IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 WP(C).No. 2225 of 2011(C) ------------------------- PETITIONER(S): --------------- SHARSHAD KHAN K.K., AGED 26 YEARS, S/O.MOHAMMED KOYA KUNJALEKKAL HOUSE, AMINI ISLAND,U.T.OF LAKSHADWEEP BY ADV. SRI.M.P.KRISHNAN NAIR SRI.V.B.NARAYANAN RESPONDENT(S): --------------- 1. UNION OF INDIA REP BY ADMINISTRATOR, U.T.OF LAKSHADWEEP, KAVARATTI 682 555. 2. THE COLLECTOR CUM DEVELOPMENT COMMISSIONER AND SECRETARY, WORKS PWD, KAVARATTI 682 555. 3. SUPERINTENDING ENGINEER, LAKSHADWEEP PWD CIRCLE OFFICE, KAVARATTI,U.T.OF LAKSHADWEEP,682 555. 4. EXECUTIVE ENGINEER, PWD DIVISION, AMINI, U.T.OF LAKSHADWEEP,682 556. ADDL.R5. SRI.N NANDAKUMARAN, EXECUTIVE ENGINEER, LAKSHADWEEP PWD, AMINI DIVISION, AMINI U.T. OF LAKSHADWEEP. Addl.R5 is impleaded vide order dt.27.1.2011 in I.A.NO.1432/2011. SC SRI. S. RADHAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.2225 OF 2011(C) -------------------------------------------------- Dated this the 2nd day of February, 2011 J U D G M E N T Petitioner has approached this court challenging Ext.P6, a tender notice issued by the respondent for the civil works mentioned therein. 2. Three contentions are raised. One is that contrary to Ext.P1 to P5, P10, P11 and P12, Ext.P6 provides for earnest money deposit at the time when applications are made for tender documents. Second contention raised is that Ext.P6 does not provide for production of solvency certificate and the 3rd contention raised is that Ext.P6 provides a condition that tender documents shall not be issued to those contractors with whom two or more works are on hand under LPWD Division, Amini Island, Kavaratti, Kochi and Kalpeni. 3. As far as the first contention raised by the learned counsel for the petitioner is concerned it is pointed out that consistent with the rules of the CPWD, Exts.P1 to P6 provided that the tenderers should make earnest money deposit along with the tender submitted in response to the tender notification issued by WPC.No. 2225/2011 :2 : the respondents. It is submitted that Exts.P10, P11 and P12 rules of CPWD are consistent with said provision and these rules govern the respondents also. 4. However, the definite stand of the respondents is that they insisted on the contractors to make earnest money deposit along with the application for tender documents. It is contended that such a practice was adopted to prevent cartelisation among contractors. 5. Irrespective of the contentions so raised it is now seen that Uncle of the petitioner, another contractor from Island itself, approached this court by filing WP(c).No.6738/2010, challenging a tender notification which was marked as Ext.P1 in that case and arguing that it provided that while applying for getting tender forms EMD shall be deposited by way of demand draft in favour of the respondents. That contention was appreciated by this court and in Ext.P13 judgment it has been held thus. “Apart from the same, it is clear that Lakshadweep PWD is independent of the CPWD. Of course they have adopted the rules and regulations followed by the CPWD for awarding of works. It cannot be said WPC.No. 2225/2011 :3 : that automatically the stipulations of the CPWD applies to Lakshadweep PWD. It is up to the Lakshadweep Administration to adopt the same or not. So far, the amendments have not been adopted by them. Therefore, the conditions that are stipulated in the CPWD manual, unless they are adopted and implemented by the LPWD, cannot be applied for the tenders invited and finalised. Hence the contention that the conditions imposed are really against the provisions of the CPWD manual, cannot be accepted. Therefore, it cannot be said that merely because of the said issue, the tenders have to be declared as invalid. “ 6. Therefore, this court has already upheld the condition in the tender form and the judgment has become final and the issue is therefore answered fully against the petitioner. 7. Apart from that I am also of the view that if at all the petitioner has a case that the finding as contained in Ext.P13 judgment is erroneous for any reason, the course open to the petitioner is not to file a writ petition and argue for a contradictory WPC.No. 2225/2011 :4 : judgment. On the other hand the remedy available is to get the judgment recalled by making appropriate application. This view has been taken by the Division Bench in Ramachandran V. Food Corporation of India(1989(2) KLT 112). 8. Now what remains is the case of the petitioner that Ext.P6 does not provide for solvency certificate and Ext.P6 provides a condition that tender documents shall not be issued to those contractors with whom two or more works are on hand. If the awarder has consciously decided not to insist on solvency certificate and also incorporated a condition that not to issue tender forms to those contractor who have 2 or more works on hand, no objection can be raised. As already pointed out on behalf of the respondent, it is to prevent contractors, who are already busy with similar works, from again taking up more works affecting their performance that such a condition is incorporated. 9. Apart from all this, I also take note of the contention raised by the respondents that Ext.P6 tender also provided that tender forms will be issued only to those eligible contractors who produced documentary evidence to prove their capability of WPC.No. 2225/2011 :5 : executing three similar works, each value not less than 40% of the estimated cost or two similar works costing not less than 60% of the estimated cost and that in Ext.P9 application made by the petitioner for tender documents, he has not stated anything to show that he satisfied of the aforesaid condition. For these reasons I do not find any merit in the writ Petition. Writ Petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/