IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 W.P(C).No. 33084 of 2007(L) ---------------------------------- PETITIONER: -------------- M/S. DELTA GRANITE AND SAND, CHITTAR P.O, PATHANAMTHITTA DISTRICT, REPRESENTED BY ITS MANAGING PARTNER, THOMAS PHILIP. BY ADV. SRI.P.R.VENKETESH RESPONDENTS: ----------------- 1. THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. 2. THE DIVISIONAL RAILWAY MANAGER (WORKS), DIVISIONAL OFFICE, WORKS BRANCH, THIRUVANANTHAPURAM. BY ADV. SMT.A.RAJESWARI, SC, RAILWAYS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/01/2008, THE COURT ON 05/02/2008 DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. = = = = = = = = = = = = = = = = W.P.(C) No. 33084 OF 2007 L = = = = = = = = = = = = = = = = 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 W.P.(C) No. 33084 OF 2007 -2- 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 W.P.(C) No. 33084 OF 2007 -3- 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. W.P.(C) No. 33084 OF 2007 -4- 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 W.P.(C) No. 33084 OF 2007 -5- 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. W.P.(C) No. 33084 OF 2007 -6- 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/-