M. Aboobacker v. Kerala Water Authority & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 31[ST] DAY OF MARCH 2022 / 10TH CHAITHRA, 1944** **WP(C) NO. 5809 OF 2022** ## **PETITIONER:** **M.ABOOBACKER, AGED 48 YEARS, CONTRACTOR, CHAMABALAM HOUSE, CHENGALA, KASARGOD, PIN-671 541. BY ADVS. SRI.ELDHO PAUL SRI.TESSY JOSE** ## **RESPONDENTS:** |**1**|**KERALA WATER AUTHORITY,**| |---|---| ||**REPRESENTED BY ITS MANAGING DIRECTOR,**| ||**JALABHAVAN, VELLAYAMBALAM,**| ||**THIRUVANANTHAPURAM-695 033.**| |**2**|**ADDITIONAL CHIEF SECRETARY,**| ||**SECRETARIAT, GOVERNMENT OF KERALA,**| ||**THIRUVANANTHAPURAM-695 001.**| |**3**|**THE CHIEF ENGINEER,**| ||**P.H.CIRCLE, KERALA WATER AUTHORITY,**| ||**KOZHIKODE-673 647.**| |**4**|**THE SUPERINTENDING ENGINEER,**| ||**KERALA WATER AUTHORITY,**| ||**P.H.CIRCLE, KANNUR-670 012.**| |**5**|**HARIES MOHAMMED,**| ||**AGED 47 YEARS,**| ||**S/O.ABDULLA KUNHI, EDIRTHODE,**| ||**EDNEER P.O., KASARGOD-671 542.**| |**6**|**HUNIFA MEETHAL,**| ||**AGED 41 YEARS,**| ||**S/O.ABDULLA KUNHI, EDIRTHODU,**| ||**EDNEER P.O.,**| ||**KASARGOD-671 542.**| **WP(C)No.5809/2022** **2** **7 RISHAD.P.M., AGED 36 YEARS, S/O.(LATE) T.P.MOHAMMED KUNHI, TEE PEE RESIDENCE, THEKKIL FERRY P.O., KASARGOD-671 541. 8 K.K.ABDUN NASSIR, AGED 54 YEARS, S/O.K.ISMAIL, KONAJEKAR, PATTORI MANGALA GANGOTRI P.O., KONAJE, MANGLORE DISTRICT-574 199, KARNATAKA. R1,3 & 4 BY ADV. SRI.GEORGIE JOHNY SRI.APPU P.S., GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C)No.5809/2022** **3** ## **JUDGMENT** **Dated this the 31[st] day of March, 2022** The petitioner, an A Class Government Contractor, participated in a tender floated by the Kerala Water Authority. Respondents 5 to 8, a Joint Venture, also participated in the tender. The petitioner has approached this Court seeking to command the 1[st] respondent to declare the petitioner as successful bidder in respect of the tender and disqualify the 6[th] respondent. 2. The petitioner states that the petitioner responded to the tender for the work of “Jal Jeevan Mission- Kasaragod District – Mogral Puthur Grama Panchayat – WSS to Chenagala, Muliyar, Mogral Puthur and Mathur Panchayat – reach to (Zone 10) Laying **WP(C)No.5809/2022** **4** Distribution System and providing FHTCs – from OHSR at Badradka.” 3. The technical bids were opened on 14.01.2022. The financial bids were opened on 31.01.2022. In the financial bid, the petitioner was found as L1 and the 6[th] respondent was only L2. However, in view of the system of QCBS followed by the Kerala Water Authority, the 6[th] respondent was found to be of superior merit and eligible for being awarded with the work. The petitioner's bid was of no avail. 4. The petitioner contended that as per Ext.P5 tender conditions, offers made by the contractors are liable to be rejected, if the contractors who are blacklisted or failed to complete the works, or refrained from executing the agreement and completing the work which they had agreed in the tender. The petitioner would submit that the 6[th] respondent, who is a member of the Joint Venture with the **WP(C)No.5809/2022** **5** 5[th] respondent was selected in a tender quoted by the Kerala Water Authority for Ext.P6 work. Though the 6[th] respondent was selected for the work, he expressed his unwillingness and withdrew from the work. Consequently, the EMD made by the 6[th] respondent was forfeited. Since the 6[th] respondent, who is a member of the consortium had gone back from completing the work/refraining from executing the agreement and completing the work in respect of Ext.P6, the Joint Venture consortium should be treated as ineligible in view of the tender conditions in Clause 7.18(4). 5. The learned counsel for the petitioner urged that the respondents ought to have seen that it is duty of the respondents to reject the blacklisted persons/institutions and refrain them from participating in the tenders. The 1[st] respondent has a duty to see that public interest is protected and no favouritism is shown to the blue eyed **WP(C)No.5809/2022** **6** ones. Under the guise of QCBS evaluation, the respondents have ignored the basic terms and conditions of the tender and has resorted to an unfair practice. 