M. Govinda vs Executive Officer

Anand Byrareddy, J.—Heard the learned counsel for the petitioner and the learned counsel for the respondents.

The petitioner claims that pursuant to a tender notification issued by the second respondent for the period 2013-14 ending on 31/03/2014 to run a service of ferrying people across the Tungabhadra river, from Kodandrama Temple in Venkatapur Village on one bank to Purandar Dasar Mantapa on the other bank. He was awarded the contract on payment of Rs. 1,85,000/- It transpires that fresh tenders had to be invited after the expiry of the term. Since the election code of conduct was in force and since the petitioner''s services, as per the notification, were coming to an end on 31/03/2014, it was decided by a resolution dated 04/03/2014 that the petitioner could be permitted to continue the service for a temporary period, till such time, fresh tenders were invited. It was also said to have been decided that such permission could be granted if the petitioner paid an additional 10% on the amount of Rs. 1,85,000/- and therefore he was required to pay a sum of Rs. 2,03,500/-. The term, however, was not specified and was only mentioned as a temporary extension. It transpires that there was yet another resolution by the Panchayat on 25/06/2014 reiterating the decision on the resolution passed earlier, as on 04/03/2014 that the petitioner''s services could be continued for the year 2014-15 on the same terms. It is this resolution which has prompted the petitioner to contend that his term has been continued till the end of year, namely, 31/03/2015. And that the extension was for the whole year namely 01/04/2014 to 31/03/2015. Thereafter, it transpires that since the respondents took steps to invite e-tenders for a fresh term, the petitioner is before this Court.

It is the claim of the petitioner that the resolution dated 04/03/2014 read with further resolution dated 25/06/2014 would speak to the fact that the petitioner''s services have been extended for the entire period of 2014-15. The services are required only for a period of four months, at the most, after the monsoon season and since it has been extended as aforesaid, the question of the respondent inviting any further tenders would not arise, as the petitioner was required to pay a substantial sum of money for the extended term. Therefore, the invitation of tenders results in the petitioner being deprived of a right conferred on him as aforesaid. It is this which is sought be canvassed by the learned counsel for the petitioner.

On the other hand, the respondents have vehemently contested the petition and have filed statement of objections asserting that ferrying permission granted to the petitioner vide resolution dated 04/03/2014 was to continue services for a short period subject to the condition that the petitioner paying a sum of Rs. 2,03,500/- and he was required to pay the amount within one month. However, the petitioner had paid only a sum of Rs. 60,000/- and has failed to pay the balance amount even as on date. The respondents had issued a notice calling upon him to settle the amount within three days and since the petitioner had failed to make the payment, another notice was issued on 22/08/2014 intimating the petitioner that respondents were in the process of calling e-tenders and if so inclined, the petitioner could also participate.

Thereafter steps had been taken to invite the tenders by publishing a notice of the same in the daily news paper. The tender forms were issued between 30/10/2014 to 10/11/2014. The tender is said to have been opened on 11/11/2014 and the tenderer one Santosh Kumar was the highest bidder, who had quoted Rs. 2,35,000/- and his tender was accepted and ferrying rights were entrusted to him for a short period between 11/11/2014 to 31/3/2015.

These facts were well known to the petitioner, for, he had filed a suit in Original Suit No. 313/2014 before the Court of Principal Civil Judge and JMFC Hospet, on 05/11/2014 and had also filed an application seeking an order of temporary injunction, which was not granted but notice was issued on the said application. Having failed to obtain any relief therein, the present writ petition is filed even during the pendency of the suit, which is clearly an abuse of process of Court. Having regard to the fact that the petitioner being a defaulter in paying dues and is totally due in a sum of Rs. 1,63,500/- and the claim that he is indefinitely continued till 31/03/2015, is therefore farfetched and untenable. It is further contended that the highest tenderer who has made his bid in a sum of Rs. 2,35,000/-, which has been accepted for a fresh term and not for the entire year, would belie the claim of the petitioner that the amount that is agreed upon is said to be the tender amount for the entire year. Hence, the learned counsel would submit in the light of a third party interest having been created and his tender having been accepted for the remaining period from 11/11/2014 to 31/03/2015 and the petitioner having filed the present writ petition and having obtained an interim order of stay, has resulted in said third party being denied his just due and the counsel seeks that the stay be vacated and the petition be dismissed.

The learned counsel for the petitioner by way of reply would still deny that he is due any balance in respect of the period 2013-14 and that has been admitted by the respondent themselves. The tender conditions did not require the petitioner to pay the amount in advance insofar as the amount fixed for the subsequent period is concerned. It is only on calculation of the amount of actual service rendered that the petitioner could be in a position to make the payment and there is compliance in that regard, since for the period 2013-14, the amount was paid only up to January and if he is denied the continuation of the services, he would not be in a position to make any payment.

Given the above facts and circumstances, the primary contentions of the petitioner that the services rendered by him have been extended for a full year commencing from 01/04/2014 to 31/03/2015 is on the basis of the resolution passed on 04/03/2014 and 25/06/2014. From a reading of the same, it was clearly an understanding that owing to ensuing elections in May 204, the respondents thought it fit to temporarily extend the services till such time tenders were invited. The fact that the petitioner has continued his services on payment of Rs. 2,03,500/- for a temporary period which in fact he has enjoyed since 01/04/2014 to 30/10/2014 would indicate that the petitioner has received the full benefit of the consideration that he was required to pay insofar as the extension was concerned. His insistence that the continuation was for a full year cannot be accepted, having regard to the intention and conduct of the parties.

The invitation for the tenders having been issued and the offer of the highest bidder having also been accepted would result in a concluded contract between the respondent and the third party having come into existence and any further extension by virtue of the interim order in favour of the petitioner would result in a miscarriage of justice.

Insofar as the contention that the petitioner is required to pay the respondents, would be a claim to be established by the respondents before an appropriate forum and need not be decided in the present petition. Consequently, there is no merit in the claim of the petitioner.

The petition is dismissed. The interim order granted earlier stands vacated.