IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 WP(C).No. 22606 of 2009(U) ----------------------------------------- PETITIONER(S): ------------------------ K.A.JELTON, GOVT.CONTRACTOR, KIZHAKKEVEETTIL HOUSE, KANNAMALY P.O. KOCHI - 8. BY ADVS. SRI.BABU JOSEPH KURUVATHAZHA, SRI.K.I.SAGEER. RESPONDENT(S): ---------------------------- 1. THE SUPERINTENDING ENGINEER, IRRIGATION CENTRAL CIRCLE, THRISSUR. 2. THE EXECUTIVE ENGINEER, IRRIGATION DIVISION, ALAPPUZHA. R1 & R2 BY GOVERNMENT PLEADER SRI. V. MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.22606/2009 U APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE TENDER NOTICE NO.02/SEICC/2009-2010 DTD. 14/07/09 ISSUED BY THE 1ST RESPONDENT. P2: COPY OF THE REPRESENTATION DTD. 3/08/2009 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P3: COPY OF THE TENDER NOTICE NO.D.B.3/09 DTD. 27/07/09 ISSUED BY THE 2ND RESPONDENT. P4: COPY OF THE REPRESENTATION DTD. 4/08/2009 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P5: COPY OF THE JUDGMENT DTD. 8/06/05 IN WP(C) NO.16846/05 OF THIS HON'BLE COURT. P6: COPY OF THE JUDGMENT DTD. 19/09/02 IN O.P.NO.26830/02 OF THIS HON'BLE COURT. P7: COPY OF THE JUDGMENT DTD. 24/07/03 IN WPC.NO.23226/03 OF THIS HON'BLE COURT. P8: COPY OF THE JUDGMENT DTD. 10/06/2008 IN WPC.NO.16534 OF THIS HON'BLE COURT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.22606 of 2009-U = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of May, 2010. Judgment “CR” Thottathil B.Radhakrishnan, J. 1.This matter comes to the Division Bench on a reference by learned single Judge. 2.Petitioner is a licensed Government contractor to whom an amount of Rs.7,50,000/- is stated to be due from the Government for certain works done. After responding to Exts.P1 and P3 tender notifications inviting sealed tenders for certain other works, the petitioner submitted a representation, inter alia, requesting that the WPC22606/09 -: 2 :- actual remittance of Earned Money Deposit be dispensed with and that the amounts due to him under different bills pending with the second respondent be adjusted towards such E.M.D. He, thereafter, filed this writ petition seeking the issuance of a direction commanding the respondents to permit him to submit the tenders for the works included in Exts.P1 and P3 tender notices, without remitting EMD on condition of adjustment as claimed by him. In support, the petitioner projected Exts.P5 to P8 judgments of this Court as having been rendered considering similar issue. He also sought that the respondents be directed to consider and dispose of his Exts.P2 and P4 representations, in the light of those judgments. 3.The learned single Judge, on hearing the writ petition, found no way to concede to the aforesaid request since there was no condition in the tender document either to waive EMD or to relax the provision that the EMD shall be WPC22606/09 -: 3 :- forfeited. It was also found that there is no specific provision in the tender document authorising the Superintending Engineer to make any relaxation. Therefore, disagreeing with the views in Exts.P5 to P8 judgments, the matter has been referred for consideration by the Division Bench. 4.Before us, with the passage of time, it is pointed out on the strength of the affidavit of the Department that the amounts due to different contractors till 31.3.2009 have been disbursed and obviously, there is no question of inordinate delay in disbursing the amounts which are admittedly due to the different contractors. 5.Exts.P5 to P8 judgments were issued directing the respondents to permit the petitioners therein, to effect the Earnest Money Deposit by adjusting the same against amounts which were claimed to be due to the respective petitioners therein. The petitioner, according to his counsel, is WPC22606/09 -: 4 :- similarly situated to the beneficiaries of those judgments. 6.Going by the submissions of the learned counsel for the petitioner as also the learned Government Pleader, we notice that there was an exceptional dearth of funds for the Government to support the different works, including in the Public Works Department. Large amounts remained due to the contractors. The works being done by those contractors are essentially for governmental purpose. Obviously, therefore, to strike a balance between the entitlement of the Government to be provided more time to make payment and also to have the contractors to do the work, different orders could have been issued by the executive Government. This Court would have also felt, as is evident from Exts.P5 to P8, that there can be some adjustments of the nature as ordered in Exts.P5 to P8. But, we are clear in our mind that Exts.P5 to P8 do not lay down any principle of law which could bind as a precedent. This is WPC22606/09 -: 5 :- particularly so because in the realm of contracts, each individual contract is a separate transaction even if the identity of the parties remains the same. This is so even in relation to Government and other public works. Otherwise, the determination of rights and liabilities of parties who may have different agreements between them could be inter-twined resulting in administrative chaos rather than a smooth completion of works in which lot of public interest and public funds are involved. 7.Not only that, one of the fundamental principles of contracts, is that, as regards a contract, there should be certainty as to; the identity of the parties to the contract; its subject matter and other attendant factors which would provide the identity of each and every contract as a separate transaction. Exts.P1 and P3 notifications, admittedly, provide for Earnest Money Deposit. When the person or authority notifying the invitation of tenders explicitly WPC22606/09 -: 6 :- says that the offeror has to provide EMD, such a condition cannot be taken away except by the person or authority notifying the invitation of tenders. This means that the tender document itself should contain the explicit provision, if it were the intention of the Government to waive or, in any manner, relax the term requiring that EMD be provided. Without that, the subordinate officers, including the Superintending Engineer and Executive Engineer, as the case in hand, would not be within authority to make any relaxation whatsoever. Also, it would definitely be out of the judicial realm for the courts to direct adjustment of funds which may be due to a contractor from the Government under a particular contract, towards EMD that an intending bidder may have to provide in support of his offer on the basis of a subsequent invitation of tenders. The courts would not re-write the terms of contracts, as also of invitations of offers. 8.For the aforesaid reasons, the reference made to WPC22606/09 -: 7 :- the Division Bench would stand answered by stating that there is no legal right for a tenderer to claim relaxation of the mandatory condition in the notification stipulating the furnishing of an EMD, by adjustment against amounts which are claimed to be due to the contractor. Any such claim would be in violation of the conditions of the tender notification and the courts would not issue any direction to the Government officials to grant such relaxation. As a corollary, no writ, direction or order would issue directing consideration of any request in that regard, since it is not founded on any legal right. 9.Having answered the reference as aforesaid and having regard to an order passed in this case by the Division Bench on 27.8.2009, we direct that if any funds are retained by the respondents from undisputed bill amounts due to the petitioner as claimed by him in the writ petition, such amounts would be released at the earliest, at any rate, WPC22606/09 -: 8 :- within one month from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/3105