IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 WP(C).No. 2273 of 2011(H) ------------------------------------- PETITIONER(S): ----------------------- TRAVANCORE EARTH MOVING COMPANY, H O NELLIMATTATHIL BUILDING, NEAR HILL PALACE, THIRUVAMKULAM P.O., ERNAKULAM DISTRICT-682 305, REPRESENTED BY ITS PROPRIETOR N.D.JOSEPH. BY ADV. SRI.T.RAMPRASAD UNNI SRI.M.K.DILEEPAN RESPONDENT(S): -------------------------- 1. THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001. 2. THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT (ROADS & BRIDGES), THIRUVANANTHAPURAM-695 001. 3. THE SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT (ROADS & BRIDGES), CENTRAL CIRCLE, ALUVA, ERNAKULAM DISTRICT- 682 025. 4. SRI.K.I.PAULOSE, KAVIKUNNEL HOUSE, KUNNACKAL P.O., VALAKAM, MUVATTUPUZHA-682 316. R1 TO R3 BY GOVERNMENT PLEADER SHRI.T.K.ARAVIND KUMAR BABU. R4 BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE, ADV.SRI.P.K.MANOJKUMAR, SMT.HENA BAHULEYAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/02/2011, ALONG WITH WPC NO.2412 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KRK ANTONY DOMINIC, J. ------------------------- W.P (C) Nos. 2273 and 2412 of 2011 -------------------------- Dated this the 3rd February, 2011 J U D G M E N T Issue raised in these writ petitions are connected and therefore these writ petitions were heard together and are disposed of by this common judgment. 2. On 3.2.2010, a tender notification was issued by the Public Works Department inviting tenders for the work of improvement to Kanjar-Koovappally-Chakkikkavu, Elavizhapunchira- Melukkavu-Kanjiramkavala Road. Pleadings in the writ petitions show that in response to tender notification, seven tenders were received and among them only five were prequalified. Among the five tenderers petitioner in WP(C) No.2273/2011 was the lowest and the petitioner in W.P(C) No.2412/2011 was the third lowest tenderer. 3. Coming to the case of the petitioner in W.P. (C) No. 2273/2011, Ext.P1 is a letter issued by the Superintending Engineer informing them that their tender to execute the work at 18.10% below the estimate rate has been accepted and they were requested to attend the .W.P (C) Nos. 2273 and 2412 of 2011 2 office within twenty days and to execute the agreement. Clause 3 of this communication clarified that it must be understood that on no account will rates once fixed be increased. 4. It is stated that on 17.3.2010 itself, WP.C No.9016/2010 was filed before this Court by two other persons, who were not prequalified in the tender process and this Court passed an order staying further proceedings pursuant to the tender notice. That stay order continued in force until 22.11.2010 when the said writ petition was dismissed by this Court. 5. Soon after the judgment was rendered, on 4.12.2010 petitioner herein filed Ext.P2 representation to the Minister for Public Works Department pointing out that there has been enhancement in cost and that revised schedule of rates was implemented in the meanwhile. In the representation, it was finally stated that since firm period of the tender is already over, they were not bound to undertake the work at the quoted rate and that still they were ready to execute the agreement and do the work .W.P (C) Nos. 2273 and 2412 of 2011 3 “If a fresh selection notice on estimate rate of 2009 SoR in tune with and revised time schedule for completion of works issued to me immediately." 6. On 17.12.2010, the Superintending Engineer issued Ext.P3 letter to the petitioner in W.P(C) No.2273/2011 stating that WP(C) No.9016 /2000 has been disposed and the petitioner was directed to execute necessary agreement within 20 days of receipt of this letter, after extending the firm period suitably. Petitioner was further informed that on failure it will be presumed that he was not willing to take up the work and that further action will be taken accordingly. Petitioner submits that this letter was received on 22.12.2010 and that on receipt of this letter, on 7.1.2011, petitioner submitted Ext.P4 letter to the Superintending Engineer stating that 20 days permitted in Ext.P3 is to expire on 10.1.2011 and that in view of the pendency of Ext.P2 made to the Government, the time period specified in Ext.P3 should be extended by one month from 10.1.2011 onwards. This was followed by Ext.P5 dated 17.1.2011 where he again informed the .W.P (C) Nos. 2273 and 2412 of 2011 4 Secretary to Government that he was ready to undertake the work “at whatever rate the Government finds reasonable for the work” 7. While so on 21.01.2011, under cover of Ext.P6 petitioner submitted Bank Guarantee and security in terms of the tender conditions to the Superintending Engineer and requested that he may be permitted to execute the agreement extending the firm period up to 28.2.2011. On 21.1.2011 itself, this writ petition was filed complaining that despite the pendency of ExtP2 before the Government, the Superintending Engineer was taking steps for awarding contract to the the 4th respondent herein, who is the petitioner in W.P. (C) No.2412/2011. In this writ petition it is mainly prayed that the respondents shall not take any action for awarding the work until a decision is taken on the request made by the petitioner to the Government. 