Sayed Jaffer Sadique vs. Union Territory Of Lakshadweep

Heard Sri.Saiby Jose Kidangoor, the learned counsel for the appellant/writ petitioner. The respondents are represented by Sri.S.Manu, the learned Central Government Counsel.

The matter pertains to the contract for stevedoring and related works, for the Government Passenger Ships at the Lakshadweep Island, for which, tender notice was issued on 11.8.2017 (Ext.P3). The petitioner has submitted his tender, produced the bid security and paid the Earnest Money Deposit. The tenders were opened on 4.9.2017 and it was found that the bid of the petitioner was one of the lowest bids. However, the tendering authorities cancelled the tender process on 12.10.2017 for the reasons stated in the cancellation order (Ext.P8). Aggrieved by the decision, the petitioner approached this Court.

According to the respondents, the tender had to be cancelled on account of the confusion and lack of clarity in the bids of the participating tenderers. Following the introduction of the GST regime, while in some of the tenders, GST was added and price was accordingly quoted whereas for other tenders, the GST component was not added to the price bid. Therefore, it was not possible to make comparison of the price bids of the participating tenderers and because of the resultant uncertainty, the cancellation order (Ext.P8) was issued.

The learned single Judge, while considering the challenge by the participating bidder, examined whether the decision of the tendering authorities was arbitrary or there was some acceptable justification for cancellation of the process. On this, the writ court found the absence of clarity on the bids of the participating tenderers and therefore, the possibility of disputes arising out of finalising such tender process was taken into account. It was also observed that no agreement was executed by or between the parties and no legal right of the petitioner as a participating tenderer was impacted, by the cancellation decision. Besides, the court noted that no malafide was alleged against the decision taken by the respondents.

In matters of contract, the final decision vests on the tendering authority and they can deal with all contingencies which may create uncertainty in the price bids. Here, the Ext.P8 communication shows that the authorities were unable to determine the precise price bid of the participating tenderers because some of them had quoted rates inclusive of the GST whereas the others failed to take the GST component, into account. These issues should ideally be addressed by the tendering authority who are aware of their requirement and the possible consequences for an erroneous decision. Moreover, exercise of the equitable juri iction in such matters may not be justified unless there is patent arbitrariness or malafide, in the decision taken by the authorities.

The basis for the impugned decision in not entertaining the writ petition is scrutinized by us and we find that the writ petition was dismissed for good reasons. Therefore, the Writ Appeal is found devoid of merit and the same is dismissed. HRISHIKESH ROY CHIEF JUSTICE A.K.JAYASANKARAN NAMBIAR