IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 WP(C).No. 8056 of 2011(F) -------------------------------- PETITIONER(S): ------------------- K.K.KUNHI,S/O.SAYED SHEIK KOYA, KUNHILIKKAL HOUSE,AMINI ISLANDS, U.T.LAKSHADWEEP. BY ADVS. SRI.M.P.KRISHNAN NAIR SRI.ANIYANKUNJU VARGHESE SRI.M.P.HARIKUMARAN PILLAI RESPONDENT(S): -------------------- 1. THE UNION TERRITORY OF LAKSHADWEEP, REPRESENTED BY ITS ADMINISTRATOR, KAVARATTI ISLANDS,KAVARATHI,U.T.OF LAKSHADWEEP, PIN-682582. 2. THE SECRETARY TO THE ADMINISTRATION, DEPARTMENT OF WORKS,U.T.OF LAKSHADWEEP, KAVARATTI ISLANDS,KAVARATTI-682582. 3. THE EXECUTIVE ENGINEER,L.P.W.D, AMINI DIVISION,AMINI ISLANDS,U.T.OF LAKSHADWEEP, PIN-682584. 4. N.NANDAKUMARAN,EXECUTIVE ENGINEER, L.P.W.D,AMINI DIVISION,AMIN ISLANDS, U.T.OF LAKSHADWEEP-682584. R1-3 BY ADV. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 8056/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE FIR IN CRIME NO.2/2010 OF THE AMINI POLICE STATION DATED, 18/10/2010. P2: COPY OF THE TENDER NOTIFICATION ISSUED BY THE 3RD RESPONDENT DATED 09/07/2009. P3: COPY OF THE COMMUNICATION ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT DATED, 20/01/2010. P4: COPY OF THE MASTER PLAN FOR GOVT. SENIOR SECONDARY SCHOOL, AMINI FORWARDED TO THE 3RD RESPONDENT. P5: COPY OF THE JUDGMENT DATED 02/06/2010 IN WPC.NO.5439/2010 OF THIS HONOURABLE COURT. P6: COPY OF THE TENDER NOTIFICATION ISSUED BY THE 4TH RESPONDENT DATED 01/03/2011. P7: COPY OF THE REPRESENTATION DATED 30/01/2010 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. P8: COPY OF LETTER F. NO.01/31/2011 - ABI/611 DATED -7/06/2011 ISSUED BY THE 4TH RESPONDENT TO P.P. SAYED MOHAMMED KOYA, AMINI ISLAND, S/O. POOKOYA HAJI, PADIPPURA HOUSE, AMINI ISLAND. P9: COPY OF ONE OF THE OLD TENDER FORMS OF LPWD, UNION TERRITORY OF LAKSHADWEEP. RESPONDENT'S EXHIBITS: R1(a):COPY OF THE MASTER PLAN. R1(b):COPY OF THE CORRIGENDUM DATED 15/03/2011. R1(c):COPY OF THE ORDER F.NO.1/19/2010-AB-1 DATED 11/02/2011. /TRUE COPY/ P.A. TO JUDGE. svs ANTONY DOMINIC, J. ================ W.P.(C) NO. 8056 OF 2011 ===================== Dated this the 25th day of July, 2011 J U D G M E N T According to the petitioner, respondents invited tender for the construction of additional class rooms in the Government Senior Secondary School, Amini. Only one tender was received in response to the tender notice and due to lack of adequate response, the tender notice was cancelled. It is stated that subsequently Ext.P2 tender notice was issued, in response to which, petitioner submitted his tender and he was the successful tenderer. 2. However, by Ext.P3, the tender was cancelled and that was called in question before this Court by filing WP(C) No.5439/2010. The writ petition was disposed of by Ext.P5 judgment, in which the stand taken by the respondents has been recorded as follows:- “Now a counter affidavit has been filed by respondents 1 to 4, which is to the effect that due to demand from public that there be a tender for the construction of the entire building as per a master plan, instead of the present one,which is not for the entire building and consequently, it was decided to re-tender the entire work cancelling the present one, which can be done only during the next financial year. In view of the above submission, the WPC No. 8056/11 :2 : learned counsel for the petitioner submits that the said submission may be recorded and the writ petition closed. Ordered accordingly”. 3. Subsequently, Ext.P6 tender notice was issued and the name of the work specified therein was identical in terms with Ext.P2 tender notice. It was at that stage this writ petition was filed contending that the cancellation was not for reasons mentioned before this Court when WP(C) No.5439/2010 was considered, and that, therefore, Ext.P6 is illegal. Petitioner also sought a direction to the respondents not to proceed with the work as shown at Sl.No.1 of Ext.P6 tender notification. 