IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 2864 of 2007()
1. K.J.MATHEW, KUNNEAL HOUSE,
... Petitioner
Vs
1. HINDUSTAN NEWS PRINT LTD.,
... Respondent
2. THE GENERAL MANAGER(WORKS),
3. M/S GLASS FIBRESS , KRISHNA NIVAS,
For Petitioner :SRI.B.GOPAKUMAR
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.M.JOSEPH
Dated :03/12/2007
O R D E R
H.L. DATTU, CJ. & K.M. JOSEPH, J.
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WRIT APPEAL No.2864 of 2007
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Dated this the 3rd day of December, 2007.
JUDGMENT
K.M.JOSEPH,J,
The third respondent in the writ petition is the appellant before us.
The writ petition was filed by the third respondent in the present appeal challenging
the award of the work of Newsprint Handling pursuant to the notification by
respondents 1 and 2 in favour of the appellant. Two grounds were taken as can be
seen on a perusal of the judgment in the writ petition. The first ground was that the
appellant was not pre-qualified to participate in the tender. The further contention
by the writ petitioner was that the appellant had corrected the rates in the tender.
Learned Single has found favour with the first contention, namely that the appellant
was not pre-qualified to participate in the tender. For arriving at the said
conclusion, the learned Single Judge has relied on the stand of the first respondent
Company itself. The stand of the Company in relation to the question as to
whether the petitioner was pre-qualified has been extracted in the judgment and
we also refer it in our judgment.
“With regard to the averments contained in Grounds
A, B and C of the writ petition, it is submitted that they are devoid of
any merit, and hence denied. The averments in Ground A that the
3rd respondent did not qualify any of the criteria specified in Ext.P2 is
factually incorrect. While one of the pre-qualification criteria
prescribed in the tender document was that the tenderers should
have successfully completed three labour oriented works contracts of
annual value not less that 40% of the annual PAC (59.15 lakh) during
any of the preceding seven years from 31.3.2007, it was found that
the 3rd respondent had completed work of the said nature, subject to
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a marginal deficit of Rs.70,000/- in the 3rd work during the stipulated
period. When the respondent Company sought clarification from its
internal audit department as to whether the third respondent could be
deemed to have complied with the pre-qualification criteria for the worK,
the internal audit department clarified that in view of the works undertaken
by the 3rd respondent in the past, and also considering the fact that the
deficit in the last work was only Rs.70,000/-, when compared to the total
value of the works undertaken, his bid could also be considered for the
purpose of awarding the work. This suggestion of the internal audit
department was accepted by the Managing Director of the respondent
Company and, accordingly, his bid also was considered along with those
of the other three tenderers, who were qualified under the tender
conditions.”
Thus the finding of the learned Single Judge would appear to be that the appellant was
not pre-qualified for the reason that the appellant had, though executed three works
within the preceding seven years from 31.3.2007, in respect of one of the works the
value fell short of the prescribed limit by Rs.70,000/-. In the light of this finding, the
learned Single Judge found it not necessary to go into the second contention as to the
alleged subsequent correction by the appellant.
2. Learned counsel for the appellant, Sri. B. Gopakumar would contend
that by Ext.R3(b) dated 20.10.2007 the appellant came to be pre-qualified. Tender of
the appellant was the lowest. He would contend that the actual complaint of the writ
petitioner was regarding the alleged subsequent correction made by the appellant,
which was by reducing the rate from Rs.18/- to Rs.16/-. He would submit that the
question relating to the pre-qualification was never contended before the learned Single
Judge and yet the learned Single Judge has proceeded to find that the appellant was
not pre-qualified. He would further point out with reference to the relevant clause that
having regard to the value of the three works which he had executed, the Company has
WA.2864/2007. 3
taken the view that he must be treated as pre-qualified and it was a view which should
have commended itself for the acceptance of the learned Single Judge. He would
commend the view taken by the Company for our acceptance. We extract the clause
relied on as hereunder:
“(c) Tenderers should have successfully completed three
labour oriented works contract of annual value not less than 40% of the
annual PAC (59.15 lakhs) during any of the preceding 7 years from
31.3.2007.”
He would further contend that the writ petitioner did not really challenge the right of the
third respondent to be pre-qualified. He would further contend that the tender of the
appellant was the lowest and the first respondent being a Public Sector Company would
lose several lakhs of rupees if the appellant’s pre-qualification is interfered with and the
work is awarded to the writ petitioner. He would further submit that it is the settled view
of the courts that the courts should not interfere with the awarding of work.
3. As far as the contention that the question whether the appellant was
pre-qualified was not an issue before the learned Single Judge is concerned, we are of
the view that the writ petitioner had called in question the pre-qualification of the
appellant. This is clear from Ground A. Ground A is extracted hereunder:
“A. There are four alternative pre-qualification criteria
stipulated in Ext.P2 for a person to participate in the Tender. The said
pre-qualification criteria are mandatory. The third respondent did not
qualify any of the said criteria in Ext.P2. Hence the 3rd respondent is not
fit and entitled to participate in the Tender and his tender is liable to be
rejected.”
WA.2864/2007. 4
It is further pointed out by learned counsel appearing on behalf of the writ petitioner that
in Ext.P5 dated 23.10.2007 the writ petitioner had specifically pointed out that the
appellant is not pre-qualified for participating in the tender as per the pre-qualification
criteria.
4. We notice that the learned Single Judge had indeed before him two
issues projected by the writ petitioner, namely whether the appellant was pre-qualfiied
and as to whether there was subsequent correction by the appellant. The learned
Single Judge, as already stated, had found that the appellant was not pre-qualified.
Therefore, we reject the contention of the appellant that the issue relating to the pre-
qualification was not present before the learned Single Judge.
5. The further question to be decided in this case is whether the view
taken by the learned Single Judge that the appellant was not pre-qualified requires to be
interfered with. We would think that the learned Single Judge was fully justified in
finding that the appellant was not pre-qualified. Learned counsel for the appellant fairly
submits that he claims the right to be pre-qualified only under the third alternate clause,
which we have extracted. We would think that the third alternate clause indeed
mandates that the tenderers should have successfully completed three labour oriented
works contract, each having a value equivalent to 40% of the annual PAC. Though the
appellant has executed three works, in respect of one of the works, he fell short by
Rs.70,000/-. It is evident on a perusal of the clause in question that the employer
contemplated that the contractor should have executed three labour oriented works,
each having a value of 40% of the PAC. We would think that no other view is possible.
If that be so, it is clear that the appellant was not eligible to be pre-qualified and that has
been found by the learned Single Judge. The learned Single Judge thereafter has
quashed the award of contract to the appellant and directed respondents 1 and 2 to
WA.2864/2007. 5
consider the matter afresh in accordance with law. We find that there is no merit in this
appeal.
Accordingly, the writ appeal is dismissed.
Consequently, I.A. No.968 of 2007 is dismissed.
H.L. DATTU,
CHIEF JUSTICE
K.M. JOSEPH,
JUDGE
sb.