IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 WP(C).No. 11726 of 2009(T) ------------------------------------- PETITIONER(S): ---------------------- JC STEELS & ALUMINIUM INDUSTRIES, REPRESENTED BY ITS PROPRIETOR JOSEPH CHERIAN, KAYYALACKAKOM, INDUSTRIAL ESTATE, PAPPANAMCODE, THIRUVANANTHAPURAM-695 019 BY ADV. MR.K.JAYAKUMAR MR.P.B.KRISHNAN MR.R.SURAJ KUMAR SMT.GEETHA P.MENON RESPONDENT(S): ------------------------- 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, T.C. & M, VYDHUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 4. TRACO CABLE COMPANY LTD., KSHB OFFICE COMPLEX, 4TH FLOOR, PANAMPILLY NAGAR, P.B.NO.4269, KOCHI-682 036, REPRESENTED BY ITS MANAGING DIRECTOR. 5. M/S.CAUVERY CONDUCTORS (P) LTD., C-11, INDUSTRIAL ESTATE, PAPPANAMCODE, THIRUVANANTHAPURAM-695 019, REPRESENTED BY ITS CHAIRMAN, K.AUGUSTINE. R1 TO R3 BY ADV. MR.C.K.KARUNAKARAN, SC FOR KSEB. R4 BY ADV. MR.E.K. NANDAKUMAR, SC, TC. R5 BY ADV. MR.R.T. PRADEEP, MR.V.VIJULAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2009, ALONG WITH WPC NO. 11727 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 11726/2009-I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE INVITATION TO THE TENDER BEARIN NO.TCM.74/2008-09, DATED 09/12/2008 PUBLISHED BY RESPONDENT NO.1. EXT.P2: COPY OF THE CHART SHOWING THE PRICE COMPARISON OF ALL THE TENDERS FOR SUPPLY OF ACSR RACCOON, DATED NIL. EXT.P3: COPY OF THE PRICE COMPARISON CHART FOR ACSR RABBIT CONDUCTORS, DATED NIL. EXT.P4: COPY OF THE COVERING LETTER DATED 30/12/2008 SENT BY THE PETITIONER ENCLOSING THE BIDS. EXT.P5: COPY OF THE LETTER NO.TA.34/TCM.74/2008-09/ACSR/J.STEEL/5858 DATED 30/02/2009 SENT BY RESPONDENT NO.3 TO THE PETITIONER. EXT.P6: COPY OF THE LETTER DATED 04/02/2009 SENT BY THE PETITIONER TO RESPONDENT NO.3. EXT.P7: COPY OF THE LETTER DATED 26/02/2009 SENT BY THE PETITIONER TO RESPONDENT NO.3. EXT.P8: COPY OF THE LETTER DATED 25/03/2009 SENT BY THE PETITIONER TO THE CHAIRMAN, KSEB. EXT.P9: COPY OF THE PURCHASE ORDER DATED 16/10/2008. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE CONDITIONS IN PRE-QUALIFICATION BID. EXT.R5(a): COPY OF THE BID INVITATION NOTICE DATED 09/12/2008. //TRUE COPY// P.A. TO JUDGE rs. V.GIRI, J ------------------- W.P.(C)s.11726 & 11727/2009 -------------------- Dated this the 18th day of June, 2009 JUDGMENT Common issues arise for consideration in these writ petitions. Therefore, they have been heard together and are being disposed of by this common judgment. I will refer to the facts in Writ Petition No.11726/2009, which will govern the other writ petition also. 2. Petitioner is a small scale industrial unit engaged in the manufacture of AAC (All Aluminium Conductor) and ACS (Aluminium Conductor Shell Reinforced). It has been a regular supplier of the aforementioned products of different dimensions to the Electricity Board since the year 1989. 3. The Board issued Ext.P1 notification inviting tenders for the supply of 9000 Kms of ACSR Raccoon and 10000 Kms of ACSR Rabbit. Petitioner responded to Ext.P1 and tenders were submitted along with the W.P.(C)s.11726 & 11727/2009 2 price list. It seems that the petitioner had suggested a different schedule of delivery as evidenced by Ext.P4. There upon, by Ext.P5, petitioner was asked to confirm whether it is willing to abide by all the terms and conditions contained in Ext.P3. Petitioner replied vide Ext.P6, affirming that it withdraws its request for all the deviations. 4. It is contended by the petitioner that it was the lowest bidder for all areas (so is the position affirmed by the petitioner in W.P.(C).11727/09). Petitioner suggested a different delivery schedule as per Ext.P7. This writ petition was filed expressing its apprehension that in spite of the fact that the petitioner was the lowest bidder, its offer may not be considered on merits and therefore, the petitioner would possibly be excluded from being considered at all. 5. Counter affidavit has been filed by the Board as also by the contesting respondents. I heard Mr.Jayakumar, learned counsel for the petitioner, W.P.(C)s.11726 & 11727/2009 3 Mr.C.K.Karunakaran, learned counsel for the electricity Board, Mr.Nandakumar, learned Standing Counsel appearing for the 4th respondent and Mr.R.T.Pradeep, learned counsel for the 5th respondent. 6. That the petitioner was considered as pre- qualified is a matter which is not in dispute. It seems that the petitioner's offer would have been seriously considered, along with the offer made by the other tenderers who are also considered as qualified including the 5th respondent, but for the revised delivery schedule suggested by the petitioner as per Ext.P7. Mr.Karunakaran submits that the normal procedure which is followed in the matter of procuring the items is to see that a bulk quantity is procured from the 4th respondent, a public sector undertaking and the remaining quantity required will be procured from the other eligible bidders. Petitioner would also have been considered along with others, but for the indiscretion committed by the petitioner as evidenced by Ext.P7, suggesting a revised delivery schedule. It W.P.(C)s.11726 & 11727/2009 4 also cannot be gainsaid, submits Mr.Karunakaran, that none among the bidders, except the 4th respondent who stands on a different footing, are independently capable of satisfying the requirements of the Electricity Board. It is in these circumstances, that the procedure has been followed satisfying the requirements of the Board by placing orders on the different bidders at the same price. It is only the public sector undertaking that is being given the benefit of a price preference. 7. Learned counsel for the Electricity Board further submits that the Board is prepared to consider the petitioner on merits along with the offer made by the other tenderers provided the petitioner withdraws Ext.P7 and also gives up any contentions on the basis of Ext.P7. 8. Mr.Jayakumar learned counsel for the petitioner submits that the Board is entitled to treat Ext.P7 as withdrawn and the petitioner also gives up all contentions on the basis of Ext.P7. W.P.(C)s.11726 & 11727/2009 5 9. In these circumstances, there will be a direction to the 1st respondent Electricity Board, to consider the petitioners' tender by treating the petitioners qualified bidders in respect of such quantity of conductors as the Board requires. Apart from the quantity that is to be procured from the 4th respondent, Board shall consider the petitioners' offer along with other bidders. Petitioners shall also be called for a negotiation by the Board along with other bidders while fixing the price. It is made clear that this direction will not in any manner affect the orders already placed by the Board either on the 4th respondent or 5th respondent. Writ petitions are disposed of as above. V.GIRI, Judge mrcs