4. Answering the contentions of the petitioner, the respondents have filed a counter affidavit. The publication of Ext.P2, its cancellation and the reasons which led to its cancellation as also the developments leading to Ext.P6, have all been explained in paras 4 and 5 of the affidavit, which reads as under:- “4. It is submitted that on 9/7/2009 we have issued Ext.P2 tender notification dated 9.7.09 inviting tenders for the construction of additional class room for GSS school at Amini (Full cost) but subsequently the tender was cancelled due to the public agitation and it was decided to prepare a fresh master plan for the construction of the entire building and to re-tender the entire work, cancelling the present one. Aggrieved by this decision the petitioner filed WP(C) No.5439/2010. The said writ petition was disposed of recording the submission of the Standing Counsel that the work will be re- WPC No. 8056/11 :3 : tendered after preparing the new master plan. 5. It is submitted that a new master plan has been prepared by a reputed Architect of Kerala named Shri Sony Mathai Lalichan Kadavanthra, Kochi and a fresh NIT has been published as Ext.P6. Copy of the master plan prepared by the said Architect is produced and marked as Ext.R1(a). The drawing itself is prove the difference between the new master plan proposed and Ext.P4 master plan signed by the then Executive Engineer Amini and Superintending Engineer. But in the Ext.P6 NIT the name of the work was shown as the same as in Sl.No.2 of Ext.P2 by an inadvertent mistake. When the mistake was pointed out the Executive Engineer issued a corrigendum F.No.1/19/2009-AB1 dated 15.3.2011 stating that the name of the work at Sl.No.1 of Ext.P6 may be read as “Construction of GSS School Amini Phase I, SH; Job I and II (GF&FF)”. A true copy of the above said corrigendum dated 15.3.2011 is produced herewith and marked as Ext.R1(b). The department already obtained approval from the Administrator to demolish the existing Govt.Sr.Secondary School, Phase I & II at Amini from the Administrator of Lakshadweep as per order F.No.1/19/2010-AB-1 dated 11/2/11. A true copy of the above said order is produced and marked as Ext.R1(c)”. 5. Petitioner has filed a reply affidavit refuting the averments in the counter affidavit. 6. As already seen, petitioner is only a tenderer. He has no right whatsoever to insist that the respondents should proceed with the work as notified by Ext.P2, provided the decision of the respondents to cancel the work is not vitiated by any arbitrariness or malafides. In this case, the reason which according to the respondents, made them to cancel Ext.P6 was WPC No. 8056/11 :4 : the necessity for preparation of a fresh master plan and the revision of the scope of work notified in Ext.P2. It was in these circumstances that they cancelled the work and issued Ext.P6. True, in Ext.P6, the nature of the work notified is similar to what is contained in Ext.P2. If the work was awarded on that basis, I would have been persuaded to accept the case of the petitioner that the decision to cancel the tender was not for reasons, which were mentioned before this Court when Ext.P5 judgment was rendered. However, counter affidavit shows that on realising the mistake committed by them, the respondents have published a corrigendum evidenced by Ext.R1(b). This therefore shows that the nature of the work as notified in Ext.P2 is not the work, which is now notified as per Ext.P6 read with Ext.R1(b). If that be so, on the materials available, I am not persuaded to think that the work as notified in Ext.P6 is the same as Ext.P2 as contended by the learned counsel for the petitioner or that the cancellation of the work awarded to the petitioner is vitiated for any reason warranting interference. Writ petition is dismissed. ANTONY DOMINIC, JUDGE Rp