Bethlahem Constructions v. Kerala State Electricity Board Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2022-02-02
Court Decision / Holding: Writ petition devoid of merit; accordingly dismissed.
Final Disposition: Writ petition dismissed.

Parties to the Case

Appellants / Petitioners

BETHLAHEM CONSTRUCTIONS, represented by Dennees Abraham, Managing Partner, T P 47/480F, KadumkeeriYil Commercial Complex, Wynad Road, Chungam, Thamarassery, Kozhikode-673 586.

Respondents

KERALA STATE ELECTRICITY BOARD LTD., represented by Project Manager, Office of the Project Manager, KSEB Ltd., Chembukadav, Engapuzha, Puthuppadi Post, Kozhikode-673 586;
MAMMAD K., S/O. NOT KNOWN, aged 48 years, Kup panath K Anchanmail, Amarambalam Post, Pookkottupadam, Malappuram-679 332.

Legal Representation & Advocates

Counsels for Petitioners

• Adv. V.T. Madhavanunni
• Adv. V.A. Satheesh

Counsels for Respondents

• Adv. Shri. B. Premod, Senior Counsel, KSEB

Case Synopsis & Summary

Bethlahem Constructions challenged KSEB’s tender award for the Construction of the Electrical Section Office Building at Puthuppadi. The tender was issued as Ext.P1 NIT inviting online bids in three covers; manual submission was barred. Ext.P1 Condition 9 required bidders to upload the complete bid documents (NIT and Volumes I–IV) with a digital signature, otherwise the bid would be non-responsive. The petitioner alleged that the 2nd respondent did not attach the necessary documents with the online bid, violating these conditions, and argued that NIT is an essential document evidencing willingness to accept all bid conditions. The 1st respondent contended that 14 bidders participated; Cover I was verified for EMD and tender costs; Cover II revealed deficiencies in several bids, and seven bidders were asked to cure missing documents. After scrutiny and curing, the Price Bid was opened on 08.12.2021 and the 2nd respondent was awarded the work. The petitioner relied on Poddar Steel Corporation v. Ganesh Engineering Works to urge rigid enforcement of essential conditions. The court, however, held that submission of NIT/conditions was not an essential eligibility condition for the 1st respondent in this case and that there was no illegality or mala fide in tender processing; accordingly, the writ petition was dismissed as devoid of merit.

Legal Doctrines & Maxims

Poddar Steel Corporation v. Ganesh Engineering Works (1991) 3 SCC 273 – essential vs ancillary tender conditions; rigid enforcement for essential conditions, flexibility for ancillary conditions.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that Ext.P1 Conditions 7 and 9 require strict online submission and complete bid documents, including NIT. The absence of NIT should render the bid non-responsive, and the Tender Inviting Authority (TIA) should reject the 2nd respondent’s bid, thereby declaring the petitioner as L1 and ensuring transparency in the bidding process. The petitioner asserts there is non-compliance with the essential tender conditions, which warrant rejection of the 2nd respondent’s bid.

