IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 WP(C).No. 13355 of 2010(T) -------------------------------------- PETITIONER: ------------------- A.R.K WOOD & METALS PRIVATE LIMITED, NO.3,RAMASWAMY KOUNDER LAYOUT, SUBRAMANIAPURAM,COIMBATORE-641 002, REPRESENTED BY ITS MANAGING DIRECTOR, V.M.RADHAKRISHNAN. BY ADV. SRI.BINOY VASUDEVAN. RESPONDENTS: ------------------------ 1. M/S.MALABAR CEMENTS LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, WALAYAR P.O,PALAKKAD. 2. THE MANAGING DIRECTOR, M/S.MALABAR CEMENTS LIMITED, WALAYAR P.O,PALAKKAD. 3. M/S. SREE SAKTHI ASHES SUPPLIERS, 42/100, KUNNANGALKADU, KANGAYAM MAIN ROAD, TIRUPUR, TAMILNADU STATE – 641 604. 4. TAMILNADU ASH- TECH (P) LTD. 195, PANCHU COMPLEX, N.H. ROAD, COIMBATORE – 641 001. 5. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT/ PRINCIPAL SECRETARY, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 BY SRI.B.S.KRISHNAN, SENIOR ADVOCATE, ADVS. SRI.K.ANAND, SMT.LATHA KRISHNAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.13355 of 2010 (T) --------------------------------- Dated, this the 1st day of October, 2010 J U D G M E N T Ext.P1 is a tender notice dated 15/03/2010, that was published by the respondent Company inviting tenders for supply of dry fly ash from coal based Thermal Plants to the Company's factory. Clause 8(a) of Ext.P1 tender notice provided that tenders of those tenderers, who are in litigation with the Company at present and the case thereof is pending, will not be considered on any account. 2. In this writ petition, challenge was against the aforesaid provision in Ext.P1 tender notice and what the petitioner wanted was that the tender submitted by it in pursuance to Ext.P1 tender notice also should be considered. It is now submitted by the respondent Company that though tender was submitted by the petitioner pursuant to the order dated 20/04/2010 passed in this writ petition, that cannot be considered for the reason that a vigilance case is pending against the petitioner. On that basis, WP(C) No.13355/2010 -2- during the pendency of the writ petition, by Ext.P5 order dated 19/05/2010, the tender submitted by the petitioner itself was rejected on the ground that the petitioner is involved in a vigilance case and that it is not in the interest of the Company to award work to it. It was thereupon that the petitioner got the writ petition amended incorporating challenge against Ext.P5 also. 3. As far as the validity of Clause 8(a) of Ext.P1 tender notice is concerned, Clause 8(a) imposes a total embargo on anybody, who is in litigation with the Company. In my view, although it may be open to the awarder to incorporate conditions specifying the eligibility of a tenderer, a clause similar to Clause 8(a) of Ext.P1 tender notice is too wide and arbitrary, and such a clause will be objectionable. Therefore, I am not satisfied about the validity of Clause 8(a) of Ext.P1 tender notice. 4. In so far as Ext.P5, the order of rejection is concerned, the only reason stated is that there is a vigilance case pending against the petitioner and therefore, it is not in the interest of the Company to consider its tender. 5. Even assuming that such a vigilance case is pending, the WP(C) No.13355/2010 -3- petitioner is entitled to be treated innocent until it is found otherwise. Therefore, the ground for rejection as contained in Ext.P5 also cannot be accepted. In that view of the matter, the petitioner is entitled to have his tender considered by the Company. Therefore, I direct the respondent Company to consider the tender submitted by the petitioner in response to Ext.P1 tender notice and pass appropriate orders considering the tender on its merits. Orders shall be passed as expeditiously as possible, at any rate, within two weeks of production of a copy of this judgment. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg