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2024 Supreme(Online)(KER) 25665
HIGH COURT OF KERALA
A. K. Jayasankaran Nambiar, SYAM KUMAR V.M., JJ
V.D. SATHEESAN M.L.A – Appellant
Versus
THE STATE OF KERALA – Respondent
WP(C) 1479/2024
Sri.George Poonthottam (Sr.), Smt.Nisha George, Sri.A.L.Navaneeth Krishnan, Sri.J.Vishnu, Smt.Kavya Varma M. M., Sri.Anshin K.K, Sri.Sidharth.R.Wariyar, Sri.K.Gopalakrishna Kurup (Sr.), Sri.N.Manoj Kumar, Sri.V.Manu, Sri.K.A.Abdul Salam, Sri.Antony Mukkath, Sri.Regi Mathew, Sri.B.Pramod, Sri.Sreelal N.Warrier, Smt.M.A.Zohra
Judicial review under Article 226 is limited to legality and rationality, and mere audit observations do not establish grounds for interference or a CBI inquiry.
Headnote:
Public Interest Litigation - KFON Project - Article 226 - The court upheld the award of the KFON project contract to the BEL Consortium, emphasizing the need for judicial restraint in reviewing executive decisions and the absence of a prima facie case for irregularities.
Fact of the Case:
The petitioner challenged the award of the KFON project contract to the BEL Consortium, alleging irregularities and seeking a CBI inquiry based on CAG audit remarks. The project had been underway for over four years without challenge from other bidders.
Finding of the Court:
The court found no prima facie evidence of irregularities in the contract award process and noted that the project was progressing towards its objectives, dismissing the writ petition as premature and belated.
Issues: Whether the petitioner established a prima facie case for judicial interference in the contract award and whether a CBI inquiry was warranted based on the allegations raised.
Ratio Decidendi: The court reiterated that judicial review under Article 226 is limited to assessing the legality and rationality of executive decisions, and that mere audit observations do not suffice to warrant a CBI inquiry.
Final Decision: The writ petition was dismissed.
JUDGMENT
D r. A.K. Jayasankaran Nambiar, J.
This writ petition is styled as a Public Interest Litigation and has been instituted by the petitioner who is the Leader of the Opposition of the Kerala Legislative Assembly. The petitioner essentially challenges the award of the contract for implementation of the Kerala Fibre Optic Network [KFON] project to the consortium comprising of Bharat Electronics Limited, RailTel Corporation of India Limited, Sobha Renaissance Information Technology Pvt. Ltd and LS Cable India Private Limited [hereinafter referred to as the “BEL Consortium”] for an amount of Rs.1628.35 Crores, after finding their quote to be the lowest among the three qualified consortium bidders that had participated in the tender process. It might be relevant to observe at the outset that none of the unsuccessful tenderers have challenged the award of the contract to the BEL Consortium.
2. The prayers in the writ petition are essentially to call for the records leading to Ex.P7 sanction order and to quash the same, as also to quash all the consequential orders and decisions taken following Ext.P7 order. There is a further prayer for a writ of mandamus to direct the Central Bureau of Investigation [CBI] to initiate an enquiry into the KFON project, including the Project Monitoring Agency tender and the tenders for selecting the Managed Service Provider [MSP] and the Internet Service Provider [ISP] for KFON. The writ petition was filed on 11.01.2024 when the KFON project was well underway in terms of implementation. The project had received the necessary administrative sanction from the State Government as early as on 18.05.2017. The tender process for the project was initiated by Kerala Fibre Optic Network Limited on 14.06.2018 when a Request for Proposals [RFP] was published for selection of a Project Monitoring Agency. The technical evaluation of the received tenders commenced on 21.12.2018 and the Financial bids were opened on 26.12.2018. As already noticed, the BEL Consortium was identified as the lowest bidder, and after negotiating with them they were appointed as the Project Monitoring Agency by accepting their offer of Rs.1628.35 Crores. Shortly thereafter, Ext.P6 Master Service Agreement was entered into on 09.03.2019 between Kerala State Information Technology Infrastructure Limited [KSITIL] on behalf of Kerala Fibre Optic Network Limited and BEL. The formal approval of the State Government to the selection of BEL Consortium was obtained through Ext.P7 G.O. dated 15.07.2019. It is clear, therefore, that the writ petition was filed more than four years after work had started on the KFON project.
3. The provocation for filing the writ petition appears to have been the remarks made by the Comptroller & Auditor General [CAG] casting doubts on the legality/propriety of the award of the contract to the BEL Consortium. The audit queries posed by the CAG in 2023 form the basis of the allegations and grounds in the writ petition, to seek the prayers aforementioned. The main allegations raised in the writ petition, as re-iterated and urged by the learned Senior Counsel Sri.George Poonthottam, on behalf of the petitioner, can be summarised as follows:
● There was gross irregularity in awarding the contract to the BEL Consortium at Rs.1628.35 Crores which was more than 10% in excess of the figure of Rs.1028 Crores for which administrative sanction was granted by the State Government in May 2017. Placing reliance on Ext.P4 G.O. dated 06.02.2017 that dealt with delegation of powers to departmental officers for sanctioning of tender excess/below estimate rates, it is pointed out that the award of the contract to BEL Consortium was at a rate that was far in excess of what was permissible. Referring to Ext.P5 note dated 16.02.2019 issued from the IT Secretary of the State Government to KSITIL, it is further suggested that the contract was awarded to the BEL Consortium solely at the instance of the IT Secretary and after by-passing the
