IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4598 of 2009(V)
1. K.MOHAMMED HAJI
... Petitioner
Vs
1. THE SUPERINTENDING ENGINEER
... Respondent
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :18/02/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C.) Nos.4598 & 4935 of 2009
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Dated, this the 18th day of February, 2009
J U D G M E N T
WP(C) No.4598/2008
The petitioner is a PWD contractor with A class registration.
The respondent issued Ext.P1 tender notice. The first work notified
is the construction of break waters at the RKVY-Kasaragod Fishery
Harbour. The Probable Amount of Contract is specified to be
Rs.1870 lakhs and the work is to be completed within 24 months. It
is stated in Ext.P1 that the tender documents will be issued to
contractors, who have A class registration and have completed “a
similar” single civil work of the value of 40% of the Probable Amount
of Contract within a period of five years previous to the date of
Ext.P1.
2. Enclosing Ext.P2(b) joint venture agreement that the
petitioner had entered into with one Mr.T.Asokan, another A class
contractor, and Ext.P2(c) certificate regarding a work executed by
Mr.T.Asokan, the petitioner applied for tender documents as per
Ext.P2(a) application. That was rejected by Ext.P3 for the reason that
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the work certified by Ext.P2(c) does not satisfy the condition
specified in Ext.P1. It was thereupon that this writ petition was filed
challenging Ext.P3 and for a direction to the respondent to issue
tender schedule with respect to the work at Item No.1of Ext.P1,
pursuant to Ext.P2 application. At the admission stage an interim
order was passed and tender schedule has been issued to the
petitioner. Subsequently, the petitioner filed I.A.No.2311/2009 and
got the writ petition amended incorporating a challenge against the
condition in Ext.P1, that the tenderer should have executed “similar
work” of the volume specified therein.
3. The contention raised by the learned counsel for the
petitioner is that, the said prescription has no nexus with the object
that sought to be achieved. It is also stated that the “similar work”
that is prescribed in Ext.P2 is only civil work, and Ext.P2(c)
certificate shows that the joint venture partner of the petitioner has
executed a civil work of the volume specified in Ext.P1. It is also
contended that by Ext.P4, similar work of construction of break
waters has been awarded to the petitioner in November, 2008, and
therefore there is no substance in the contention now raised in
WP(C) No.4598 & 4935/2009
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Ext.P3 that the petitioner is inexperienced. The learned counsel for
the petitioner also contended that similarity does not mean
similarity in all respects. On these grounds it is argued that Ext.P3
is illegal and hence, his tender is liable to be accepted.
4. The respondent has filed a counter affidavit. According
to the respondent, the nature of the work tendered is supplying
granite stones varying from 5 Kg. to 5000 Kg. and dumping and
placing it in sea in lines and levels as per the drawings and it
requires heavy machineries and skill. It is stated that as per Ext.P2
(c) certificate furnished by the petitioner, Shri.T.Asokan, the joint
venture partner of the petitioner, has executed the work of a bridge
across the Kadalundi River, which cannot be considered as a work
“similar” to what was tendered in Ext.P1. It is stated that what was
intended by Ext.P1 was expertise in the field of construction of
break waters and not construction of bridge across a river. It is
therefore, stated that since the petitioner did not have the
experience prescribed in Ext.P1 tender notice, rejection of the
petitioner’s application for tender document is legal and is proper.
5. The first issue that is to be considered is whether Ext.P2
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(c) certificate produced by the petitioner satisfies the requirements
of Ext.P1 tender notice. In so far as the conditions specified in
Ext.P1 tender notice is concerned, in my view, it is always for the
awarder to specify conditions, which are required to be satisfied for
getting the work executed in the best manner possible. In that
process, if the awarder has specified a condition requiring that only
tenderers, who has experience in similar work alone will be qualified
or issued tender documents, no objection whatsoever can be taken
to such a restrictive condition. Therefore, I see no merit in the
challenge to the tender condition.
