IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 WP(C).No. 12471 of 2010(H) --------------------------------------- PETITIONER: ------------------- M.P.GEORGE,S/O.M.V.PAULOSE,RESIDING AT MALIAKKAL HOUSE,PACHALAM.P.O,KOCHI-682 012. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, SRI.T.C.SURESH MENON, SRI.JIBU P THOMAS, SRI.P.S.APPU, SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENTS: ------------------------ 1. THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY,NANTHANCODE, THIRUVANANTHAPURAM. 2. THE COMMISSIONER,THE TRAVANCORE DEVASWOM BOARD,NANTHANCODE,THIRUVANANTHAPURAM. 3. BINISH.M,RESIDING AT GIREESH BHAVAN, KARUNAGAPPALLY.P.O,KOLLAM. R1 & R2 BY ADV SRI.V.V.NANDAGOPAL NAMBIAR,S.C, T.D.B, R3 BY ADV. SRI.V.PHILIP MATHEW. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/01/2011, THE COURT ON 21/03/2011 DELIVERED THE FOLLOWING: W.P.(C). NO.12471/2010-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTIFICATION DTD. 03/11/2009. EXT.P.2: COPY OF THE STATEMENT FILED BY THE BOARD IN W.P.(C).NO.33217/2009 DTD. 28/11/2009. EXT.P.3: COPY OF THE JUDGMENT IN W.P.(C).NO.33217/2009 ON THE FILE OF THIS HONOURABLE COURT DTD. 03/12/2009. EXT.P.4: COPY OF THE TELEGRAM DTD. 10/11/2009. EXT.P.5: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE R.2. DTD. 14/11/2009. EXT.P.6: COPY OF THE COVERING LETTER FORWARDED TO THE CHIEF COMMISSIONER OF THE BOARD DTD. 14/11/2009. EXT.P.7: COPY OF THE RECEIPT DTD. 07/11/2009. EXT.P.8: COPY OF THE TELEGRAM DTD. 09/11/2009. EXT.P.9: COPY OF THE AUDIT REPORT DTD. NIL. RESPONDENTS' EXHIBIT: EXT.R1.A: COPY OF THE TELEGRAM DTD. 09/11/2009 SENT BY THE PETITIONER. //TRUE COPY// P.S. TO JUDGE. Prv. THOTTATHIL B. RADHAKRISHNAN & P.S.GOPINATHAN, JJ. -------------------------------------- W.P.(C) No. 12471 OF 2010 -------------------------------------- Dated this the 21st day of March, 2011 J U D G M E N T ~~~~~~~~~~~ P.S.Gopinathan, J. The 1st respondent, Travancore Devaswom Board invited tenders for collecting parking fees from vehicles proceeding to Sabarimala, at toll gates at Chalakkayam, Elavumkal and Plappally for the period from 10.11.2009 to 25.10.2010. Ext.P1 is the copy of the tender notification. As per Ext.P1, the minimum amount to be quoted is Rs.1,75,00,000/-. Responding to Ext.P1, the writ petitioner and six others submitted tenders. Of the other six persons, two failed to deposit the Earnest Money. The amount quoted by four others were far below the prescribed minimum of Rs.1,75,00,000/-. The petitioner alone had quoted above the minimum amount. Along with the tender, the petitioner produced demand draft for Rs.10,000/- towards Earnest Money Deposit. Another 9,00,000/- rupees were deposited by cash on the date of the opening of the tenders. After opening the tenders, the 1st respondent thought it fit to give one more opportunity to all the tenderers to quote higher W.P.(C) No.12471/2010 2 amount since they felt that more income could be generated by this process. The petitioner was not willing to submit fresh tender quoting a higher amount. He expressed his intention to withdraw from the tender process. The 3rd respondent submitted an offer in writing quoting a higher amount of Rs.1,78,55,351/- as against Rs.1,77,44,447/- quoted by the petitioner. Later, by Ext.P8 the 3rd respondent informed the 1st respondent that he had been withdrawing his offer. According to the petitioner, when the 1st respondent proceeded to invite fresh offers for higher amount than what was quoted by the petitioner, it is to be treated that the tender process came to an end. However, the 1st respondent didn't issue any fresh notification inviting tenders and engaged its own personnel to collect the parking fee. The 1st respondent didn't care to refund the Earnest Money Deposit of Rs.9,10,000/-. So, the petitioner submitted Ext.P5 representation to the 2nd respondent seeking release of the Earnest Money Deposit. Since there was no response to Ext.P5, a copy of the same was sent along with a covering letter, a copy of which is produced as Ext.P6. Despite Exts.P5 and P6, the respondents didn't release the Earnest Money Deposit. Alleging that the 1st respondent has no right or justification to retain the Earnest W.P.(C) No.12471/2010 3 Money Deposit, the petitioner filed this Writ Petition seeking an order to issue a writ of mandamus directing respondents 1 and 2 to refund Earnest Money Deposit of Rs. 9,10,000/- with interest at the rate of 18% per annum from 7.11.2009. In the alternative, the petitioner sought for a writ of mandamus directing the 2nd respondent to consider Ext.P5 on merits expeditiously after affording the petitioner a reasonable opportunity of being heard. The petitioner further sought for a declaration that the retention of Earnest Money Deposit by respondents 1 and 2 after permitting the others to quote higher amounts is unjust enrichment. 2. On behalf of respondents 1 and 2, the Secretary of the 1st respondent filed a counter affidavit, whereby the tender process alleged in the writ petition was admitted. It was further averred that since there was only one tender quoting above the minimum amount notified, the persons who were present were given one more opportunity to quote higher amount. Accordingly, the 3rd respondent submitted an offer in writing for Rs. 1,78,55,351/-. There was no termination of tender process. On enquiry by the Vigilance Wing it was revealed that the 3rd W.P.