Point of law : Despite receipt of notice, apart from filing a statement by some of members of Committee, no one else has cared to adduce any evidence or produce any documents before Ombudsman to justify award of contract to highest bidder.

JUDGMENT :

1. This writ petition is filed by the petitioners, who were elected members of Mananthavady Grama Panchayat, challenging Exhibit P5 order passed by the Ombudsman for Local Self Government Institutions dated 24/10/2009 in Complaint No.488/2009, and Exhibit P2 order passed by the Ombudsman in Original Petition No.49/2011 dated 18/08/2011.

2. The subject issue relates to award of a contract by the Panchayat Committee on the basis of the recommendation made by the Purchase Committee consisting of the elected members, for installation and replacement of sodium vapour lamps, tube lights etc. within the limits of the Panchayat. Complaint No.488/2009 is registered on the basis of a reference made by the State Government in accordance with the powers vested with the Ombudsman under section 271J of the Kerala Panchayat Raj Act, 1994 and Original Petition No.49/2011 is filed by one C.S.Hamsa -the 5th respondent, a resident within the limits of the Grama Panchayat .

3. While, in the referred complaint, the Secretary as well as all the elected members were parties; in the complaint filed by Hamsa, the Secretary and the President of the Grama Panchayat alone were parties. Exhibit P2 order is Only an offshoot of Exhibit P5 order passed by the Ombudsman whereby directions were issued to recover an amount of Rs.79,810/-from the members of the Panchayat Committee equally; an amount found to be due towards the loss suffered by the Panchayat on account of the contract awarded to the highest bidder.

4. Short facts leading to the filing of the writ petition are as follows;

5. As per a tender notice dated 22.1.2004, tenders were invited from the public for installation and maintenance of street lights within the Panchayat limits; and the successful bidder had to replace sodium vapour lamps, double/single tube lights, and provide the requisite fittings for the same. In fact, initially, the tender notice was responded to only by one Bijoy Sam, consequent to which retender was issued. Accordingly, one Bijoy Sam has quoted an amount of Rs.4,95,310/-and undertaken that he will install 250Watt sodium vapour lamps manufactured by “Philips company”, each costing Rs.3,939/-and single tube lights and double tube lights costing Rs.1,539/-etc. Yet another tenderer, one C.P.Mathew, quoted an amount of Rs.5,75,120/-, with the specifications of 24 months guarantee for the sodium vapour lamps manufactured by “Morelike” company having a cost of Rs.5560/-each and double tube lights and single tube lights costing Rs.2,170/-and Rs.1,310/-respectively. The Panchayat Committee, in violation of the tender conditions, has accepted the tender of C.P.Mathew, who was the highest tenderer.

6. Therefore, in the referred complaint, it was stated that the Panchayat by accepting the tender of the highest bidder, has violated the conditions of the Manual of Tender proceedings. On receipt of notice in the referred complaint, only the 1st, 3rd, 7th, 9th, 11th and 13th respondents alone have appeared, and apparently, filed a statement contending that Sri.Bijoy Sam who was awarded the tender for the previous year has not replaced the lamps and has not provided guarantee to replace the lights. However, facts remain, none of them has cared to tender any evidence before the Ombudsman in order to establish the defence put forth by them and the reasons for accepting the tender submitted by the highest bidder. Thereupon, the Ombudsman has found that the members of the Panchayat have failed to establish their defence for accepting the tender submitted by the highest bidder and therefore, directed the Secretary to recover an amount of Rs.79,810/-from the members of the Panchayat Committee, i.e., the difference in the price quoted by the highest bidder; if the members of the committee fail to pay the said amount. In fact, the said order is dated 24.10.2009, however, neither the petitioners nor any of the members of the Panchayat Committee, has challenged the said order. Apparently, t