IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 WP(C).No. 2307 of 2007(Y) ------------------------------------- PETITIONER: ------------------ E.M.ANEESH, S/O.E.M.PACHER, AGED 29 YEARS, EDOTH MEETHAL HOUSE, KEEZHARIYOOR P.O., KOZHIKODE DT. BY ADV. SRI.P.R.SREEJITH RESPONDENTS: ----------------------- 1. THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, P.W.D.ROADS DIVISION, KOZHIKODE DT. 2. THE DEPUTY TAHSILDAR (REVENUE RECOVERY), REVENUE RECOVERY OFFICE, VADAKARA. GOVERNMENT PLEADER SRI.K.C.SANTHOSHKUMAR FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).2307/2007-Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SELECTION NOTICE OF THE 1ST RESPONDENT DATED 23/04/2005. EXT.P2: COPY OF THE ORDER NO.D4/1098/87 DATED 16/01/2006 OF THE 1ST RESPONDENT. EXT.P3: COPY OF THE ORDER OF PROVISIONAL ASSESSMENT NO.A3/1147/06 DATED 30/05/2006 OF THE 1ST RESPONDENT. EXT.P4: COPY OF THE CONFIRMATION ORDER NO.A3/1147/06 DATED 19/08/2006 OF THE 1ST RESPONDENT. EXT.P5: A COPY OF THE DEMAND NOTICE DATED 06/01/2007 U/S 7 OF THE REVENUE RECOVERY ACT. EXT.P6: COPY OF THE DEMAND NOTICE DATED 06/01/2007 U/S 34 OF THE REVENUE RECOVERY ACT. EXT.P7: COPY OF THE RELEVENT PROVISIONS IN CHAPTER XV OF THE KERALA PUBLIC WORKS DEPARTMENT MANUAL APPLICABLE IN THE PETITINER'S CASE. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE SELECTION NOTICE NO.DA/1098/87 DATED 23/04/2005. EXT.R1(b): COPY OF THE PRELIMINARY AGREEMENT DATED 06/01/2005. // TRUE COPY // P.S. TO JUDGE Rs/ ANTONY DOMINIC, J. -------------------------------------------------------- W.P.(C) 2307 of 2007 -------------------------------------------------------- Dated: AUGUST 11, 2008 JUDGMENT The controversy in this writ petition is regarding the validity of Exts.P5 and P6, revenue recovery notices issued by the respondents. 2. The facts of the case are that the respondents invited tender for farming out the right for collecting toll at the Nelliadikadavu Bridge during the period from 1.4.2005 to 31.3.2006. The notification was dated 16.12.2004 and was published on 21.12.2004. Petitioner made an offer and by Ext.P1 selection notice, which is also produced as Ext.R1 (a), dated 23.4.2005, he was informed that his tender has been submitted to the higher authority and that in anticipation of acceptance of the quoted amount, petitioner was asked to attend the office of the respondents for doing the needful in the matter including the execution of the agreement. Petitioner did not execute the agreement in WP(C) 2307/07 2 pursuance to Ext.P1. Subsequently on the allegation that the petitioner had committed breach of contract, by Ext.P2 the EMD submitted by the petitioner was forfeited. Thereafter Ext.P3 was issued to him, provisionally assessing the loss allegedly sustained by the respondents at Rs.1,61,636/-. Subsequently the provisional assessment by Ext.P3 was confirmed by Ext.P4 and he was directed to remit the amount. Petitioner did not remit the amount as directed and in those circumstances revenue recovery action was initiated and Exts.P6 and P7 are the notices issued for realising the amount due in terms of Ext.P4. It is in the aforesaid circumstances this writ petition is filed to quash Exts.P2 to P6 and to relieve him of the liability to pay the amount. 3. The main contention that is urged by the learned counsel for the petitioner is that the period of the tender commenced from 1.4.2005 and that the firm period of his offer had expired before 1.4.2005. It is contended that the WP(C) 2307/07 3 firm period of the offer was not extended by him beyond 1.4.2005. Thus, by the time selection notice dated 23.4.2005 was communicated, the firm period having expired, the offer itself has ceased to be valid. Consequently it contended that he is not liable to be proceeded against on the basis that he had committed breach of the offer he had made in response to the tender notice and that the recovery proceedings now initiated is illegal for that reason. 4. The respondents have filed a counter affidavit and an additional counter affidavit. According to the respondents, the tender procedures were to be finalised before 31.3.2005 so that the tenderer could collect toll from 1.4.2005. However, the finalisation could only be by Ext.P1 dated 23.4.2005. It is stated that on receipt thereof, the petitioner should have appeared and executed the agreement. This was not done by the petitioner and therefore he is liable to suffer the consequences by making WP(C) 2307/07 4 good the loss sustained by the Government. It is stated that the revenue recovery proceedings initiated against the petitioner is legal and valid and is not liable to be interfered with. 5. I have considered the submissions made by both sides. True, the petitioner has not produced the tender document in which alone the firm period will be incorporated. However, the fact remains that the firm period could not have operated beyond 1.4.2005 when the period of the contract was to commence which has to be preceded by acceptance of the offer and conclusion of the contract. It is not the case of the respondents that the firm period was extended beyond 1.4.2005 by mutual agreement. If that be the factual position, by the time Ext.P1 selection notice was issued on 23.4.2005, the firm period of the offer made by the petitioner had expired. In such a situation the petitioner cannot be penalised even if he had not responded to the selection notice. For that WP(C) 2307/07 5 reason, he cannot also be proceeded against for the loss alleged to have sustained by the Government on the basis that the petitioner had committed breach of contract. 6. In this case, since the selection notice was issued much after the firm period had expired, I cannot hold that the petitioner is liable to make good the loss allegedly sustained by the respondents. For this reason, Exts.P5 and P6 notices are liable to be quashed and I do so. Writ petition is disposed of as above. ANTONY DOMINIC JUDGE mt/-