6. Respondents 1, 3 and 4 filed a Statement. Respondents 1, 3 and 4 relying on the judgment of the Apex Court in _**State of Punjab and others v. Mehar Din**_ (Civil Appeal No.5861 of 2009), pointed out that even if the petitioner is the lowest bidder, the petitioner does not get a right to insist that the contract should be awarded in his favour. The respondents further submitted that the 6[th] respondent has gone back from Ext.P6 work due to outbreak of Covid-19 pandemic. This is evident from the fact that the price bid of the tender in respect of Ext.P6 work was opened on 19.03.2020 when the Covid-19 pandemic broke out. In the circumstances, the respondents decided that the 6[th] respondent be disqualified from that work alone. Taking into consideration the facts situation, the 6[th] **WP(C)No.5809/2022** **7** respondent was not blacklisted by the Kerala Water Authority. 7. I have heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents. 8. The tender in question has been processed under the QCBS system followed by the respondents. Under the said system, an L1 in financial bid does not get a right to get the contract awarded for the sole reason that financially he is the lowest bidder. The respondents had framed a QCBS Scheme under which weightage marks are given for various aspects. Applying the said QCBS Scheme, the respondents found that the 6[th] respondent/Consortium of the 5[th] respondent was more meritorious than the petitioner, even though in the financial bid, the petitioner was the lowest bidder. The system of QCBS is not under challenge in the writ petition. **WP(C)No.5809/2022** **8** 9. The argument of the petitioner is that since the 6[th] respondent who is a member of the consortium of the 5[th] respondent, had gone back from Kerala Water Authority's Ext.P6 work, the 5[th] respondent suffers from the disqualification provided in Clause 7.18(4) of Ext.P5 tender conditions. 10. Clause 7.18 (4) of Ext.P5 tender conditions reads as follows: “The Contractors who are blacklisted or failed to complete the works, or refrained from executing the agreement and completing the work which they had agreed in the tender.” Therefore, if a contractor has refrained from executing the agreement and completing the work which he had agreed in the tender, such contractor would become ineligible. In this case, it is true that in respect of the work mentioned in Ext.P6, the 6[th] respondent who is a member of the Joint Venture of the 5[th] respondent, expressed his inability to execute the work. **WP(C)No.5809/2022** **9** 11. The respondents considered the grievance of the 6[th] respondent and decided to forfeit the EMD of the 6[th] respondent. The respondents, however, did not deem it necessary to blacklist the 6[th] respondent or to disqualify him from participating in any other tender of the Kerala Water Authority. If that being so, the disqualification as mentioned in Clause 7.18(4) will not apply to the 6[th] respondent. This Court finds that respondents 1, 3 and 4 decided to forfeit the EMD of the 6[th] respondent pursuant to the non execution of work mentioned in Ext.P6. As the tendering authorities, respondents 1, 3 and 4, did not deem it necessary to disqualify the 6[th] respondent in future tenders. In taking such decision, respondents 1, 3 and 4 will be within their powers. In the afore circumstances, this Court finds that the grounds urged by the petitioner in the writ petition are **WP(C)No.5809/2022** **10** untenable. The writ petition fails and it is accordingly dismissed. Sd/- **N. NAGARESH JUDGE** SR **WP(C)No.5809/2022** **11** ## **APPENDIX OF WP(C) 5809/2022** ## **PETITIONER'S EXHIBITS:** **Exhibit P1 A TRUE COPY OF THE RELEVANT PAGES OF COMMUNICATION DATED 08.11.2021 SENT BY THE MANAGING DIRECTOR KERALA WATER AUTHORITY TO ALL THE CHIEF ENGINEERS KERALA WATER AUTHORITY.** **Exhibit P2 A TRUE COPY OF THE COMMUNICATION DATED 16.02.2022 SENT BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT.** **Exhibit P3 TRUE COPY OF THE DETAILS GIVEN BY THE TENDER INVITING AUTHORITY SHOWING THE RATE QUOTED BY THE PETITIONER AND THE 5TH RESPONDENT DATED 31.01.2022.** **Exhibit P4 A TRUE COPY OF THE AGREEMENT OF JOINT VENTURE DATED 08.01.2022 BETWEEN RESPONDENT NO.5,6,7 AND 8.** **Exhibit P5 A TRUE COPY OF THE RELEVANT PAGES OF THE TENDER CONDITIONS OF KERALA WATER AUTHORITY SHOWING CLAUSE 7.4.1, CLAUSE 7.12.1.2.2., CLAUSE 7.18.** **Exhibit P6 A TRUE COPY OF PROCEEDINGS OF THE CHIEF ENGINEER NORTHERN REGION KERALA WATER AUTHORITY DATED 17.06.2020. Exhibit P7 A TRUE COPY OF THE DETAILED TENDER NOTICE ISSUED BY KERALA WATER AUTHORITY**