IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 WP(C).No. 4598 of 2009(V) ------------------------------- PETITIONER: -------------- K. MOHAMMED HAJI, AGED 59 YEARS, S/O. MOIDEEN KUTTY, M.P.K. MANZIL, POST EDAYANNUR, THALASSERY TALUK, KANNUR DISTRICT. BY MR.M.RAMESH CHANDER, ADVOCATE. RESPONDENT: ---------------- THE SUPERINTENDING ENGINEER, HARBOUR ENGINEERING DEPARTMENT, NORTH CIRCLE, KOZHIKODE - 6. BY MR. M.A. ASIF, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/02/2009, ALONG WITH W.P.(C) No.4935/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4598/2009 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF the NOTIFICATION No.D6/1464/2008.S.E. ISSUED BY THE RESPONDENT DTD. 3.1.2009. EXT. P2(a) : COPY OF THE APPLICATION SUBMITTED TO THE RESPONDENT DTD. 9.2.2009. EXT. P2(b) : COPY OF the JOINT VENTURE AGREEMENT DTD. 9.2.2009. EXT. P2(c) : COPY OF the CERTIFICATE No.A6.820/96 OF THE EXECUTIVE ENGINEER, PWD ROAD DIVISION, MANJERI DTD. 4.6.2008. EXT. P3 : COPY OF THE ORDER No.D4/4536/08/SE OF THE RESPONDENT DTD. 9.2.2009. EXT. P4 : COPY OF THE PROCEEDINGS (ORDER) No.D2/2236/08/SE DATED 5.11.2008. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.4598 & 4935 of 2009 --------------------------------- Dated, this the 18th day of February, 2009 J U D G M E N T WP(C) No.4598/2008 The petitioner is a PWD contractor with A class registration. The respondent issued Ext.P1 tender notice. The first work notified is the construction of break waters at the RKVY-Kasaragod Fishery Harbour. The Probable Amount of Contract is specified to be Rs.1870 lakhs and the work is to be completed within 24 months. It is stated in Ext.P1 that the tender documents will be issued to contractors, who have A class registration and have completed “a similar” single civil work of the value of 40% of the Probable Amount of Contract within a period of five years previous to the date of Ext.P1. 2. Enclosing Ext.P2(b) joint venture agreement that the petitioner had entered into with one Mr.T.Asokan, another A class contractor, and Ext.P2(c) certificate regarding a work executed by Mr.T.Asokan, the petitioner applied for tender documents as per Ext.P2(a) application. That was rejected by Ext.P3 for the reason that WP(C) No.4598 & 4935/2009 -2- the work certified by Ext.P2(c) does not satisfy the condition specified in Ext.P1. It was thereupon that this writ petition was filed challenging Ext.P3 and for a direction to the respondent to issue tender schedule with respect to the work at Item No.1of Ext.P1, pursuant to Ext.P2 application. At the admission stage an interim order was passed and tender schedule has been issued to the petitioner. Subsequently, the petitioner filed I.A.No.2311/2009 and got the writ petition amended incorporating a challenge against the condition in Ext.P1, that the tenderer should have executed “similar work” of the volume specified therein. 3. The contention raised by the learned counsel for the petitioner is that, the said prescription has no nexus with the object that sought to be achieved. It is also stated that the “similar work” that is prescribed in Ext.P2 is only civil work, and Ext.P2(c) certificate shows that the joint venture partner of the petitioner has executed a civil work of the volume specified in Ext.P1. It is also contended that by Ext.P4, similar work of construction of break waters has been awarded to the petitioner in November, 2008, and therefore there is no substance in the contention now raised in WP(C) No.4598 & 4935/2009 -3- Ext.P3 that the petitioner is inexperienced. The learned counsel for the petitioner also contended that similarity does not mean similarity in all respects. On these grounds it is argued that Ext.P3 is illegal and hence, his tender is liable to be accepted. 4. The respondent has filed a counter affidavit. According to the respondent, the nature of the work tendered is supplying granite stones varying from 5 Kg. to 5000 Kg. and dumping and placing it in sea in lines and levels as per the drawings and it requires heavy machineries and skill. It is stated that as per Ext.P2 (c) certificate furnished by the petitioner, Shri.T.Asokan, the joint venture partner of the petitioner, has executed the work of a bridge across the Kadalundi River, which cannot be considered as a work “similar” to what was tendered in Ext.P1. It is stated that what was intended by Ext.P1 was expertise in the field of construction of break waters and not construction of bridge across a river. It is therefore, stated that since the petitioner did not have the experience prescribed in Ext.P1 tender notice, rejection of the petitioner's application for tender document is legal and is proper. 5. The first issue that is to be considered is whether Ext.P2 WP(C) No.4598 & 4935/2009 -4- (c) certificate produced by the petitioner satisfies the requirements of Ext.P1 tender notice. In so far as the conditions specified in Ext.P1 tender notice is concerned, in my view, it is always for the awarder to specify conditions, which are required to be satisfied for getting the work executed in the best manner possible. In that process, if the awarder has specified a condition requiring that only tenderers, who has experience in similar work alone will be qualified or issued tender documents, no objection whatsoever can be taken to such a restrictive condition. Therefore, I see no merit in the challenge to the tender condition. 