IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 WP(C).No. 15878 of 2009(D) -------------------------------------- PETITIONER: ------------------- V.S.MURALEEDHARAN, CONTRACTOR, KERALA WATER AUTHORITY, LICENSE NO.06/9899(C), RESIDING AT MURALIKA, MAMBATTA LANE, PUTHENKULANGARA, EROOR NORTH P.O. BY ADV. MR.P.K.MUHAMMED. RESPONDENTS: ------------------------ 1. M.M.PRABHAKARAN, EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, P.H.DIVISION, KOCHI-16. 2. THE SUPERINTENDING ENGINEER, KERALA WATER AUTHORITY, P.H.CIRCLE, KOCHI-11. 3. THE MANAGING DIRECTOR, WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM. 4. V.T.MATHEW, CONTRACTOR, S/O.THOMAS, VELLEPARAMBIL HOUSE, KARANAKADAM, PIPELINE ROAD, THAMMANAM, KOCHI-32. W.P.(C). NO.15878/2009-D: *ADDL.R5 IMPLEADED: 5. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, WATER RESOURCES DEPARTMENT. *ADDL.R5 IS IMPLEADED AS PER ORDER DATED 30/11/2009. R1 BY ADVS.MR.M.V.BOSE, MR.VINOD MADHAVAN, SMT.NISHA BOSE, R2 & R3 BY MR.M.DINESH, SC, KWA, R4 BY ADV. MR.T.I.DANIEL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.15878/2009-D: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE F.I.R. IN VIGILANCE CASE 04/08 CRE, BEFORE THE VIGILANCE COURT DTD. 05/12/2008. EXT.P.2: COPY OF THE F.I.R. IN VIGILANCE CASE 05/08 CRE, BEFORE THE VIGILANCE COURT DTD. 05/12/2008. EXT.P.3: COPY OF THE REPRESENTATION FILED BEFORE R.2. DTD. 02/06/2009. EXT.P.4: COPY OF THE CERTIFICATE ISSUED BY THE CORPORATION COUNCILLOR, SRI. E.M. SUNIL KUMAR ADDRESSING THE ASSISTANT EXECUTIVE ENGINEER REGARDING THE PERFORMANCE OF PETITIONER DTD. 10/06/2009. EXT.P.5: COPY OF THE CERTIFICATE ISSUED BY THE CORPORATION COUNCILLOR, SRI. K.G. DINESAN ADDRESSING THE ASSISTANT EXECUTIVE ENGINEER REGARDING THE PERFORMANCE OF PETITIONER DTD. 10/06/2009. EXT.P.6: COPY OF THE CERTIFICATE ISSUED BY THE CORPORATION COUNCILLOR, SRI. SABU GEORGE ADDRESSING THE ASSISTANT EXECUTIVE ENGINEER, REGARDING THE PERFORMANCE OF PETITIONER DTD. 15/06/2009. EXT.P.7: COPY OF THE CERTIFICATE ISSUED BY THE CORPORATION COUNCILLOR, SMT. MERCY GEORGE ADDRESSING THE ASSISTANT EXECUTIVE ENGINEER REGARDING THE PERFORMANCE OF PETITIONR DTD. 18/06/2009. EXT.P.8: COPY OF THE CERTIFICATE ISSUED BY THE CORPORATION COUNCILLOR, SRI. K.V. MANOJ ADDRESSING THE ASSISTANT EXECUTIVE ENGINEER REGARDING THE PERFORMANCE OF PETITIONER DTD. 19/06/2009. EXT.P.9: COPY OF THE CERTIFICATE ISSUED BY THE CORPORATION COUNCILLOR, SRI. K.M. HAMZA KUNJU ADDRESSING THE ASSISTANT EXECUTIVE ENGINEER REGARDING THE PERFORMANCE OF PETITIONER DTD. 19/06/2009. EXT.P.10: COPY OF THE CERTIFICATE ISSUED BY THE COPRORATION COUNCILLOR, TESSY JACOB ADDRESSING THE ASSISTANT EXECUTIVE ENGINEER REGARDING THE PERFORMANCE OF PETITIONER DTD. 19/06/2009. EXT.P.11: COPY OF THE CERTIFICATE ISSUED BY THE CORPORATION COUNCILLOR, SRI. JOSEPH ANTONY ADDRESSING THE ASSISTANT EXECUTIVE ENGINEER REGARDING THE PERFORMANCE OF PETITIONER DTD. 20/06/2009. EXT.P.12: COPY OF THE MATHRUBHOOMI MALAYALAM DAILY DTD 01/08/2003. EXT.P.13: COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER BY THE EXECUTIVE ENGINEER, PUBLIC HEALTH DIVISION, PALLIMUKK, KOCHI DTD. 07/08/2007. W.P.(C). NO.15878/2009-D: EXT.P.14: COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER BY THE EXECUTIVE ENGINEER, PUBLIC HEALTH DIVISION, PALLIMUKKU, KOCHI DTD. 20/06/2009. EXT.P.15: NIL. EXT.P.16: COPY OF THE LETTER DTD. 08/06/2009 ISSUED BY R.5. TO THE R.3. EXT.P.17: COPY OF THE ORDER DTD. 01/07/2009 IN W.P.(C). NO. 15878/2009(D). EXT.P.18: COPY OF THE ORDER DTD. 30/11/2009 IN W.P.(C). NO. 15878/2009(D). RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE LETTER DTD. 11/03/2009 ISSUED BY EXECUTIVE ENGINEER, K.W.A. INVITING TENDERS FOR THE ANNUAL MAINTENANCE WORK OF CORPORATION DIVISIONS. EXT.R1.B: COPY OF THE LETTER DTD. 09/03/2009 ISSUED BY CEO & PRINCIPAL SECRETARY TO GOVERNMENT TO M.D., K.W.A.. EXT.R1.C: COPY OF THE INFORMATION GIVEN THROUGH NOTICE BOARD BY EXECUTIVE ENGINEER, K.W.A. EXT.R1.D: COPY OF THE DETAILS OF DEPARTMENTS INVITING TENDERS. EXT.R1.E: COPY OF THE ADVERTISEMENT APPEARED IN MANGALAM DAILY DTD. 20/05/2009. EXT.R.1.F: COPY OF THE LETTER DTD. 04/04/2009 SENT BY ASST. EXE. ENGINEER, TO THE EXE. ENGINEER, P.H. DIVISION. EXT.R1.G: COPY OF THE LETTER DTD. 22/09/2008 ISSUED BY -DO- TO -DO-. EXT.R1.H: COPY OF THE LETTER DTD 21/01/2009 ISSUED BY -DO- TO -DO-. EXT.R1.I: COPY OF THE LETTER DTD. 25/09/2008 ISSUED BY ASST. ENGINEER, WATER WORKS SECTION-I. EXT.R1.J: COPY OF THE LETTER DTD 07/03/2009 SENT BY -DO-. EXT.R1.K: COPY OF THE LETTER DTD. 07/06/2006 SENT BY .B. GOPALAKRISHNAN TO EXE. ENGINEER, P.H. DIVISION AND MINUTES. EXT.R1.L: COPY OF THE LETTER DTD. 23/05/2009 AND PARTNERSHIP DEED. EXT.R1.M: COPY OF THE LAST PAGE OF PARTNERSHIP DEED DTD. 19/05/2006. EXT.R1.N: COPY OF THE LETTER DTD. 20/07/2009 OF THE EXECUTIVE ENGINEER ADDRESSED TO THE CHIEF ENGINEER. W.P.