PARAMAN Vs. KODUNGALLUR MUNICIPALITY

JUDGEMENT

(1.) The right to collect bus stand fee for the year 2005-2006 was done by inviting tenders by the Kodungallur Municipality-- the first respondent herein. Petitioner and the additional third respondent along with others submitted their respective tenders. Petitioner offered an amount of Rs.6,42,000/- whereas the third respondent offered Rs. 6,37,125/-. According to the petitioner, his offer is the highest. He is willing to pay the balance 1/3rd of the amount on the very same day, viz., on 26.3.2005, the day on which the tenders were opened. According to him, he tendered the balance amount, but the same was not accepted as it was beyond 5.30 p.m. and he was advised to attend the office the next day on which day a special working day for the Municipality. However, on that day also the amount was not received. Later he came to understand that steps were taken to accept the tender submitted by the third respondent who was the next highest tenderer. Alleging that the action of the respondents are arbitrary or capricious and seeking appropriate reliefs including writ of mandamus to the respondents to accept the balance 1/3rd of the amount from the petitioner and to confirm the right to collect fee from the Municipality Bus stand in his name and for other consequential reliefs, this Writ Petition was filed. Subsequently when he came to know that the tender was confirmed in favour of the additional third respondent, he filed an amendment petition seeking for the relief of quashing the proceedings of accepting the tender of the additional third respondent.

(2.) In the counter affidavit filed for and on behalf of the Municipality, it is averred that the office was kept open till 8 p.m., but the petitioner was not prepared with the balance amount to be remitted, viz., 1/3rd of the bid amount by cash. Petitioner only wanted time till 8 p.m. for tendering the cheque. Petitioner however did not pay the amount and even declined to hand over the cheque. The next day being a special working day, on that day also the petitioner did not turn up. It is only on Monday viz., 29.3.2005 that the next highest offer of the third respondent was accepted and orders issued to him and the contract was executed on 30th. Though an interim order was passed by this Court on 30.3.2005 directing the respondent not to confirm the tender, but the same has become infructuous as the confirmation has already took place even before filing the Writ Petition.

(3.) The question as to whether the petitioner had really tendered the balance 1/3rd amount by cash or not is a disputed question of fact and therefore in the absence of any acceptable material produced by the petitioner, it cannot be decided either way. The two affidavits filed in support his contention, one of which is filed by one of the agencies and the other by local public are not sufficient to act upon without their testimony being cross examined. At any rate, this is not an appropriate proceeding to resolve such disputed questions of facts regarding the tender of the balance amount. In this connection it has to be observed that even in the representation submitted by the petitioner Ext.P2, no mention is made that the balance amount by cash was tendered by him. He has only stated that the officers of the Municipality did not receive the balance amount. Whether the balance amount was tendered by cash, by cheque or by Demand Draft is however not mentioned in his own representation Ext.P2 submitted on 28.3.2005.