Dismissed

P.S.Rajan v. the Secretary to Government

Kerala HC7 Mar 2017WP(C)/4828/2017

Case brief

AI extract

What is this about?

The High Court dismissed the petitioner's writ petition challenging the rejection of a tender and forfeiture of earnest money. The Court held the tender rejection was valid as the petitioner was given opportunities to rectify the defect but failed to do so. The claim regarding the EMD was held open for a separate forum.

What did the court decide?

The writ petition was disposed of; the tender cancellation was sustained; the claim for EMD was left open for agitations before a suitable forum.

P.S.Rajan Vs the Secretary to Government — Consumer Protection | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 7TH DAY OF MARCH 2017/16TH PHALGUNA, 1938

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WP(C).No. 4828 of 2017 (C)

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PETITIONER(S):

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P.S.RAJAN

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PROPRIETOR, (KERALA WASTER PAPER STORES) PARVATHY BHAVAN, THRIKKUDITHANAM PO, CHANGANASSERY, KOTTAYAM DIST.

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BY ADV. SRI.LUIZ GODWIN D COUTH

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RESPONDENT(S):

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1. THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM.

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2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM.695001.

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3. TEXT BOOK OFFICER, PADMA VILASAM, TRIVANDRUM. 695001.

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4. THE CONTROLLER OF STATIONARY, THE OFFICE OF THE CONTROLLER OF STATIONARY, TRIVANDRUM. 695033.

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BY SR.GOVERNMENT PLEADER SMT.K.R.DEEPA

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 4828 of 2017 (C)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 E-TENDER NOTICE NO.182/D-1/2016/STY DATED 31.5.2016 ISSUED BY THE 4TH RESPONDENT.

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EXHIBIT P2 TRUE COPY OF THE FIXED DEPOSIT RECEIPT NO.232552 ISSUED BY THE CENTRAL BANK OF INDIA.

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EXHIBIT P3 TRUE COPY OF THE LETTER DATED 20.12.2016 ISSUED BY THE 4TH RESPONDENT.

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EXHIBIT P4 TRUE COPY OF THE ORDER DATED 4.8.2016 BY THE D.D.E, QUILION.

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RESPONDENT(S)' EXHIBITS: NIL

//TRUE COPY//

P.A. TO JUDGE

dlk

SHAJI P. CHALY, J.

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W.P.(C) No.4828 of 2017

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Dated this the 7^th day of March, 2017

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JUDGMENT

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Petitioner is a waste paper merchant. By issuing Ext.P1, 4^th respondent invited tender for disposal of text books in various depots in Kerala State for the year 2016-17. Petitioner participated in the tender and in accordance with the stipulations contained under Ext.P1, Ext.P2 Fixed Deposit receipt of Rs.3,00,000/- for a period of nine months, and EMD of Rs.50,000/- were submitted to the 4^th respondent. Since the fixed deposit was not for one year, petitioner's tender was rejected and by Ext.P3 the 4^th respondent forfeited the EMD of Rs.50,000/-. According to the petitioner, there was no condition prescribed in Ext.P1 invitation that, the fixed deposit for one year is mandatory. Hence withholding of EMD of Rs.50,000/- by the 4^th respondent is highly illegal. That apart, it is also contended that the 4^th respondent has no power to invite tender for disposal of the text books for the year 20016-17 and the same was already given by the Text Book Officer to the concerned Deputy Director of Education and one of such orders is produced as Ext.P4. Therefore, according to the petitioner, invitation of tender by Ext.P1 itself is bad.

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W.P.(C) No.4828 of 2017

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Heard learned counsel for the petitioner, learned Government Pleader and perused the documents on record and pleadings put forth.

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The facts discussed above make it clear that the petitioner participated in the tender. However, petitioner has provided a fixed deposit receipt only having a validity of nine months. From Ext.P3 communication issued by the 4^th respondent dated 20.12.2016, it is evident that petitioner was directed to furnish a fixed deposit receipt for a period of one year and twice notices were issued. The said defect was not rectified by the petitioner, which thus means opportunities were given to the petitioner to cure the defect, but were not made use of. Therefore, there is no meaning in contending that there is no stipulation in Ext.P1 tender notification that a fixed deposit receipt having validity period of one year was not prescribed under the said document. Petitioner was given sufficient time to correct the same. However, petitioner did not correct the same, and consequentially, Ext.P4 order is passed cancelling the tender awarded to the petitioner and forfeited the EMD. On a perusal of Ext.P3, it is clear that the circumstances put forth by the petitioner was considered by the statutory authority and I do not find any illegality in the

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W.P.(C) No.4828 of 2017

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action initiated by the respondent authority, accordingly to sustain the reliefs sought by invoking the discretionary jurisdiction under Article 226 of the Constitution of India. However, learned counsel for the petitioner has a case that they are not entitled to retain EMD of Rs. 50,000/-in view of the peculiar stipulations contained under Ext.P1. Therefore, the factual circumstance so pointed out is to be agitated by the petitioner before the appropriate forum by adducing necessary evidence. Petitioner has also a contention that, evident from Ext.P4, respondent authority is not entitled to invite Ext.P1 tender. It is well settled proposition in law that after participating in a tender, understanding the conditions of the tender notification, nobody is entitled to turn around and contend otherwise. Therefore I do not find any reason to interfere with Ext.P3 order passed by the statutory authority to the extent the tender awarded to the petitioner is cancelled. However, in respect of the claim of the petitioner to the EMD amount of Rs.50,000/-, the question is left open entitling the petitioner to agitate before the suitable and appropriate forum.

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Writ petition is disposed of accordingly.

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Sd/-

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SHAJI P. CHALY, JUDGE

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dlk/7/3/

P.S.Rajan v. the Secretary to Government

Case brief

What is this about?

What did the court decide?

P.S.Rajan v. the Secretary to Government

Case brief

What is this about?

What did the court decide?

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