IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 22ND DECEMBER 2010 / 1ST POUSHA 1932 WP(C).No. 37432 of 2010(D) -------------------------- PETITIONER(S): ----------------------- SHIBU ZACHARIAH, S/O.LATE K.V.ZAHARIA, AGED 43 YEARS, KOTTAVIRUTHIL, THALAVADY P.O., PIN-689 572. BY ADV. SRI.V.C.JAMES SRI.M.A.FIROZ SRI.GEORGE MECHERIL SRI.P.ABRAHAM CHERIAN RESPONDENT(S): ---------------------- 1. THE STATE OF KERALA, REP. BY ITS CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM, PIN-695033, REP. BY ITS MANAGING DIRECTOR. 3. THE SUPERINTENDING ENGINEER, KERALA WATER AUTHORITY, P.H.CIRCLE, KOLLAM-696002. SRI.M.DINESH, SC, KWA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 37432 OF 2010 ===================== Dated this the 22nd day of December, 2010 J U D G M E N T In response to Ext.P2 tender notice invited by the respondents, petitioner submitted their tender. The High Level Technical Committee by Ext.P3 recommendation, the Kerala Water Authority by Ext.P5 decision and the Empowered Committee Meeting by Ext.P6 recommended the tender of the petitioner. Finally the Manging Director issued Ext.P8 to the petitioner which inter alia mentioned that the price variation clause is not applicable to SPAN tenders and on that basis, petitioner was requested to withdraw the same from his offer. It is challenging Ext.P8 to the extent the aforesaid direction was issued to the petitioner, the writ petition is filed. 2. The contention raised by the learned counsel for the petitioner is that since High Level Technical Committee, Water Authority and the Empowered Committee have all made their recommendations by Exts.P3, P5 and P6 and as these documents did not contain a requirement as now mentioned in Ext.P8, it was beyond the power of the Managing Director to have issued such a WPC No. 37432/10 :2 : direction. 3. When the matter came up for orders, learned standing counsel appearing for the Water Authority sought time for obtaining instructions. Today, when the matter was taken up, he has produced Government Communication No.18115/C1/09/WRD dated 14.6.2009 issued by the Principal Secretary to Government, Water Resources (WS-C) Department addressed to the Managing Director of Kerala Water Authority, which reads as under: In inviting your attention to the reference cited, I am to inform you that your proposal for incorporating price variation clause in the NIT for SPAN projects cannot be agreed to since it involves a general policy decision and it cannot be considered only for Kerala Water Authority. 4. Now that the Government have issued such a direction, obviously, the Water Authority is bound by the same. From the Government Communication, it is evident that price variation clause is inapplicable to SPAN projects. If so, the Managing Director is fully within his power in having informed the petitioner about the inapplicability of price variation clause and requesting him to withdraw the clause from the offer made by him. 5. Learned counsel for the petitioner submitted that WPC No. 37432/10 :3 : subsequent to the issuance of the Government Order, Water Authority itself have issued the tender with the price variation clause vide its order dated 8/7/2010 and that an agreement was executed on that basis. Even if what the counsel contends is factually correct, the same is evidently against the Government direction and therefore even if such an erroneous act has been committed by the Water Authority, that is no precedent for this Court to direct repetition of the same in future. Writ petition is dismissed. ANTONY DOMINIC, JUDGE Rp