IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 WP(C).No. 7907 of 2008(N) ------------------------- PETITIONER: ------------ O.P.RAJEEVAN, S/O. KUMARAN, AGED 40 YEARS, RESIDING AT OTHAYOTH PARAMBATH, VADAKARA AMSOM DESOM, POST NUT STREET, KOZHIKKODE DISTRICT. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENTS: ------------- 1. THE SECRETARY, VADAKARA MUNICIPALITY, VADAKARA. 2. THE VADAKARA MUNICIPAL COUNCIL – WITH ADDRESS FOR SERVICE- CHAIRMAN, VADAKARA MUNICIPAL COUNCIL, VADAKARA. 3. STATE OF KERALA – WITH ADDRESS FOR SERVICE - SECRETARY, LOCAL ADMINISTRATION, THIRUVANANTHAPURAM. BY SHRI.R.SATHEESH KUMAR, SC, VADAKARA MUNICIPALITY SHRI.K.J.MOHAMMED ANZAR, SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE, J. ------------------------- W.P.(C) No. 7907 of 2008 --------------------------------- Dated, this the 7th day of March, 2008 J U D G M E N T Shri.B.Krishnan, learned counsel for the petitioner submits that, in response to Ext.P1 the petitioner submitted a tender and since the petitioner offered the highest amount for item No.(2) in Ext.P1, he was made to remit 50% of the tender amount, which was readily paid as per Ext.P3. According to him, without giving any intimation at all as to why he is not being called upon to execute the agreement, so that formal contract be awarded to him, the Municipality has issued Ext.P4 retender notice. He submits on the authority of the judgment of the Supreme Court in Union of India Vs. Dinesh Engineering Corporation, reported in 2001 (8) SCC 491 that though the Municipality may have the power not to accept the petitioner's tender though the petitioner had quoted the highest among the various tenderers and offerers, the Municipality was expected to take the decision in a fair manner not tainted with arbitrariness. The decision of the Municipality to have the work retendered without assigning any reason and without intimating the petitioner was totally unfair and there is every justification according to the learned counsel for interdicting the retender which WP(C) No. 7907/2008 -2- is notified as per Ext.P4. According to the learned counsel, the petitioner was the contractor for the Municipality for the same work during the previous years also and he was expecting that in view of the situation that his tender was the highest from the Municipality's point of view and since he had a blemishless record the same will be accepted. 2. Shri.R.Satheesh Kumar, learned standing counsel for the Municipality would submit that he has been orally instructed by the Secretary of the Municipality to state that a notice has been issued to the petitioner regarding the Municipality's decision to go in for retender, since sufficient number of tenders were not received in response to Ext.P1. It will be noticed immediately that the above submission of the learned standing counsel for the Municipality is not supported by any record. The action of the Municipality, in issuing Ext.P4 retender notice without even intimating the petitioner as to why in spite of him having made the highest offer and having been made to remit 50% of the offer amount the Municipality has taken a decision to go in for a retender, deserves to be deprecated. But at the same time, the Municipality's power to go in for a retender even after highest tenderer has remitted substantial WP(C) No. 7907/2008 -3- portion of the tender amount on the consideration that sufficient number of tenders were not received – a decision apparently in public interest - cannot be doubted. It is open to the petitioner to participate in the re-auction/retender notified as per Ext.P4. Under these, circumstances, even as this Court expresses displeasure in the action of the Municipality in not informing the petitioner as to why his highest tender was not being accepted, the writ petition is disposed of permitting the petitioner to participate in the re-tender pursuant to Ext.P4, without granting the reliefs sought for. (PIUS C.KURIAKOSE, JUDGE) jg