IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 3562 of 2008(Y)
1. A.B. SURENDRAN,
... Petitioner
Vs
1. KERALA LIVESTOCK DEVELOPMENT BOARD LTD.,
... Respondent
2. THE MANAGING DIRECTOR,
3. STATE OF KERALA,
4. THE GENERAL MANAGER,
For Petitioner :SRI.BABU JOSEPH KURUVATHAZHA
For Respondent :SRI.MILLU DANDAPANI
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :18/02/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) 3562 of 2008
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Dated: February 18, 2008
JUDGMENT
The challenge in this writ petition is against Ext.P6 by which
fresh tenders were invited by the 1st respondent cancelling the
tenders that were received in response to Ext.P1 tender notice..
The petitioner also seeks a direction requiring respondents 1 and 2
to award the work notified in Ext.P1 to the petitioner.
2. The facts of the case are:-
The 1st respondent issued Ext.P1 tender notice inviting tenders
for the civil works for the construction of the model livestock
village, Mattupatty, Munnar. Petitioner was one of the bidders and
by Ext.P2 he was requested to attend the office of the respondents
for a negotiation and it is stated that during the negotiation,
petitioner was requested to reduce the rates quoted by him.
Petitioner submits that in response, he has submitted Ext.P3
reducing the rate by 0.5%. He was thereafter called for a meeting by
Ext.P4 and eventually the respondents passed Ext.P9 resolution
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resolving to accord sanction to award the civil works notified by
Ext.P1 to the lowest tenderer, the petitioner herein, for 7.25% below
PAC subject to the approval of the Government of Kerala. There
was a further resolution to invite fresh tenders from public sector
undertakings and other Government agencies for supervision,
quality control and timely execution of the work.
3. It is stated that the matter was forwarded to the
Government for fresh approval and in the meantime the cost of the
work was also revised applying the revised rates. After considering
the proposal made by the 1st respondent, the Government issued
Et.P11 on 22.1.2008, requiring the 1st respondent to re-tender the
civil works of the first phase of the project which was originally
notified by Ext.P1. Petitioner submits that Ext.P11 dated 22.1.2008
was received by the 1st respondent on 23.1.2008 and Ext.P6 notice
inviting fresh tenders was published on 22.1.2008 itself.
Petitioner takes exception to Ext.P6 in so far as the eligibility is
restricted to State and Central Public Sector Undertakings having
valid licence/approval for undertaking such works. It is also
contended that no reasons are given in Ext.P6 for taking such a
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decision. According to the petitioner, the Board of Directors of the
1st respondent had not resolved to limit the field of choice to public
sector undertakings and therefore the unilateral decision of the
Managing Director as reflected in Ext.P6 is arbitrary.
4. The 1st respondent has filed a counter affidavit in which
the facts stated by the petitioner upto the passing of Ext.P9
resolution is not disputed. It is stated by the 1st respondent that in
terms of the Articles of Association, for execution of any work
beyond Rs.10 lakhs, they have to obtain approval of the Government
of Kerala. It is stated that in terms of the aforesaid provision, the
decision taken by Ext.P9 was forwarded to the Government seeking
approval. It is stated that in the meantime the cost of the work was
also revised taking into account the revised rates that came into
force from 1.4.2007. According to the respondent it is in view of
this, the Government issued Ext.P11 directing invitation of fresh
tenders.
5. On receipt of Ext.P11 the matter was considered by the 1st
respondent and it was decided that since for execution of work and
its supervision, engagement of two agencies would have been
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necessary and that this would have caused practical difficulties.
Therefore it was decided to get the work executed by a single
agency which has the capability of both execution of the work and
its supervision. According to the respondents, it was keeping in
mind this object, they have decided to invite tenders from public
sector undertakings who had the capability for both the works and
that Ext.P6 was issued in pursuance to the aforesaid decision.
6. In so far as the contention of the petitioner that the
decision as reflected in Ext.P6 lacks any bona fides, counsel for the
respondents invited my attention to the pleadings and argued that
it was only for administrative convenience and for ensuring the
quality of work that they have decided to go in for a single fresh
tender involving a single agency.
7. I have no reason to doubt this explanation given by the
2nd respondent. In so far as the allegation of the petitioner that
Ext.P11 was issued on 22.1.08 and was received by the 1st
respondent on 23.1.2008 when Ext.P6 was also published, counsel
for the respondents would submit that Ext.P11 was received on
22.1.2008 in the office of the 1st respondent at Trivandrum and that
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the same was forwarded to the press on 23.1.2008. According to
the counsel, Ext.P6 was published in the newspapers on 24.1.2008
and this fact is evident from Ext.P6 itself.
8. Having heard the arguments of the counsel for the
petitioner and also the respondents, I do not think that this is a case
warranting interference of this court. In the mater of tender,
irrespective of whether it is invited by an authority under Art.12 of
the Constitution, decisions are essentially guided by commercial
considerations and administrative convenience. Of course, if a
decision taken in the process is vitiated by mala fides, certainly the
court is justified in interfering with the same. In this case, the
respondent has explained that if Ext.P1 was to be proceeded with,
that would have necessitated the involvement of two agencies, one
for executing the civil work and the other for supervision purposes.
The respondent in its wisdom has decided that it was advantageous
to get both the works done by a single agency. If such a decision is
taken for bona fide reasons, this court has no reason to interfere
with the same. I have also no material at all on record to doubt the
bona fides of this decision.
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9. The argument of the petitioner that Ext.P11 was received
by the respondents on 23.1.2008 only and that the same was
published in the newspapers on the same date, does not appear to
be factually correct. It has been explained by the respondents that
they have received Ext.P11 on 22.1.2008 in their Trivandrum office
and that it was given to the press on the next day. This does not
reflect any hurried action on the side of the respondents to defeat
any rights of the petitioner. It may be true, that the petitioner
would have got the work, had Ext.P1 been proceeded with.
However, having regard to the fact that there are no vitiating
circumstance warranting interference with Ext.P6, I have to uphold
the said decision and dismiss the writ petition.
Writ petition fails and is dismissed.
ANTONY DOMINIC, JUDGE
mt/-