8. In this writ petition, a statement has been filed by the 3rd respondent, the Superintending Engineer. In the statement, the stand taken by the 3rd respondent is that after the dismissal of WP(C) No9016/2010 Ext.P3 letter .W.P (C) Nos. 2273 and 2412 of 2011 5 was issued to the petitioner asking him to execute the agreement after extending the firm period which had expired on 2.6.2010. It is stated that to this notice, petitioner did not respond nor did he extend the firm period or execute the agreement It is stated that in the meanwhile, he made Ext.P2 representation and according to the 3rd respondent, the request for revision of rates was against the tender conditions. 9. It is stated that as the petitioner was not ready to execute the formal agreement and to do the work at the quoted rate, and as he made fresh offers, the 3rd respondent negotiated with the second lowest tenderer Sri.A.Nizammuddeen. It is stated that second lowest tenderer in his letter dated 6.1.2011 informed that he was not interested to execute the work. According to the 3rd respondent since the second lowest tenderer did not come forward to carry out the work, the negotiation was held with the third lowest tenderer, the petitioner in WP(C)No. 2412/2011. It is stated that the third lowest tenderer, by his letter dated 17.1.2011 informed that he was willing to .W.P (C) Nos. 2273 and 2412 of 2011 6 reduce the quoted rate from 13.31% above the estimate rate to 0.5% below the estimate rate and he also extended the firm period up to 15.2.2011. It is stated that thereupon selection notice was issued to third lowest tenderer on 17.1.2011 accepting his revised offer. 10. Fourth respondent in the writ petition, the third lowest tenderer also filed a counter affidavit . In the counter affidavit he has produced Ext. R4 (a) dated 17.1.2011 which is already referred to as a selection notice issued to him. 11. WP(C) No. 2412/2011 has been filed by the third lowest tenderer referred to above who also has been impleaded as the 4th respondent in WP(C) No.2273/2011. In this writ petition what he contends is that he was the third lowest tendererer and that on 17.12.2010, the Superintending Engineer issued a letter to the petitioner in WP(C) No.2273/2011, and as there was no response from him, and as the second lowest tenderer withdrew from the field, he was issued Ext.P1 dated 14.1.2011, enquiring about his willingness to reduce the quoted rate and .W.P (C) Nos. 2273 and 2412 of 2011 7 execute the work extending the firm period suitably. It is stated that in response thereto he issued Ext.P2 letter dated 17.1.2011, agreeing to reduce his rate to 0.5% below the estimate rate from the quoted rate of 13.31% above the estimate rate and also agreeing to extend the firm period. It is stated that on that day itself, he was issued selection notice Ext.R4(a) produced in WP(C) No.2273/2011. 12. He has also produced Ext.P3 letter issued by the Superintending Engineer to the Chief Engineer where after narrating all the background facts, the Superintending Engineer has recommended for awarding the work to the petitioner and requested that his action in having awarded the work may be ratified and work may be awarded to the petitioner herein. On receipt of this letter, the Chief Engineer addressed Ext.P4 letter to the Secretary to Government, Public Works Department on 18.1.2011. In this letter, after referring to the steps taken by the Superintending Engineer, the Chief Engineer has sought necessary orders from the Government. It is at that stage, this writ petition has been filed seeking a writ of .W.P (C) Nos. 2273 and 2412 of 2011 8 mandamus directing the respondents herein to award the contract work to the petitioner and also permit him to execute the work in terms of the conditions specified in the tender notice dated 3.2.2010. 13. In this case, a counter affidavit has been filed by the 4th respondent, who is the petitioner in W.P. (C) No.2273 of 2011. In the counter affidavit, he has reiterated his contention raised in W.P (C) No.2412/2011 and has also raised serious contentions about the genuineness of the selection notice that is stated to have been issued by the Superintending Engineer on 17.1.2011. According to him, having regard to the fact that as per Ext.R4 (b) herein, the Private Secretary to Minister has forwarded his request for revision of rates to the Secretary to Government, and since the request is pending consideration of the Government, the prayer sought in this writ petition is premature and is unsustainable. 14. In the light of the contentions raised by the respective parties, I shall first consider the case of the petitioner in W.P (C)No.2273/2011. .W.P (C) Nos. 2273 and 2412 of 2011 9 15. First of all, Ext.P1 in W.P (C) No.2273/2011 is the communication issued by the Superintending Engineer awarding work to the petitioner . This letter required the petitioner to attend office of the Superintending Engineer within twenty days and execute the agreement and comply with the other formalities. This letter also provided that on no account will rates once fixed be increased. The stay granted by this Court in W.P (C) 9016/2010 got vacated with the dismissal of the writ petition on 22.11.2010. Soon thereafter on 17.12.2010, Ext.P3 communication was issued requiring the petitioner to execute the agreement within 20 days of receipt of that letter. This letter also required him to extend the firm period and informed him that that on his failure, it will be presumed that he was unwilling to take up the work and that further action will be taken accordingly. Even according to the petitioner, this letter was received on 22.12.2010. Admittedly he did not comply with the directions in Ext.P3 letter. Therefore, Ext.P3, has worked itself out in as much as due to the failure of the petitioner the Superintending Engineer was entitled to .W.P (C) Nos. 2273 and 2412 of 2011 10 presume that the petitioner was unwilling to take up the work and if so he was entitled to take further action in the matter. 