IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 WP(C).No. 27157 of 2007(G) -------------------------- PETITIONER : ------------ SURENDRAN T.G., S/O.THANKAN, THATHAPARAMBA HOUSE, POST CHETTIAMPARAMBA, TELLICHERRY TALUK, KANNUR DISTRICT. BY ADVS. SRI.N.RAJAGOPALAN NAIR SRI.AUGUSTINE JOSEPH RESPONDENT(S): --------------- 1. STATE OF KERALA, REP: BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. EXECUTIVE ENGINEER, OFFICE OF EXECUTIVE ENGINEER, HARBOUR ENGINEERING DIVISION, KOZHIKODE, PUTHIYAPPA, POST PUTHIYANGADI, KOZHIKODE. 3. THE TAHSILDAR, REVENUE RECOVERY, TELLICHERRY. R1 TO R3 BY GOVT. PLEADER SRI. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 27157 of 2007(G) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE CONDITIONS GOVERNING THE AUCTION. EXT.P2 : COPY OF THE ORDER FIXING THE RATE CHARGEABLE ON VEHICLES BOATS AND CARTS ETC DATED 1.8.01. EXT.P3 : COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 24.10.01. EXT.P4 : COPY OF THE REPLY SENT BY 2ND RESPONDENT DATED 7.11.01. EXT.P5 : COPY OF THE ORDER A4-2613/2001 DATED 5.4.02 ISSUED BY THE 2ND RESPONDENT. EXT.P6 : COPY OF THE PETITION FILED BY PETITIONER BEFORE THE 1ST RESPONDENT DATED 1.4.02. EXT.P7 : COPY OF THE ORDER OF THE 1ST RESPONDENT NO. 3056/B2/2002/F&PD DATED 22.4.02. EXT.P8 : COPY OF THE NOTICE DATED 26.8.03 UNDER SECTION 7 AND FORM 10 NOTICE UNDER SEC. 34 UNDER THE REVENUE RECOVERY ACT. EXT.P9 : COPY OF THE ORDER IN WP(C) 30187/03 DATED 25.9.03. EXT.P10 COPY OF THE JUDGMENT IN WP(C) 30187/03 DATED 21.12.06. EXT.P11 COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 9.8.07. RESPONDENT'S EXHIBITS : EXT.R2(A) : COPY OF THE PRELIMINARY AGREEMENT. EXT.R2(B) : COPY OF THE COMMUNICATION ON 12.10.2001. //TRUE COPY// P.S. TO JUDGE Mn S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 27157 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 27th day of September, 2011. J U D G M E N T The 2nd respondent invited sealed tenders for the right to collect entry charges from vehicles, wharfage and haulting charges in the Chombal Harbour for a period of one year. The petitioner has submitted his tender for an amount of Rs. 10,10,301/-. The same was accepted and an agreement was entered into. The petitioner had furnished earnest money deposit of Rs. 20,000/- also. The petitioner submits that after the tender process was over, owners of boats, vehicles and carts conducting operations in the harbour gheraoed the petitioner on the ground that they are not ready to pay amounts as per Ext.P2 Government order and that the person who had obtained right to collect charges for the previous years had filed a suit for reducing the amount, which was pending before the court. Allegedly due to the above reasons, the petitioner submitted an application for withdrawing his bid and requesting to return the earnest money deposited by him. The 2nd respondent replied stating that the earnest money deposit of the petitioner would be forfeited and loss, if any, sustained by the Government on re- tender would be recovered from the petitioner. Thereafter, by Ext.P5 order, the petitioner was informed that the Government has sustained a loss of Rs. 1,99,301/- and after adjusting the earnest money deposit of Rs. 20,000/-, the petitioner is liable to pay Rs. 1,79,301/-. The petitioner filed Ext.P6 before the 1st respondent, who stayed the revenue recovery proceedings but W.P(C) No. 27157 of 2007 -: 2 :- later on, by Ext.P8, the petitioner was directed to pay the amount. Aggrieved by the proceedings, the petitioner filed W.P(C) No. 30187/2003 before this Court and this Court stayed the revenue recovery proceedings on condition that the petitioner deposits an amount of Rs. 25,000/-, which the petitioner deposited. Ultimately, by Ext.P10 judgment, the 1st respondent-Government of Kerala was directed to consider the representation of the petitioner in that regard. Pursuant thereto, Ext.P11 order has been passed by the Government rejecting the claim of the petitioner. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “a. issue a writ of certiorari or other appropriate order calling for the records leading to Ext.P4, P5, P8 and P11 and quash the same. b. Declare that the 1st respondent did not complied the direction in Ext.P10 judgment of this Hon'ble Court. c. Direct the 1st respondent to consider Ext.P6 representation afresh and pass orders.” 2. A counter affidavit has been filed by the 2nd respondent controverting the contentions of the petitioner. 3. Admittedly, the petitioner withdrew from the contract after his bid was accepted by the Government. Therefore, the petitioner cannot now contend that the petitioner is not guilty of breach of contract. Such a breach of contract is clearly admitted. The petitioner admits that the original offer of the petitioner was Rs. 10,10,301/- and W.P(C) No. 27157 of 2007 -: 3 :- in the re-tender, the highest bid was for Rs. 8,11,000/-. Therefore, the petitioner cannot dispute the loss sustained by the Government in the transaction, which is obviously the difference between the bid of the petitioner and the bid received on re-tender. The reasons for the petitioner's withdrawal is a matter for evidence. Prima facie, I am not inclined to accept the reasons stated by the petitioner insofar as the the amount payable by the owners of boats, vehicles and carts need not be concerned with the bid amount of the petitioner insofar as the amount payable by the owners of boats, vehicles and carts are fixed by Ext.P2 Government order and whatever be the bid amount, they need not pay anything other than the charges fixed in Ext.P2 order. In the above circumstances, I am not inclined to believe the contention of the petitioner that the petitioner was forced to withdraw from the contract because of the agitation of the owners of boats, vehicles and carts, for proving which the petitioner has not produced any material whatsoever. Apart from that, from the fact that the petitioner quoted an amount of Rs. 10,10,301/- and in that tender the next below tender was 6,25,000/- would show that the petitioner had second thoughts about the profitability of his bid and that must ha e been the reason why the petitioner withdrew from the contract. 4. The petitioner raises a contention that insofar as in the tender proceedings in which he participated, the next below tender was Rs.6,25,000/- it cannot be held that the W.P(C) No. 27157 of 2007 -: 4 :- Government suffered any loss because, if the petitioner had not submitted the tender, the Government would have been forced to give the tender for Rs. 6,25,000/-. I am of opinion that it is vain contention. That contention is not supported by any precedent or law. Normal rule is that when a person withdraws from a contract, the measure of damages has to be based on the amount received on re-tender, which only has been done in this case. In view of the above findings, I do not find any reason to exercise my discretionary jurisdiction in favour of the petitioner. Accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/