Jose Thomas M. v Union of India & Others (WP(C).No. 20543 of 2010)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932** **WP(C).No. 20543 of 2010(P)** **---------------------------------------** ## **PETITIONER(S):** **-----------------------** **JOSE THOMAS M., GOVERNMENT CONTRACTOR, JOSE BUNGALOW, PIDAVOOR P.O., PATHANAPURAM, KOLLAM DISTRICT & LEAD PARTNER. OF JBC VALIYATH (JOINT VENTURE).** **BY ADV. SRI.K.BABU THOMAS** ## **RESPONDENT(S):** **--------------------------** **1. UNION OF INDIA, REP. BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEAD QUARTERS, CHENNAI - 600 003.** **2. THE CHIEF ADMINISTRATIVE OFFICER, SOUTHERN RAILWAY, HEAD QUARTERS, CHENNAI - 600 003.** **3. THE CHIEF ENGINEER, SOUTHERN RAILWAY, (CONSTRUCTION), ERNAKULAM JUNCTION & CONVENOR OF TENDER COMMITTEE FOR THE WORKS.** **4. M/S.CHERIAN VARKEY CONSTRUCTION COMPANY, 5TH FLOOR, ALPHA PLAZA, K.P.VALLAN ROAD, KADAVANTHRA, COCHIN - 682 020, OF CVCC - SEM (JOINT VENTURE) REPRESENTED BY THEIR MANAGING DIRECTOR/AUTHORIZED SIGNATORY.** **R1 TO R3 BY ADV. SRI.N.B.SUNIL NATH,SC, RAILWAYS. R4 BY SRI.K.L.VARGHESE, SENIOR ADVOCATE.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 20543/2010-P** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE TENDER NOTICE NO.03/CE/CN/ERS/2009 (OTT). EXT.P2: COPY OF THE LETTER OF THE CHIEF ENGINEER TO THE PETITIONER. EXT.P3: COPY OF THE PRICE BID CONTAINED IN ANNEXURE XIII OFFER SHEET. EXT.P4: COPY OF THE LETTER OF THE PETITIONER TO THE CHIEF ENGINEER. EXT.P5: COPY OF THE LETTER OF THE PETITIONER TO THE CHIEF ENGINEER** **EXT.P6: COPY OF THE SET OF BID DOCUMENTS CONTAINING IN THE TENDER CONDITIONS AND ANNEXURES A, A1, B, C, D AND E.** **EXT.P7: COPY OF THE ANNEXURE I AND PRICE BID IN ANNEXURE XIII OFFER SHEET, ETC.** **EXT.P8: COPY OF THE ILLEGAL LETTER OF ACCEPTANCE OF THE TENDER ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.** ## **RESPONDENT'S EXHIBITS :** **EXT.R3(a): COPY OF THE LETTER NO.W.496/CN/ERS/OTT/03/2009/1 DATED 25/06/2010 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.** **EXT.R4(a): COPY OF THE WORK ORDER DATED 25/06/2010 ISSUED TO THE 4TH RESPONDENT.** ## **//TRUE COPY//** **P.A. TO JUDGE** **rs.** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.20543 of 2010** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of July, 2010** ## **J U D G M E N T** The issue involved in this writ petition relates to award of tender by the Southern Railway. Notification inviting tenders has been published. Responses were received. Petitioner, the 4[th] respondent and another responded to the notification. The 4[th] respondent has been preferred for the tender. Petitioner challenges the very entertainment of the offer made by the 4[th] respondent. According to him, the offer made by the 4[th] respondent is bad for two reasons. First is that, the tender conditions specifically stipulate that the tenderers are required to quote their rates for each individual annexures separately in the respective columns/space provided in the offer sheet itself and that tenderers shall not quote their rates at any other place other than the offer sheet. The requirement of quoting the rate in the offer sheet itself is repeated in several places in ## W.P.(C)No.20543 of 2010 **-2-** Ext.P1 tender conditions. According to the petitioner, contrary to the tender conditions the 4[th] respondent's tender giving his rates only in the annexures and not in the offer sheet has been entertained which is against the tender conditions and therefore the 4[th] respondent's tender ought to have been rejected at the threshold itself. The second is that, the tender documents submitted by the 4[th] respondent was unsigned at many pages, which omission was allowed to be supplied later without the knowledge of the other tenderers which also makes the tender proceedings illegal and vitiated. Petitioner therefore seeks the following reliefs: - “i) issue a writ of mandamus, or any other appropriate writ, or order, or direction to the respondents 1 to 3 requiring to reject the invalid price bid submitted by the 4[th] respondent for the work in Ext.P1 with unsigned, unfilled and blank offer sheets and other blank papers and to award the contract to the petitioner. - ii) issue a writ of prohibition, or any other appropriate writ, or order, or direction to the respondents 1 to 3, interdicting them from in any way considering the invalid price bid of the 4[th] respondent for the works in Ext.P1 with unsigned, blank and unfilled offer sheet, for award of the contract for the work. W.P.