6. In this case, Ext.P1 shows that the applicant should have executed a single similar work of the volume of 40% of the Probable Amount of Contract and the work notified is construction of break waters. Ext.P2(c) experience certificate of the joint venture partner of the petitioner certifies execution of the work of construction of a bridge across the Kadalundi river. It does not need elaboration that the work executed as certified in Ext.P2(c) is not a work similar to the construction of break waters tendered in Ext.P1. If that be so, the view taken by the respondent that Ext.P2(c) does not answer the WP(C) No.4598 & 4935/2009 -5- requirements of Ext.P1, is only to be upheld and I do so. 7. The learned counsel for the petitioner contended that the experience prescribed requiring execution of similar work does not mean that similarity should be there in all respects. He also contended that if a restrictive view is taken, that will result in the availability of very few contractors, which will lead into formation of cartels, which would be against public interest. 8. At this stage, all that I need to consider is whether the prescription of experience of execution of similar work as contained in Ext.P1 is a valid one. In so far as other possibilities suggested by the learned counsel for the petitioner is concerned, I do not think that at this stage, I need to go into such assumptions and render a judgment on this basis. At best the contention raised suggests only that the tender condition is capable of being misused. Since the possibility of misuse will not render a tender condition or even a statutory provision invalid, I do not find any merit in the contention. As already stated, when a work is tendered, it is always open to the awarder to specify the conditions including the experience required. Further, where a work of this volume is tendered, it is always WP(C) No.4598 & 4935/2009 -6- necessary that conditions which are necessary to ensure that only contractors who are experienced and having financial capacity are awarded the work. In this case, this is precisely what has been done by the awarder, and I see absolutely no illegality or arbitrariness in the condition so specified. Since the work executed by the petitioner's joint venture partner is not similar in any respect to the work tendered, the contention that similarity does not mean similarity in all respects, is also without any substance. 9. True, the learned counsel relied on Ext.P4 and contended that the work of construction of break waters has been awarded to him and therefore rejection of his request for tender schedule is illegal. In the absence of tender conditions that preceded Ext.P4, I am not in a position to assess whether a condition similar to the one as contained in Ext.P1, was there in the tender conditions that were then prescribed. In the absence of such a material, even if Ext.P4 was issued, I will not be justified in judging on the validity of Ext.P3, accepting the contention now raised. That apart, it is also seen that the value of the work covered by Ext.P4 is much less than what was notified in Ext.P1. WP(C) No.4598 & 4935/2009 -7- 10. Therefore, on the whole, I am satisfied that the petitioner does not satisfy the eligibility prescribed in Ext.P1, and therefore, the writ petition is only to be rejected and I do so. WP(C) No.4935/2009 11. In so far as the petitioner in WP(C) No.4935/2009 is concerned, the petitioner herein too had applied for tender documents in response to Ext.P1. In support of their claim of having completed similar work as prescribed in Ext.P1, the petitioner herein relied on Ext.P3 certificate. They complain that despite producing the certificate, they were not issued tender documents and on that basis this writ petition was filed. It was following an interim order that was passed in this writ petition that tender documents were issued to them. 12. From the counter affidavit filed, and also on a reading of the conditions of Ext.P1 tender, what emerges is that the experience should be that of a work which was completed by the respective applicant. Admittedly, the experience certificate produced as Ext.P3 itself show that the work mentioned therein is an on going work and is not a completed one. It may be true that the volume certified in WP(C) No.4598 & 4935/2009 -8- Ext.P3 may satisfy the volume prescribed in Ext.P1. But, however, since Ext.P1 specifies that the work should be one which is completed, and Ext.P3 certifies an on going incomplete work, I am satisfied that the petitioner does not satisfy the conditions of Ext.P1 tender. In view of the fact, the petitioner is ineligible as per the conditions of Ext.P1, they are not entitled to the reliefs sought for in the writ petition. These writ petitions are, accordingly, dismissed. (ANTONY DOMINIC, JUDGE) jg