Kerala High Court
T.P. Aneesh vs The Divisional Forest Officer on 30 December, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 1ST DAY OF JUNE 2018 / 11TH JYAISHTA, 1940
WP(C).No. 28721 of 2014
PETITIONER:
T.P. ANEESH,
THANDUPURAKKAL HOUSE, SHANTHI NAGAR P.O.,
VANIYAMBALAM, MALAPPURAM DISTRICT - 679 339.
BY ADVS.SRI.SUNIL V.MOHAMMED
SMT.M.S.SHAMNA
RESPONDENT(S):
1. THE DIVISIONAL FOREST OFFICER,
NILAMBOOR SOUTH DIVISION, MALAPPURAM DISTRICT - 379 329.
2. THE DEPUTY TAHASILDAR (RR),
TALUK OFFICE, NILAMBOOR, MALAPPURAM DISTRICT - 679 329.
BY SENIOR GOVERNMENT PLEADER SRI. SANTHOSH PETER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-06-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PBS
WP(C).No. 28721 of 2014 (M)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1. THE TRUE COPY OF THE CONDITIONS OF TENDER ISSUED BY THE
KERALA FOREST DEPARTMENT.
EXHIBIT P2. THE TRUE COPY OF THE COMMUNICATION DATED 30.12.2010 ISSUED BY
THE 1ST RESPONDENT.
EXHIBIT P3. THE TRUE COPY OF THE COMMUNICATION DATED 02.02.2011 ISSUED BY
THE 1ST RESPONDENT.
EXHIBIT P4. THE TRUE COPY OF THE REPRESENTATION DATED 14.02.2011
SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P5. THE TRUE COPY OF THE ORDER DATED 17.02.2011 OF THE 1ST
RESPONDENT.
EXHIBIT P6. THE TRUE COPY OF THE INTIMATION DATED 16.03.2013 ISSUED BY
THE 1ST RESPONDENT.
EXHIBIT P7. THE TRUE COPY OF THE REPLY DATED 08.04.2013 OF THE
PETITIONER.
EXHIBIT P8. THE TRUE COPY OF THE INTIMATION DATED 01.01.2014 ISSUED BY
THE 1ST RESPONDENT.
EXHIBIT P9. THE TRUE COPY OF THE DEMAND NOTICES DATED 25.08.2014 ISSUED
BY THE 2ND RESPONDENT.
RESPONDENT'S EXHIBIT NIL
/TRUE COPY/
PS TO JUDGE
PBS
5/6/2018
SHAJI P. CHALY, J.
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W.P.(C) No.28721 of 2014
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Dated this the 1st day of June, 2018
JUDGMENT
This writ petition is filed by the petitioner seeking to quash, Ext.P6 communication issued by the 1st respondent dated 16.03.2013, wherein the petitioner was informed that an amount of Rs.16,45,172/- is expended by the State Government on account of the failure on the part of the petitioner to take up the contract awarded, Ext.P8 communication of the 1st respondent directing the petitioner to remit the said amount, failing which, action will be initiated under the Kerala Revenue Recovery Act, and Ext.P9 recovery proceedings initiated under the provisions of Sections 7 and 34 of the Kerala Revenue Recovery Act, and for other related and allied reliefs. Material facts for the disposal of the writ petition are as follows:
2. Petitioner is a Government contractor holding 'A' class Contractor Licence issued by the Public Works Department. First respondent issued a notification on 09.11.2010, inviting tenders for construction of boundary wall W.P.(C) No.28721 of 2014 2 at Chokkad Girijan Colony in Kalikavu Range under NABARD-
RIDIF Scheme. Accordingly, petitioner submitted tender. Thereafter, as per the communication dated 30.12.2010, 1st respondent requested the petitioner to reduce the amount quoted by him, evident from Ext.P2. The case of the petitioner is that, no agreement was executed by the petitioner concerning the contract, as the same can be finalized only after negotiation with the petitioner and others.
3. Condition No.10 in Form No.83 of the Tender Form speaks about inspection of site of the proposed work before quoting the rate. Accordingly, petitioner requested for inspection of the proposed work site before submitting the tender. But, at the time of site inspection, the exact work site was not shown or disclosed to the petitioner. From the area shown to him and the description given by the Departmental authorities, petitioner was under the impression that the work site is acceptable and conveyance facilities are available to transport the construction materials, and further that, it is not a risky and remote area. Therefore, the contention of the petitioner is that, the Departmental authorities during site inspection mislead the petitioner, and therefore, petitioner was W.P.(C) No.28721 of 2014 3 unable to identify the work site properly and quote a satisfactory rate. It was only after Ext.P2, petitioner could see the actual work site, by which, it is revealed that the construction materials are to be carried by head-load to the far away area. It is also submitted that, on several occasions, due to the attack of elephants, petitioner and his employees had to withdraw from the work area. It is admitted by the petitioner that, petitioner had no previous experience of construction in such a risky area, and if the real aspects were disclosed to him, he would not have chosen to participate in the tender. Since the tender was found to be highly risky, petitioner never wanted to sign the agreement. Other contentions are also raised by the petitioner justifying the action of the petitioner in not entering into a contract on the basis of Exts.P2 and P3 communications dated 30.12.2010 and 02.02.2011 issued by the 1st respondent.
