IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 WP(C).No. 14189 of 2009(P) ---------------------------------------- PETITIONER(S): ------------------------ VIDYARAMBHAM PRESS AND BOOK DEPOT PVT.LTD., MULLACKAL, ALAPPUZHA REPRESENTED BY ITS MANAGING DIRECTOR, N.GOPALAKRISHNAN. BY ADVS. MR.R.AZAD BABU, SMT.DEEPTHI AZA. RESPONDENT(S): ---------------------------- 1. GURUVAYOOR DEVASWOM, GURUVAYOOR, REPRESENTED BY ITS ADMINISTRATOR. 2. M/S. GEETHANJALI OFFSET PRINTERS, KOLATHARA FAROOKE, KOZHIKODE 673 655. R1 BY ADV. MR.V.KRISHNA MENON, GURUVAYOOR DEVASWOM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/08//2009, THE COURT ON 8/10/2009 DELIVERED THE FOLLOWING: Kss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.14189 of 2009-P = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 8th day of October, 2009. JUDGMENT 1.The petitioner pleads that it is a reputed printing and publishing house engaged in printing books and journals and has gained acceptance as a printing house of good standing among the business community and the general public. It says that it specialises in printing Hindu mythological books. It asserts that it had been doing the work of printing Sreemadh Bhagavatham and other puranic books for the first respondent Guruvayur Devasom for last so many years without giving room for any complaint and had always maintained the quality of printing works and prompt supply. Petitioner states that every year the first respondent invites tenders for printing and supply of Sreemadh Bhagavatham (8 volumes) and other puranic books and this year, the first WPC14189/2009 -: 2 :- respondent published a tender notice dated 10.1.2009. Following Ext.P1 notification, the petitioner duly submitted tender on 13.2.2009 with Rs.50,000/- towards EMD. Since nothing was heard, the petitioner issued Ext.P4 letter and on enquiry, it is stated that the petitioner came to know that the rate quoted by it is the lowest. Petitioner pleads that on further enquiry, it obtained information that the first respondent has decided to award the work to the second respondent, who has quoted Rs.863/- per book as against the rate of Rs.626/- quoted by the petitioner. The second respondent is also stated to have quoted at the rate of 0.36 paise for additional pages. 2.The petitioner impeaches the selection of the second respondent in preference to it as malafide and in violation of norms of fair play. It is contended that the second respondent has been given the work in a clandestine manner and no intimation of any negotiation was issued to the WPC14189/2009 -: 3 :- petitioner before deciding to award the printing work to any other person. The petitioner states that there is no justifiable reason to reject the lowest tender submitted by it and that the action to award the work to the second respondent ignoring the petitioner, lowest offeror, is arbitrary. It is contended that the action is patently illegal and unfair and that the first respondent has failed to act fairly or transparently. It is pleaded that the interest of the Devaswom is subverted in awarding the contract. If the second respondent's tender is accepted, the same will result in great financial loss to the first respondent Devaswom, it is contended. It is also pleaded that the action of the first respondent is malafide and is tainted with nepotism and corruption. 3.The second respondent does not appear in spite of notice. 4.The first respondent has filed counter affidavit WPC14189/2009 -: 4 :- denying the petitioner's allegations. It is contended that the writ petition is not maintainable since the reliefs sought for cannot be granted in a petition under Article 226 of the Constitution of India. It is further pleaded by the first respondent that this year also, Guruvayur Devaswom invited tenders for printing and supply of Sreemadh Bhagavatham by Pandit Gopalan Nair (8 volumes) as in the previous years. The stand of the petitioner that it had quoted the lowest is accepted. The first respondent, however, contends that in 2006, the petitioner was entrusted with the work of preparing the Sreemadh Bhagavatham in CDs pursuant to a tender submitted by the petitioner to do that work at Rs.9/- per page, however that the petitioner did not even do the draft work to be submitted for proof reading, in spite of a lapse of five months. The first respondent contends that in spite of two repeated notices in 2006, the petitioner did not carry out that work. Nor did it reply. Another notice was issued on WPC14189/2009 -: 5 :- 29.3.2007 informing the petitioner of the Devaswom's decision to resort to legal steps in relation to that contract. The petitioner did not respond to that also. Resultantly, Devaswom referred that matter to its Local Fund Audit Wing which, in turn, advised the Devaswom to include the petitioner in blacklist and suggested to appropriate the EMD, Security Deposit etc. remitted by the petitioner to the Devaswom. The Local Fund Audit had also opined that there is no illegality in accepting the second lowest tender. Following that, the said work of preparation of CDs after DTP work was cancelled and therefore, the petitioner's contention that it was doing the work of printing for the Devaswom without any room for complaint is wrong, it is pleaded. It is contended that the Guruvayur Devaswom had suffered monetary loss and loss of reputation due to the conduct of the petitioner and in view of that previous conduct of the petitioner, the Guruvayur Devaswom ought not to be compelled to award the work to the petitioner. The rejection WPC14189/2009 -: 6 :- of the offer of the petitioner is neither arbitrary nor malafide, it is contended. 