IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 WP(C).No. 32536 of 2010(N) -------------------------- PETITIONER(S): --------------- BABU M.VARGHESE, LEAD PARTNER OF JOINT VENTURE WITH M/S.COCHIN STEEL INDUSTRIAL COMPLEX, KIZHAKAMBALAM (JV), MUTTAVANCHERRY HOUSE, KIZHAKAMBALAM.P.O., ALUVA, ERNAKULAM DISTRICT-683 562. BY ADV. SRI.K.BABU THOMAS SMT.MARYKUTTY BABU RESPONDENT(S): --------------- 1. THE KERALA WATER AUTHORITY, JALABHAVAN, VELLAYAMBALAM, TRIVANDRUM-695 033, REP.BY ITS MANAGING DIRECTOR. 2. THE TECHNICAL MEMBER (T.M.), KERALA WATER AUTHORITY, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 033. SMT.SUSAN JACOB, CHIEF ENGINEER. 3. THE CHIEF ENGINEER, (HRD & G.L), KERALA WATER AUTHORITY, JALABHAVAN, THIRUVANANTHAPURAM-695 033. 4. THE CHIEF ENGINEER, KERALA WATER AUTHORITY, CENTRAL REGION, HOSPITAL ROAD, COCHIN-682 011 AND CHAIRMAN OF THE TENDER COMMITTEE. 5. THE SUPERINTENDING ENGINEER, KERALA WATER AUTHORITY, PH CIRCLE, MUVATTUPUZHA & CONVENOR OF THE COMMITTEE FOR PRE-QUALIFICATION. 6. SRI.BIJU AUGUSTINE, KUMPUCKAL HOUSE, KALIYAR.P.O., THODUPUZHA, IDUKKI DISTRICT. SRI.S.AMBIKA DEVI, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ``````````````````````````````````````````````````````` W.P.(C) No. 32536 of 2010 N ``````````````````````````````````````````````````````` Dated this the 4th day of November, 2010 J U D G M E N T Fifth respondent issued Ext.P1 tender notice inviting tenders for the works mentioned therein. Petitioner submitted his tender. Along with the tender documents, in order to prove his experience, he produced Ext.P3 series of documents and 50% qualification mentioned therein was claimed by him for calculation of his bid capacity. 2. The Tender Committee of the fifth respondent held the petitioner eligible for pre-qualification. When the financial bids were opened, petitioner was found to be the lowest eligible and qualified bidder. Accordingly, the fifth respondent forwarded the tender documents to the Chief Engineer, who, in turn, placed it before the Tender Committee at the Managing Directors level. However, the Tender Committee disqualified the petitioner, negotiated with the sixth respondent, who was the second lowest bidder, and W.P.(C) No.32536/10 : 2 : eventually awarded the contract to him. It is challenging the aforesaid decision of the Tender Committee, the writ petition has been filed. 3. Contention raised by the petitioner is that on the documents produced, he had satisfied the tender conditions and, therefore, he was entitled to be pre-qualified as recommended by the fifth respondent and awarded the contract. It is stated that, therefore, the decision of the Tender Committee to disqualify him and award the tender to the sixth respondent is illegal. 4. Learned Standing Counsel for the Kerala Water Authority, on instructions, submits that, when the Tender Committee at Managing Directors level was seized of the matter, a complaint was received from the sixth respondent about Ext.P3 experience certificate produced by the petitioner. It is stated that on receipt of the complaint, by Ext.P10 proceedings of the Tender Committee, the committee directed to check veracity of the experience certificate. It is W.P.(C) No.32536/10 : 3 : stated that when the genuineness of Ext.P3 experience certificate was thus verified, it was found that the work mentioned in Ext.P3 was awarded to one Sri.J.P.Sajimon as per Ext.P3(b) work order issued by the Water Authority. The agreement entered into between Sri.J.P.Sajimon and the Water Authority was also produced before me for perusal, which confirms the aforesaid submission made by the learned Standing Counsel. 5. It is stated that since the work mentioned in Ext.P3 was not awarded to the petitioner, the petitioner could not rely on the said contract to claim experience or bid capacity to quote in response of Ext.P1 tender notice. It is stated that the matter was again considered by the Tender Committee in its meeting held on 02-06-2010, the minutes of which is Ext.P11. It is stated that for the aforesaid reasons, Ext.P3 experience certificate produced by the petitioner was decided to be rejected for pre-qualification and the Tender Committee recommended to negotiate with the sixth respondent. W.P.(C) No.32536/10 : 4 : Ext.P11 also discloses that the explanation of the Executive Engineer, who issued Ext.P3 certificate, was also decided to be called for as to how such a certificate happened to be issued to the petitioner. It is stated in the aforesaid circumstances, by Ext.P12, the Tender Committee found that the sixth respondent was the next lowest bidder and on negotiation, he had agreed to execute the work at the rate quoted by the petitioner and that on that basis, it was recommended to award the work to the sixth respondent. It is also stated that on the basis of Ext.P12 minutes of the Tender Committee, decision was taken by the Water Authority to award the work to the sixth respondent and that work was awarded and an agreement was also executed with him on 21-10-2010. 6. In reply, Counsel for the petitioner referred me to Exts.P3(c) to P3(g) and contended that although the work in question was awarded to Sri.J.P.Sajimon, subsequent to the award of the work, the petitioner had entered into a registered W.P.(C) No.32536/10 : 5 : partnership with Sri.J.P.Sajimon and that the work was executed by him as second partner. He also says that Sri.J.P.Sajimon had executed a Power of Attorney in his favour and on that basis, he only executed the entire works. It is stated that it was considering the fact that it was the petitioner who executed the work that Ext.P3 certificate was issued by the Executive Engineer. On this basis, Counsel contended that the petitioner was entitled to rely on Ext.P3 experience certificate and that he was also entitled to be pre- qualified. 7. Even if the genuineness of Exts.P3(a) to P3(g) relied on by the petitioner are not doubted, fact remains as far as the Water Authority is concerned, it was Sri.J.P.Sajimon, who was the contractor for the work mentioned in Ext.P3. Therefore, even if a private arrangement was made between the petitioner and Sri.J.P.Sajimon, that will not bind the Water Authority and will not confer the status of contractor on the petitioner. If that be so, the petitioner could not have taken W.P.(C) No.32536/10 : 6 : advantage of the work awarded to Sri.J.P.Sajimon and claimed experience or bid capacity on that basis. Consequently, the decision of the Tender Committee evidenced by Exts.P10, P11 and P12, rejecting Ext.P3 and awarding the work to the sixth respondent cannot be faulted. Writ petition fails and it is dismissed. (ANTONY DOMINIC, JUDGE) aks