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Sayed Jaffer Sadique N. vs. The Union Territory Of Lakshadweep

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WP(C)/40040/2017HC KeralaGSTCNR KLHC01087983201721 June 2018Bench: HONOURABLE MR. JUSTICE SHAJI P.CHALY7 pages

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Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 21ST DAY OF JUNE 2018 / 31ST JYAISHTA, 1940 WP(C).No. 40040 of 2017 PETITIONER(S) ------------ SAYED JAFFER SADIQUE N., S/O. A. CHERIYAKOYA, AGED 38, NANGAMADA HOUSE, KAVARATI ISLAND, UNION TERRITORY OF LAKSHADWEEP. BY ADVS.SRI.SAIBY JOSE KIDANGOOR SRI.P.M.MOHAMMED SALIH SRI.BENNY ANTONY PAREL SMT.S.SIBHA SRI.MATHEWS RAJU SRI.N.B.BALACHANDRAN KUM.PARVATHY VIJAYAN RESPONDENT(S): ------------- 1. THE UNION TERRITORY OF LAKSHADWEEP, REPRESENTED BY ITS ADMINISTRATOR, KAVARATHI ISLAND, UNION TERRITORY OF LAKSHADWEEP- 682 555. 2. THE DIRECTOR, PORT, SHIPPING AND AVIATION, DEPARTMENT OF PORT, KAVARATTI, UNION TERRITORY OF LAKSHADWEEP- 682 555. BY ADV. SRI.MANU.S, CGC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-06-2018, ALONG WITH WPC.NO.40050/2017,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: TS WP(C).No. 40040 of 2017 (D) -------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------ EXHIBIT P1 TRUE COPY OF THE WORK ORDER NO.25/2/2014- PORT (OPB) (P) EXECUTED BY THE PETITIONER WITH REGARD TO THE LAST TWO PROJECTS ENTRUSTED TO PETITIONER DATED 12.2.2015. EXHIBIT P2 TRUE COPY OF THE ORDER NO.25/1/2017-PORT(OPB) EXECUTED BY THE PETITIONER WITH REGARD TO THE LAST TWO PROJECTS ENTRUSTED TO PETITIONER DATED JULY 2017 EXHIBIT P3 A TRUE COPY OF THE TENDER NOTICE NO.25/1/2017-PORT (OPB)(1) ISSUED BY THE 2ND RESPONDENT DATED 11.8.2017. EXHIBIT P4 A TRUE COPY OF THE EMD RECEIPT DEPOSITED THROUGH SYNDICATE BANK IN FAVOR OF 2ND RESPONDENT DATED 21.8.2017. EXHIBIT P5 THE TRUE COPY OF THE TERMS AND CONDITIONS OF THE TENDER. EXHIBIT P6 TRUE COPY OF THE GST REGISTRATION CERTIFICATE NO. 31ASWPN 514 KIZD DATED 11.7.2017. EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO 2ND RESPONDENT DATED 21.9.2017. EXHIBIT P8 TRUE COPY OF THE CANCELLATION OF TENDER NOTICE F NO.25/01/2016-PSA(OPB) ISSUED BY THE 2ND RESPONDENT DATED 12.10.2017. RESPONDENT(S)'EXHIBITS - NIL ----------------------------- /TRUE COPY/ PS TO JUDGE TS 23.06.2018 SHAJI P. CHALY, J. -------------------------------------------------- W.P.(C) Nos.40040 & 40050 of 2017 ----------------------------------------------- Dated this the 21st day of June, 2018

JUDGMENT Petitioners in the captioned writ petitions were bidders in a tender invited by the respondents bearing F.No.25/1/2017- Port (OPB)(1) Schedules IV and I respectively, invited by the 2nd respondent for Stevedoring and related works of Government Passenger Ships. Since the subject matter is materially connected, I heard them together and propose to deliver this common judgment.

2.

Petitioners have submitted their respective tenders after completing all the procedures. Petitioners have also produced the bid security and paid the Earnest Money Deposit pursuant to the tender. The tenders were opened on 04.09.2017 and the quote made by the petitioners are for amounts of Rs.2,73,355/- and Rs.10,08,645/- respectively, which are the lowest price quoted for the said work. However, the tenders were cancelled by the 2nd respondent. It is thus challenging the cancellation of the tender, these writ petitions are filed.

W.P.(C) Nos.40040 & 40050 of 2017 2

3.

Separate counter affidavits are filed by the respondents almost with typical contentions, refuting the allegations and claims and demands raised by the petitioners in the writ petitions. The submission of tenders by the petitioners are admitted. Among other contentions, it is submitted that, the respondents have followed due procedure in opening the bids, and there is no condition that price bid will be opened only after evaluation of the technical bid, since it was a single bid tender, which was known to all bidders. The statement of the petitioners that tender was awarded to the petitioners who have quoted the lowest bid amounts and fulfilled the eligibility criteria, is all denied. It is further submitted that, the tender was never awarded to the petitioners, and in an earlier round of litigation, the petitioner in W.P.(C) No.40050 of 2017 has approached this Court seeking a direction to finalize the tender and to award the same to him. It is also the case of the respondents that the tender had to be cancelled consequent to the perplex situation arose in respect of quoting the tender, taking into account the introduction of GST. In some of the tenders, GST was added and the quote was made, and in some of the tenders, GST was W.P.(C) Nos.40040 & 40050 of 2017 3 not added. Therefore, according to the respondents, the respondents thought it fit to cancel the tender itself, and invite fresh tenders incorporating appropriate conditions. Moreover, it is contended that, there is no right accrued to the petitioners in order to challenge the cancellation of the contract, since no agreement was executed by and between the parties. Therefore, respondents seek dismissal of the writ petitions.

4.

I have heard learned counsel for the petitioners and the learned CGC appearing for the respondents. Perused the documents on record and the pleadings put forth by the respective parties.

5.

The fact discussion made above would make it clear that, the sole question arising for consideration is, whether there is any manner of illegality or arbitrariness on the part of the respondents in cancelling the tender invited. It is true, petitioners have participated in the tender in accordance with the stipulations contained thereunder. The price bid was opened, however, the successful bidder was not decided and no work order was issued to anyone. The tender itself was cancelled by the respondents, since the respondents have found that, due to the introduction of the GST, the quotations

W.P.(C) Nos.40040 & 40050 of 2017 4 made by the participants have no clarity, and therefore, there is every likelihood of arising dispute in due course, was anticipated by the respondents, and in order to avoid any confusion and perplexity in future, the tender was cancelled. So also, since there was no agreement executed by and between the parties, it cannot be said that, any legal right is accrued to the petitioners to contend that the action of cancellation of the invitation by the respondents is arbitrary and illegal.

6.

Moreover, there is no malafides alleged by the petitioners in the action of the respondents. Respondents are the masters of the tender invited and they are always at liberty before finalizing the tender proceedings to identify any situation that can cause any turmoil in the due course of execution of the tender. Having found that there is every likelihood on the basis of the quotes made by the participants, the tender was cancelled. Reasons are assigned in the cancellation order, and therefore, it cannot be heard to say that the cancellation made by the respondents are arbitrary or illegal.

W.P.(C) Nos.40040 & 40050 of 2017 5

7.

Taking into account all these aspects, I am of the considered opinion that, petitioners have not made out any case of patent arbitrariness, illegality or unfairness justifying interference of this Court exercising the power of discretion under Article 226 of the Constitution of India. The writ petitions fail, accordingly, it is dismissed. SHAJI P. CHALY JUDGE St/- 22.06.2018

Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.