IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 WP(C).No. 3562 of 2008(Y) ------------------------- PETITIONER: ------------ A.B. SURENDRAN, GOVERNMENT CONTRACTOR, SURYA CONSTRUCTIONS, EDAPPARAMBATH HOUSE, KONNATHADY P.O.,ADIMALY VIA., IDUKKI DISTRICT. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA SRI.K.I.SAGEER RESPONDENTS: ------------- 1. KERALA LIVESTOCK DEVELOPMENT BOARD LTD., 'GOKULAM', PATTOM, THIRUVANANTHAPURAM, REP. BY ITS MANAGING DIRECTOR. 2. THE MANAGING DIRECTOR, KERALA LIVESTOCK DEVELOPMENT BOARD LTD.,'GOKULAM', PATTOM, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF ANIMAL HUSBANDRY, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 4. THE GENERAL MANAGER, KERALA LIVESTOCK DEVELOPMENT BOARD LIMITED, 'GOKULAM', PATTOM, THIRUVANANTHAPURAM. R1, 2 & 4 BY SC ADV. SRI.MILLU DANDAPANI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------------------ W.P.(C) 3562 of 2008 ------------------------------------- Dated: February 18, 2008 JUDGMENT The challenge in this writ petition is against Ext.P6 by which fresh tenders were invited by the 1st respondent cancelling the tenders that were received in response to Ext.P1 tender notice.. The petitioner also seeks a direction requiring respondents 1 and 2 to award the work notified in Ext.P1 to the petitioner. 2. The facts of the case are:- The 1st respondent issued Ext.P1 tender notice inviting tenders for the civil works for the construction of the model livestock village, Mattupatty, Munnar. Petitioner was one of the bidders and by Ext.P2 he was requested to attend the office of the respondents for a negotiation and it is stated that during the negotiation, petitioner was requested to reduce the rates quoted by him. Petitioner submits that in response, he has submitted Ext.P3 reducing the rate by 0.5%. He was thereafter called for a meeting by Ext.P4 and eventually the respondents passed Ext.P9 resolution WP(C) 3562/08 Page numbers resolving to accord sanction to award the civil works notified by Ext.P1 to the lowest tenderer, the petitioner herein, for 7.25% below PAC subject to the approval of the Government of Kerala. There was a further resolution to invite fresh tenders from public sector undertakings and other Government agencies for supervision, quality control and timely execution of the work. 3. It is stated that the matter was forwarded to the Government for fresh approval and in the meantime the cost of the work was also revised applying the revised rates. After considering the proposal made by the 1st respondent, the Government issued Et.P11 on 22.1.2008, requiring the 1st respondent to re-tender the civil works of the first phase of the project which was originally notified by Ext.P1. Petitioner submits that Ext.P11 dated 22.1.2008 was received by the 1st respondent on 23.1.2008 and Ext.P6 notice inviting fresh tenders was published on 22.1.2008 itself. Petitioner takes exception to Ext.P6 in so far as the eligibility is restricted to State and Central Public Sector Undertakings having valid licence/approval for undertaking such works. It is also contended that no reasons are given in Ext.P6 for taking such a WP(C) 3562/08 Page numbers decision. According to the petitioner, the Board of Directors of the 1st respondent had not resolved to limit the field of choice to public sector undertakings and therefore the unilateral decision of the Managing Director as reflected in Ext.P6 is arbitrary. 4. The 1st respondent has filed a counter affidavit in which the facts stated by the petitioner upto the passing of Ext.P9 resolution is not disputed. It is stated by the 1st respondent that in terms of the Articles of Association, for execution of any work beyond Rs.10 lakhs, they have to obtain approval of the Government of Kerala. It is stated that in terms of the aforesaid provision, the decision taken by Ext.P9 was forwarded to the Government seeking approval. It is stated that in the meantime the cost of the work was also revised taking into account the revised rates that came into force from 1.4.2007. According to the respondent it is in view of this, the Government issued Ext.P11 directing invitation of fresh tenders. 5. On receipt of Ext.P11 the matter was considered by the 1st respondent and it was decided that since for execution of work and its supervision, engagement of two agencies would have been WP(C) 3562/08 Page numbers necessary and that this would have caused practical difficulties. Therefore it was decided to get the work executed by a single agency which has the capability of both execution of the work and its supervision. According to the respondents, it was keeping in mind this object, they have decided to invite tenders from public sector undertakings who had the capability for both the works and that Ext.P6 was issued in pursuance to the aforesaid decision. 6. In so far as the contention of the petitioner that the decision as reflected in Ext.P6 lacks any bona fides, counsel for the respondents invited my attention to the pleadings and argued that it was only for administrative convenience and for ensuring the quality of work that they have decided to go in for a single fresh tender involving a single agency. 7. I have no reason to doubt this explanation given by the 2nd respondent. In so far as the allegation of the petitioner that Ext.P11 was issued on 22.1.08 and was received by the 1st respondent on 23.1.2008 when Ext.P6 was also published, counsel for the respondents would submit that Ext.P11 was received on 22.1.2008 in the office of the 1st respondent at Trivandrum and that WP(C) 3562/08 Page numbers the same was forwarded to the press on 23.1.2008. According to the counsel, Ext.P6 was published in the newspapers on 24.1.2008 and this fact is evident from Ext.P6 itself. 8. Having heard the arguments of the counsel for the petitioner and also the respondents, I do not think that this is a case warranting interference of this court. In the mater of tender, irrespective of whether it is invited by an authority under Art.12 of the Constitution, decisions are essentially guided by commercial considerations and administrative convenience. Of course, if a decision taken in the process is vitiated by mala fides, certainly the court is justified in interfering with the same. In this case, the respondent has explained that if Ext.P1 was to be proceeded with, that would have necessitated the involvement of two agencies, one for executing the civil work and the other for supervision purposes. The respondent in its wisdom has decided that it was advantageous to get both the works done by a single agency. If such a decision is taken for bona fide reasons, this court has no reason to interfere with the same. I have also no material at all on record to doubt the bona fides of this decision. WP(C) 3562/08 Page numbers 9. The argument of the petitioner that Ext.P11 was received by the respondents on 23.1.2008 only and that the same was published in the newspapers on the same date, does not appear to be factually correct. It has been explained by the respondents that they have received Ext.P11 on 22.1.2008 in their Trivandrum office and that it was given to the press on the next day. This does not reflect any hurried action on the side of the respondents to defeat any rights of the petitioner. It may be true, that the petitioner would have got the work, had Ext.P1 been proceeded with. However, having regard to the fact that there are no vitiating circumstance warranting interference with Ext.P6, I have to uphold the said decision and dismiss the writ petition. Writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE mt/-