAM P.O., THRISSUR-686 605. 3. HIGH LEVEL COMMITTEE ON PRIVATE SECTOR PARTICIPATION, REPRESENTED BY ITS CHAIRMAN, SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. * ADDL.R4 4. THE CHAIRMAN, KUNNAMKULAM MUNICIPALITY, KUNNAMKULAM, THRISSUR DISTRICT. (ADDL. R4 IMPLEADED AS PER ORDER DATED 06.08.2010 IN I.A.NO.10001/2010 IN WP(C) NO. 12478/2010) R1 BY SMT. N. SUDHA DEVI, GOVERNMENT PLEADER R2 BY SRI. GRASHIOUS KURIAKOSE R4 BY SRI.T.A.SHAJI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12478 of 2010(H) APPENDIX --------------- PETITIONER'S EXHIBITS ------------------------------------- P1:- TRUE COPY OF THE ADVERTISEMENTS DT.8.9.09 AND 9.9.09 IN MALAYALA MANORAMA AND BUSINESS LINE DAILIES. P2:- TRUE COPY OF THE ADVERTISEMENTS DT.26.9.09 IN MALAYALA MANORAMA AND BUSINESS LINE DAILIES. P3:- TRUE COPY OF THE RELEVANT PORTION OF THE BID DOCUMENT SUPPLIED BY THE 2ND RESPONDENT. P4:- TRUE COPY OF THE LETTER DATED 5.10.09 ISSUED BY THE SECOND RESPONDENT TO THE PETITIOENER. P5:- TRUE COPY OF THE MINUTES OF THE PRE-BID MEETING HELD ON 13.10.09. P6:- TRUE COPY OF THE MINUTES OF THE COUNCIL MEETING OF THE 2ND RESPONDENT. P7:- TRUE COPY OF THE LETTER DT.8.12.09 ISSUED BY THE 2ND RESPONDENT. P8:- TRUE COPY OF THE MINUTES OF THE MEETING DT.24.11.09 OF THE BOT CELL. P9:- TRUE COPY OF THE LETTER DT.11.12.09 OF THE STATE PUBLIC INFORMATION OFFICER. P10:- TRUE COPY OF THE JUDGMENT DT.15.1.10 IN WP(C) 37478/09 OF THE HIGH COURT OF KERALA. P11:- TRUE COPY OF THE COMMUNICATION DT.30.3.10 ISSUED BY THE 2ND RESPONDENT. P12:- TRUE COPY OF THE DECISION NO.78473/DB2/09/LSGD DT 25.3.10 OF THE PRINCIPAL SECRETARY, LSGD. P13:- TRUE COPY OF THE RELEVANT PAGES OF THE GUIDELINES GO(MS) NO.298/04/LSGD DT.13.10.04. P14:- TRUE COPY OF THE GO(Rt) NO. 292/03/LSGD DT.23.1.03. P15:- TRUE COPY OF THE LETTER DT.22.12.09 ISSUED BY THE PUBLIC INFORMATION OFFICER OF VADAKARA MUNICIPALITY. P16:- TRUE COPY OF THE LETTER DT.8.6.10 ISSUED UNDER THE RTI ACT AND THE REPLY DT.22.6.10 ISSUED BY THE SECRETARY, THALAYOLAPARAMBU. RESPONDENT'S EXHIBIT ----------------------------------- R1(a) :- TRUE COPY OF THE LETTER REJECTING THE APPEAL OF THE 2ND RESPONDENT. //TRUE COPY// PA TO JUDGE. T.R. RAMACHANDRAN NAIR, J. ---------------------------------------- WP (C) No. 12478 of 2010 --------------------------------------- Dated this the 6th day of August, 2010 J U D G M E N T -------------------------- The petitioner is a PWD Class 'A' contractor. The 2nd respondent made an invitation for bidding for private sector participation in the implementation, construction, operation and maintenance of "E.K.Nayanar Memorial Bus Terminal Complex" at Kunnamkulam, Thrissur, on BOT basis. 2. The non recommendation of the bid by the BOT Committee and the direction given by the Government to the Municipality to invite a fresh tender is the subject matter of challenge in this writ petition. 3. According to the petitioner the advertisements were published in the “Malayala Manorama” daily dated 08.09.2009 and 09.09.2009, “Business line” daily dated 08.09.2009 and the advertisements were also put in the websites of Kerala State PRD, PWD and that of Kunnamkulam Municipality. Exhibit P1 series are the true 2 WP (C) No. 12478 of 2010 copies of advertisements. As per Exhibit P3 it was decided to hold a pre-bid conference on 05.10.2009. It was postponed to 13.10.2009 and the date of opening bid was extended to 20.10.2009. It appears that there were seven parties who attended the pre-bid conference held on 13.10.2009. Exhibit P5 is the true copy of the minutes of the pre-bid meeting. Thereafter the petitioner submitted the bid and at the time of opening the only bid was the one submitted by the petitioner. The bid was opened and concession period was 17 years and 11 months and it was accepted by the council of the 2nd respondent and they recommended his bid for acceptance by the Government. But the petitioner thereafter received a letter from the second respondent that the BOT committee has directed to re-tender the project since only one financial bid has been received and they have received complaints about procedural irregularities. The minutes of the meeting of the BOT committee is produced as Exhibit P8. 