IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 33318 of 2007(N)
1. KURIEN.E.KALATHIL
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. THE CHIEF ENGINEER (CIVIL CONSTRUCTION)
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
:4 :
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
:5 :
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.
ANTONY DOMINIC,JUDGE
Rp