(C)No.20543 of 2010 **-3-** - iii) issue a writ of certiorari or any other appropriate writ, or order, or direction to the respondents 1 to 3 calling for records of the case leading up to Ext.P5, including the blank, unfilled and unsigned offer sheet and unsigned, unfilled and blank tender documents submitted by the 4[th] respondent and quash all steps and proceedings of the respondents 1 to 3 for consideration of the invalid price bid submitted by the 4[th] respondent for award of the contract for the work in Ext.P1, to award the contract for the work to the petitioner. - iv) issue a writ of mandamus, or any other appropriate writ, or order, or direction to the respondents 1 to 3, requiring to consider and pass orders on Ext.P4 and P5, within a time stipulated, for rejection of the invalid price bid of the 4[th] respondent with unsigned, unfilled and blank offer sheet and several unfilled, unsigned and blank papers submitted, requiring them to scrupulously comply with the tender conditions for award of the contract for the works in Ext.P1. - v) issue a writ of certiorari or any other appropriate writ, or order, or direction to the respondents 1 to 3, calling for the records of the case including the minutes of the meeting of the tender committee dated 8-6-2010, all documents related to the negotiation held with the 4[th] respondent on 11-6-2010, letter of acceptance dated 25-6-2010, acknowledgment of the counter offer by the 4[th] respondent on 29-6-2010 and proceedings and steps initiated subsequent thereto, for illegal award of the contract for the work in Ext.P1 to the 4[th] respondent , on consideration of the invalid price bid submitted with blank, unfilled and unsigned offer sheet along with several blank, unfilled and unsigned papers included in it and quash Ext.P8 letter of acceptance dated 25-6-2010 and all further proceedings pursuant to the same. - vi) declare that the petitioner is entitled to award of contract for the works in Ext.P1, being the valid W.P.(C)No.20543 of 2010 **-4-** bidder, subject to negotiation of rates in view of deletion of Annexure A1 from the scope and magnitude of the work and that failure of the respondents 1 to 3 to conduct negotiation with the petitioner and their direct approach to the 4[th] respondent, who submitted invalid price bid for the work by leaving blank, unfilled and unsigned offer sheet, along with several blank, unfilled and unsigned papers included in it, which ought to have been rejected summarily, as stipulated in clauses 2.1, 2.2, 7.0 and 7.24 of the tender conditions and could not have been taken cognizance of as stipulated in note (ii) in the offer sheet, are malafide, unauthorised, illegal and out of extraneous considerations and null and void ab initio. - vii) issue a writ of prohibition or any other appropriate writ, or order, or direction to the respondents, interdicting them from entering into any agreement for carrying out of the work in Ext.P1 under the guise of illegal letter of acceptance in Addl. Ext.P8 dated 25-6-2010, on consideration of invalid price bid submitted with blank, unfilled and unsigned offer sheet and other blank, unfilled and unsigned papers.” 2. Both the Railways and the 4[th] respondent have filed counter affidavits. They do not dispute the factual aspects presented by the petitioner to the effect that the 4[th] respondent has not quoted his rates in the offer sheet but has quoted only in the annexures. Second is that some unsigned pages of the tender document have been allowed to be signed by the 4[th] respondent later. The justification ## W.P.