IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 WP(C).No. 6738 of 2010(N) -------------------------------------- PETITIONER(S): ------------------------ K.K. KUNHI, S/O.SYED SHEIK KOYA, KUNHALEKKAL HOUSE, AMINI ISLANDS, UNION TERRITORY OF LAKSHADWEEP. BY ADV. MR.BABU S. NAIR RESPONDENT(S): ------------------------- 1. THE UNION TERRITORY OF LAKSHADWEEP, REPRESENTED BY ITS ADMINISTRATOR, KAVARATHY ISLANDS, KAVARATHY, U.T. OF LAKSHADWEEP. 2. THE SECRETARY TO THE ADMINISTRATION, DEPARTMENT OF WORKS, UNION TERRITORY OF LAKSHADWEEP, KAVARATHY ISLANDS, KAVARATHY 3. THE SUPERINTENDING ENGINEER, L.P.W.D. KAVARATHY ISLANDS, U.T. OF LAKSHADWEEP. 4. THE EXECUTIVE ENGINEER (L.P.W.D) AMINI DIVISION, AMINI ISLANDS, U.T. OF LAKSHADWEEP. R1 TO R4 BY ADV. MR.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/03/2010, THE COURT ON 05/04/2010 DELIVERED THE FOLLOWING: rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 6738 of 2010 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of April, 2010. JUDGMENT Aggrieved by the tendering process and the conditions imposed in the tender notification the petitioner has filed this writ petition. The petitioner is a permanent resident of Amini Islands in the Union Territory of Lakshadweep. He is a Government contractor for the last 20 years under the Lakshadweep Public Works Department. 2. Ext.P1 is the notification inviting tenders for procurement/manufacture, transportation, handling and stacking of various building materials including river sand, granite chips, boulders, etc. to various stockyards/worksites in different Islands. It is the case of the petitioner that a condition is imposed in Ext.P1 that while applying for getting tender forms, E.M.D. shall be deposited by way of a demand draft in favour of the fourth respondent. Even though the petitioner submitted an application for issuance of tender forms, they were not supplied, as the applications are not accompanied by Demand Draft of E.M.D. The petitioner is relying upon Ext.P4 circular issued by the Central Public W.P.(C).No.6738 /2010 -:2:- Works Department in the matter, to contend that the E.M.D. need be accepted at the time of submission of ender document alone. 3. As directed by this Court, the 4th respondent has filed a counter affidavit. It is contended therein that the Lakshadweep PWD is a separate entity and is not part of CPWD but the LPWD is following the CPWD manual in all its transactions and activities. In the CPWD manual, amended upto 2008, under Section 18 it is stipulated that earnest money is to be deposited by the intending tenders in one of the acceptable forms as specified in para 18.4 along with their application for issue of tender documents for a work and it shall be so stipulated in the notice inviting tenders. It is pointed out that this was the practice adopted by the Lakshadweep P.W.D. right from 2006 onwards and in all C.P.W.D. notice inviting tenders, this was incorporated as a condition and nobody had raised any objection earlier. It is pointed out that the amendment has not been communicated to the Lakshadweep P.W.D. at any time before the tenders were issued. It is also mentioned that out of the 11 items of work shown in Ext.P1, work No.9 was already awarded on 23.2.2010 and execution of the work is in progress. The stages of other works are also mentioned in para 5 of the counter affidavit. W.P.(C).No.6738 /2010 -:3:- 4. It is mentioned in para 7 that 18 persons had participated in the tender and 54 applications were made. All the applicants had accepted the conditions and participated in the tender. The tender regarding all the works have been finalised and in certain cases the work is in progress. It is therefore submitted that the writ petition is belated and at this stage no action could be taken at the request of the petitioner. The last date for submission of tender was 27.1.2010 and the respondents have not received any objection or complaint regarding the notice inviting tenders. It is submitted that the writ petition is filed after one month of finalisation of the tenders. 5. Learned counsel for the petitioner vehemently submitted that in the light of the circular issued by the CPWD, the stipulation is unwarranted. It is submitted that at no point of time such a stipulation was there and the respondents are acting beyond their powers in fixing such a condition in the notice inviting tenders. It is therefore pointed out that the entire tendering process are liable to be set aside. 6. One aspect to be noticed in the light of the averment in the counter affidavit is that the tendering process have already reached finalisation and in some cases works have started also. None of the successful tenderers are W.P.(C).No.6738 /2010 -:4:- parties in the writ petition. Therefore, at this stage there cannot be any direction to cancel the tendering process, for considering the tender of the petitioner. Apart from the same, it is clear that Lakshadweep PWD is independent of the CPWD. Of course they have adopted the rules and regulations followed by the CPWD for awarding of works. It cannot be said that automatically the stipulations of the CPWD applies to Lakshadweep PWD. It is upto the Lakshadweep Administration to adopt the same or not. So far, the amendments have not been adopted by them. Therefore, the conditions that are stipulated in the CPWD manual, unless they are adopted and implemented by the LPWD, cannot be applied for the tenders invited and finalised. Hence the contention that the conditions imposed are really against the provisions of the CPWD manual, cannot be accepted. Therefore, it cannot be said that merely because of the said issue, the tenders have to be declared as invalid. 7. Learned Standing Counsel for the respondents submitted that in fact, the petitioner was also submitting E.M.D. along with the tender at various occasions and he was aware of the same. 8. Evidently, the petitioner approached this Court only after one month of finalisation of the tenders. In that view of the matter also, the W.P.(C).No.6738 /2010 -:5:- petitioner is not entitled to any relief in this writ petition. It is accordingly dismissed. (T.R. Ramachandran Nair, Judge.) kav/