Contentions of Respondents

The respondents contend that 14 bidders participated, with 7 found deficient and given opportunities to cure; after verification, the 2nd respondent’s bid satisfied essential criteria and was awarded the contract. The tender process involved curing missing documents for several bidders, implying flexibility in ensuring competition and avoiding automatic rejection. It is argued that there was no illegality or mala fide in tender processing, and the NIT submission was not deemed an essential eligibility condition enforceable in this view.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Poddar Steel Corporation v. Ganesh Engineering Works	(1991) 3 SCC 273	Positive	Cited to support the proposition that tender conditions may be categorized as essential or ancillary; rigid enforcement may be required for essential conditions, while some conditions may be relaxed in appropriate cases.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022/13TH MAGHA, 1943** **WP(C) NO. 873 OF 2022** ## **PETITIONER:** **BETHLAHEM CONSTRUCTIONS, REPRESENTED BY DENNEES ABRAHAM, MANAGING PARTNER, T P 47/480F, KADUMKEERIYIL COMMERCIAL COMPLEX, WYNAD ROAD, CHUNGAM, THAMARASSERY, KOZHIKODE-673 586.** **BY ADVS. V.T.MADHAVANUNNI V.A.SATHEESH** ## **RESPONDENTS:** **1 KERALA STATE ELECTRICITY BOARD LTD., REPRESENTED BY PROJECT MANAGER, OFFICE OF THE PROJECT MANAGER, KERALA STATE ELECTRICITY BOARD LTD., CHEMBUKADAVU III & MARIPUZHA SHEP'S, ENGAPUZHA, PUTHUPPADI POST, KOZHIKODE-673 586. 2 MAMMAD K., S/O.NOT KNOWN, AGED 48 YEARS, KUPPANATH K ANCHAMMAIL, AMARAMBALAM POST, POOKKOTTUPADAM, MALAPPURAM-679 332.** **BY ADV SHRI.B.PREMOD, SC, KSEB** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)No.873/2022 2 ## **JUDGMENT** Dated this the 2[nd] day of February, 2022 The petitioner is a participant in the tender proceedings published as per Ext.P1 notice inviting e-tenders. The Kerala State Electricity Board Limited invited competitive bids from eligible and well experienced Contractors through online for the work “Construction of Electrical Section Office Building at Puthuppadi” as per Ext.P1 N.I.T. Ultimately, the 2[nd] respondent, who was the L1 bidder, was selected for the work. The petitioner challenges the selection of the 2[nd] respondent for award of work. 2. According to the petitioner, Condition No.7 in Ext.P1 is that the bid shall be submitted in 3 covers online on the e-tender website and manual submission is not acceptable. According to the petitioner, respondent No.2 had not attached the necessary documents along with the WP(C)No.873/2022 3 online submission and it is a violation of Condition No.7 in Ext.P1. 3. The petitioner would further submit that Condition No.9 in Ext.P1 provides that the bidder shall upload a complete set of bid documents with NIT and Volume I to IV using his digital signature as a token of acceptance of all bid conditions along with other documents and the absence of complete set of bid documents in the submitted bid shall be treated as non-responsive bid and will be rejected by the Tender Inviting Authority. 4. The 2[nd] respondent did not upload NIT as required under Condition No.9. Therefore, the bid of the 2[nd] respondent should be treated as non-responsive and ought to have been rejected. Respondents 1 and 2 therefore clearly violated Condition Nos. 7 and 9 in Ext.P1. Therefore, the 1[st] respondent is compellable to declare that the petitioner is the lowest bidder in respect of Construction of WP(C)No.873/2022 4 Electrical Section Office Building at Puthuppadi. 5. The 1[st] respondent filed a statement in the writ petition through the Standing Counsel. The 1[st] respondent stated that 14 numbers of bidders participated in the tender. Cover No.1 was opened on 02.12.2021 for verification of the EMD and tender costs remittance and was found okay for all tenders. 6. Thereafter, Cover-II of each tender was opened on the same day. It was found that 7 numbers were found improper as they have not fully submitted the bid documents such as their experience certificate, Condition of Bid and technical conditions, etc. along with e-tender. Those bidders were informed over phone, directly to submit the signed copies of lacking documents immediately for verification within the stipulated time. 7. On scrutiny of the documents received through e- tender and received directly by the 1[st] respondent, all WP(C)No.873/2022 5 bidders except one have been found to have holding the required experience and have submitted all required documents for prequalification of tender valuation. Accordingly, on 08.12.2021, the Price Bid of accepted tenders were opened. It was thereafter that the 2[nd] respondent was awarded the work. 8. I have heard the learned counsel for the petitioner and the learned Standing Counsel for the 1[st] respondent. 9. The specific grievance of the petitioner is that the 2[nd] respondent did not submit the NIT along with his e-tender. If N.I.T. is not submitted along with e-tender, the bid should be treated as non-responsive and ought to be rejected. According to the petitioner, the NIT is an essential document. The document evidencing willingness of the 2[nd] respondent to accept the conditions of bid was not submitted. WP(C)No.873/2022 6 10. The law in this regard is settled. In **Poddar Steel Corporation v. Ganesh Engineering Works** [(1991) 3 SCC 273), the Hon'ble Apex Court held that the requirements in tender notice can be classified into two categories those which lay down the essential conditions of eligibility and other which are merely ancillary or subsidiary within the main object to be achieved by the condition. In the first case, the authority issuing the tender may be required to enforce them rigidly. In the other cases, it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. 11. The contention of the petitioner is that when the conditions of tender were not uploaded, it is a serious lacuna rendering the tender non-responsive. It has to be kept in mind that after opening of tenders, the parties will be executing agreement or receiving work orders, by which the tender conditions will be accepted by the parties. In that WP(C)No.873/2022 7 view of the matter, this Court finds that the submission of NIT/conditions of tender is not an essential condition of eligibility enforced by the 1[st] respondent. 12. It is also to be noted that the petitioner has no case that the 1[st] respondent has permitted curing of defects in respect of the lacking documents to the 2[nd] respondent alone showing a favour. The pleadings would show that the 1[st] respondent granted opportunity to as many as seven bidders to make good deficiency in their documents. In the circumstances, this Court finds that there is no illegality or _mala fide_ in the action of the 1[st] respondent in processing the tenders. In the circumstances, this Court finds that the writ petition is devoid of merit and it is accordingly dismissed. Sd/- **N. NAGARESH JUDGE** ncd/03.02.2022 WP(C)No.873/2022 8 ## **APPENDIX OF WP(C) 873/2022** ## **PETITIONER'S EXHIBITS** **Exhibit P1 TRUE COPY OF THE INVITATION ISSUED BY THE RESPONDENT NO.1 DATED 01.11.2021. Exhibit P2 TRUE COPY OF THE PARTNERSHIP DEED DATED 10.02.2010. Exhibit P3 TRUE COPY OF THE BID INFORMATION OF THE RESPONDENT NO.2 DATED 09.12.2021. Exhibit P4 TRUE COPY OF THE BIDDER'S DETAILS DATED 08.12.2021. Exhibit P5 TRUE COPY OF THE LAWYER NOTICE ON BEHALF OF THE PETITIONER TO THE RESPONDENT NO.1 DATED 10.12.2021. Exhibit P6 TRUE COPY OF THE ACKNOWLEDGMENT OF THE RECEIPT OF THE LAWYER NOTICE DATED 13.12.2021. ANNEXURE R1A THE TRUE COPY OF THE LETTER ISSUED BY THE PROJECT MANAGER, DATED 10.12.2021. ANNEXURE R1B THE TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 10.12.2021. ANNEXURE R1C THE TRUE COPY OF THE WORK ORDER ISSUED TO THE 2ND RESPONDENT ON 28.12.2021.**