IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.P.R.RAMAN & THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 WA.No. 144 of 2010() -------------------- AGAINST THE JUDGEMENT IN WPC.1712/2010 Dated 21/01/2010 .................... APPELLANT(S): WRIT PETITIONER ----------------------------- A.P.JOSEPH & CO, REPRESENTED BY ITS MANAGING PARTNER, JOEMON JOSEPH, EDATHALA HOUSE, EDATHALA BUILDINGS NEELEESWARAM, KALADY, ERNAKULAM DISTRICT. BY ADV. SRI.MURALI PURUSHOTHAMAN SRI.DEEPU LAL MOHAN RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT, SECRETARIAT,THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT(ROAD & BRIDGES) THIRUVANANTHAPURAM. 3. THE SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT(ROAD & BRIDGES) CENTRAL CIRCLE, ALUVA. 4. KERALA STATE CONSTRUCTION CORPORATION LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, ADMINISTRATIVE OFFICE,III-FLOOR, CARMEL CENTRE, BANERJI ROAD, KOCHI-682 018. R1 TO R3 BY SR.GOVT PLEADER SMT.K.MEERA R4 BY ADV.SRI.M.V.THAMBAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN, Ag.C.J. & THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.A.No.144 OF 2010 ------------------------------------------- Dated this the 8th day of February, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.The appellant challenges the non-acceptance of the tender submitted by it pursuant to Ext.P2 tender notification. The fundamental plea was that though it was the petitioner who had quoted the lowest, the work is being awarded to the 4th respondent Kerala State Construction Corporation Limited (KSCC), depending on a Government decision (Ext.P6 Government Order), whereby, the said company is granted a price preference of 10% over the lowest quoted rate. The learned single Judge dismissed the writ petition holding that the petitioner's contention that the proceedings were not transparent is unsustainable and the plea that there was no prior disclosure of the preference that the 4th respondent would get cannot be countenanced in view of the fact that the WA.144/10 2 petitioner is aware of the existence of Ext.P6 G.O. and the tender conditions clearly provided that “all conditions prevailing in this department regarding tenders for prequalification are applicable to this tender also. Further details if required can be had from this office during working hours”. 2.As of now, following the judgment of the learned single Judge, the work has been awarded, agreement entered into and the site also handed over to the 4th respondent. 3.The KSCC is a Government company. The State Government, in its wisdom, had issued Ext.P6 G.O. way back on 26.2.1997, allowing the said company a price preference of 10% over the lowest quoted rate. Learned single Judge noted that the writ petitioner, going by its own showing, is an 'A class' Government contractor with sufficient experience and knowledge of the tender process in Government. The preference given to the KSCC is not, as such, challenged. WA.144/10 3 i.e., to say, Ext.P6 is not under challenge. The decision or the policy of the Government in that regard is not impeached. The only plea is that the petitioner was not put to proper notice of such a clause and had such a preference of the KSCC been notified, the petitioner would have quoted appropriately, in a more competitive manner, so that the 10% price escalation would have been appropriately taken care of, resulting in a proper competition with the KSCC. In support, the decisions of the Apex court in Harminder Singh Arora v. Union of India [(1986) 3 SCC 247] and Dutta Associates Pvt. Ltd. v. Indo Merchantiles Pvt. Ltd. [(1997) 1 SCC 53] were referred to before the learned single Judge and also before us. As rightly noticed in the impugned judgment, the law laid in those judgments do not apply to the facts of this case and in the instant case, the tender conditions had clearly notified that all conditions prevailing in the department are applicable. WA.144/10 4 4.The work having been awarded, agreement entered into and site handed over to the 4th respondent, at this point of time, the balance of convenience would also be against the writ court interfering with the award of work, unless there is any glaring arbitrariness which has to be visited and erased. We do not find any such situation in the facts of the case in hand. For the aforesaid reasons, the writ appeal fails. The same is accordingly dismissed. Sd/- P.R.RAMAN, Ag.Chief Justice. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.08/02.