IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 WP(C).No. 4458 of 2009(E) --------------------------------------- PETITIONER(S): ------------------------- A.IBRAHIM KUTTY, GOVERNMENT CONTRACTOR,VALIYATH HOUSE, PUTHENCHANTHA PO, CHAVARA, KOLLAM 691 587. BY ADV. SRI.K.BABU THOMAS RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT, SECRETARAIT, TRIVANDRUM. 2. THE CHIEF ENGINEERS COMMITTEE FOR PRE-QUALIFICATION OF CONTRACTORS REP. BY ITS CONVENER & CHIEF ENGINEER, IRRIGATION & GENERAL ADMINISTRATION, PUBLIC OFFICE, TRIVANDRUM. 3. THE SUPERINTENDING ENGINEER, IRRIGATION DEPARTMENT, PROJECT CIRCLE, KANNUR 678 002. 4. M/S. RAMKAY INFRASTRUCTURE LTD., RAJ BHAVAN ROAD, SOMAJIGUDA, HYDERABAD -82. REP. BY ITS MANAGING DIRECTOR. BY SPL. GOVERNMENT PLEADER MR. N.MANOJKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ANTONY DOMINIC, J. --------------------------- W.P.(C) No. 4458 of 2009 ------------------------------------ Dated this the 26th day of February, 2009 JUDGMENT This is the second round of the litigation at the instance of the petitioner concerning a work in respect of which Expression of Interest was invited by Exhibit P1. 2. The first was W.P©. No. 1044 of 2009 filed by him, challenging the decision of the respondents 1 to 3 not to pre- qualify the petitioner. That Writ petition was dismissed by this Court by judgment dated 19/01/2009. Thereupon, the petitioner filed W.A No.174/2009 and obtained Exhibit P7 judgment, directing the 2nd respondent to consider his representation for pre-qualification. According to the counsel for the petitioner and the learned Government Pleader, no decision has been taken in the matter. 3. At that stage, this writ petition is filed challenging the pre-qualification of the 4th respondent, and requiring the respondents to forbear from considering the price bid submitted by them. There is also a prayer to direct the respondents 1 to 3 to award the contract to the petitioner, which already stands W.P.(C) No. 4458/2009 2 rejected by this Court and in any case, will depend upon the decision to be taken by the respondents pursuant to the judgment in W.A. No.174/2009. 4. Exhibit P1 is the notice published by respondents 1 to 3, inviting Expression of Interest for the work of construction of Regulator Cum Bridge at Chamravattom across Bharathapuzha for 978m with shutters and approach road for 612m, including Mechanical and Electrical works with NABARD assistance. Among others, the 4th respondent also submitted their bids and as per Exhibit P5 they were pre-qualified. 5. The contentions raised by the petitioner impugning the pre-qualification of the 4th respondent are mainly regarding the ineligibility of the 4th respondent to be issued tender documents for the reason that, according to him, the 4th respondent did not possess Registration from the KPWD/Irrigation Department of the State and also for the reason that they did not possess the experience prescribed in Exhibit P1. 6. The contention regarding the Registration is set up by the petitioner in the following manner. He is referring clause 8 of W.P.(C) No. 4458/2009 3 Exhibit P1, which provides that ‘conditions of contract will be as per the standard prevailing in the department.’ It is stated that Exhibit P3 is the conditions regarding Registration of Contractors in the Public Works Department. Reference is also made to Clause 8(1) of Exhibit P2, where it is stated that “Contractors registered with State Public Works Department/Irrigation Department who have experience in the construction of large works and consider themselves capable of constructing the project works should obtain pre-qualification documents and tender documents.” Relying on these documents and the provisions referred to above, it is contended that since the 4th respondent is not registered with either PWD/Irrigation Department of the State, they ought not to have been issued tender documents and at any rate, they ought not have been prequalifed. 7. First of all, Clause 8 of Exhibit P1 only provides that conditions of contract will be as per standard prevailing in the department. Requirement of registration, at best being a condition for pre-qualification, is not a “condition of contract” as W.P.(C) No. 4458/2009 4 contemplated in Clause 8 of Exhibit P1. It may, at best mean, that when tender is awarded, the contract to be executed will be as per the standard prevailing the Department. Therefore, Clause 8 of Exhibit P1 at this stage of the proceedings may not be relevant. 8. That apart Clause 8 of Exhibit P2, relied on by the learned counsel for the petitioner, is the format of the draft advertisement prescribed therein. Although, learned counsel is right in contending that draft specified in Exhibit P2, stipulates a mandatory procedure for pre-qualification of contractors for awarding contract for large works which includes Registration, the question is whether in Exhibit P1, the notice published in relation to the work in question, there are conditions similar to what are incorporated in the draft prescribed in Clause 8 of Exhibit P2. 