Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946 WP(C) NO. 4123 OF 2024 PETITIONER:
PKK CONSTRUCTIONS REPRESENTED BY ITS MANAGING PARTNER, MUHAMMED FASIL, AGED 29 YEARS, S/O., KAMMEDKUTTY, T.C 25/1946, USHUS, SREEMOOLAM ROAD, THIRUVANANTHAPURAM, PIN - 695001 BY ADVS.
K.I.SAGEER MUHAMMED YASIL RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY SECRETARY HARBOUR ENGINEERING DEPARTMENT, KAMALESWARAM MANACAUD P.O, THIRUVANANTHAPURAM, PIN - 695009 2 CHIEF ENGINEER HARBOUR ENGINEERING DEPARTMENT, KAMALESWARAM MANACAUD P.O, THIRUVANANTHAPURAM, PIN - 695009 3 SUPERINTENDENT ENGINEER HARBOUR ENGINEERING DEPARTMENT CENTRAL CIRCLE, KACHERIPADY, ERNAKULAM, PIN - 682018 4 *ADDL. R4 IS IMPLEADED M/S. SOUTHERN DREDGING COMPANY PVT. LTD, REPRESENTED BY ITS DIRECTOR
WP(C) NO. 4123 OF 2024 2 FLAT NO.905, PIONEER TOWERS, MARINE DRIVE, KOCHI-682031, REPRESENTED BY ITS DIRECTOR BIJU NARAYANAN (PARTY IN PERSON) *IS IMPLEADED AS ADDL.RESPONDENT NO.4 IN WP(C) 4123/2024 AS PER ORDER DATED 23.02.2024 IN I.A.2/2024 IN WP(C) 4123/2024.
SMT. VIDYA KURIAKOSE. GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 4123 OF 2024 3 T.R. RAVI, J.
-------------------------------------------- W.P.(C). No.4123 of 2024 -------------------------------------------- Dated this the 24th day of May, 2024 JUDGMENT The writ petition has been filed challenging Ext.P13 minutes of the meeting, whereby the petitioner's tender has been rejected since the petitioner has not satisfied the pre-qualification requirements as per the tender. Ext.P3 is the notice inviting tender, which specifically says that the bidders should have successfully completed at least one similar work costing more than 40% of the estimated cost of work within the last 5 years. Admittedly, the petitioner does not have this qualification.
The petitioner relies on Ext.P14 Government Order dated 18.01.2024, wherein the pre-qualification criteria has been relaxed by stating that the bidders should have successfully completed at least one similar work costing more than 40% of the estimated cost of work put to tender for Government/semi Government clients during the last 7 years, ending last day of the month previous to the month in which bid applications are invited. The order further says that the relaxation will be only for those works being tendered upto 31.12.2027. The claim is based on the fact that though Ext.P3 is prior to the issuance of Ext.P14, the tender was opened only after issuance of Ext.P14. It is hence
WP(C) NO. 4123 OF 2024 4 submitted that Ext.P14 should be made applicable to every tender which is opened after Ext.P14 and not made applicable only to tenders which are invited after Ext.P14.
I have considered the contentions. Ext.P14 can never be retrospective. It is a relaxation given and has to be strictly adhered to.
When the notice inviting tenders specifically makes mention of the qualification, the bidders should comply with that requirement. If the tender is rejected for failure to comply with the said conditions, the said rejection cannot be held to be illegal since it is very much in accordance with the tender conditions. It is very rarely that this Court interferes with the tender process and this is not a case where there is any illegality writ large or any case of violation of fundamental rights which requires interference by this Court. The decision taken in Ext.P13 is in accordance with Ext.P3 and as Ext.P14 cannot be made applicable to the tenders which have been called for as per Ext.P3.
No reliefs can be granted. The writ petition fails and is dismissed.
Sd/- T.R. RAVI
JUDGE Pn
WP(C) NO. 4123 OF 2024 5 APPENDIX OF WP(C) 4123/2024 PETITIONER'S EXHIBITS Exhibit P1 A TRUE COPY OF THE CONTRACTORS REGISTRATION CARD (FORM-111) Exhibit P2 A TRUE COPY OF THE GST REGISTRATION CERTIFICATE DATED 27.03.2023 Exhibit P3 A TRUE COPY OF THE TENDER NOTIFICATION DATED 03.11.2023 ISSUED BY THE 3RD RESPONDENT Exhibit P 4 A TRUE COPY OF THE FEE DETAILS DATED 23.11.2023 Exhibit P5 A TRUE COPY OF THE LETTER DATED 21.11.2023 ISSUED BY THE CHARTERED ACCOUNTANTS OF THE PETITIONERS FIRM Exhibit P6 A TRUE COPY OF THE BANK CERTIFICATE DATED 22.11.2023 ISSUED BY THE FEDERAL BANK Exhibit P7 A TRUE COPY OF THE PROGRAM CHART AS MANDATED IN TENDER NOTIFICATION Exhibit P8 A TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED 13.07.2018 ISSUED BY THE EXECUTIVE ENGINEER, HARBOUR ENGINEERING DIVISION, KANNUR Exhibit P9 A TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED
14.02.2022
ISSUED
BY
THE SUPERINTENDENT ENGINEER, PUBLIC WORKS DEPARTMENT, KOZHIKODE Exhibit P10 A TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED 17.04.2023 ISSUED BY THE PUBLIC WORKS DEPARTMENT Exhibit P 11 A TRUE COPY OF THE G.O.P NO.3/2017/PWD DATED 09.08.2017 OF THE PUBLIC WORKS DEPARTMENT Exhibit P12 A TRUE COPY OF THE JUDGMENT DATED 03.01.2024
WP(C) NO. 4123 OF 2024 6 IN WRIT PETITION (CIVIL) NO.43460/2023 OF THIS HON'BLE COURT Exhibit P13 A TRUE COPY OF THE MINUTES OF THE MEETING DATED 23.01.2024 Exhibit P14 A TRUE COPY OF THE G.O.(MS) NO.5/2024/PWD DATED 18.01.2024 ISSUED BY THE PUBLIC WORKS DEPARTMENT Exhibit P15 A TRUE COPY OF THE LETTER DATED 23.01.2024 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT RESPONDENT'S EXHIBITS Exhibit R3(a) A TRUE COPY OF THE G.O(P) NO. 3/2017/PWD DATED 09/08/2017 Exhibit R3(b) TRUE COPY OF THE RELEVANT EXTRACTS OF THE PWD MANUAL CLAUSE 2004, TENDER PROCEDURE Exhibit R3(c) TRUE COPY OF THE NOTICE INVITING TENDER (NIT) DATED 03/11/2023 Exhibit R3(d) TRUE COPY OF STANDARD BID DOCUMENT UNDER CLAUSE 2 OF PART VI PRE QUALIFICATION INFORMATION ( PAGE 95) Exhibit R3 (e) TRUE COPY OF THE ORDER NO. HED/CEHED/EST- TS/480/2023-5-1-1 DATED 27/10/2023 FOR TECHNICAL SANCTION OF GENERAL- PMMSY CHETTUVA FISHING HARBIUR- DRDGING OF BASIN AND CHANNEL FROM CHETTUVA ESTUARY TO CHETTUVA FISHING HARBOUR - GENERAL CIVIL WORK ISSUED BY THE CHIEF ENGINEER, HARBOUR ENGINEERING DEPARTMENT.
Exhibit R4(a) TRUE COPY OF THE AUTHORIZATION LETTER DATED 21.02.2024 ISSUED BY THE APPLICANT COMPANY