(C). NO.15878/2009-D: EXT.R1.O: COPY OF THE JUDGMENT DTD. 09/11/2009 IN W.P.(C).NO.27976/2009. EXT.R1.P: COPY OF THE JUDGMENT DTD. 06/01/2010 IN W.A. NO. 2694/2009. EXT.R1.Q: COPY OF THE JUDGMENT DTD. 06/10/2009 IN CONTEMPT CASE (C). NO. 974/2009. EXT.R2.A: COPY OF THE LETTER NO. PHC/CHN/DB/W1-3224/2008 DTD. 25/06/2009. EXT.R2.B: COPY OF THE EXECUTIVE ENGINEER HAS SUBMITTED A REPLY TO THIS OFFICE ON 29/06/2009. EXT.R2.C: COPY OF THE OFFICE LETTER NO. PHC/CHN/DB/W1-3224/2008 DTD. 08/07/2009. EXT.R2.D: COPY OF THE LETTER NO.A1-2786/09 DTD. 28/05/2009 OF EXECUTIVE ENGINEER, P.H. DIVISION FURNISHING DETAILS OF TENDERS WITH COPY OF TENDER REGISTER AGREEMENT REGISTER AND APPLICATION RECEIVED. EXT.R2.E: COPY OF THE OFFICE LETTER NO. PHC/CHN/A5-1690/09 DTD. 27/07/2009. EXT.R3.A: COPY OF THE INSPECTION REPORT OF THE R.2. AND EXECUTIVE ENGINEER, P.H. DIVISION, KOCHI. EXT.R3.B: COPY OF THE LETTER ISSUED BY MD, KWA DTD. 09/05/2005. EXT.R3.C: COPY OF THE NOMINATIONS FOR WORKS. EXT.R3.D: COPY OF THE PROCEEDINGS THE EXECUTIVE ENGINEER, PUBLIC HEALTH DIVISION, KOCHI-16 DTD. 30/05/2007. EXT.R3.E: COPY OF THE REPORT FILED BY THE R.2. IN W.P.(C). NO.32421/05. EXT.R4.A: COPY OF THE ORDER DTD. 10/02/2005 IN W.P.(C).4766/05 OF THIS HONOURABLE COURT. EXT.R4.B: COPY OF THE JUDGMENT IN W.P.(C).NO.4766/05 DTD. 06/09/05 OF THIS HONOURABLE COURT. EXT.R4.C: COPY OF THE JUDGMENT IN W.P.(C). NO.32421/05 DTD. 28/11/2005 OF THIS HONOURABLE COURT. EXT.R4.D: COPY OF THE MINUTES ISSUED BY THE TECHNICAL MEMBER OF THE KWA DTD. 29/05/06. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.15878 OF 2009 ( D) -------------------------------------------------- Dated this the 9th day of March, 2010 J U D G M E N T Prayer sought in the writ petition is to quash the proceedings relating to the award of tender Nos.47/08-09 to 54/08-09. Petitioner also seeks a direction to the first respondent to re-notify the tenders. There is a further prayer for a direction to the 3rd respondent to consider and dispose of Ext.P3, a complaint made by the petitioner. 2. Petitioner claims to be Contractor who has executed several works for the Kerala Water Authority. Prayer Nos. 1 and 2 in the writ petition are sought on the basis that the Water Authority had invited the aforesaid tenders specifying the last date for submitting tender as 29.5.2009. According to the petitioner, on 29.5.2009, he approached the first respondent for issuing tender documents and not only the first respondent refused to issue tender documents to him but even instructed his subordinates not to issue tender forms to persons other than those recommended by the first respondent. According to the petitioner, this attitude is adopted by WPC.No.15878 /09 :2 : the first respondent to favour 4th respondent, who is a co-accused along with him in a vigilance case pending against both of them. It is stated that the refusal is therefore mala fide and therefore this court should cancel the tender issued and direct the respondents to invite fresh tenders. 