16. True, that in the meanwhile, on 4.12.2010, petitioner made Ext.P2 representation to the Minister for Public Works Department which is seen to have been forwarded to the Secretary to Public Works Department. The learned senior counsel for the petitioner contended that by this letter, the petitioner has expressed his unqualified willingness to undertake the work in question. It was also argued that this willingness was reiterated in Ext.P4. A reading of these letters show that the petitioner expressed his willingness to execute the agreement and the work only if a fresh selection notice on estimate rate of 2009 SoR with revised time schedule was issued. Therefore, Ext.P2 is only a counter offer made by the petitioner seeking revision of rates and the time schedule. This was clearly impermissible in terms of Ext.P1, which specified that on no account will rates once fixed be increased. In Ext.P4, the offer made by the petitioner was .W.P (C) Nos. 2273 and 2412 of 2011 11 to execute the work at whatever rate the Government finds reasonable. This also is not an unqualified offer as now contended. Therefore, the pendency of Ext.P2 which is supported neither by any statutory right nor the conditions of tender, could not have created any vested right on the petitioner for stalling further proceeding in the matter. 17. In that view of the matter, I am convinced that when the petitioner did not comply with Ext.P3, on expiry of the time allowed , petitioner went out of the reckoning and if so respondents were entitled to proceed and negotiate with the other tenderers. This position is not altered in any manner by virtue of Ext.P4 or Ext.P6. Even in Ext.P4 dated 7.1.2011 petitioner did not express his willingness to execute the work. As already stated , by the time, the bank guarantee was furnished and security deposit was made, the time specified in Ext.P2 had expired and therefore the fact that the Bank Guarantee was furnished and security deposit was made also cannot create any right in favour of the petitioner. .W.P (C) Nos. 2273 and 2412 of 2011 12 18. If that be so,, necessarily, the petitioner could not have asked for any relief from the Government or from this Court and therefore WP(C) No.2273/2011 is only to be dismissed and I do so. 19. In so far as W.P(C) No.2412/2011 is concerned, although it was permissible for the Superintending Engineer to have entered into negotiation with the petitioner in W.P (C) No.2412/2011, by Ext.P3 letter addressed to the Chief Engineer, he has sought ratification of, what he has done. On receipt of Ext.P3, the Chief Engineer has placed the matter before the Government by Ext.P4 letter dated 18.1.2011. In this letter, after narrating the steps that were taken by the Superintending Engineer, the Chief Engineer has sought necessary orders in that behalf. Nothing has been placed on record to indicate that as on date the Government have passed any order on Ext.P4. This means that in the absence of any order from the Government, the Chief Engineer would not have issued any order ratifying the action of the Superintending Engineer and only after such ratification .W.P (C) Nos. 2273 and 2412 of 2011 13 the Superintending Engineer could have awarded the work to the petitioner in WP (C) No.2412/2011. 20. Therefore, at this stage it is premature for the petitioner in WP(C) No.2412/2011 to seek any order from this court directing respondents therein to award the work to him or to execute any agreement with him. In the circumstances, the only order that is possible in W.P(C) No.2412/2011 is that on production of a copy of this judgment, the 1st respondent will pass orders on Ext.P4 letter of the Chief Engineer and depending upon the orders passed on Ext.P4, the Chief Engineer will pass orders on Ext.P3 based on which the Superintending Engineer will pass appropriate orders in the matter. 21. In the counter affidavit filed in W.P (C) No.2412/2011 the 4th respondent herein has raised contentions on the genuineness of the selection notice dated 17.1.2011 issued to the petitioner. Initially on the pleadings, this Court also had certain doubts about the genuineness of the selection notice. However, the learned Government Pleader submits that the Superintending .W.P (C) Nos. 2273 and 2412 of 2011 14 Engineer has confirmed that the selection notice was issued on 17.1.2011 itself and therefore accepting the submission of the learned Government Pleader, I leave it at that. 22. In the result, W.P (C) No.2273/2001 will stand dismissed and W.P(C) No.2412/2011 will stand disposed of directing that on production of a copy of this judgment, the 1st respondent,will within two weeks thereafter, pass orders on Ext. P4 letter of the Chief Engineer to the Secretary to Government dated 18.1.2011 and depending upon the order so passed, the 2nd respondent will pass orders on Ext.P3 based on which the 3rd respondent will pass appropriate orders regarding the award of work to the petitioner herein. No costs. Sd/- ANTONY DOMINIC JUDGE ma /True copy/ P.A to Judge