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2019 (12) TMI 1655 - KERALA HIGH COURTSeeking for a writ of certiorari to quash Ext. P14 to the extent of rearranging the work done by the petitioner at his risk and cost - seeking writ of mandamus directing the respondents to release the Earnest Money Deposit (EMD) - HELD THAT:- The PWD authorities have no dispute regarding the fact that in the bill of quantities, petitioner was asked to give a bid 'without taxes'. Therefore, there is justification on the petitioner to have given a rate without taxes. In fact, the Chief Engineer's office of PWD was apprehensive about the low rate quoted by the petitioner and therefore, petitioner had given a clarification of the rate analysis. Petitioner was called upon to execute the agreement based on Ext. P9. Therefore, it is clear that there is ambiguity in the tender (BoQ) as a result of which petitioner had given a quote without taxes. But when he was called upon to submit an undertaking as per Ext. P6 format, the format included the value inclusive of all taxes, levies statutory fees etc at which time, he had objected to the same stating that his rate did not include any taxes. But without considering the same, Ext. P8 letter of acceptance had been issued calling upon him to undertake the work for an amount, ₹ 7,99,99,990/-, inclusive of taxes. Since the petitioner was not agreeable, the work was cancelled at his risk and cost and his EMD became liable to be adjusted. Though the issue projected in the writ petition comes within the realm of a contract, if there is an arbitrary action on the part of the authorities and the issue projected does not involve substantial questions of fact, it is always open for a writ Court to consider whether there is any arbitrariness or illegality in the act of the Governmental authorities. It could be seen that the acceptance of the offer made by the petitioner was not in terms with the tender. His quoted price was without taxes and he cannot be called upon to undertake the work inclusive of all taxes. Under such circumstances, we have no hesitation to hold that the 3rd respondent was not justified in terminating the contract at the risk and cost of the contractor. It is also settled law that when an offer is made in a tender, acceptance has to be unconditional. If any conditions are imposed in the acceptance letter, it does not become valid as such. The termination of the contract is therefore totally illegal and arbitrary. The respondents shall refund to the petitioner the EMD of ₹ 22,60,000/- within a period of one month from the date of receipt of a copy of the judgment - Appeal allowed.
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