4. It is further submitted that, to Ext.P2, petitioner has submitted a reply dated 14.01.2011 to the 1 st respondent, highlighting the above facts and requesting 20% enhancement on the amount quoted by him. However, ignoring the same, 1st respondent issued Ext.P3. Petitioner has submitted Ext.P4 W.P.(C) No.28721 of 2014 4 representation dated 14.02.2011, requesting to permit him to withdraw from the tender. But the 1 st respondent unilaterally issued Ext.P5 proceedings dated 17.02.2011 forfeiting the petitioner's EMD and ordering to re-tender the work and to recover the loss from the petitioner. Thereafter, petitioner was intimated as per Ext.P6 dated 16.03.2013 by the 1st respondent that the re-tender was for a higher rate, thereby causing a loss of Rs.16,45,172/- to the Government.
5. According to the petitioner, petitioner has submitted Ext.P7 reply dated 08.04.2013, disputing the liability cast upon the petitioner. However, unmindful of the submissions made by the petitioner in Ext.P7, action is initiated as per Exts.P8 and P9. It is thus, petitioner was compelled to file this writ petition seeking the reliefs specified above.
6. First respondent has filed a counter affidavit refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, the tender was conducted in strict conformity with the formalities in Government Departments. Petitioner quoted the estimate rate and the other two participants quoted 20% and 25% above the estimate rate. The work has to be awarded to the W.P.(C) No.28721 of 2014 5 petitioner who quoted the estimate rate which was the lowest rate among the tenders submitted. As per the provisions of the notification, there is a provision for negotiation. Accordingly, Ext.P2 letter was issued to the petitioner and in the reply letter dated 14.01.2011, petitioner demanded 20% hike, which is against the prevailing rules and regulations. It is also submitted that, petitioner being an 'A' class contractor with the Government, knows fully well that such a hike is not permissible. In fact, petitioner demanded higher rate only to avoid the execution of the work. The contention of the petitioner, that only penalty by way of forfeiture of Earnest Money Deposit (EMD) is possible, is not correct, and as per the conditions of Ext.P1, the loss sustained to the Government has to be recovered from the petitioner.
7. It is also submitted that, the 1st respondent did not make any attempt to reduce the contract amount. The letter sent is a part of tender formalities i.e. negotiation, and in that process, petitioner was entitled to say that he is not ready to reduce the amount and that he is ready to take up the work as per the rate quoted by him. Petitioner has also signed the preliminary agreement. It is further submitted that, the W.P.(C) No.28721 of 2014 6 contention of the petitioner that the exact work site was not shown or disclosed to him is not correct. It is for the petitioner to see and study the work site before participating in the tender.
8. That apart, it is submitted that, petitioner has expressed his inability to carry out the work, which thus means, petitioner himself admits his incompetency to take up the work after execution of the preliminary agreement, and petitioner is liable under the provisions of the preliminary agreement. It is also submitted that, at the time of re-tender, PWD schedule of rates has been revised, and if the petitioner has taken up the work timely, the work would have been completed at the prevailing rates. In the revised tender, the estimate rate was enhanced from the previous Rs.62 lakhs to Rs.75 lakhs. This is quite natural, because there is periodical revision of rates. It was thereupon that, it was decided to recover the loss suffered by the Department from the petitioner. Even though efforts were made requesting the petitioner to deposit the amount, petitioner failed to do so. It was thereupon only, proceedings were initiated and recovery steps are taken against the petitioner. Even though in the W.P.(C) No.28721 of 2014 7 enquiry, the loss was quantified at Rs.16,45,172/-, it was re- assessed due to certain calculational error and the total amount remaining due from the petitioner is Rs.15,71,602/-.
9. I have heard learned counsel for the petitioner and the learned Senior Government Pleader. Perused the documents on record and the pleadings put forth by the respective parties.
10. The fact discussion made above would make it clear that, the sole question to be considered is, whether any manner of interference is warranted to the recovery action initiated against the petitioner. It is an admitted fact that petitioner has executed a preliminary agreement undertaking to sign a contract in the event of the petitioner being selected as a successful bidder. Apparently, including the petitioner, there were three tenderers, and the petitioner being the lowest tenderer, quoting estimate rate, petitioner was chosen as the successful tenderer. Clause 13 of Ext.P1 issued in Form No.83 is relevant to the context, which read thus:
b