IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 WP(C).No. 32591 of 2009(T) -------------------------------------- PETITIONER(S): ----------------------- 1. C.P. JOY, S/O. P. PAVITHRAN, AGED 46 YEARS GOVERNMENT CONTRACTOR, RESIDING AT VIJAYALAYAM, KADAKKAVOOR.P.O., THIRUVANANTHAPURAM. 2. M. SURESH, GOVERNMENT CONTRACTOR, RESIDING AT PADINJATTU VILA VEEDU, KADAKKAVOOR.P.O THIRUVANANTHAPURAM. 3. M.BAJI, GOVERNMENT CONTRACTOR, RESIDING AT MANANAKKU HOUSE, PERUMKULAM.P.O., THIRUVANANTHAPURAM. 4. R. SURESHKUMAR, GOVERNMENT CONTRACTOR, RESIDING AT VALIYAVILA VEEDU, THEKKUMBHAGAM KADAKKAVOOR.P.O. THIRUVANANTHAPURAM. 5. R. SANIL GOVERNMENT CONTRACTOR RESIDING AT KALLUKADAVIL HOUSE, VALAYANTEKUZHY, VENNICODE.P.O., THIRUVANANTHAPURAM. 6. K. SUDHAKARAN, GOVERNMENT CONTRACTOR, RESIDING AT CHARUVILA PUTHEN VEEDU, KEEZHATTINGAL.P.O.,THIRUVANANTHAPURAM. 7. S. HARIPRASAD, GOVERNMENT CONTRACTOR RESIDING AT KALLUVILA VEEDU, THANNIMOODU, CHERUNNIYOOR.P.O. THIRUVANANTHAPURAM. BY ADV. MR.R.S.KALKURA RESPONDENT(S): ------------------------ 1. THE VAKKOM GRAMA PANCHAYAT REPRESENTED BY THE SECRETARY VAKKOM GRAMA PANCHAYAT, VAKKOM, THIRUVANANTHAPURAM. 2. THE ASSISTANT ENGINEER (LSGD) VAKKOM GRAMA PANCHAYAT, VAKKOM THIRUVANANTHAPURAM. WP(C).No. 32591 of 2009(T) 3. SUCHEENDARAN, GOVERNMENT CONTRACTOR, RESIDING AT ADEEKKALAM HOUSE, MELKADAKKAVOOR.P.O. KADAKKAVOOR, THIRUVANANTHAPURAM. 4. DILEEP, GOVERNMENT CONTRACTOR DILEEP BHAVAN, KADAKKAVOOR.P.O., KADAKKAVOOR, THIRUVANANTHAPURAM. *ADDL. R5 IMPLEADED ADDL. R5: A. AKBAR, S/O.ABDUL REHIM, GOVERNMENT CONTRACTOR, 'B' GRADE, POOMKAITHAMOODU, VAKKOM , VAKKOM VILLAGE, THIRUVANANTHAPURAM DISTRICT. * ADDL. R5 IS IMPLEADED AS PER ORDER DATED 03/02/2010 IN IA.1145/2010. R1 & R2 BY ADV. MR.ASOK M.CHERIAN ADDL. R5 BY ADV. MR.P.K.MUHAMMED, MR.S.VIJI . THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/02/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 32591 of 2009(T) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NEWS PAPER NOTIFICATION DATED 25/10/2009 IN DESABHIMANI DAILY,. EXT.P2: COPY OF THE RECEIPTS STANDING IN THE NAME OF THE 1ST PETITIONER INDICATING PURCHASE OF THE TENDER FORM. EXT.P3: COPY OF THE RECEIPTS STANDING IN THE NAME OF THE 2ND PETITIONER INDICATING PURCHASE OF THE TENDER FORM. EXT.P4: COPY OF THE RECEIPTS STANDING IN THE NAME OF THE 4TH PETITIONER INDICATING PRUCHASE OF THE TENDER FORM. EXT.P5: COPY OF THE RECEIPTS STANDING IN THE NAME OF THE 5TH PETITIONER INDICATING PURCHASE OF THE TENDER FORM. EXT.P6: COPY OF THE RECEIPTS STANDING IN THE NAME OF THE 6TH PETITIONER INDICATING PURCHASE OF THE TENDER FORM. EXT.P7: COPY OF THE RECEIPTS STANDING IN THE NAME OF THE 7TH PETITIONER INDICATING PURCHASE OF THE TENDER FORM. EXT.P8: COPY OF THE NOTIFICATION APPEARING IN KERALA KAUMUDHI DAILY DATED 09/11/2009. EXT.P9: COPY OF THE RELEVANT PORTIONS OF THE RULES PUBLISHED BY THE GOVERNMENT OF KERALA APPLICABLE TO THE LOCAL SELF GOVERNMENT INSTITUTIONS IN FEBRUARY 2003. RESPONDENT'S ANNEXURES : ANNEXURE-A: COPY OF THE RESOLUTION NO.IV DATED 05/11/2009 OF THE PANCHAYAT COMMITTEE OF THE VAKKOM GRAMA PANCHAYAT. ANNEXURE-B: COPY OF THE RESOLUTION NO.IV(1) DATED 05/11/2009 OF THE VAKKOM GRAMA PANCHAYAT COMMITTEE. //TRUE COPY// P.S. TO JUDGE rs. