IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 33084 of 2007(L)
1. DELTA GRANITE AND SAND,CHITTAR P.O,
... Petitioner
Vs
1. THE GENERAL MANAGER,SOUTHER RAILWAY,
... Respondent
2. THE DIVISIONAL RAILWAY MANAGER,(WORKS),
For Petitioner :SRI.P.R.VENKETESH
For Respondent :SMT.A.RAJESWARI, SC, RAILWAYS
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :05/02/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) No. 33084 OF 2007 L
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Dated this the 5th February, 2008
J U D G M E N T
The prayer sought for in this writ petition is to quash Ext. P6.
2. Ext. P7 is a tender notice issued by the 2nd respondent
inviting tenders for the work of collection and training out of ballast
in Chengannur depot. In so far as it is relevant for this case,
among the instructions regarding eligibility criteria of the tenderers
specified in Ext. P1, it is stated that the tenderers should have
completed in the last three financial years, at least one similar single
work, for a minimum value of 50% of the advertised tender value of
work. Responding to Ext. P7, petitioner submitted his quotations.
Along with the bid that was submitted, petitioner who had to prove
his eligibility for pre-qualification, produced Ext. R2 series
experience certificates.
3. After completion of the process of pre-qualification and
selection, the offer made by the petitioner for a total value of
Rs.91,17,000/- was accepted by the 2nd respondent and the same
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was conveyed to the petitioner by Ext. P1. Clause 5 of Ext. P1 being
relevant is extracted below:
“The letter of acceptance issued is a binding
contract between the Railway and the contractor and
the date of completion will be reckoned from the date
of issue of this letter only and therefore you may please
make arrangements to commence the work
immediately.”
4. In terms of Ext. P1 petitioner had submitted Ext. P5, a
performance guarantee for Rs.4,55,850/-, apart from Ext. P3, a
solvency certificate. According to the petitioner acting upon Ext. P1,
petitioner has also manufactured the track ballast of more than 60%
of the volume required for the work. It is also averred that he had
issued Ext. P2 letter to the 2nd respondent to instruct the officers at
the Chengannur Railway Station to prepare the yard to stock the
material so that the petitioner could start the despatches
immediately. It is further stated that at the instance of the
respondents the Transportation Engineering Division, Department of
Civil Engineering, College of Engineering, Thiruvananthapuram, had
tested the samples and gave Ext. P4 report.
5. While matters stood so, petitioner received Ext. P6 from the
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2nd respondent stating merely that “it is advised that the above work
has been cancelled due to administrative reasons.” It is on receipt
of Ext. P6 that seeking to quash the same, this writ petition was
filed.
6. A counter affidavit has been filed by the respondents. The
main contention raised is that on preliminary verification the
mistake that the experience certificate produced by the petitioner
was issued by other contractors was not found. It is stated that the
petitioner was only a supplier and not a direct contractor to P.W.D.
or K.S.E.B. and that the officers in the Tender Committee missed to
observe that the certificates did not carry the details of the work and
that the said mistake was noted by the accepting authority and
thereafter in pursuance to Ext. R2(j), Ext. P6 was issued cancelling
Ext. P1. The respondents also state that they had reserved to
themselves the right to reject the tender at any point of time.
7. A reply affidavit has been filed by the petitioner disputing
the averments in the counter affidavit. It is stated that the theory of
mistake now canvassed in the counter affidavit is incorrect and that
the petitioner satisfied all pre-qualification norms.
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8. From the pleadings and the arguments that were raised by
the counsel for the respective parties, I feel, the question that arises
for consideration is whether the experience certificate produced by
the petitioner satisfied the requirements of Ext. P7 tender notice
issued by the 2nd respondent.
9. As already noticed, Ext. P7 is the tender notice and the work
notified was collection and training out of ballast in Chengannur
depot. The pre-qualification norms required to be satisfied by the
tenderer is the execution of “at least one similar single work, for a
minimum value of 50% of advertised tender value of work”, in the
last three financial years. Thus the work notified is only collection
and training out of ballast, while the description of the work given
in Ext. P1 indicates apart from collection and supply of approved
quality of machine crushed track ballast, the work also involves
loading ballast into railway wagons and coffers by using
contractors, labour etc. and unloading the same as directed by the
engineer in-charge of the work. Though this is the description of
work, the nature of work only says collection and supply of track
ballast in Chengannur depot and hence what is required to be
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satisfied by the contractor is completion of at least one work similar
to what is notified for the value specified and within the period
prescribed.
10. Exts. R2(a) to (i) are the certificates produced by the
petitioner in proof of the petitioner’s eligibility. In all these
documents, it is certified that the type of work undertaken by the
petitioner was supply of materials for road works. The respondents
do not suspect the genuineness of these certificates, but only says
that the petitioner was only a supplier to contractors. It is also
stated in the affidavit that the certificates produced were issued to
other contractors and that the petitioner was not a direct contractor
to the P.W.D.
11. In my view, the requirements of Ext. P7 or Ext. P1 are fully
satisfied by the certificates produced and the inadequacies pointed
out are not specified in the tender notice. Exts. R2(a) to (i) indicates
that the petitioner has supplied similar materials to the contractors
concerned. Therefore, these certificates satisfy the requirements of
Ext. P7 and it is not the requirement of Ext. P7 that the petitioner
should be a direct contractor to P.W.D., Kerala State or K.S.E.B.
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Thus, the certificates, which were furnished by the petitioner are in
full compliance with Exts. P7 and P1. Therefore the theory of
mistake now canvassed in the counter affidavit is a totally
unfounded one. Necessarily, therefore Ext. P6 issued to the
petitioner also cannot be sustained.
Ext. P6 therefore, will stand quashed as sought for in this writ
petition and the writ petition will stand disposed of as above.
ANTONY DOMINIC
JUDGE
jan/-