KSEB Plan To Procure Lighter Workload Poles Against Safety & Public Interest : Kerala High Court

The Kerala High Court on Tuesday quashed the tender notification issued by the Kerala State Electricity Board calling for poles of 8m length with a working load of 140kg as opposed to the prescribed 200kg.

A Division Bench of Chief Justice S Mankumar and Justice Shaji P Chaly while allowing the PIL observed that public interest should be given utmost preference and that the Board could invite tenders in accordance with its earlier decision for procuring poles of 8m length with a working load of 200kg. 

The petitioners Mohammed Nizar and a couple of other social workers based in Palakkad approached the Court contending that the KSEBs decision will jeopardise safety. Advocate O.A. Nuriya represented them before the Court. 

K.S.E.B had invited competitive bids from suppliers for the manufacture and supply of 8m and 9m PSC Poles for various electrical circles for a period of 2 years. As per the tender document, technical particulars required for an 8m Electric Pole were provided as 140 kg working load; whereas the working load prescribed for a 9m pole was 200 kg.

The petitioners submitted that the report of the Chief Safety Commissioner of KSEB revealed that accidents due to the breakage of poles were increasing at an alarming rate in the State. They further produced reports from field officers that due to heavy wind, rain, and falling of trees, a huge number of poles were broken.

It was submitted that the matter required immediate and urgent attention of the Court since if the works were awarded to the contractors at the said lower specification, it will be highly detrimental to the public interest considering the unprecedented floods and landslides accompanied by heavy rainfall and winds which have been recurring in the State for past two years, and that the representations and requests submitted in that regard have fallen on deaf ears. 

However, Senior Advocate Raju Joseph for KSEB submitted that there is no rigid specification for the design of load of PSC Poles as it is dependent on endemic conditions. Additionally, he argued that since it was a policy decision of the Board, the writ court should not interfere. 

The Division placed reliance on Apex Court's decision in DDA v. Joint Action Committee, Allottee of SFS Flats [(2008) 2 SCC 672] where it was held that an executive order termed as a policy decision is not beyond the pale of judicial review.

Accordingly, it was observed as follows:

"...we are of the firm opinion that if and when there are clear arbitrariness or patent illegality or other substantial, solid and stable legal infirmities, or outrageous action discernible from the face of the record, this Court would be absolutely justified in exercising the power of judicial review conferred under Article 226 of the Constitution of India."  

Moreover, the Court stated that if the board wanted to deviate from the order taking into account the safety features, it ought to have assigned sufficient and adequate reasons for the same. The only justification given by KSEB in this regard was that considering the reports of the Chief Engineer of Distribution Wing and the discussions in the Distribution Core Committee meeting held in February 2020, the Director (Distribution, IT & HRM) had suggested that the working load of 140 Kgs would be sufficient for 8 m PSC poles for common low tension line configuration.

However, it was observed that the Board itself at an earlier occasion had admitted that the breakages are caused due to flaws in the structural design of 8m poles and it was accordingly, decided to change the specifications to 200kg. However; the respondent took a sudden deviation later, which was found to be a suspicious stop-gap arrangement in between the board orders.  

Therefore, it became evident that KSEB had deviated from the directions stipulated by the Rural Electrification Corporation and had taken its decision 'without any bona fides, added to the fact that no reasons are assigned for its sudden deviation.' For the aforementioned reasons, the Court held that was against the public interest on account of safety and economic reasons.

As such, the Division Bench allowed the petition and quashed the portion of the tender documents concerning 8m PSC Poles with 140 Kgs working load.

Case Title: Mohammed Nizar & Ors. v. State of Kerala & Ors

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