9. As already noticed, Exhibit P1 in this case is the notice inviting Expression of Interest and this also includes the Pre- qualification Tender Documents. None of the provisions contained in Exhibit P1 provides that the contractors should have W.P.(C) No. 4458/2009 5 registration in the PWD or Irrigation Department of the State. On the other hand Schedule A of Exhibit P1 provides for registration “with PWD in India”, which cannot be read as one requiring registration with KPWD/Irrigation Department of the State. Further, according to the learned Government Pleader, Registration in any state in India will suffice, as per the conditions of tender. He also submits that such a clause was deliberately incorporated in Exhibit P1 for the reason that this being the largest project notified in the state, they wanted experienced contractors having necessary capacity from all over the country to submit their bids in response to Exhibit P1. Necessarily therefore, Exhibit P3 is also irrelevant. In the light of the above, I am not persuaded to accept the contention of the learned counsel for the petitioner that since the 4th respondent does not have Registration with the KPWD/Irrigation Department of the State, they were ineligible to be issued tender documents or to be pre-qualified for that reason. 10. The other contention raised by the learned counsel for the petitioner is regarding the experience that is required. Here W.P.(C) No. 4458/2009 6 again, he referred me to Exhibit P2. Clause 8.2 of Exhibit P2 which provides that the contractors should have experience, reads as under; “The prospective applicants should have experience in executing large works and they should have completed at least one work having a magnitude of 50% of the average value of the work for which pre-qualification is sought. The contractor should attach an affidavit along with the pre-qualification document stating whether or not any of works carried out by him were terminated due to his ……..so far. No document will be issued after.………The complete pre-qualification document and tender document should be returned to the undersigned at the address given below on or before… ……. …………or………in two separate sealed covers. The undersigned reserves the right to deny pre- qualification to any applicant and to reject the tender submitted by the applicant without assigning any reason.” W.P.(C) No. 4458/2009 7 11. The above referred again is a part of the draft advertisement prescribed in Exhibit P2 and the question is whether a clause similar to the above is incorporated in Exhibit P1 document. The relevant portion of Clause 8 of Exhibit P1 reads as under; “The prospective applicants should have experience in executing large works and they should have completed at least one work within five years having a magnitude of 50% of the average value of the work for which Pre- qualification is invited (estimate PAC= Rs.110.96 Crore). The contractor should submit a certificate from the agreement authority that such a work has been satisfactorily completed by the contractor along with the application for pre-qualification tender schedule.” 12. In so far as the aforesaid provision of Exhibit P1 is concerned, along with statement filed on behalf of respondents 1 to 3, they have produced Exhibit R3(b) Experience Certificate produced by the 4th respondent, certifying that the 4th respondent has executed a work, value of which is Rs.350 Crores. That apart W.P.(C) No. 4458/2009 8 Exhibit R3(c) shows that the 4th respondent has executed several huge works. Thus, Exhibits R3(b) and R3(c) documents showing the projects executed by the 4th respondent, according to the Official respondents, satisfy the conditions specified in Clause 8 of Exhibit P1. On the materials available, I am inclined to accept the contention of the respondents that the 4th respondent has produced sufficient materials to prove their experience ,as required in Exhibit P1. 13. Next, it was contended that Exhibit P9 was the tender notice that was sent for publication and Exhibit P1, which was published vary substantially with Exhibit P9. On this basis, learned counsel for the petitioner contends that Exhibit P1 is vitiated for malafides. First of all, the petitioner is not seeking to quash Exhibit P1 and on the other hand he wants to be pre- qualified and awarded the work based on Exhibit P1. Secondly, apart from vaguely alleging malafides, no specific plea has been raised against any particular person nor has any particular person been impleaded in the personal capacity in this writ petition. For these reasons, the plea of malafides is devoid of any substance W.P.(C) No. 4458/2009 9 and I reject the same. I find no reason to interfere with the Pre-qualification of the 4th respondent or grant any of the reliefs sought for by the petitioner Writ petition fails and hence it is dismissed. ANTONY DOMINIC, JUDGE scm