IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 WP(C).No. 3865 of 2008(I) ------------------------------------ PETITIONER: ------------------- K.C.MOHAMMED IQBAL, KAPPACHALIL HOUSE, MAMPAD COLLEGE P.O., MALAPPURAM DISTRICT. BY ADV. MR.RAJESH R.KORMATH. RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIVISIONAL FOREST OFFICER, CHALAKKUDY, FOREST DIVISION, CHALAKKUDY, ERNAKULAM DISTRICT. 3. THE SECRETARY TO FOREST AND WILD-LIFE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R3 BY GOVT. PLEADER MR. SANDESH RAJA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2009, ALONG WITH W.P.(C). NO. 3932/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.3865/2008-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ADVERTISEMENT DTD. 04/07/2006 ISSUED BY R.2. EXT.P.2: COPY OF THE REPRESENTATION DTD. 23/01/2007 SUBMITTED BY THE PETITIONER BEFORE THE R.2. EXT.P.3: COPY OF THE REPRESENTATION DTD. 05/10/2007 SENT BY THE PETITIONER TO THE R.3. EXT.P.4: COPY OF THE GOVERNMENT ORDER DTD. 24/02/2007 OF THE FOREST AND WILDLIFE DEPARTMENT. EXT.P.5: COPY OF THE COMMUNICATION DTD. 06/11/2007 SENT BY R.2. ADDRESSED TO THE PETITIONER. EXT.P.6: COPY OF THE REPLY DTD. 26/11/2007 SENT BY THE PETITIONER BY REGISTERED POST TO THE R.2. DIVISIONAL FOREST OFFICER. RESPONDENTS' ANNEXURE: ANNEXURE-R2.A: COPY OF THE UNDERTAKING DTD. 21/11/2007. //TRUE COPY// P.S. TO JUDGE. Prv. V.GIRI, J. -------------------------------------- W.P.(C).No.3865 & 3932 of 2008 -------------------------------------- Dated this the 8th day of April, 2009. JUDGMENT Common issues arise for consideration in these cases. Therefore, they have been heard together and are being disposed of by this common judgment. I will refer to W.P.(C)No.3865/08 in the first instance. W.P.(C)No.3865/08 2. The petitioner, an A class contractor, registered under Various Departments, responded to Ext.P1 advertisement inviting tenders for working down timber billets and firewood from 1926 Chettikulam Teak Plantation of Vellikulangara Range. An amount of Rs.32,500/- was paid by the petitioner by way of Earnest Money Deposit. The period of contract was 4 months from the date of execution of the agreement. Tender was conducted on 23.8.2006. The tender submitted by the petitioner was provisionally accepted. But, it was not confirmed. W.P.(C).No.3865 & 3932 of 2008 :: 2 :: 3. It is the case of the petitioner that normally confirmation should be made with 3 months from the date of tender. But, it was not done. Therefore, Ext.P2 dated 23.1.07 was submitted for return of the Earnest Money Deposit. This was followed by Ext.P3 representation dated 5.10.2007. In the meanwhile, revised wage rates had come in force in the Forest and Wild Life Department as evidenced by Ext.P3 in February, 2007. 4. More than 15 months after the tender, the petitioner's offer was confirmed vide Ext.P5 dated 6.11.2007. Petitioner sent a reply on 28.11.2007, Ext.P6, repeating his request for return of the Earnest Money Deposit. Thereafter, this writ petition has been filed praying for the following reliefs: “i. A writ of mandamus or any other appropriate writ, direction or order commanding the respondents to return back to the petitioner the earnest money deposit of rupees thirty two thousand and five hundred made by the petitioner at the time of submitting the tender W.P.(C).No.3865 & 3932 of 2008 :: 3 :: application with respect to 1926 Chettikulam Teak Plantation of Vellikulangara Range. ii. Any other appropriate writ, direction or order as may be deemed fit and proper in the facts and circumstances of the case.” 5. Similar contentions are contained in W.P.(C) No.3932/08. 6. It is contended by the petitioner that confirmation should have taken place within 3 months from the date of the tender. Actually, when it was not accepted within the said period, the petitioner had sent Ext.P2 making it clear that it is no longer possible for him to do the work at the same rates quoted by him on 23.8.2006. There was no response to this. He repeated his request for refund of the Earnest Money Deposit on 5.10.2007. Thereafter, there was confirmation of the tender only by Ext.P5, which is dated 6.11.2007. The contention is that the offer made by the petitioner had already lapsed by the time Ext.P5 confirmation came up. Hence the request for return of the W.P.(C).No.3865 & 3932 of 2008 :: 4 :: Earnest Money Deposit and to exonerate the petitioner from any further liability . 7. A statement has been filed by the respondents refuting the petitioner's claim. It is contended that there are several reasons why the confirmation could not be made earlier. The petitioner had executed a preliminary agreement. If he fails to act as per the same, he will be liable for the consequences. He is not entitled to refund of the Earnest Money Deposit, it is contended. 8. I heard learned counsel for the petitioner Mr.Rajesh R.Kormath and learned Government Pleader Sri.Sandesh Raja. 9. In my view, the questions, as to whether there were adequate reasons for the delay in confirmation of the tender and whether the petitioner can be held responsible, in any manner, for the delay in confirmation of the tender, may first be looked into by the Chief Conservator of Forests. If the Chief Conservator comes to the conclusion that the W.P.(C).No.3865 & 3932 of 2008 :: 5 :: delay in confirmation of the tender, cannot be attributed to the petitioner, as already a revision had taken place during interregnum, then it will not be fair to hold the petitioner responsible for the delay incurred by the department in confirming the tender. In such event, it would be unjust to mulct the petitioner for any loss that the department may have sustained. 10. Accordingly, the petitioner may file a detailed representation before the Chief Conservator of Forests within eight weeks from today. It shall then be looked into and appropriate decision taken by the Chief Conservator of Forests. The Chief Conservator of Forests shall then pass orders on the representation, after looking into the tender conditions, the preliminary agreement and surrounding circumstances. The Chief Conservator of Forests may also ascertain whether in the re-tender any higher amount has been realised by the Government. Orders in this regard shall be passed by the Chief Conservator of Forests within four W.P.(C).No.3865 & 3932 of 2008 :: 6 :: weeks thereafter. If the petitioner is aggrieved by the decision to taken by the Chief Conservator of Forests, it will be open to him take appropriate steps in relation to the same and the contentions, which he has in relation to Ext.P5, are left upon at this stage. Writ petition is disposed of as above. W.P.(C).No.3932 of 2008 The facts involved in W.P.(C).No.3932 of 2008 are similar and the discussion in relation to W.P.(C).No.3865 of 2008 shall apply to the present case also. In the result, it is ordered that if the petitioner files a representation before the Chief Conservator of Forests within eight weeks from today, the same shall be looked into and a decision taken within four weeks thereafter. If the petitioner is still aggrieved, he will be entitled to pursue his remedies in relation to the same. The contentions of either parties in relation to Ext.P5 are left open. W.P.(C).No.3865 & 3932 of 2008 :: 7 :: I make it clear that the observations made by me in paragraph No.9 as regards W.P.(C).No.3865 of 2008 will be applicable to the present case also. Sd/- (V.GIRI) JUDGE sk/ //true copy//