6. In this case, Ext.P1 shows that the applicant should have
executed a single similar work of the volume of 40% of the Probable
Amount of Contract and the work notified is construction of break
waters. Ext.P2(c) experience certificate of the joint venture partner
of the petitioner certifies execution of the work of construction of a
bridge across the Kadalundi river. It does not need elaboration that
the work executed as certified in Ext.P2(c) is not a work similar to
the construction of break waters tendered in Ext.P1. If that be so,
the view taken by the respondent that Ext.P2(c) does not answer the
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requirements of Ext.P1, is only to be upheld and I do so.
7. The learned counsel for the petitioner contended that the
experience prescribed requiring execution of similar work does not
mean that similarity should be there in all respects. He also
contended that if a restrictive view is taken, that will result in the
availability of very few contractors, which will lead into formation of
cartels, which would be against public interest.
8. At this stage, all that I need to consider is whether the
prescription of experience of execution of similar work as contained
in Ext.P1 is a valid one. In so far as other possibilities suggested by
the learned counsel for the petitioner is concerned, I do not think
that at this stage, I need to go into such assumptions and render a
judgment on this basis. At best the contention raised suggests only
that the tender condition is capable of being misused. Since the
possibility of misuse will not render a tender condition or even a
statutory provision invalid, I do not find any merit in the contention.
As already stated, when a work is tendered, it is always open to the
awarder to specify the conditions including the experience required.
Further, where a work of this volume is tendered, it is always
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necessary that conditions which are necessary to ensure that only
contractors who are experienced and having financial capacity are
awarded the work. In this case, this is precisely what has been done
by the awarder, and I see absolutely no illegality or arbitrariness in
the condition so specified. Since the work executed by the
petitioner’s joint venture partner is not similar in any respect to the
work tendered, the contention that similarity does not mean
similarity in all respects, is also without any substance.
9. True, the learned counsel relied on Ext.P4 and contended
that the work of construction of break waters has been awarded to
him and therefore rejection of his request for tender schedule is
illegal. In the absence of tender conditions that preceded Ext.P4, I
am not in a position to assess whether a condition similar to the one
as contained in Ext.P1, was there in the tender conditions that were
then prescribed. In the absence of such a material, even if Ext.P4
was issued, I will not be justified in judging on the validity of Ext.P3,
accepting the contention now raised. That apart, it is also seen that
the value of the work covered by Ext.P4 is much less than what was
notified in Ext.P1.
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10. Therefore, on the whole, I am satisfied that the petitioner
does not satisfy the eligibility prescribed in Ext.P1, and therefore,
the writ petition is only to be rejected and I do so.
WP(C) No.4935/2009
11. In so far as the petitioner in WP(C) No.4935/2009 is
concerned, the petitioner herein too had applied for tender
documents in response to Ext.P1. In support of their claim of
having completed similar work as prescribed in Ext.P1, the
petitioner herein relied on Ext.P3 certificate. They complain that
despite producing the certificate, they were not issued tender
documents and on that basis this writ petition was filed. It was
following an interim order that was passed in this writ petition that
tender documents were issued to them.
12. From the counter affidavit filed, and also on a reading of
the conditions of Ext.P1 tender, what emerges is that the experience
should be that of a work which was completed by the respective
applicant. Admittedly, the experience certificate produced as Ext.P3
itself show that the work mentioned therein is an on going work and
is not a completed one. It may be true that the volume certified in
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Ext.P3 may satisfy the volume prescribed in Ext.P1. But, however,
since Ext.P1 specifies that the work should be one which is
completed, and Ext.P3 certifies an on going incomplete work, I am
satisfied that the petitioner does not satisfy the conditions of Ext.P1
tender. In view of the fact, the petitioner is ineligible as per the
conditions of Ext.P1, they are not entitled to the reliefs sought for in
the writ petition.
These writ petitions are, accordingly, dismissed.
(ANTONY DOMINIC, JUDGE)
jg