IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 WP(C).No. 36742 of 2008(Y) -------------------------- PETITIONER(S): --------------- V.A. THOMAS, CONTRACTOR, VAZHAPPILLIL HOUSE, AYRANKULAM P.O., THRISSUR DISTRICT, PIN 680 734. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA RESPONDENT(S): --------------- 1. POYYA GRAMA PANCHAYATH, REP. BY ITS SECRETARY, OFFICE OF THE POYYA GRAMA PANCHAYATH, POYYA P.O., MALA VIA, THRISSUR DISTRICT. 2. THE ASSISTANT ENGINEER, L.S.G.D., POYYA GRAMA PANCHAYATH, POYYA P.O., MALA VIA, THRISSUR DISTRICT. 3. MURALI PRESIDENT, POYYA GRAMA PANCHAYATH POYYA P.O., MALA VIA, THRISSUR DIST. ADV. MS.K.P.GEETHA MANI FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36742 of 2008 APPENDIX EXT.P1: COPY OF TENDER NOTIFICATION NO.1/08-09 DATED 28.11.2008 PUBLISHED BY THE 2ND RESPONDENT ON BEHALF OF THE 1ST RESPONDENT IN THE DESHABHIMANI DAILY DATED 2.12.2008. EXT.P2: COPY OF THE DETAILS OF WORKS INVOLVED IN EXT.P1. EXT.P3: COPY OF THE APPLICATION DATED 11.12.2008 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P4: COPY OF THE APPLICATION DATED 11.12.2008 SUBMITTED BY THE PETITIONER BEFORE THE 1ST AND 2ND RESPONDENTS. RESPONDENTS' EXHIBITS EXT.R1(a); COPY OF THE MASS PETITION DATED 22.11.2005 SUBMITTED BEFORE THE PANCHAYAT BY THE LOCAL PEOPLE. EXT.R1(b): COPY OF THE MINUTES OF THE PANCHAYAT COMMITTEE DATED 29.11.2005. EXT.R1(c): COPY OF THE COMPLAINT DATED 20.01.2006 FILED AGAINST THE PETITIONER BEFORE THE MALA POLICE STATION. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No. 36742 OF 2008 ---------------------------------------- Dated this the 3rd day of February, 2009 JUDGMENT The petitioner is a Contractor. The 1st respondent issued Ext.P1 notification inviting tenders for four works specified in Ext.P2. The last date for issue of tender forms and submission of tenders was 12.12.2008. According to the petitioner, on 11.12.2008 the petitioner went to the office of the 1st respondent and handed over Ext.P3 application to the 2nd respondent at 11.30 a.m. However, the petitioner alleges that the 2nd respondent returned the same stating that the 3rd respondent instructed the 2nd respondent not to issue tender forms to the petitioner. According to the petitioner, the petitioner is not in any way disqualified or debarred from participating in the tender proceedings and he has a fundamental right to get the tender forms. In view of the fact that the 2nd respondent returned the application, the petitioner on the same day itself sent Ext.P4 application by registered post to the 2nd respondent. He would further submit that he again approached the 2nd respondent at W.P.(c)No.36742/08 2 10.00 a.m. on 12th also seeking a tender form. However, again the same was rejected. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i. issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2 nd respondent to issue the tender application forms to the petitioner for enabling him to participate in the 19 th 10 th 2 nd and 3 rd works mentioned in Ext.P2, the subject matter of Ext.P1 tender notification; ii. issue a writ of prohibition or any other appropriate writ, order or direction restraining the respondents from proceeding further in pursuance to the 19 th, 10 th 2 nd and 3 rd works notified in Ext.P1 and P2, until the tender application forms for the above works are issued to the petitioner, and enabling the petitioner to submit the tender; iii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1 st and 2 nd respondents to consider and dispose of Ext.P3 and P4 applications forthwith”. 2. Respondents 1 and 2 have filed a counter affidavit in which they flatly denied that the petitioner ever approached the 2nd respondent for tender forms. They would further submit that as evidenced by Exts.R1(a) to R1(c) the petitioner was guilty of misdemeanor in respect of another contract taken by him from the 1st respondent – Panchayat. According to them, from the work site, the petitioner removed several loads W.P.(c)No.36742/08 3 of earth without any permission. 3. The petitioner has filed a reply affidavit controverting the contentions in the counter affidavit. 4. I have considered the rival contentions in detail. 5. It is true that there is no absolute evidence to prove the contentions of either side since it is word against word. As such, I have to consider the probabilities of the case of both parties. The fact that the petitioner has sent the application by speed post on 11.12.2008 cannot be denied by respondents 1 and 2 as the same is proved by the postal receipt. In fact, respondents 1 and 2 have taken a contention that since in that receipt the time of sending the same is 9.30 p.m., it cannot be believed that the petitioner had requested that tender form on that day. That being so, I have to conclude that the petitioner had in fact sent the application form by speed post on 11.12.2008 itself. I cannot simply assume that a person would, simply to spite respondents 1 and 2, send an application for tender form by post without approaching the 2nd respondent for a tender form. In fact, in Ext.P4, it is specifically stated that he would again come to the office at 10.00 a.m. on 12th for the application form. It is a fact that W.P.(c)No.36742/08 4 respondents 1 and 2 were not pleased with the petitioner's conduct in respect of the earlier contract as evidenced by Exts.R1(a) to R1(c). That being so, the petitioner's averment, that he approached the 2nd respondent for a tender form on 11.12.2008 and the 2nd refused to issue the tender form on the instructions of the 3rd respondent, who is the Vice President of the Panchayat, appears to be probable. Therefore, going by the preponderance of probabilities, I am inclined to accept the case of the petitioner. Then the situation is that the petitioner has approached the 2nd respondent for tender form and the 2nd respondent refused to issue the tender form to the petitioner. In the above circumstances, the petitioner cannot be denied the opportunity to participate in the tender process, since he was prevented from participating in the tender process by the action of the 2nd respondent in not issuing the tender forms. Accordingly, the writ petition is disposed of with the following directions: The petitioner shall approach the 2nd respondent tomorrow (4.2.2009). The 2nd respondent shall see that the petitioner gets tender forms as requested for in Ext.P4 tomorrow (4.2.2009) itself. The petitioner shall submit his W.P.(c)No.36742/08 5 tender on 5.2.2009. Respondents 1 and 2 shall consider the petitioner's tender also along with the other tenders and take a decision on the same. Till the petitioner's tender is also considered, the tender shall not be awarded. If any tender has been awarded, the award shall be revised, if necessary, based on the tender of the petitioner also. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.36742/08 6