IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 WP(C).No. 32479 of 2007(N) -------------------------- PETITIONER: -------------- K.R.DINESAN, GOVT.CONTRACTOR, KUNDANI HOUSE, MATTATHURKUNNU P.O., KODAKARA - VIA, TRICHUR DISTRICT. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA SRI.K.I.SAGEER RESPONDENTS: ----------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, DEPT. OF WATER RESOURCES, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, IRRIGATION CENTRAL CIRCLE, TRICHUR. 3. PAUL V.THOMAS, GOVT.CONTRACTOR, POOTHRIKKA P.O., KOLENCHERY, ERNAKULAM DISTRICT. ADDL.R4. VARANDARAPILLY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, VARANDARAPILLY, THRISSUR DT. (ADDL.R4 IMPLEADED AS PER ORDER DATED 15.2.2008 IN IA 2106/08) ADDL.R5. JOSEPH, S/O KUNJU VARU, NANDIPULAM, THRISSUR DT. REPRSENTED BY SECRETARY. (ADDL.R5 IMPLEADED AS PER ORDER DATED 15/2/2008 IN IA 1959/08) BY ADV. SRI.C.A.MAJEED FOR R3 SRI.P.N.MOHANAN SRI.RENJITH THAMPAN SMT.P.A.ANITHA GOVT.PLEADER SRI.M.R.SABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/03/2008,THE COURT ON 25/03/2008 DELIVERED THE FOLLOWING: WPC NO.32479/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF the PROCEEDING BEARING NO.D6-4373/95 DT.10.7.07 ISSUED BY THE 2ND RESPONDENT. EXT.P2: TRUE COPY OF ARTICLE 15.7.12 AND 15.7.14 OF THE P.W.D.MANUAL. EXT.P3: TRUE COPY OF THE REPRESENTATION DATED 3.10.07 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P4: TRUE COPY OF THE REPRESENTATION DT.15.10.07 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P4(a): TRUE COPY OF THE EXPLANATION DT.16.7.07 SUBMITTED BY THE PETITIONER. EXT.P5: TRUE COPY OF THE REPRESENTATION DT.16.11.2007 SUBMITTED BY THE PETITIONER BEFORE THE 1ST AND 2ND RESPONDENTS WITH ITS COPY TO THE CHIEF ENGINEER. EXT.P5(a): TRUE COPY OF THE RECEIPTS EVIDENCING THE SENDING OF EXT.P5. EXT.P6: TRUE COPY OF THE TENDER NOTIFICATION ISSUED BY THE 2ND RESPONDENT, INVITING TENDERS FOR NABARD RIDF XI-CONSTRUCTING A REGULATOR-CUM-BRIDGE AT ATTAPPILLY KADAVU ACROSS KURUMALI RIVER NEAR PUDUKKAD IN TRICHUR DISTRICT. EXT.P7: TRUE COPY OF THE P.W.D. MANUAL DETAILING THE PROVISIONS OF LAW GOVERNING THE AWARDING OF WORK THROUGH TENDER. EXTS. OF R2 ANNEXURE R2(a): TRUE COPY OF THE REQUEST MADE BY THE PETITIONER FOR RELEASE OF EMD DT.25.8.2007. EXT.R2(b): TRUE COPY OF THE TABULATION STATEMENT. EXT.R2(c): TRUE COPY OF THE LETTER OF THE PETITIONER TO THE 3RD RESPONDENT. EXT.R2(d): TRUE COPY OF THE LETTER DATED 16.11.2007. EXTS.OF R3 EXT.R3(a): A PHOTOCOPY OF THE LETTER DT.17.7.2007 ISSUED BY 2ND RESPONDENT. WPC NO.32479/97 -2- EXTS OF R4 EXT.R4(a): TRUE COPY OF THE LETTER DATED 18.3.82 OF THE SPECIAL SECRETARY TO GOVERNMENT, DEPARTMENT OF IRRIGATION. EXT.R4(b): TRUE COPY OF THE RESOLUTION OF THE MATTATHUR GRAMA PANCHAYAT DT.12.7.99. EXT.R4(b)(i): TRUE COPY OF THE RESOLUTION OF KODAKARA BLOCK PANCHAYAT DT.15.7.99. EXT.R4(b)(ii): TRUE COPY OF THE RESOLUTION OF THRISSUR DISTRICT PANCHAYAT DT.16.7.98. EXT.R4(c): TRUE COPY OF THE ESTIMATE OF THE CHIEF ENGINEER. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. =============== W.P.(C) NO. 32479 OF 2007 N ==================== Dated this the 25th day of March, 2008 J U D G M E N T The prayers in this writ petition are mainly to direct respondents 1 and 2 to award to the petitioner the work of constructing a Regulator-cum- Bridge at Attappilly Kadavu across Kurumali River, in response to Ext.P6 tender notification, and not to award the said work to the 3rd respondent. 2. Before referring to the facts, a look at the background that led to Ext.P6 tender notification, as disclosed in the affidavit filed by the 4th respondent, the Varandarappilly Grama Panchayat is necessary. It is stated that by Ext.R4(a) dated 18.3.1982, the aforesaid project was sanctioned, but its implementation got delayed and hence, the beneficiary Panachayaths viz., Varandarappilly, Kodakara, Mattathur and Thrissur District Panchayath had passed resolutions requesting for an early completion of the project. Exts.R4(b) series are the resolutions. On account of their efforts, finally the Government had sanctioned construction and Ext.R4(c) estimate was prepared, out of which, Rs.4 crores is being obtained as loan from NABARD. It is their specific case that if the project is implemented, the distance between Chalakkudy to Thrissur would be reduced by 30 Kms and that it will be of benefit to 1490 WPC 32479/07 :2 : hectares of agricultural land and lakhs of people, including adivasis. In essence, what the 4th respondent wants is the immediate implementation of the project and according to them, if the project is delayed, the funds sanctioned would lapse. 