3. First respondent has filed a counter affidavit. In paragraph 4 of the counter affidavit, the specific case in so far as the aforesaid allegation is concerned is that, the petitioner never approached the P.H. Division, Kerala Water Authority, Kochi-16 for purchasing the tender schedules as per rules for the tenders in question. It is also his case that all participants of the tender have requested in writing for tender schedules and that all those persons have been issued tender documents. Again in paragraph 8 it is stated that wide publicity through media was given to the tender in question and tender forms were sold to the qualified contractors on a written request up to 1.p.m. on 29.5.2009 and that all participants were allowed to submit their sealed tenders in the tender box kept at the office up to 4.p.m. on 29.5.2009. Ext.R2(d) series are the request so made by the contractors and this also contains the tender WPC.No.15878 /09 :3 : register maintained in the office of the first respondent. It is stated that since the petitioner did not make any request his name does not figure in the tender register as well. According to the respondents, the 4th respondent had quoted for three items of work and he being the lowest was awarded the contract. 4. On the directions of this court, the 3rd respondent Managing Director of the Water Authority also filed counter affidavit in which also, the version given by the first respondent is reiterated. In Ext.P3 complaint made by the petitioner, it is stated that by Ext.R2(a), the 2nd respondent has directed cancellation of the contract awarded to the 4th respondent. However having regard to the fact that before Ext.R2(a) was issued agreement was signed with the 4th respondent further action for cancellation was not taken. It is stated that subsequently, by Ext.R2(e) the Superintending Engineer has forwarded the matter for the consideration of the Chief Engineer and that a decision of the Chief Engineer is awaited on the allegations made by the petitioner against the first respondent. 5. The main issue that arises in this writ petition is regarding the prayer of the petitioner for cancellation of the tender based on WPC.No.15878 /09 :4 : his allegation that the first respondent declined to issue tender documents to him. As already noticed his case is that on 29.5.2009, he approached the first respondent and tender document was refused. Apart from the averments in the writ petition, which is also reiterated in Ext.P3 complaint filed by the petitioner on 2.6.2009, there is no evidence what so ever forthcoming from the side of the petitioner for substantiating his plea. Such proof is necessary for the reason that, the allegation that the petitioner had approached for the tender document is specifically denied by respondents 1 and 3 in the counter affidavits filed. Therefore, apart from the assertion made by the petitioner and the counter assertion made by respondents 1 and 3, there is no satisfactory proof supporting the case of the petitioner of having approached the first respondent for tender document. In the absence of such a proof this court will not be justified in inferring that the petitioner had approached the first respondent for tender document and that the first respondent had unjustifiably refused to issue tender document to him. For this reason, contract awarded to the 4th respondent cannot be invalidated. WPC.No.15878 /09 :5 : 6. Be that as it may, it would appear that immediately after 29.5.2009 on 2.6.2009 the petitioner made a complaint to the 2nd respondent, a copy of which is Ext.P3. Second respondent appears to have found some substance in the allegation made and it was therefore that he issued Ext.R2(a) order. Subsequently, the 2nd respondent himself has placed the entire matter before the Chief Engineer by Ext.R2(g) . Although Ext.R2(e) is dated 27.7.2009 so far the Chief Engineer has not taken any decision in the matter. 7. Having regard to the gravity of allegations made by the petitioner in Ext.P3 and the pendency of the issue before the Chief Engineer in Ext.P3, it is only appropriate that the Chief Engineer shall enquire into Ext.R2(e) and take a final decision on the allegation made by the petitioner in Ext.P3. This the Superintending Engineer shall do untrammeled by the stand taken by the Managing Director in the counter affidavit filed in this writ petition. A decision on Ext.R2(e) shall be taken as expeditiously as possible and at any rate within 6 weeks from the date of production of a copy of this judgment. Based on such decision, if any further action against the first respondent is found to be warranted, necessarily such action WPC.No.15878 /09 :6 : shall also be taken by the Superintending Engineer. Writ petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/