(C) No.12471/2010 4 respondent didn't have any avocation or any ostensible means and that he was not financially stable. It was also revealed that the petitioner was involved with other contract works and thus he had good experience. In the meanwhile, the 3rd respondent sent Ext.R1(a) telegram on 9.11.2009 stating that he had been withdrawing the tender submitted on 7.11.2009. In the light of the report of the Vigilance Wing and in view of Ext.R1(a) telegram sent by the 3rd respondent, the 2nd respondent accepted the tender of the petitioner and addressed a letter on 10.11.2009 to the petitioner informing him that his tender was accepted and the right to collect parking fee had been awarded to him. He was asked to execute the agreement with the Executive Officer, Sabarimala as well as to remit 50% of the bid amount. But, the petitioner didn't turn up. Inspite of the starting of the festival season, the petitioner neither executed the agreement nor deposited 50% of the bid amount. Neither did he come forward for collecting toll. By the time, since the festival season had commenced, the 1st respondent was constrained to make alternative arrangements for collecting the toll departmentally by engaging its own personnel. Respondents 1 and 2 further denied all the allegations in the Writ Petition and contended that W.P.(C) No.12471/2010 5 since the petitioner failed to execute the agreement and to take the right of toll collection, the petitioner is a defaulter and is not entitled to get refund of the Earnest Money Deposit as the same is liable to be forfeited and prayed for dismissal of the Writ Petition. It was further contended that since the dispute arises out of a contract, the remedy of the petitioner, if any, is before the civil court. 3. The learned senior counsel appearing for the petitioner reiterated the contention of the petitioner that the tender process was terminated when the 1st respondent opted for inviting higher bids from the tenderers and hence the Earnest Money Deposit made by the petitioner is liable to be returned. It was also contended that the retention of the Earnest Money Deposit is without any justification. The learned counsel further submitted that the 1st respondent, who comes within the definition of the 'State' under Article 12, must be subjected to rule of law and must be informed by reason. Eventhough the rights of the citizen are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract, are subject to judicial review on the W.P.(C) No.12471/2010 6 touchstone of relevance and reasonableness, fair play, natural justice, equality and non-discrimination in the type of the transactions and nature of the dealings and that the State shall not be indulged in rack-renting, profiteering, whimsical or unreasonable bargains. In support of the argument, the learned counsel relied upon the decisions in Radhakrishna Agarwal v. State of Bihar [1977 (3) Supreme Court Cases 457], Mahabir Auto Stores v. Indian Oil Corporation [1990 (3) Supreme Court Cases 752], Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai [2004(3) SCC 214], ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. [2004(3)SCC 553], State of U.P. v. Johri Mal [2004 (4) SCC 714], Noble Resources Ltd. v. State of Orissa [ 2006 (10) SCC 236]. Relying upon the decision in Padmavathi Amma v. Special Tahsildar [ 2010(4) KLT 721], it was further argued that if the petitioner is relegated to civil suit, it would lead to time consuming judicial process and may lead to loss and sufferings in addition to the heavy cost involved in protracted litigations. 4. The question whether there is breach of contract, in the light of the contentions mentioned earlier, is a question of W.P.(C) No.12471/2010 7 fact. Ext.P1, which is only a tender notice, mentions that the conditions of the tender will be as per the prevalent rules in Travancore Devaswom Board and as per the notification No.ROC.1142/09/Sab dated 25.10.2009. The said notification is not produced. Therefore, what are those conditions is not known. The copy of the prevalent rules is also not produced. The question as to whether the termination of the tender process could commence on the 1st respondent giving opportunity for quoting higher amounts also would depend upon the terms and conditions of the tender notification. In the above circumstance, with the materials on record, we are not in a position to conclude whether the tender process was terminated or not. So also the question as to whether there is breach on the part of the petitioner and whether he is liable to forgo the Earnest Money Deposit would depend upon the facts and circumstances which is to be decided in a civil suit after taking evidence. With the materials available on record, we are not in a position to decide the same. In the event, the petitioner had committed breach, the petitioner is not entitled to get refund of the Earnest Money. However, in the factual background, which we mentioned above, it wouldn't be appropriate for us to enter into a finding as to W.P.(C) No.12471/2010 8 whether the petitioner is entitled to get back the Earnest Money Deposit or not. The precedents referred by the learned senior counsel are not applicable to the set of facts in this case. However, since the petitioner had already made Ext.P5 representation, we find that instead of dismissing the Writ Petition, it would be appropriate to direct the respondents 1 and 2 to dispose Ext.P5 within a time frame. 5. In the result, the Writ Petition is disposed of directing respondents 1 and 2 to hear the petitioner and dispose Ext.P5 within a period of three months from the date of receipt of this judgment which shall be produced by the petitioner along with a copy of Ext.P5. (THOTTATHIL B. RADHAKRISHNAN, JUDGE) (P.S.GOPINATHAN,JUDGE) ps