3. Ext.P6 dated 9.2.2007 is the notice inviting tender for the work in question. In terms of Ext.P6, the firm period of the offer made was to be 4 months from the date of opening the tender. The tenders received were opened on 9.2.2007 and hence, the offers were to remain firm till 8.6.07. As is disclosed through the statements filed by respondents 1 and 2, the lowest tenderer M/s Chandragiri Constructions had withdrawn their tender. The 2nd lowest, M/s Sree Narayana Constructions, which had quoted 15% above PAC, refused to extend the firm period or reduce the quoted rate and as a result, their offer also became invalid. The petitioner, who had quoted 17.01% above PAC was the 3rd lowest, who was issued Ext.P1 letter dated 10.7.2007, requesting to extend the firm period for 4 months and also enquiring whether he was willing to execute the work at 15% above the PAC. 4. It is stated that on 10.7.2007 itself, a letter was issued to the 3rd respondent also requesting to extend the firm period of his offer. WPC 32479/07 :3 : Though the petitioner has a case that this letter was issued on 10/6/07, it is clarified in the additional statement dated 25.1.2008 that the letter was issued only on 10.7.2007. To the letter dated 10.07.2007 received by him, the petitioner replied by Ext.P4(a) dated 16.7.07, declining to execute the work at the rate offered in Ext.P1 and requesting to release his EMD. In Ext.P4(a), the petitioner has also not stated that he was willing to execute the work even at the rate quoted by him. The statement filed by the respondents also disclose that while the 3rd respondent agreed to extend the firm period, the petitioner submitted Ext.R2 dated 25.8.07, seeking refund of his EMD and that the EMD was accordingly refunded to him on 5.09.2007. With the disappearance of the petitioner from the fray, the only valid offer available was that of the 3rd respondent, who had quoted 57% above the PAC. It is stated that in the negotiation that followed with the 3rd respondent, rate for civil work was agreed to be reduced to 55% and that the rate quoted by him for mechanical work was less than the estimated rate. Thereafter a proposal was submitted to the Chief Engineer recommending to accept the offer made by the 3rd respondent. 5. An additional statement is also filed, in which it is stated that the work was tendered based on 2004 schedule of rates and that WPC 32479/07 :4 : subsequently, 2007 rates have been introduced, with an escalation of 35% and going by that standard, the rate now offered by the 3rd respondent is a viable one, especially in view of the increase in the cost of materials. It is further contended that once the petitioner has got his EMD refunded, he has no further claim to be awarded the work and that his motive is only to get the work re-tendered although he was unwilling to execute the work. According to the respondents, if the work is to be retendered, that can be only at 2007 schedule of rates and will result in additional financial burden to the State. 6. Petitioner submits that coming to know of the efforts to award the work to the 3rd respondent, he had submitted Exts. P3 and P4 to respondents 2 and 1, respectively, the receipt of which is denied by the respondents in the statement filed on 13/11/2007. According to him, despite the representations thus made by him, since efforts were on to award the work to the 3rd respondent, this writ petition was filed, with the prayers mentioned earlier. 