Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 9TH DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945 WP(C) NO. 16589 OF 2023 PETITIONER:
M/S R K CONSTRUCTION, CHEMBAKKARA, MUCHEERI P.O., KONGAD, PALAKKAD – 678631, REPRESENTED BY PROPRIETOR RADHAKRISHNAN C.R.
BY ADVS.RUBEN GEORGE ROCK C.A.MAJEED K.H.ASIF MOLTY MAJEED P.B.UNNIKRISHNAN NAIR RESPONDENTS:
1 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF RAILWAYS, DELHI, PIN – 110001.
2 THE GENERAL MANAGER, SOUTHERN RAILWAY, NGO ANNEX, GEORGE TOWN, CHENNAI, TAMIL NADU – 600003.
3 THE DIVISIONAL RAILWAY MANAGER, PALAKKAD DIVISION, SOUTHERN RAILWAY, OLAVAKKODE, PALAKKAD, PIN – 678002.
4 THE SENIOR DIVISIONAL ELECTRICAL ENGINEER (OP), MEMU SHED, PALAKKAD DIVISION, SOUTHERN RAILWAY, OLAVAKKODE, PALAKKAD, PIN – 678002.
5 M/S.VISWANATHAN SURENDRAN, REPRESENTED BY ITS PROPRIETOR V.SURENDRAN, 10/1021, ERANKADU VEEDU, AYYAPPANKAVU, PIRAYIRI, PALAKKAD, PIN – 678004.
BY ADV.SRI.GIRISH KUMAR V SRI.SUVIN R.MENON, CGC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 16589 OF 2023 -2- JUDGMENT The petitioner – which is stated to be a Proprietorship Firm - says that they made a bid pursuant to Ext.P3 auction proceedings; but that same has been rejected through Ext.P10, solely for the reason that he did not furnish an appropriate affidavit, containing the details of constitution of his proprietorship firm.
2.
The petitioner points out that his affidavit, namely Ext.P7, is on record, wherein, though he did not specifically say that it is a sole proprietorship, every other detail is available; and that no fault can be attributed to him for this because it is the same affidavit which he had been furnishing in the years past, when he was awarded the tender.
3.
The petitioner added that he is making this submission because, Ext.P19 would show that
WP(C) NO. 16589 OF 2023 -3- another tenderer had been given the opportunity to rectify his bid documents; and therefore, that he is also entitled to be given the same.
The petitioner concluded, saying that Ext.P10 is malicious because, by rejecting his bid, respondents are now granting it to a person who has quoted more than 3.5 lakhs in excess. He thus prays that Ext.P10 be set aside and the competent Authority be directed to give him an opportunity of furnishing an additional affidavit, disclosing the constitution of his Firm; and that, until such time, finalization of the tender be ordered to be deferred.
5.
In response to the afore submissions of the petitioner, as argued by his learned counsel – Sri.K.H.Asif, the learned Central Government Counsel – Sri.Suvin R.Menon, submitted that the terms of the tender notification are very clear and unambiguous, namely, that every tenderer
WP(C) NO. 16589 OF 2023 -4- must disclose full details of the constitution of Firm/JV/Company/Society etc. He pointed out Clause 17(2) of Ext.P6 further says that, under Sub Section (a) thereof, as far as the sole Proprietorship Firm is concerned, the bidder is to submit a notarized copy, containing the afore details. He then showed me Ext.P7 to argue that said affidavit, though contains several irrelevant details, do not disclose what has been, asked for under the afore Clause. He argued that, therefore, his clients had no other option, but to reject the petitioner’s bid because, otherwise, other tenderers would have certainly obtained a cause of action to challenge the process for this reason.
6.
There is, no doubt, some force in the afore submissions of the learned Central Government Counsel because, when the petitioner admits that they are governed by Ext.P6, and
WP(C) NO. 16589 OF 2023 -5- when it contains a specific requirement that every Proprietorship Firm shall file an affidavit duly notarized, containing the details of its constitution, any violation of the same, certainly, would be a substantial one, leading to the consequences as presented in Ext.P10.
7.