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.32591 OF 2009 (T) -------------------------------------------------- Dated this the 3rd day of February, 2010 J U D G M E N T The first respondent Panchayat issued Ext.P1 tender notification inviting tenders for the work of maintenance of roads and buildings. According to the petitioners, they and respondents 3 and 4 submitted tenders in response to Ext.P1. It is submitted that although the additional 5th respondent had purchased tender documents, he did not submit his bids in response to Ext.P1. It is stated that bids submitted by the petitioners and respondents 3 and 4 were below the estimate and were the lowest. 2. However, on 9.11.2009, the very same items of works were again tendered by Ext.P8. On that occasion, in addition to petitioners and respondents 3 and 4, additional 5threspondent also purchased tender documents and on this occasion he also submitted his tenders. The tenders were opened on 16.11.2009 as scheduled in Ext.P8. From the reports filed by the Deputy Director of Panchayat as directed by this court in the order dated 3.12.2009 it is seen that the tenders submitted by the additional 5th respondent was lowest for most of the works. WPC.No. 32591/09 :2 : 3. The writ petition was filed soon after Ext.P8 tender notice was issued. The contention raised by the petitioners is that the publication of Ext.P1 tender notice, its cancellation, invitation of fresh tenders by Ext.P8 were all intended to confer undeserved advantage on the additional 5th respondent, whose wife is a member of the first respondent Panchayat. It is stated that it was on account of the mala fide exercise of power, the additional 5th respondent was able to know the rates quoted by other tenders which enabled him to offer an acceptable rate and to secure the works in question. 4. The Panchayat on the other hand contends that the rates received by them in response to Ext.P1, were not competitive and that it was therefore that they decided to cancel the tender. 5. Ordinarily when a tender notification is published and if the awarder decides to cancel the same and go for fresh tenders, the said decision of the awarder cannot be faulted except in a case where such exercise of power is vitiated by mala fides. In this case apart from the submissions now made by the petitioner, as at present there is no material to conclude that the exercise of powers was vitiated for mala fide reasons. WPC.No. 32591/09 :3 : 6. However at this stage, counsel for the petitioner submits that idea of the Panchayat is to award the work to the additional 5th respondent at rates quoted by him in response to Ext.P8 and thereafter to revise the said rates and thus to give him exorbitant rates. As at present nothing of that sort has happened. That apart a reading of Ext.P8 does not indicate that the rate quoted by the additional 5th respondent in response to the said tender notice is not firm rates. Therefore, the rates quoted by the additional 5th respondent has to be accepted as firm rates and if that be so there cannot be any revision of rates during the currency of the contract. In that view of the matter it will not be possible for the Panchayat to entertain any such claims from the additional 5th respondent in respect of the works warded to him. Accordingly, the writ petition is disposed of leaving it open to the Panchayat to take further action pursuant to Ext.P8 and finalize the works on that basis. (ANTONY DOMINIC) JUDGE vi/ WPC.No. 32591/09 :4 :