IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 WA.No. 1911 of 2009 ---------------------------------- AGAINST THE JUDGEMENT IN WPC.19016/2009 Dated 28/07/2009 .................... APPELLANT/PETITIONER ------------------------------------ M/S.CHICAGO CONSTRUCTIONS, CHITHRA LANE, KOCHAR ROAD, SASTHAMANGALAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING PARTNER, S.MOHANAKUMAR, S/O. SIVANANDAN, MOHAN NIVAS, MOONGODU P.O., PEYAD, THIRUVANANTHAPURAM. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW RESPONDENTS/RESPONDENTS ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, KERALA WATER AUTHORITY, OFFICE OF THE CHIEF ENGINEER (SOUTHERN REGION), THIRUVANANTHAPURAM. 4. THE SUPERINTENDING ENGINEER, PH CIRCLE, KERALA WATER AUTHORITY, KOTTAYAM. 5. ABU MATHEW, KOYIKAL HOUSE, KANIKODE P.O., KOTTAYAM. 6. J & B ENGINEERING COMPANY, KUTTOOR P.O., THIRUVALLA. R1 BY SR.GOVERNMENT PLEADER SRI.BENJAMIN PAUL R2 TO R4 BY STANDING COUNSEL SMT.AMBIKA DEVI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.Bannurmath, C.J. & A.K. Basheer, J. -------------------------------------------------------- W.A No.1911 of 2009 -------------------------------------------------------- Dated this the 15th day of September, 2009 JUDGMENT S.R.Bannurmath, C.J. Challenging the order of the learned Single Judge dated 20th July, 2009 dismissing W.P.(C) No.19016 of 2009, the petitioner in the writ petition has approached this Court by the present appeal. 2. Appellant/petitioner which is a registered partnership firm, responded to the tender notice floated by the 4th respondent for the Augumentation of Kuttanad Water Supply Scheme (Phase II) Design, construction and commissioning of 14 MLD output capacity Water Treatment Plant at Neerattupuram. Finding that the appellant/petitioner does not satisfy the necessary requirements prescribed under the tender conditions and especially the requirement of past experience at WA.No.1911 of 2009 - 2 - clause 7.17.1.2, his tender was not accepted. 3. Aggrieved by the same he approached this Court. The main argument of the learned counsel for the appellant before the learned Single Judge and this Court is that as per clause 7.17.1.2, especially its sub clause 1, the two sentences, namely, “It is necessary that the tenderer has executed (commenced and completed) similar type of projects in the past five years.” and “The experience of carrying out 50% the size/capacity of the present is required.” are to be read disjointedly. According to him, if they are so read, in the light of clause 7.12.1.2.6(b) it is possible to draw the conclusion that the appellant/petitioner possesses all the necessary past experiences. 4. Considering this aspect, in our view, the learned Single Judge rightly rejected this contention. Clause 7.17.1.2.1 and the two sentences mentioned thereunder cannot be read separately. The first sentence requires that the tenderer should have executed (commenced and completed) similar type of WA.No.1911 of 2009 - 3 - projects in the past five years and in this regard the experience of carrying out 50% the size/capacity of the present is required. Undisputedly, the present work is of a capacity of 14 MLD and even if the appellant/petitioner has commenced and completed similar type of works which are of the capacity of 3.5 and 4 MLD, it falls short of 50% of the capacity of the work of the present nature. No doubt, he has been awarded another contract in a capacity of 15.5 MLD, but that work has just commenced and not completed. The emphasis of the word 'and' used between 'commenced' and 'completed' indicates that the work should have not only been commenced but also should have been completed. Considering this aspect, in our view, the learned Single Judge was justified in upholding the decision of the respondent authority that the appellant/petitioner does not have necessary past experience. Even the discussion of the authority in Ext.R2 order indicates that the authority has taken into consideration all these aspects and especially in the absence of any mala fides alleged against the respondent authority, we WA.No.1911 of 2009 - 4 - do not find that the contention of the appellant requires reconsideration. 5. Hence we find that the writ appeal is devoid of merits and therefore, upholding the finding of the learned Single Judge, we dismiss the writ appeal. S.R.Bannurmath, Chief Justice A.K. Basheer, Judge vns/vku