IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28352 of 2008(A)
1. C.K.MUSTHAFA, S/O. KUNHIMOHAMMED,
... Petitioner
Vs
1. AYYANKUNNU GRAMA PANCHAYATH REP. BY
... Respondent
2. THE PRESIDENT, AYYANKUNNU GRAMA
3. THE AGRICULTURAL OFFICER, KRISHI BHAVAN,
4. GEW-AGRO SERVICE CENTRE, ELANJKODU,
For Petitioner :SRI.CIBI THOMAS
For Respondent :SRI.VPK.PANICKER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :24/10/2008
O R D E R
S. Siri Jagan, J.
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W. P (C) No. 28352 of 2008
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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/