Jilmon John VS State Of Kerala

The writ petition at hand has been initiated by the petitioner with the aim of challenging several documents (Exts.P2, P5, P8, and P10) and securing orders on Ext.P12 for the release and refund of an Earnest Money Deposit (EMD) amounting to Rs. 2,00,000. This EMD was provided by the petitioner along with a tender submitted on June 3, 2017. Additionally, the petitioner seeks to urge for the re-notification of the tender for the concerned work, now incorporating Goods and Services Tax (GST), to enable their participation. Various other consequential reliefs are also sought.

The key factual background pertinent to the resolution of the writ petition is outlined as follows: In response to an e-tender notice dated May 20, 2017, issued by the third respondent for the project titled “Improvements to Thodupuzha Pappootty Hall Vellangallor (River V View) Road,” the petitioner submitted a tender on June 3, 2017. This tender was prepared considering the rate of works tax at 4%, as stipulated in Section 8 of the Kerala Value Added Tax Act, 2003 (VAT), in accordance with the special conditions specified in the tender notice.

However, the petitioner contends that subsequent to their submission, the Central Goods and Services Tax Act, 2017 (GST), came into effect. This has implications for the taxation structure and rates applicable to such works. The petitioner alleges that the tendering process did not account for the GST regime, thereby affecting the competitive landscape and potentially prejudicing their participation.

In light of these circumstances, the petitioner seeks judicial intervention to nullify the aforementioned documents, recover the EMD, and ensure a fair opportunity to participate in the tender process under the updated tax regime. The petitioner argues that failure to accommodate GST in the tendering process has resulted in unfairness and prejudice, warranting corrective measures from the court.

The petition underscores the importance of procedural fairness, transparency, and compliance with statutory requirements in public procurement processes. It raises fundamental questions about the adaptability of tendering mechanisms to evolving legal frameworks, particularly concerning taxation laws.

Overall, the petitioner’s case rests on the principle of equity and seeks remedial action to rectify perceived injustices arising from the non-inclusion of GST considerations in the tender process, thereby advocating for a level playing field for all prospective bidders.

The writ petition at hand has been initiated by the petitioner with the aim of challenging several documents (Exts.P2, P5, P8, and P10) and seeking various reliefs, including the release and refund of the Earnest Money Deposit (EMD) amounting to Rs.2,00,000/-. Additionally, the petitioner urges the re-notification of the tender for a project, “Improvements to Thodupuzha Pappootty Hall Vellangallor (River V View) Road”, incorporating Goods and Services Tax (GST) to allow their participation.

The key events leading to this petition transpired as follows: In response to an e-tender notice dated 20.5.2017, the petitioner submitted a tender on 3.6.2017, considering the works tax rate specified in the Kerala Value Added Tax Act, 2003. However, subsequent to the tender submission, the Central Goods and Services Tax Act, 2017 (GST) came into effect on 1.7.2017, altering the tax dynamics by imposing an 18% GST on the value of works. Despite this change, the petitioner’s tender was accepted by the third respondent via Ext.P2 letter dated 14.7.2017, with a probable contract amount specified.

The petitioner made representations (Exts.P3 and P4) requesting either reimbursement of the additional tax or the cancellation of the tender, along with the release and refund of the EMD. However, the responses received, particularly Ext.P8, did not address these requests satisfactorily. The first respondent issued Ext.P8, refusing to consider the petitioner’s requests and failing to release the EMD.

Further, the third respondent directed the petitioner to execute an agreement for the works with GST incorporated, despite the absence of such provisions in the initial tender notice (Ext.P1). The petitioner asserts that this directive is outside the jurisdiction and illegal. Hence, they deem Exts.P2, P5, P8, and P10 as illegal and arbitrary, warranting their quashing.

In essence, the petitioner contends that the changes introduced by the implementation of GST significantly impacted the terms of the tender they had initially agreed upon. They argue for fairness in the process, seeking relief from the additional financial burden imposed and a proper consideration of their tender in light of the altered taxation regime.

The writ petition at hand has been initiated by the petitioner with the primary objective of invalidating several documents (Exts.P2, P5, P8, and P10) and urging for specific orders regarding Ext.P12 for the release and refund of the Earnest Money Deposit (EMD) amounting to Rs.2,00,000. Additionally, the petitioner seeks the re-notification of a tender to include Goods and Services Tax (GST) considerations, thus providing them with an opportunity to participate.

The context of the petition revolves around the petitioner’s participation in a tender issued by the third respondent for “Improvements to Thodupuzha Pappootty Hall Vellangallor (River V View) Road,” in response to an e-tender notice (Ext.P1) dated 20.5.2017. The petitioner submitted their tender on 3.6.2017, incorporating a 4% works tax rate as specified in section 8 of the Kerala Value Added Tax Act, 2003 (VAT), as per the special conditions outlined in the tender notice. However, the petitioner contends that subsequent to their submission, the Central Goods and Services Tax Act, 2017 (GST) was implemented, effective from 1.7.2017, imposing an 18% GST on the value of works.

Following the acceptance of the petitioner’s tender by the third respondent through Ext.P2 letter dated 14.7.2017, which included a probable contract amount of Rs.4,66,38,279, the petitioner submitted representations (Exts.P3 and P4) requesting reimbursement for the additional tax imposed by GST or the cancellation of Ext.P1, along with the release and refund of the EMD. Despite these requests, the first respondent responded through Ext.P8, without addressing the petitioner’s demands.

Moreover, the third respondent directed the petitioner to execute an agreement for carrying out the works with GST through Ext.P10, which the petitioner asserts is not in line with Ext.P1 and thus illegal and beyond jurisdiction. Consequently, the petitioner argues that Exts.P2, P5, P8, and P10 are illegal and arbitrary and should be invalidated. They seek the court’s intervention to direct the respondents to release the EMD due to their failure to accept the tender as stipulated in Ext.P1.

Furthermore, the petitioner alleges that the first respondent has failed to act on Ext.P12, which violates their fundamental rights under Articles 19(1)(g) and 21 of the Constitution of India.

In response, the third respondent has filed a detailed counter-affidavit, refuting the petitioner’s claims and contentions. They argue that the terms and conditions regarding tax payments were clearly stipulated in the tender notice, which the petitioner accepted while submitting their bid.

Overall, the petition raises complex legal and procedural issues surrounding the tender process, tax obligations, and the petitioner’s rights, with both parties presenting their arguments for consideration by the court.

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