3 WP (C) No. 12478 of 2010 4. The petitioner had sought information under the Right to Information Act, regarding the powers of the BOT Committee and the procedure adopted for accepting/ rejecting tenders under BOT. The information officer had issued a letter giving the clarifications. Exhibit P9 is the reply given by the Public Information Officer. As per Exhibit P9 details of the various aspects including the power of the BOT committee were communicated. It also shows that two complaints were received, in the matter but were not discussed in the BOT High Level Committee. Since no action was taken by the 2nd respondent pursuant to Exhibit P7, the petitioner filed WP(C) No. 37478/2009 before this Court praying for a direction to the 2nd respondent to comply with the Government Guidelines and take appropriate decision on the bid submitted by the petitioner. As per Exhibit P10 judgment the writ petition was disposed of with a direction to the 2nd respondent to expedite the process as expeditiously as possible. It was 4 WP (C) No. 12478 of 2010 thereafter informed that the appeal preferred by the Municipality was turned down and therefore the bid submitted by the petitioner cannot be accepted. Exhibit P12 is the decision communicated by the Government in the appeal filed by the Municipality. In Exhibit P12, it was held that for BOT works, the Kerala Municipality (Execution of Public Works and Purchase of Materials) Rules would apply and therefore for works above Rs. 50 lakhs, advertisement has to be made in two Malayalam dailies and one National newspaper. It is also mentioned that even though 10 companies had bought the tender forms, only one financial bid was submitted. Therefore it was observed by the BOT Committee that there was no competitive bid. 5. Learned counsel for the petitioner submitted that the reasons stated in Exhibit P12 are not correct. It is pointed out that apart from the bid in favour of the tender by the Kunnamkulam Municipality, there were two other bids approved by the Government which are in respect of 5 WP (C) No. 12478 of 2010 Vadakara Municipality and Thalayolaparambu Panchayath, wherein tenders were advertised similarly. It is submitted that, Exhibits P15 and P16 shows that as far as, Vadakara Municipality, the advertisement was made only in Malayala Manorama and Hindu and in Thalayolaparambu Panchayath the advertisement was made only in Mathrubhoomi and Deshabhimani. It is therefore submitted by the learned counsel for the petitioner that the reason taken by the BOT committee, that there is a violation of the rules is not correct. 6. I find force in the above submission. If the Rules mentioned in Exhibit P12 are applicable the same procedure had to be insisted in respect of Thalayolaparambu Pnchayath and Vadakara Municipality, and there cannot be any distinction with respect to Kunnamkulam Municipality as the amount therein also is above Rs.50 lakhs. The other aspect is regarding the want of competitive bids. It is pointed out that as far as 6 WP (C) No. 12478 of 2010 Thalayolaprambu Panchayath is concerned the concession period quoted by the successful bidder and agreed by the High level committee is 39 years and 11 months and in respect of the petitioner it is only 17 years and 11 months, and therefore it is more advantageous to the Municipality and this aspect was not at all considered. The Municipality, in its counter affidavit and the Chairman of the council in his counter affidavit have detailed the advantages, if the bid submitted by the petitioner is accepted. It is submitted that proper advertisements in National dailies have been made. It is further pointed out that as it is evident from Exhibit P12, that even though 10 companies had bought the tender forms, only one financial bid was submitted. This was only an observation by the BOT committee, but this was not taken as a reason by the Committee for recommending re- tender. It is submitted that no objection has been taken on the bid documents. It is also submitted that the Kunnamkulam Municipality brought to the attention of the 7 WP (C) No. 12478 of 2010 Government the decision of the BOT Committee by filing an appeal. But the same was again referred to the decision of the BOT committee alone and the Government has not taken a proper and independent decision in the matter. The counter affidavit also shows that the appeal by the Municipality was turned down, since the BOT Committee had given its advice against the acceptance of the bid. But the order in Exhibit R1(a) shows that the Government entirely depended upon the views of the BOT committee while rejecting the appeal of the Municipal council, without independently considering the various points. 7. In the above view of the matter the question is whether merely on the basis of any unsubstantial complaint the decision taken for a re-tender could be said to be justified. Of course it is contended that the BOT High Level committee has only recommended for re-tender and the Government had directed the same. Therefore Exhibit P12 is quashed. There will be a 8 WP (C) No. 12478 of 2010 direction to the Government to reconsider the appeal filed by the Municipality. The Government will take a fresh decision after hearing the petitioner and the Municipality within a period of one month from the date of receipt of a copy of this judgment. The Secretary to Government will hear the parties on 13.08.2010 at 3.00pm and an appropriate decision will be taken. The petitioner and the Municipal Secretary will be personally present, even without waiting for any notice to be issued for hearing. No Costs. T.R. RAMACHANDRAN NAIR, JUDGE. rkc