However, since the petitioner says that his bid is Rs.3.5 lakhs lesser than the person who is next in line, I am certainly of the view that he must be given an opportunity to approach the competent Authority, with a request to be favoured with an opportunity to make an additional affidavit - subject to their discretion, so that he can possibly obtain opportunity to have his bid accepted.
In the afore circumstances, I dispose of this writ petition, without acceding to the challenge against Ext.P10; however, with the afore liberty being reserved to the petitioner.
WP(C) NO. 16589 OF 2023 -6- If they are to invoke the said liberty within a period of one week from the date of receipt of a copy of this judgment, the competent Authority will hear them and decide whether they can be given any further opportunity to submit an additional affidavit. This shall be done adverting to Ext.P19, which the petitioner says is a similar case in which such opportunity had been offered to the bidder therein for an analogous purpose.
Sd/- DEVAN RAMACHANDRAN JUDGE akv
WP(C) NO. 16589 OF 2023 -7- APPENDIX OF WP(C) 16589/2023 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF UDYAM REGISTRATION CERTIFICATE DATED 26.09.2022 ISSUED BY MINISTRY OF MICRO, SMALL AND MEDIUM ENTERPRISES EXHIBIT P2 A TRUE COPY OF GST REGISTRATION CERTIFICATE ISSUED BY GOVERNMENT OF INDIA EXHIBIT P3 A TRUE COPY OF THE BID DOCUMENT NO.
GEM/2023/B/3178388 DATED 23/02/2023 EXHIBIT P4 THE EXPERIENCE CERTIFICATE DATED 14.03.2023 EXHIBIT P5 . A TRUE COPY OF THE RELEVANT PAGES OF THE CONDITIONS OF THE AUCTION REGARDING DOCUMENTS TO BE SUBMITTED ALONGWITH TENDERS EXHIBIT P6 A TRUE COPY OF THE BID FORM DATED 16.03.2023 SUBMITTED BY THE PETITIONER EXHIBIT P7 A TRUE COPY OF THE NOTARIZED AFFIDAVIT DATED 10.03.2023 SUBMITTED BY THE PETITIONER EXHIBIT P8 A TRUE COPY OF BID PARTICIPATION DOCUMENT DATED 16.03.2023 PERTAINING TO PETITIONER EXHIBIT P9 A TRUE COPY OF THE BID STATUS REFLECTED IN GEM PORTAL EXHIBIT P10 A TRUE SCREENSHOT OF THE ONLINE GEM PORTAL SHOWING REASON FOR REJECTION
WP(C) NO. 16589 OF 2023 -8- EXHIBIT P11 A TRUE COPY OF THE EMAIL DATED 12.05.2023 IS PRODUCED HEREWITH AND IS MARKED AS EXHIBIT P-11.
EXHIBIT P-12 A TRUE COPY OF THE NOTARIZED AFFIDAVIT DATED 24.04.2018 SUBMITTED BY PETITIONER EXHIBIT P-13 A TRUE COPY OF THE NOTARIZED AFFIDAVIT DATED 21.03.2020 SUBMITTED BY PETITIONER EXHIBIT P-14 A TRUE COPY OF THE NOTARIZED AFFIDAVIT DATED 01.06.2020 SUBMITTED BY PETITIONER EXHIBIT P-15 A TRUE COPY OF LETTER OF ACCEPTANCE OF TENDER DATED 10.05.2018 EXHIBIT P-16 A TRUE COPY OF LETTER OF ACCEPTANCE OF TENDER DATED 22.03.2019 EXHIBIT P-17 A TRUE COPY OF LETTER ISSUED TO PETITIONER DATED 28.06.2022 EXHIBIT P-18 A TRUE COPY OF AGREEMENT ENTERED WITH PETITIONER DATED 27.10.2022 EXHIBIT P-19 . A TRUE COPY OF THE BID STATUS REFLECTED IN GEM PORTAL ON 10.05.2023 RESPONDENT EXHIBITS EXHIBIT R1(A) TRUE COPY OF THE RAILWAY BOARD'S LETTER NO. 2017/ENHM/25/11 DATED 01.07.2020