Kurien.E.Kalathil vs Kerala State Electricity Board on 25 March, 2008

Kerala High Court
Kurien.E.Kalathil vs Kerala State Electricity Board on 25 March, 2008




WP(C) No. 33318 of 2007(N)

                      ...  Petitioner


                       ...       Respondent


                For Petitioner  :SRI.MILLU DANDAPANI

                For Respondent  :SRI.P.P.THAJUDEEN, SC, K.S.E.B

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :25/03/2008

 O R D E R
                           ANTONY DOMINIC, J.

                      W.P.(C) NO. 33318 OF 2007 N

                Dated this the 25th day of March, 2008

                               J U D G M E N T

Prayers in this writ petition are;

i) Issue a writ of mandamus or any other appropriate writ,
order or direction, commanding the 2nd respondent to pre-
qualify the consortium namely, KEK, HH & BFL Consortium
for the execution of the Barapole H E Project 21 MW (3 X 7
MW) as they meet all the Pre-qualification requirements of
the original tender.

ii) Issue a writ of mandamus or any other appropriate writ,
order or direction, commanding the 2nd respondent to
consider the Price Bids submitted by KEK, HH & BFL
Consortium along with the re-tender No.CECCN/01/2007-08
dated 4.7.2007 on merits.

2. Petitioner submits that it is a consortium engaged in

construction of Hydro Electric Power Stations. The 1st respondent had

invited tenders by Ext.P1 for the execution of Barapole Small H.E. Project

21 MW (3X7 MW). Pursuant to Ext.P1, through its leader, petitioner

submitted its bid along with a DD for Rs. 5 lakhs, being the EMD specified,

copy of which is Ext.P1(a). Subsequently Ext.P2 proceedings, the work

was ordered to be re-tendered and Ext.P3 is the re-tender notice that was

published by the respondents. According to the petitioner there were few

variations in the terms of the tender and the main complaint is regarding

WPC No. 33318/07

:2 :

fixation of Rs.151.45 lakhs, as the EMD, against Rs. 5 lakhs in Ext.P1.

Petitioner has a case that this revision is done with malafide intentions.

Responding to Ext.P3, petitioner submitted its tender, with Ext.P4 covering

letter, requesting to treat the same as a continuation of the earlier tender.

At the time when the tender was opened on 10.10.2007, in reply to a

querry, petitioner’s representative requested the respondents to adjust the

balance EMD from the amount of Rs.189 lakhs due to the leader of the

consortium, towards the Kuttiadi Augmentation Scheme. Immediately

thereafter petitioner sent Ext.P5 telegram and Ext.P6 letter, with the

aforesaid request. To contend that amount is due to it, petitioner is relying

on Ext.P7, an order issued by the respondent Board and it is also stated

that Rs. 15 lakhs deposited by the petitioner as EMD for three other

tenders are still being illegally retained by the Board.

3. A statement and a counter affidavit have been filed by the

respondents. According to the respondents, they do not owe any amount

to the petitioner or its leader. In so far as the amounts due towards

Kuttiadi Augmentation Scheme is concerned, it is their specific case that

after the judgment of the Supreme Court in Kerala State Electricity

Board and another v. Kurien E. Kalathil & Others (2000(6) SCC

WPC No. 33318/07

:3 :

293) they have paid the full amount towards labour escalation charges

with interest the details of which are given in the affidavit. In addition to

this, they would also state that towards C.C 1 to 88, they have paid

Rs.26,87,37,815. It is their case that for the balance work for which

supplemental agreement was not executed, full payment has been made

towards CC 1 to 13 and 95% of the value of the work done in respect of

CC 14 to 17 also has been paid. Thus according to the respondents, they

have paid full amount due to the petitioner and nothing more is due. They

would therefore contend that since EMD specified has not been deposited

by the petitioner, the tender submitted is invalid. Regarding the EMD

specified, it is stated that the Board had by order dated 28.9.2006,

constituted a Sub Committee to revise tender conditions and contracts and

that the Sub Committee had submitted its report which was adopted by

the Board, which issued Ext.R1(b) order. It is stated that for any tender

invited after issuing Ext.R1(b), EMD has to be as per Ext.R1(b) and that

since Ext.P3 was issued after the revisions of norms, EMD has been fixed

as decided in Ext.R1(b).

4. In this writ petition, though averments are made that the

revision in the tender conditions are made with malafide intentions to help

WPC No. 33318/07

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another tenderer, petitioner has not impleaded the persons against whom

this allegations are made. That apart, during the hearing, the contentions

urged were only against refusal of the Board to adjust the amount that is

due to it from the Board and therefore, I do not think it necessary to

examine the contention of malafides any further. In any event, in view of

the revision of tender conditions and Ext.R1(b) and since Ext.P3 was

issued subsequent thereto, I do not find any merit in the contention.

5. As far as the claim of the petitioner that the Board should

have adjusted amounts that are due to its leader for Kuttiadi Augmentation

Scheme is concerned, as already stated, it is the specific case of the

respondents that entire amount due has been paid. Petitioner’s contention

is that as per the Supreme Court judgment in Kerala State Electricity

Board and another v. Kurien E. Kalathil & Others (2000(6) SCC

293), the Board is yet to make full payment. This contention is answered

by the Board in the counter affidavit by giving the details of the payments

made. Further, they have also given the details of other payments that

have been made by them to the consortium leader.

6. Thus, on the materials now available, in view of the denial of

the claim of the petitioner, this court is not in a position to come to a

WPC No. 33318/07

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conclusion that any amount is due to be paid to the petitioner. If that be

so, the Board cannot be faulted for its refusal to any amount towards the

EMD specified in Ext.P3. Admittedly, the petitioner has not remitted the

EMD when tender was submitted and a tender without EMD is an invalid

tender and there is no question of prequalifying such a tenderer. Facts

being so, there is no basis for the prayer sought for.

The writ petition is only to be dismissed and I do so.


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