IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 WP(C).NO. 481 OF 2011(I) ---------------------------------- PETITIONER(S): ----------------------- MODULAR CONCEPTS ELECTROMECHANICAL LLC, P.O.BOX NO.172544, DUBAI, UNITED ARAB EMIRATES, REPRESENTED BY ITS DIRECTOR MANOJ DHARMAN THROUGH HIS POWER OF ATTORNEY HOLDER GOKUL @ GOKULAPALAN. BY ADV. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, SRI.BEPIN VIJAYAN, SRI.BRIJESH MOHAN, SRI.T.R.SADEESAN, SRI.T.S.SHYAM PRASANTH. RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001. 2. THE PRINCIPAL, MEDICAL COLLEGE, KOZHIKODE-673 008. 3. M/S.ESPEE DYNAMED, NO.7, GROUND FLOOR, ABIRAMAPURAM 1 STREET, CHENNAI-600 018, REPRESENTED BY ITS MANAGING DIRECTOR. 4. M/S.ASIATIC MEDICAL & ENGINEERING INDIA PVT. LTD., ARCHANA HOSPITAL COMPLEX, PANDALAM, KERALA-689 501, REPRESENTED BY ITS MANAGING DIRECTOR. 5. M/S.MEDICAL PRODUCTS SERVICES, 71/2, A-6, RAMA ROAD, INDUSTRIAL AREA, NEW DELHI-110 015, REPRESENTED BY ITS DIRECTOR. R1 & R2 BY GOVT. PLEADER MR.T.K. ARAVINDAKUMAR BABU. R4 BY ADV. SRI.SIBY MATHEW, SRI.PHILIP J.VETTICKATTU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/06/2011, ALONG WITH WPC NO. 38608 OF 2010 AND WPC NO. 862 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).NO. 481 OF 2011(I) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE WINDOW NOTICE THROUGH INTER-NET VIDE NO.S1/11 111/2010/MCC DATED 17/08/2010. EXT.P2: COPY OF THE DETAILED SPECIFICATION FOR INSTALLING MODERN OT/ICU COMPLEX IN SSB, MCH, CALICUT. EXT.P3: COPY OF THE DETAILS OF TENDER SUBMITTED BY THE PETITIONER WITH RESPECT TO TECHNICAL BID. EXT.P4: COPY OF THE REQUEST SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 26/09/2010. EXT.P5: COPY OF THE E-MAIL INFORMATION SENT BY THE 2ND RESPONDENT TO THE PETITIONER ON 04/12/2010. EXT.P6: COPY OF THE REQUEST SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 04/12/2010. EXT.P7: COPY OF THE REQUEST FOR CLARIFICATION TO QUERIES SENT BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 06/12/2010. EXT.P8: COPY OF THE COMMUNICATION SENT BY THE 2ND RESPONDENT TO THE PETITIONER ON 18/12/2010. EXT.P9: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 21/12/2010. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE DECISION TAKEN BY THE TECHNICAL EVALUATION COMMITTEE. EXT.R4(A): COPY OF THE LETTER DATED 18/12/2010 SENT BY THE 2ND RESPONDENT TO THE PETITIONER THROUGH E-MAIL. EXT.R4(B): COPY OF THE LETTER DATED 17/01/2011 SENT BY THE PETITIONER TO THE 2ND RESPONDENT REQUESTING REFUND OF THE EMD. EXT.R4(C): COPY OF THE LAWYER NOTICE DATED 21/02/2011 ISSUED BY THE PETITIONER'S COUNSEL TO THE 2ND RESPONDENT. EXT.R4(D): COPY OF THE REPLY DATED 05/03/2011 RECEIVED BY THE PETITIONER'S COUNSEL FROM THE 2ND RESPONDENT. //TRUE COPY// P.A. TO JUDGE rs P.R.RAMACHANDRA MENON, J ....................................................... W.P.(C)s.481/2011, 862/2011 & 38608/2010 .............................................. Dated this the 3rd day of June, 2011 JUDGMENT Petitioners in all these writ petitions have put forth their claims with regard to the eligibility to have awarded the work contract pursuant to the tender floated in connection with the installation of Modern Operation Theatre/ICU Complex in the Medical College, Kozhikode. 2. When the petitioner in W.P.(C).481/2011 seeks to challenge the steps being taken to award the contract in favour of the third respondent raising many a ground, the said respondent is the petitioner in W.P.(C).862/2011, where the direction sought for is to finalize the tender proceedings and to award the work in favour of the said petitioner in view of better credentials. 3. The challenge involved in W.P.(C).38608/2010 is as to the alleged arbitrary award of the tender and the petitioner in W.P. (C).862/2011 has been shown as the third respondent in the said writ petition as well. W.P.(C)s.481/11 & Connected Cases 2 4. The learned Government Pleader submits that the first respondent in all the writ petitions has filed a counter affidavit in W.P.(C).38608/2010, pointing out the sequence of events and making it clear that the proceedings pursued by the concerned respondent is transparent in all respects. However, with regard to the issue involved, the further course of action sought to be pursued by the Government is also discernible from paragraph 10 and 11 of the counter affidavit dated 11.2.2011 which are extracted below. 10. Any how the litigation started by the bidders will lead to delay and irreparable damage to the implementation of the project. This may result in the lapsing of funds to the tune of Rs.20 crores sanctioned through Supplementary Demands for Grants. In the circumstances, Government feel the cancellation of the tender is the only possible option. Hence Government have decided to cancel the tender floated by the Principal, Medical College, Kozhikode with immediate effect. 11. Government have also provisionally decided to entrust the exhibition of the work to Hindustan Life Care Ltd., a central public undertaking working in the Health Sector. HLL has large experience in the exhibition of similar works in the Health Sector in many States. Pending finalisation of the contract to HLL as proposed, the funds allocated for the works may also transferred to Health & Family Welfare under NRHM” 5. It appears that the said decision has been taken by the Government after considering all the facts and circumstances and W.P.(C)s.481/11 & Connected Cases 3 as such, it is liable to be characterized as a conscious decision to have the tender cancelled as the only possible option. It is of course, is a 'policy matter' and as such, no interference is warranted at the hands of this Court with regard to the same. 6. In the light of the decision taken by the Government to have the tender cancelled and to proceed with further steps as specified in paragraph 11 of the counter affidavit as above, this Court finds that no merit adjudication is necessary in any of these writ petitions. Accordingly, all the writ petitions are closed, leaving the factual details open. In the course of hearing, it is brought to the notice of this Court that the EMD of the tenderers was not returned because of the pendency of the writ petitions. Since the writ petitions have been closed today, there will be a direction to the concerned respondent to return the EMD to the tenderers forthwith. P.R.RAMACHANDRA MENON, Judge mrcs