(C)No.20543 of 2010 **-5-** for their action is that the tender condition that the rate should be quoted in the offer sheet is not mandatory and is only directory. The second aspect also is admitted but that also is sought to be justified on the ground that allowing to put signatures on omitted pages is permissible under law. The counsel for the 4[th] respondent would draw my attention to two decisions of the Supreme Court in **Poddar Steel Corporation v. Ganesh Engineering Works and Others [(1991) 3 Supreme Court Cases 273]** and **B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. and Others [(2006) 11 SCC 548]** . According to him the Supreme Court has categorized tender conditions into two parts, one essential conditions and the other non-essential conditions. According to him, the Supreme Court has held that as a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. In other words non-essential conditions need ## W.P.(C)No.20543 of 2010 **-6-** not be scrupulously insisted upon. He therefore contends that going by the ratio of the decisions the defects pointed out by the petitioner are insufficient to challenge the award of the tender to him. 3. I have considered the rival contentions in detail. 4. No doubt going by the Supreme Court decisions not every violation of the tender condition and omission is a ground for interference by this court. Only if the omission or irregularity is very material, this court should interfere with the award of the tender. As I have already stated both the factual averments of the petitioner are admitted by the respondents to the effect that the 4[th] respondent has given his rates only in the annexures and not in the offer sheet and that some pages of the tender documents were not signed by the 4[th] respondent which was allowed to be supplied later. Therefore the only question is whether for those reasons, the 4[th] respondent should be found to be unqualified. In Ext.P1 tender conditions in several places it has been repeatedly stated that tenderers shall not quote ## W.P.(C)No.20543 of 2010 **-7-** their rates other than in the offer sheet. This is clear from condition nos.2.1, 2.2, 3.0, 5.0, 7.17.3, 7.20, note (ii) of Annexure XIII of the tender documents, and note 1 of Annexure-D. The repeated assertion of this condition in many parts of the tender conditions would certainly give rise to a presumption that the same is included with a particular purpose in mind of the authority who issued the tender conditions. The repeated assertion of that condition in the tender conditions would go to show that the authority considered the said condition as mandatory to be complied with by all the tenderers. Therefore I do not think that the same can be lightly waived. I am not satisfied that such a condition is one within the purview of the non-essential conditions mentioned in the Supreme Court decisions quoted by the counsel for the 4[th] respondent. More seriously allowing a tenderer to supply signatures in tender documents subsequently would certainly amount to a very serious irregularity which will cut at the root of the matter. Clause 7.0 of the Preamble to the tender conditions W.P.(C)No.20543 of 2010 **-8-** stipulate that each page of the tender papers is to be signed and dated by the tenderer/s or such person/s on his/their behalf who is/are legally authorised to sign for him/them. Clause 7.24 specifically stipulates that “each page to the tender papers is to be signed and dated by the tenderor/s or such person/s on his/their behalf who is/are legally authorised to sign them. Of course the learned counsel for the 4[th] respondent would submit that the signatures which were supplied later was not on pages relating to the rate quoted by the 4[th] respondent. There is no way to know whether that is correct or not, at this point of time in so far as now all pages of the tender documents have already been allowed to be signed. I am of opinion that, no public authority can allow any corrections or suppling of omission in any tender documents. If done the same would vitiate the tender process itself. Therefore I am satisfied that the 4[th] respondent's tender could not have been validly considered because of the irregularities admitted by the respondents. Therefore W.P.(C)No.20543 of 2010 **-9-** the award of tender to the 4[th] respondent is hereby quashed. The respondents 1 to 3 shall reevaluate the other tenders received and finalise the same if necessary by conducting negotiations with the remaining tenderers in accordance with law, after excluding the 4[th] respondent's tender. The writ petition is allowed as above. S. SIRI JAGAN JUDGE shg/