IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1197 of 2008()
1. THE GENERAL MANAGER,
... Petitioner
2. THE DIVISIONAL RAILWAY MANAGER
Vs
1. M/S.DELTA GRANITES AND SAND,
... Respondent
For Petitioner :SMT.A.RAJESWARI, SC, RAILWAYS
For Respondent : No Appearance
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :07/07/2008
O R D E R
J.B.Koshy & P.N.Ravindran, JJ.
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W.A.No.1197 of 2008
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Dated this the 7th day of July, 2008.
JUDGMENT
Koshy,J.
In pursuance to Ext.P7 tender notice issued by the second
respondent inviting tenders for the work of collection and supply of
ballast in Chengannur depot (including loading and unloading), the writ
petitioner submitted his tender. As per the eligibility condition, the
tenderer has to complete at least one similar single work for a minimum
value of 50% of the advertised tender value of work. After completion of
the process of pre-qualification and selection, the offer made by the
petitioner was accepted by the second respondent (appellant) and the
same was conveyed to the petitioner by Ext.P1. The relevant portion of
acceptance is as follows:
“The letter of acceptance issued is a binding contract
between the Railway and the contractor and the date of
completion will be reckoned from the date of issue of this
letter only and therefore you may please make
arrangements to commence the work immediately.”
2. The petitioner submitted performance guarantee for
Rs.4,55,850/-. The solvency certificate was also produced as can be seen
in Exts.P3 and P5. Acting upon Ext.P1, the petitioner has manufactured
WA 1197/08 -: 2 :-
the track ballast of more than 60% of the volume required for the work
and he has acted on the work order issued. Samples were supplied.
Ext.P4 report shows that the samples were best and found suitable.
Thereafter, the second respondent issued Ext.P6 notice stating that it
was advised that the above work had been cancelled due to
administrative reasons. We don’t know what is the administrative
reasons. The reason is not known to him. Before this Court, the reasons
stated were not administrative reasons. It is not stated in Ext.P6 that
cancellation was due to any mistake or the petitioner was ineligible. It is
stated before this Court that the petitioner was only a supplier and not a
direct contractor to P.W.D. or K.S.E.B. and that is the reason for
cancelling the contract.
3. Ext.P7 is the tender notice. The pre-qualification norms required
to be satisfied by the tenderer is the execution of at least one similar
single work for a minimum value of 50% of advertised tender value of
work in the last three financial years. The work notified is only collection
and supply of ballast as the description of the work given in Ext.P1.
Apart from the collection and supply of approved quality of machine
crushed track ballast, the work also involves loading ballast into railway
wagons and coffers by using contractors, labour, etc. and unloading the
same as directed by the engineer in-charge of the work. The nature of
work only says collection and supply of tract ballast in Chengannur depot
and hence what is required to be satisfied by the contractor is
WA 1197/08 -: 3 :-
completion of at least one work similar to what is notified for the value
specified and within the period prescribed. Exts.R2(a) to R(2)(i)
certificates produced by the petitioner show that the petitioner is fully
eligible.
4. The learned single Judge considered the matter and held as
follows:
“In my view, the requirements of Ext.P7 or Ext.P1 are
fully satisfied by the certificates produced and the
inadequacies pointed out are not specified in the tender
notice. Exts.R2(a) to R2(i) indicate that the petitioner has
supplied similar materials to the contractors concerned.
Therefore, these certificates satisfy the requirements of
Ext.P7 and it is not the requirement of Ext.P7 that the
petitioner should be a direct contractor to P.W.D., Kerala
State or K.S.E.B. Thus, the certificates, which were
furnished by the petitioner are in full compliance with
Exts.P7 and P1. Therefore the theory of mistake now
canvassed in the counter affidavit is a totally unfounded
one. Necessarily, therefore Ext.P6 issued to the petitioner
also cannot be sustained.”
The writ petitioner has already acted on the basis of acceptance of the
tender. The public authority has a duty to act fairly and reasonably. Even
though there are inherent limitations in exercising judicial review in
contractual matters, power of judicial review can be extended to prevent
arbitrariness of if there is also procedural irregularity, wednesbury
arbitrariness or manifest error or lack of bonafides. The learned single
WA 1197/08 -: 4 :-
Judge set aside Ext.P6 as it was arbitrary and lacking in bonafides
resulting in manifest error. We fully endorse the view of the learned
single Judge. There is no ground to interfere with the impugned
judgment.
The Writ Appeal is dismissed.
J.B.Koshy,
Judge.
P.N.Ravindran,
Judge.
ess 19/7