JUDGMENT

The petitioner is a partnership firm engaged in business of undertaking Government contracts. The petitioner responded to Ext.P1 tender and was awarded the work as is evident from Ext.P2. The petitioner, however, failed to execute a formal agreement as a consequence of Ext.P2 since it failed to arrange a performance guarantee for Rs.31,82,616/-. The repeated notices issued to the petitioner for executing the agreement were returned ‘unclaimed’. Therefore, on 26.11.2012, the authorities issued Ext.P6 terminating the work awarded in terms of Ext.P2 at the risk and cost of the petitioner. By Ext.P7 proceedings dated 13.12.2012, the Earnest Money Deposit furnished by the petitioner was also forfeited. The petitioner approached this Court by filing W.P.(C) No.2095 of 2013, challenging Ext.P6. However, that writ petition was dismissed by a learned Single Judgment of this Court by judgment dated 11.03.2013. Challenging the dismissal of the said writ petition, the petitioner filed Writ Appeal No.888 of 2013, but that writ appeal was also dismissed by the Division Bench of this Court by judgment dated

14.06.2013.

2. The next lowest bidder in Ext.P1 tender had approached this Court by filing W.P.(C) No.26547 of 2012, claiming that since the petitioner had not come forward to execute the agreement, the work must be awarded to him. This Court, through Ext.P9 judgment, directed a consideration of the claim of the petitioner in WP(C) No.26547 of 2012. However, since the petitioner in WP(C) No.26547 of 2012 refused to undertake the work at the rate quoted by the petitioner, the work was re-tendered and Ext.P10 order was issued, provisionally quantifying the liability of the petitioner under the ‘risk and cost’ clause @ Rs.11,82,386/-. It is challenging Ext.P10 that the petitioner has approached this Court through the aforesaid writ petition.

3. The 2nd respondent has filed a counter affidavit where in Paragraph No.5, it is stated that the work was re-tendered at 28.53% below the estimate rate. It is stated that since the petitioner had quoted for the work at 36.01% below the estimate rate, the difference between the two rates was provisionally quantified as the liability of the petitioner. It is submitted that the work was terminated at the risk and cost of the petitioner by Ext.P6. It is submitted that since Ext.P6 has already been upheld by this Court, there is no question of now determining the validity of Ext.P10. It is pointed out that this Court had not even reserved the liberty of the petitioner to dispute the liability fixed under the risk and cost clause and therefore, this writ petition is clearly not maintainable.

4. I have considered the contentions raised. As already noticed above, through Ext.P6 order dated 26.11.2012, the work originally awarded to to the petitioner under Ext.P2 was terminated at his risk and cost. The work was re-tendered and the successful bidder had quoted 28.53% below the estimate rate. As is evident from the pleadings of the petitioner himself, the petitioner had initially quoted 36.01% below estimate rate. Therefore, the higher amount, which has been spent by the Government to complete the work was quantified as the amount payable by the petitioner under the risk and cost Clause. As rightly pointed out by the learned Government Pleader, the petitioner having challenged Ext.P6 unsuccessfully before this Court by filing W.P.(C.) No.2095 of 2013, he cannot turn around and challenge the termination of work at risk and cost by filing the present writ petition. That apart, it is also to be noted that even while rejecting the challenge raised by the petitioner in Ext.P6 proceedings terminating the award of work at the risk and cost of the petitioner, this Court had not reserved the liberty of the petitioner to challenge the quantification of the amount liable to be paid by the petitioner under the risk and cost clause.

Therefore, I find no reason to interfere with Ext.P10 order.

The writ petition fails and