The petitioner is an A-Class PWD Contractor. The petitioner submitted tender and participated in the auction in respect of the construction work of Phase VI package No.KR01-15 of Pattanakkad Block in Alappuzha District under the PMGSY Scheme 2006-2007. The petitioner deposited earnest money of ₹2,95,000/-. The petitioner was the lowest bidder and the bid was confirmed in his favour.
2. According to the petitioner, on his visit to the property he could realise that the property necessary for formation of the road was not acquired nor surrendered by the owner. As per Exhibit P1 dated 20.11.2007, the Superintending Engineer (second respondent) directed the petitioner to execute the agreement for the work. The petitioner sent Exhibit P2 letter dated 23.11.2007 to the Superintending Engineer stating that because of the non-availability of land, he did not execute the agreement. It is also stated that the petitioner met the owner of the land. He was not prepared to surrender the land. No reply was sent to Exhibit P2 by the Superintending Engineer and there is no averment in the counter affidavit that he did not receive Exhibit P2.
3. The Superintending Engineer issued Exhibit P3 letter dated 1.12.2007 to the petitioner making a request once again to execute the agreement. It was also mentioned in Exhibit P3 that failing execution of the agreement, the earnest money deposit would be forfeited and action would be taken under clause 32.3 of ITB condition in the SBD. The petitioner states that he sent a reply to Exhibit P3 on 6.12.2007, but there is no proof for the same. The Superintending Engineer issued Exhibit P4 dated 17.12.2007 to the petitioner forfeiting the earnest money deposit of ₹2,95,000/-. As per the order dated 2.1.2008 (Exhibit P5), the Superintending Engineer invoked the provisions under clause 2.32.3 of SBD debarring the petitioner from participating in the bids for one year from the date of the order.
4. In this Writ Petition, the petitioner challenges Exhibits P4 and P5 dated 17.12.2007 and 2.1.2008 respectively. The Writ Petition was filed only on 25.5.2010. There is no explanation for the delay of more than two years in filing the Writ Petition. Even the period of one year for which the petitioner was debarred from participating in the bids was over long back.
5. The learned counsel for the petitioner submitted that even now the work is not over though a re-tender was made and another person bid in auction. It is submitted that even now the land is not made available for completion of the road work. It is submitted that in these circumstances, the forfeiture of the EMD was not justified and that he is entitled to get back that amount.
6. The subsequent events are not pleaded in the Writ Petition. The learned Government Pleader submitted that the petitioner could have approached the Government if he was aggrieved by Exhibits P4 and P5. At this distance of time, it is not proper to interfere with Exhibits P4 and P5 in this Writ Petition. It is true that no reply was sent by any of the respondents to Exhibit P2 letter dated 23.11.2007 sent by the petitioner in which he made a specific averment that the land was not made available and that the land was in possession of the owner. It was also stated that the land was neither acquired, nor surrendered by the owner. The question is whether in these circumstances, the petitioner should be penalised and the earnest money deposit should be forfeited. The petitioner would be free to approach the Government to redress his grievance.
With the above observations, this W.P.(C) is dismissed.
csl K.T.SANKARAN JUDGE