IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 WA.No. 198 of 2011() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.2273/2011 Dated 03/02/2011 .................... APPELLANT(S): PETITIONER ------------------------ TRAVANCORE EARTH MOVING COMPANY H.O.NELLIMATTATHIL BUILDING, NEAR HILL PALACE, THIRUVAMKULAM PO, ERNAKULAM DISTRICT 682 305, REPRESENTED BY ITS PROPRIETOR N.D.JOSEPH. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SRI.M.K.DILEEPAN RESPONDENT(S): RESPONDENT ------------------------- 1. THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001. 2. THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT(ROAD & BRIDGES) THIRUVANANTHAPURAM-695 001. 3. THE SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT(ROAD & BRIDGES) CENTRAL CIRCLE, ALUVA, ERNAKULAM DISTRICT-682 025. 4. SRI.K.I.PAULOSE, KAVIKUNNEL HOUSE, KUNNACKAL PO, VALAKAM, MUVATTUPUZHA-682 316. ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R4 SRI.P.K.MANOJKUMAR FO R R4 MR.K.C.SANTHOSH KUMAR, GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... W.A. No.198 of 2011 .................................................................... Dated this the 24th day of February, 2011. J U D G M E N T Ramachandran Nair, J. This Writ Appeal is filed against the judgment of the learned Single Judge declining to interfere with the award of contract in preference to the appellant to the 4th respondent. 2. We have heard learned senior counsel appearing for the appellant, learned Government Pleader appearing for respondents 1 to 3 and learned senior counsel appearing for the 4th respondent. 3. Competitive tenders were invited for improvement of Kanjar - Koovappally - Chakkikkavu, Elavizhapunchira - Melukkavu - Kanjiramkavala Road. The appellant in the Writ Appeal happens to be the lowest tenderer who quoted the rate at 18.10% less than the PAC, while the 4th respondent, who is the 3rd lowest tenderer, quoted 13.31% above the PAC. On 17/03/2010, the Superintending Engineer issued Ext.P1 letter to the appellant confirming acceptance of his tender being the lowest and requesting him to execute W.A.No.198/2011 2 agreement. However, on the very same day, in a Writ Petition filed by some other participants in the tender this Court granted stay against further proceedings, and the said Writ Petition was dismissed as withdrawn on 22/11/2010. In other words, the stay order remained in force till 22/11/2010. The Superintending Engineer thereafter on 17/12/2010 wrote a letter to the appellant again requesting to execute the agreement within 20 days of receipt of the said letter. However, the appellant's case is that on 04/12/2010 he sent a representation pointing out the inordinate delay of 8 months in the execution of the agreement and requesting for increase in the rate prevailing in 2010. However, the case of respondents 1 to 3 is that the said letter was addressed to the Minister by the appellant and therefore respondents 1 to 3 did not take cognizance of the same. Since the appellant did not execute the agreement, the Superintending Engineer invited the 2nd and 3rd lowest bidders to accept the contract. Since the 2nd lowest tenderer backed out, the 3rd lowest tenderer namely the 4th respondent was contacted and the 4th respondent offered modified terms, whereunder he undertook to do the work at 0.5% below the PAC as against 13.31% above the PAC initially offered by him. It is against W.A.No.198/2011 3 the award of the contract to the 4th respondent on the revised terms the appellant filed the Writ Petition. Since the connected Writ Petition was filed by the 4th respondent for award of contracts, the learned Single Judge found that the appellant having given a revised offer was rightly not considered and the terms were negotiated with the 3rd lowest tenderer and the work was rightly awarded to him. 4. Before us, the appellant relied on Annexure-A produced in the Writ Appeal, which is dated 07/01/2011 issued by the Chief Engineer to the Government recommending the case of the appellant for revision in rates. Based on this, the appellant contended that even as on 07/01/2011, the contract was not finalised and therefore the award of the contract to the 4th respondent on 07/01/2011 is factually incorrect. 5. However, learned Government Pleader appearing for respondents 1 to 3 and learned senior counsel appearing for the 4th respondent submitted that the appellant was not entitled to modify the rate, and the only option given by the Superintending Engineer to him was to sign the contract in terms of the original offer made by him, which he declined. Further, tender conditions do not provide for any enhancement in rates, and therefore according to W.A.No.198/2011 4 the respondents, the conditional offer made by the appellant was rightly rejected and the contract was rightly awarded to the 4th respondent. 6. During hearing what we find is that there has been a negotiation with the 4th respondent and the award of the contract to him is with substantial variance to the original offer made by him, and therefore we feel when tender conditions are allowed to be modified by one of the participants, equal opportunity should have been given to others. Admittedly, the appellant was not informed about the negotiation by the Department with the 4th respondent and the change in the conditions offered by him. So much so, we feel that the award of the contract to the 3rd lowest tenderer without verifying whether the appellant was interested to execute the work on the terms initially offered by him is unjustified. The appellant's very case is that the very fact that he requested for increase in rates does not mean that if his request is turned down by the Government he would not have accepted the contract on original terms in terms of tender conditions. Before us, the learned Senior counsel appearing for the appellant submitted a statement, whereunder the appellant has categorically stated that he is willing W.A.No.198/2011 5 to accept the contract based on the tender submitted by him, and he is willing to withdraw the request made to the Government for increase in the rates. Since the appellant is the lowest tenderer and since his counsel after taking instruction undertook that the appellant will execute the agreement and do the work based on original terms & without any increase in rates, we allow the Writ Appeal by vacating the judgment of the learned Single Judge and directing the 3rd respondent to execute the agreement with the appellant on the terms originally agreed i.e. at 18.10% below the PAC at the rates applicable in 2009, i.e. without any increase in revision in the rates. In view of the above, there will be a direction to the Government not to consider any increase in the rates at the request of the appellant. The appellant is given 15 days time from today to execute the agreement with the 3rd respondent in terms of the original offer made by him and as stated above, namely Exts.P1 & P3 issued by the Superintending Engineer on 17/03/2010 and 17/12/2010 respectively. We make it clear that since this Writ Appeal is allowed on the undertaking by the Senior counsel on behalf of the appellant that the appellant is willing to execute & do W.A.No.198/2011 6 the work on original terms offered by him, if there is any failure, the matter should be brought to the notice of this Court to take appropriate action against him for abusing the process of Court. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) jg