5.In its reply affidavit, the petitioner contends that the issue relating to the contract for the preparation of Sreemadh Bhagavatham in CDs, as projected by the first respondent, is not true and that Exts.P5 and P6 series, letter and receipts would disclose that the allegation that the petitioner did not respond to the communications of the first respondent is wrong. It is further contended that the project of the preparation of CDs of Sreemadh Bhagavatham was aborted by the officials of the Guruvayur Devaswom and factional infighting within the Devaswom Managing Committee. The petitioner pleads that this was the reason for the unilateral cancellation of the agreement. However, more importantly, the petitioner points out that the cancellation of the agreement for the CD version of Sreemadh Bhagavatham based on the agreement dated 19.4.2006 was never put WPC14189/2009 -: 7 :- against the petitioner for other works. Petitioner says that subsequently also, tender notices Exts.P7 and P8 were issued to it and it had submitted tenders on the basis of those notices, including by remitting EMD, as evidenced by Exts.P9 and P10. It also states that even thereafter, Ext.P11 notice was issued to it for printing of Sreemadh Bhagavatham Moolam (II volumes). The petitioner, accordingly, projects a case that it was never blacklisted and there is nothing on record to show that it was blacklisted. Petitioner stands by the assertion that the rejection of the offer was discriminatory and opposed to principles of natural justice and fair play. 6.It is not in dispute that the petitioner had quoted the lowest, following Ext.P1. It is also not in dispute that the petitioner had been for quite a long time carrying out the printing works for the purpose of the publication of the Guruvayur Devaswom, including puranic and Hindu WPC14189/2009 -: 8 :- mythological books and that it had been carrying out such work ably and without much room for complaint from the Devaswom authorities. 7.The first respondent is a Devaswom. It is constituted for purposes which relate to the administration of religious institutions and allied matters. It is a statutory body. Its actions have to be transparent and shall not, in any manner, smack arbitrariness. In the realm of non-statutory contracts also, the principle of transparency and fairness in action may have to be demonstrated, if challenged. Nonetheless, it has its freedom to act bona fide as if it is merely a party entering into a contract regulated by the laws relating to private contracts. 8.The sequence of incidents relating to the publication of the CD version of Sreemadh Bhagavatham shows that the said work got aborted. The petitioner does not deny the averment in the counter affidavit of the first respondent that WPC14189/2009 -: 9 :- EMD, Security Deposit etc. remitted by the petitioner in relation to that contract were appropriated by the Devaswom. In fact, the petitioner admits in the reply affidavit that the said work was cancelled. Its contention is that the cancellation of that contract was done unilaterally and that it was the result of intra- institutional problems in the administration of the first respondent Devaswom. Though the Devaswom has pleaded that the Local Fund Audit had recommended blacklisting of the petitioner, there is nothing on record to show that the petitioner was blacklisted. The fact that the petitioner was not blacklisted is also apparently evidenced by the subsequent receipt of tenders from the petitioner. But that is not decisive of the fact that the first respondent has condoned the alleged failure of the petitioner to perform the contract relating to the preparation of the CDs of Sreemadh Bhagavatham. I say this because, there is no material to show that the petitioner was awarded any contract after the episode WPC14189/2009 -: 10 :- relating to the making of CD version of Sreemadh Bhagavatham. The fact situation that therefore ultimately emerges is that the petitioner was not blacklisted but was within the range of being watched more specifically while considering it as a probable party with whom the Devaswom would enter into a contract. It was, therefore, available within the decision making regime of the first respondent to consider the previous conduct of the petitioner leading to the aborted project of making the CD version of Sreemadh Bhagavatham as a factor relevant to decide the issue of making the choice while awarding the contract on the basis of Ext.P1 notification. Merely because the petitioner was not blacklisted following the CD episode, the Devaswom is not to be compelled to give the contract in question, to the petitioner merely on the ground that it was the lowest tenderer. Nor can it be said that the Devaswom ought to ignore the CD episode while deciding on the petitioner's offer following Ext.P1, for the reason that the petitioner was WPC14189/2009 -: 11 :- not blacklisted on account of the CD episode. It is the settled law that the mere fact that one is the lowest tenderer, is by itself insufficient to insist in judicial review, that the contract ought to have been awarded to it. The reason for not awarding the contract to the lowest tenderer is a matter within the commercial and administrative decision making process of the authority which is to award the contract. The transparency, when sought for, can be established by showing reasons which could have ultimately weighed with that authority unless the reasons projected for the exclusion are demonstrably perverse or grossly coloured and hence vitiated. Such a situation is not available in this case. The first respondent Devaswom had certain reasons. It is not for the court to substitute its reasons or to accept the reasons of the petitioner in preference to the reasons of the first respondent, particularly when the fact remains that the petitioner has not really taken any action against the Devaswom, if it were for WPC14189/2009 -: 12 :- the Devaswom's fault that the contract in relation to the preparation of CDs of Sreemadh Bhagavatham got aborted. For the aforesaid reasons, there is no ground to grant any of the reliefs sought for. The writ petition fails. The same is accordingly dismissed. No costs. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/06X09