IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 WP(C).No. 33318 of 2007(N) -------------------------- PETITIONER: -------------- KURIEN.E.KALATHIL HIMAL HYDRO AND GENERAL CONSTRUCTION LTD BOVING FOURESS LIMITED A CONSTORTIUM REPRESENTED BY ITS LEADER KURIEN E KALATHIL TC 14/1004 VAZHUTHACADU TRIVANDRUM 695010. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS: ----------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM PALACE PO, TRIVANDRUM-695001. 2. THE CHIEF ENGINEER (CIVIL CONSTRUCTION) KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, GANDHI ROAD, KOZHIKODE. BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B SRI. ASOK M.CHERIYAN, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/03/2008, THE COURT ON 25/03/2008 DELIVERED THE FOLLOWING: 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