7. Respondents 1 and 2 have filed 2 statements about which reference has already been made earlier. The 3rd respondent has filed a counter affidavit in which, he would contend that the steps taken by WPC 32479/07 :5 : respondents 1 and 2 are strictly in compliance with the provisions contained in the PWD Manual, the relevant portions of which are Exts. P2 and P7. He would also submit that once his EMD has been refunded on a request made by the petitioner, he has no further claim to be awarded the work. 8. The point that was urged by the learned counsel for the petitioner is that in view of the provisions contained in the PWD Manual, the petitioner was the rightful claimant to be awarded the work. It is argued that once M/s. Chandragiri Constructions had withdrawn and M/s. Sree Narayana Constructions had declined to extend the firm period or reduce their bid amount, petitioner was the lowest bidder, who alone was eligible to be invited for negotiations. According to him, since the firm period of his offer had expired on 8/6/2007, his refusal to extend the firm period in response to Ext.P1 letter dated 10.7.2007, will not make him ineligible in any manner. Therefore, according to him, the options that were available to the respondents were that he should have been invited for negotiations or they should have re-tendered the work. 9. Having considered the submissions made, I am unable to accept the contentions urged by the counsel for the petitioner. As held by WPC 32479/07 :6 : the Apex Court in Air India Ltd. v. Kochi International Airport Ltd (AIR 2000 SC 801) in tender, decisions are guided by commercial considerations and a Court is expected to interfere with the decision of the administrative authorities, not on the making of a legal point, but only when public interest demands such interference. The project in question was approved in 1982 and after more than a quarter of a century, it has reached this far and if it is not allowed to go on, even the funds will lapse. Therefore, unless there are compelling reasons of public interest, this court will not be justified in upsetting the decision of the authorities. 10. The pleadings in the writ petition show that the petitioner has not disclosed anything about the EMD that has been got refunded by him. It is true that with the exit of Chandragiri Constructions and Sree Narayana Constructions, petitioner was the next lowest bidder. But then, when Ext.P1 letter was issued asking him to extend the firm period, his reply by Ext.P4(a) was one of unwillingness to do the work and he demanded that the EMD should be refunded to him. He did not even offer to do the work at the rate quoted by him. His request for refund of EMD was reiterated by him in Ext.R2 dt.25.8.2007 also. Subsequently, the EMD was refunded on 5.9.07. Once EMD has been refunded to him, the petitioner can have no WPC 32479/07 :7 : further claim to be awarded the work or called for negotiations. The provisions of the PWD Manual will not improve his case for the reason that once the petitioner has ceased to be a tenderer by accepting the EMD refunded, he cannot expect to be invited for negotiations thereafter. It is obviously because of this, he is now insisting that the respondents should now go in for re-tender. 11. As already noticed, in none of the communications, has the petitioner expressed his willingness to execute the work at the rate quoted by him. In Ext.R3(b), his offer was to do the work at 31.5% above PAC. Even during the course of hearing, to a pointed querry whether he was willing to do the work at the quoted rate, quick was his response, in the negative. Therefore, the idea is not to execute the work but only to force the authorities to re-tender the work. The delay will certainly be prejudicial to public interest, since the 2004 schedule of rates, based on which Ext.P6 tender notice was issued, has been revised in 2007, and any re-tender can only be based on revised schedule of rates, causing additional financial liability to the State. Further, the funds sanctioned will also lapse. 12. I also do not see anything irregular in negotiating with the 3rd respondent. Once the petitioner also got his EMD refunded and exited WPC 32479/07 :8 : from the fray, the only remaining bidder was the 3rd respondent, who had also kept his offer firm, responding to letter dated 10.7.2007. If that be so, he is entitled to be called for the negotiations. I do not find merit in any of the contentions raised and in my view, the writ petition is only to be dismissed and I do so. There shall be no order as to costs. ANTONY DOMINIC,JUDGE. Rp